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407 U.S. 493
92 S.Ct. 2163
33 L.Ed.2d 83
Dean Rene PETERS, Petitioner,v.C. P. KIFF, Warden.
No. 71—5078.
Argued Feb. 22, 1972.
Decided June 22, 1972.
Syllabus
Petitioner contends in this habeas corpus proceeding that the
systematic exclusion of Negroes from the grand jury that indicted
him and the petit jury that convicted him deprived him of his
rights to due process and equal protection. The Court of Appeals
affirmed the District Court's denial of relied on the District
Court's denial of relief on Negro, suffered no unconstitutional
discrimination. Held: The judgment is reversed. Pp. 495—507.
5 Cir., 441 F.2d 370, reversed and remanded.
Mr. Justice MARSHALL, joined by Mr. Justice DOUGLAS and Mr.
Justice STEWART, concluded that:
1. Petitioner, under the circumstances of this case, has not
abandoned his challenge to the petit jury by failing to include it
in the list of questions presented by the writ of certiorari. Pp.
495—496.
2. A State cannot, consistent with due process, subject a
defendant to indictment by a grand jury or trial by a petit jury
that has been selected in an arbitrary and discriminatory manner
contrary to federal constitutional and statutory requirements, and
regardless of any showing of actual bias, petitioner had standing
to attack the systematic exclusion of Negroes from grand jury and
petit jury service. Pp. 496—505.
Mr. Justice WHITE, joined by Mr. Justice BRENNAN and Mr.
Justice POWELL, would implement the longstanding and strong policy
of 18 U.S.C. § 243 against excluding qualified jurors on account
of race by permitting petitioner to challenge his conviction on
the ground that Negroes were arbitrarily excluded from the grand
jury that indicted him. Hill v. Texas, 316 U.S. 400, 62 S.Ct.
1159, 86 L.Ed. 1559. P. 507.
1
Page 494
Edward T. M. Garland, Atlanta, Ga., for petitioner.
Dorothy T. Beasley, Atlanta, Ga., for respondent.
djQ Mr. Justice MARSHALL announced the judgment of the Court and
an opinion in which Mr. Justice DOUGLAS and Mr. Justice STEWART
join.
Petitioner alleges that Negroes were systematically excluded
from the grand jury that indicted him and the petit jury that
convicted him of burglary in the Superior Court of Muscogee
County, Georgia. In consequence he contends that his conviction is
invalid under the Due Process and Equal Protection Clauses of the
Fourteenth Amendment. Because he is not himself a Negro, the
respondent contends that he has not suffered any unconstitutional
discrimination, and that his conviction must stand. On that
ground, the Court of Appeals affirmed the denial of his petition
for federal habeas corpus. 441 F.2d 370 (CA5 1971).1 We granted
certiorari. 404 U.S. 964, 92 S.Ct. 341, 30 L.Ed.2d 284 (1971). We
reverse.
2
Page 495
I
At the outset, we reject the contention that the only issue
before this Court is petitioner's challenge to the composition of
the grand jury that indicted him. The respondent argues that the
challenge to the petit jury is not before us, because it fails to
appear in the list of questions presented by the petition for
certiorari. We do not regard that omission as controlling,
however, in light of the fact that the two claims have been
treated together at every stage of the proceedings below, they are
treated together in the body of the petition for certiorari, and
they are treated together in the brief filed by petitioner on the
merits in this Court. Petitioner cannot fairly be said to have
abandoned his challenge to the petit jury, and the State has had
ample opportunity to
Moreover, in this case the principles governing the two
claims are identical. First, it appears that the same selection
process was used for both the grand jury andrespond to that
challenge, having done so at length below.2
3
Page 496
the petit jury.3 Consequently, the question whether jurors were in
fact excluded on the basis of race will be answered the same way
for both tribunals. Second, both the grand jury and the petit jury
in this case must be measured solely by the general Fourteenth
Amendment guarantees of due process and equal protection, and not
by the specific constitutional provisions for the grand jury and
the petit jury. For the Fifth Amendment right to a grand jury does
not apply in a state prosecution. Hurtado v. California, 110 U.S.
516, 4 S.Ct. 111, 292, 28 L.Ed. 232 (1884). And the Sixth
Amendment right to a petit jury, made applicable to the States
through the Due Process Clause of the Fourteenth 391 U.S. 145,
194, 88 S.Ct. 1444, 20 391 U.S. 145, 194, 88 S.Ct. 1444, 20
L.Ed.2d 491, 522 (1968), does not apply to state trials that took
place before the decision in Duncan, as petitioner's trial did. De
Stefano v. Woods, 392 U.S. 631, 88 S.Ct. 2093, 20 L.Ed.2d 1308
(1968). Accordingly, we turn now to the commands of equal
protection and of due process.
II
This Court has never before considered a white defendant's
challenge to the exclusion of Negroes from jury service.4 The
essence of petitioner's claim is this:
4
Page 497
that the tribunals that indicted and convicted him were
constituted in a manner that is prohibited by the Constitution and
by statute; that the impact of that error on any individual trial
is unascertainable; and that consequently any indictment or
conviction returned by such tribunals must be set aside.5
There can be no doubt that, if petitioner's allegations are
true, both tribunals involved in this case were illegally
constituted. He alleges that Negroes were systematically excluded
from both the grand jury and the petit jury. This Court has
repeatedly held that the Constitution prohibits such selection
practices, with respect to the grand jury,6 the petit jury,7 or
both.8 Moreover, Con-
5
Page 498
gress has made it a crime for a public official to exclude anyone
from a grand or petit jury on the basis of race, 18 U.S.C. § 243,
and this Court upheld the statute, approving the congressional
determination that such exclusion would violate the express
prohibitions of the Equal Protection Clause. Ex parte Virginia,
100 U.S. 339, 25 L.Ed. 676 (1880). The crime, and the
unconstitutional state action, occur whether the defendant is
white or Negro, whether he is acquitted or convicted. In short,
when a grand or petit jury has been selected on an impermissible
basis, the existence of a constitutional violation does not depend
on the circumstances of the person making the claim.
It is a separate question, however, whether petitioner is
entitled to the relief he seeks on the basis of that
constitutional violation. Respondent argues that even if the grand
and petit juries were unconstitutionally selected, petitioner is
not entitled to relief on that account because he has not shown
how he was harmed by the error. It is argued that a Negro
defendant's right to challenge the exclusion of Negroes from jury
service rests on a presumption that a jury so constituted will be
prejudiced against him; that no such presumption is available to a
white defendant; and consequently that a white defendant must
introduce affirmative evidence of actual harm in order to
establish a basis for relief.
That argument takes too narrow a view of the kinds of harm
that flow from discrimination in jury selection. The exclusion of
Negroes from jury service, like the arbitrary exclusion of any
other well-defined class of citizens, offends a number of related
constitutional values.
In Strauder v. West Virginia, 100 U.S. 303, 308—309 (1880),
this Court considered the question from the point
6
Page 499
of view of the Negro defendant's right of equal protection of the
laws. Strauder was part of a landmark trilogy of cases, in which
this Court first dealt with the problem of racial discrimination
in jury selection. In Strauder itself, a Negro defendant sought to
remove his criminal trial to the federal courts, pursuant to
statute, on the ground that Negroes were excluded by law from the
grand and petit juries in the state courts; the Court upheld his
claim. In Virginia v. Rives, 100 U.S. 313, 25 L.Ed. 667 (1880), a
Negro defendant sought removal on the ground that there were in
fact no Negroes in the venire from which his jury was drawn; the
Court held that, without more, his claim did not come within the
precise terms of the removal statute. Finally, in Ex parte
Virginia, 100 U.S. 339 (1880), a state judge challenged the
statute under which he was convicted for the federal crime of
excluding Negroes from state grand and petit juries; the Court
upheld the statute as a valid means of enforcing the Equal
Protection Clause. Because each of these three cases was amenable
to decision on the narrow basis of an analysis of the Negro
defendant's right to equal protection, the Court brought all three
under that single analytical umbrella.
But even in 1880 the Court recognized that other
constitutional values were implicated. In Strauder, the Court
observed that the exclusion of Negroes from jury service injures
not only defendants, but also other members of the excluded class:
it denies the class of potential jurors the 'privilege of
participating equally . . . in the administration of justice,' 100
U.S., at 308, and it stigmatizes the whole class, even those who
do not wish to participate, by declaring them unfit for jury
service and thereby putting 'a brand upon them, affixed by law, an
assertion of their inferiority.' Ibid. It is now clear that
injunctive relief is available to vindicate these interests of the
excluded jurors and the stigmatized class.
7
Page 500
Carter v. Jury Commission of Greene County, 396 U.S. 320, 90 S.Ct.
518, 24 L.Ed.2d 549 (1970); Turner v. Fouche, 396 U.S. 346, 90
S.Ct. 532, 24 L.Ed.2d 567 (1970); White v. Crook, 251 F.Supp. 401
(DCMD Ala.1966).
Moreover, the Court has also recognized that the exclusion of
a discernible class from jury service injures not only those
defendants who belong to the excluded class, but other defendants
as well, in that it destroys the possibility that the jury will
reflect a representative cross section of the community. In
Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446
(1970), we sought to delineate some of the essential features of
the jury that is guaranteed, in certain circumstances, by the
Sixth Amendment. We concluded that it comprehends, inter alia, 'a
fair possibility for obtaining a representative cross-section of
the community.' 399 U.S., at 100, 90 S.Ct., at 1906.9 Thus if the
Sixth Amendment were applicable here, and petitioner were
challenging a post-Duncan petit jury, he would clearly have
standing to challenge the systematic exclusion of any identifiable
group from jury service.10
8
Page 501
The precise question in this case, then, is whether a State
may subject a defendant to indictment and trial by grand and petit
juries that are plainly illegal in their composition, and leave
the defendant without recourse on the ground that he had in any
event no right to a grand or petit jury at all. We conclude, for
reasons that follow, that to do so denies the defendant due
process of law.
III
'A fair trial in a fair tribunal is a basic requirement of
due process.' In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623,
625, 99 L.Ed. 942 (1955). The due process right to a competent and
impartial tribunal is quite separate from the right to any
particular form of proceeding. Due process requires a competent
and impartial tribunal in administrative hearings, Goldberg v.
Kelly, 397 U.S. 254, 271, 90 S.Ct. 1011, 1022, 25 L.Ed.2d 287
(1970), and in trials to a judge, Tumey v. Ohio, 273 U.S. 510, 47
S.Ct. 437, 71 L.Ed. 749 (1927). Similarly, if a State chooses,
quite apart from constitutional compulsion, to use a grand or
petit jury, due process imposes limitations on the composition of
that jury.
Long before this Court held that the Constitution imposes the
requirement of jury trial on the States, it was well established
that the Due Process Clause protects a defendant from jurors who
are actually incapable of rendering an impartial verdict, based on
the evidence and the law. Thus a defendant cannot, consistent with
due process, be subjected to trial by an insane juror, Jordan v.
Massachusetts, 225 U.S. 167, 176, 32 S.Ct. 651, 652, 56 L.Ed. 1038
(1912), by jurors who are intimidated by the threat of mob
violence, Moore v. Dempsey, 261 U.S. 86, 43 S.Ct. 265, 67 L.Ed.
543 (1923), or by jurors who
9
Page 502
have formed a fixed opinion about the case from newspaper
publicity, Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d
751 (1961).
Moreover, even if there is no showing of actual bias in the
tribunal, this Court has held that due process is denied by
circumstances that create the likelihood or the appearance of
bias. This rule, too, was well established long before the right
to jury trial was made applicable in state trials, and does not
depend on it. Thus it has been invoked in trials to a judge, e.g.,
Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (1927); In
re Murchison, 349 U.S. 133, 75 S.Ct. 623, 99 L.Ed. 942 (1955);
Mayberry v. Pennsylvania, 400 U.S. 455, 91 S.Ct. 499, 27 L.Ed.2d
532 (1971); and in pre-Duncan state jury trials, e.g., Turner v.
Louisiana, 379 U.S. 466, 85 S.Ct. 546, 13 L.Ed.2d 424 (1965);
Estes v. Texas, 381 U.S. 532, 550, 85 S.Ct. 1628, 1636, 14 L.Ed.2d
543 (1965). In Tumey v. Ohio, supra, this Court held that a judge
could not, consistent with due process, try a case when he had a
financial stake in the outcome, notwithstanding the possibility
that he might resist the temptation to be influenced by that
interest. And in Turner v. Louisiana, supra, the Court held that a
jury could not, consistent with due process, try a case after it
had been placed in the protective custody of the principal
prosecution witnesses, notwithstanding the possibility that the
jurors might not be influenced by the association. As this Court
said in In re Murchison, supra, '(f)airness of course requires an
absence of actual bias in the trial of cases. But our system of
law has always endeavored to prevent even the probability of
unfairness.' 349 U.S., at 136, 75 S.Ct. at 625.
These principles compel the conclusion that a State cannot,
consistent with due process, subject a defendant to indictment or
trial by a jury that has been selected in an arbitrary and
discriminatory manner, in violation of the Constitution and laws
of the United States. Illegal and unconstitutional jury selection
procedures cast doubt on the integrity of the whole judicial
process.
10
Page 503
They create the appearance of bias in the decision of individual
cases, and they increase the risk of actual bias as well.
If it were possible to say with confidence that the risk of
bias resulting from the arbitrary action involved here is confined
to cases involving Negro defendants,11 then perhaps the right to
challenge the tribunal on that ground could be similarly confined.
The case of the white defendant might then be thought to present a
species of harmless error.
But the exclusion from jury service of a substantial and
identifiable class of citizens has a potential impact that is too
subtle and too pervasive to admit of confinement to particular
issues or particular cases. First, if we assume that the exclusion
of Negroes affects the fairness of the jury only with respect to
issues presenting a clear opportunity for the operation of race
prejudice, that assumption does not provide a workable guide for
decision in particular cases. For the opportunity to appeal to
race prejudice is latent in a vast range of issues, cutting across
the entire fabric of our society.
Moreover, we are unwilling to make the assumption that the
exclusion of Negroes has relevance only for issues involving race.
When any large and identifiable segment of the community is
excluded from jury service, the effect is to remove from the jury
room qualities of human nature and varieties of human experience,
the range of which is unknown and perhaps unknowable. It is not
necessary to assume that the excluded group will consistently vote
as a class in order to conclude, as we do, that its exclusion
deprives the jury of a
11
Page 504
perspective on human events that may have unsuspected importance
in any case that may be presented.12
It is in the nature of the practices here challenged that
proof of actual harm, or lack of harm, is virtually impossible to
adduce. For there is no way to determine what jury would have been
selected under a constitutionally valid selection system, or how
that jury would have decided the case. Consequently, it is
necessary to decide on principle which side shall suffer the
consequences of unavoidable uncertainty. See Speiser v. Randall,
357 U.S. 513, 525—526, 78 S.Ct. 1332, 1341—1342, 2 L.Ed.2d 1460
(1958); In re Winship, 397 U.S. 358, 370—373, 90 S.Ct. 1068, 1075
1077, 25 L.Ed.2d 368 (1970) (Harlan, J., concurring). In light of
the great potential for harm latent in an unconstitutional
jury-selection system,13 and the strong interest of the criminal
defendant in avoiding that harm, any doubt should be resolved in
favor of giving the opportunity for challenging the jury to too
many defendants, rather than giving it to too few.
Accordingly, we hold that, whatever his race, a criminal
defendant has standing to challenge the system used to select his
grand or petit jury, on the ground that it arbitrarily excludes
from service the members of any race, and thereby denies him due
process of law. This certainly is true in this case, where the
claim is that Negroes were systematically excluded from jury
service.
12
Page 505
For Congress has made such exclusion a crime. 18 U.S.C. § 243.
IV
Having resolved the question of standing, we turn briefly to
the further disposition of this case. There is, of course, no
question here of justifying the system under attack. For whatever
may be the law with regard to other exclusions from jury service,
it is clear beyond all doubt that the exclusion of Negroes cannot
pass constitutional muster. Accordingly, if petitioner's
allegations are correct, and Negroes were systematically excluded
from his grand and petit juries, then he was indicted and
convicted by tribunals that fail to satisfy the elementary
requirements of due process, and neither the indictment nor the
conviction can stand. Since he was precluded from proving the
facts alleged in support of his claim, the judgment must be
reversed and the case remanded for further proceedings consistent
with this opinion.
Reversed and remanded.
djQ Mr. Justice WHITE, with whom Mr. Justice BRENNAN and Mr.
Justice POWELL join, concurring in the judgment.
Since March 1, 1875, the criminal laws of the United States
have contained a proscription to the following effect:
'No citizen possessing all other qualifications which are or
may be prescribed by law shall be disqualified for service as
grand or petit juror in any court of the United States, or of
any State on account of race, color, or previous condition of
servitude . . .'
By this unambiguous provision, now contained in 18 U.S.C. §
243, Congress put cases involving exclusions
13
Page 506
from jury service on grounds of race in a class by themselves.
'For us the majestic generalities of the Fourteenth Amendment are
thus reduced to a concrete statutory command when cases involve
race or color which is wanting in every other case of alleged
discrimination.' Fay v. New York, 332 U.S. 261, 282—283, 67 S.Ct.
1613, 1624, 91 L.Ed. 2043 (1947).
The consequence is that where jury commissioners disqualify
citizens on the grounds of race, they fail 'to perform their
constitutional duty—recognized by § 4 of the Civil Rights Act of
March 1, 1875 . . . and fully established since the decision in
1881 of Neal v. Delaware . . . not to pursue a course of conduct
in the administration of their office which would operate to
discriminate in the selection of jurors on racial grounds.' Hill
v. Texas, 316 U.S. 400, 404, 62 S.Ct. 1159, 1161, 86 L.Ed. 1559
(1942). Thus, 'no State is at liberty to impose upon one charged
with crime a discrimination in its trial procedure which the
Constitution, and an Act of Congress passed pursuant to the
Constitution, alike forbid. . . . (I)t is our duty as well as the
State's to see to it that throughout the procedure for bringing
him to justice he shall enjoy the protection which the
Constitution guarantees. Where, as in this case, timely objection
has laid bare a discrimination in the selection of grand jurors,
the conviction cannot stand because the Constitution prohibits the
procedure by which it was obtained.' Id., at 406, 62 S.Ct. at
1162.
It is true that the defendant in Hill was a Negro and
petitioner here is a white man. It is also true that there is no
case in this Court setting aside a conviction for arbitrary
exclusions of a class of citizens from jury service where the
defendant was not a member of the excluded class. I also recognize
that, as in this case, the courts of appeals, reflecting the
generally accepted constitutional view, have rejected claims such
as petitioner presents here. For me, however, the rationale and
operative language of Hill v. Texas suggest a broader
14
Page 507
sweep; and I would implement the strong statutory policy of § 243,
which reflects the central concern of the Fourteenth Amendment
with racial discrimination, by permitting petitioner to challenge
his conviction on the grounds that Negroes were arbitrarily
excluded from the grand jury that indicted him. This is the better
view, and it is time that we now recognized it in this case and as
the standard governing criminal proceedings instituted hereafter.
Hence, I join the judgment of the Court.
djQ Mr. Chief Justice BURGER, with whom Mr. Justice BLACKMUN and
Mr. Justice REHNQUIST join, dissenting.
There is no longer any question, of course, that persons may
not be excluded from juries on account of race. Such exclusions
are plainly unlawful and deserving of condemnation. That, however,
is not the issue before us. The real issue is whether such
illegality necessarily voids a criminal conviction, absent any
demonstration of prejudice, or basis for presuming prejudice, to
the accused.
Petitioner was indicted for the offense of burglary on June
6, 1966, and thereafter convicted. The conviction was reversed on
direct appeal, and the case was remanded for a new trial.
Petitioner was retried on December 8, 1966, was found guilty, and
was sentenced to 10 years' imprisonment. Petitioner is not a Negro
and the record in no way suggests that race was relevant in the
proceedings against him. At trial, petitioner made no challenge to
the method of selection of the grand and petit juries, and he made
no challenge to the array of the petit jury. In his appeal to the
Court of Appeals of Georgia, petitioner still made no claim
addressed to the method of selection of the grand and petit
juries. His conviction was affirmed.
15
Page 508
Seven months after his trial, petitioner filed a writ of
habeas corpus in the United States District Court, asserting for
the first time that Negroes were systematically excluded from the
grand and petit juries. If petitioner's allegations are true, then
the officials responsible for the jury selection acted in
violation of the Constitution, denying potential Negro jurors the
equal opportunity to participate in the administration of justice.
Strauder v. West Virginia, 100 U.S. 303, 308, 25 L.Ed. 664 (1880).
Moreover, if petitioner's allegations are true, the responsible
officials are subject to criminal penalties. 18 U.S.C. § 243.
However, in order for petitioner's conviction to be set aside, it
is not enough to show merely that there has been some
unconstitutional or unlawful action at the trial level. It must be
established that petitioner's conviction has resulted from the
denial of federally secured rights properly asserted by him. See
Alderman v. United States, 394 U.S. 165, 171—174, 89 S.Ct. 961,
965—967, 22 L.Ed.2d 176 (1969); cf. Jones v. United States, 362
U.S. 257, 261, 80 S.Ct. 725, 731, 4 L.Ed.2d 697 (1960).
The opinions in support of the majority position do not hold
that if petitioner's allegations are true, he has been denied the
equal protection of the laws. The Court has held in a long line of
cases that a Negro defendant is denied equal protection by the
systematic exclusion of Negroes from jury service. See, e.g.,
Whitus v. Georgia, 385 U.S. 545, 87 S.Ct. 643, 17 L.Ed.2d 599
(1967); Avery v. Georgia, 345 U.S. 559, 73 S.Ct. 891, 97 L.Ed.
1244 (1953); Norris v. Alabama, 294 U.S. 587, 55 S.Ct. 579, 79
L.Ed. 1074 (1935); Carter v. Texas, 177 U.S. 442, 20 S.Ct. 687, 44
L.Ed. 839 (1900); Strauder v. West Virginia, 100 U.S. 303, 25
L.Ed. 664 (1880). These decisions have been predicated from the
beginning on the judicially noticeable fact 'that prejudices often
exist against particular classes in the community, which sway the
judgment of jurors, and which, therefore, operate in some cases to
deny to persons of those classes the full enjoyment of that
protection which others enjoy.'
16
Page 509
Strauder v. West Virginia, supra, at 309. See also Gibson v.
Mississippi, 162 U.S. 565, 581, 16 S.Ct. 904, 906, 40 L.Ed. 1075
(1896); Bush v. Kentucky, 107 U.S. 110, 117, 1 S.Ct. 625, 631, 27
L.Ed. 354 (1883); Neal v. Delaware, 103 U.S. 370, 386, 26 L.Ed.
567 (1881); Ex parte Virginia, 100 U.S. 339, 345, 25 L.Ed. 676
(1880). This presumption of prejudice derives from the fact that
the defendant is a member of the excluded class, but the Court has
never intimated that a defendant is the victim of unconstitutional
discrimination if he does not claim that members of his own race
have been excluded. See Alexander v. Louisiana, 405 U.S. 625, 633,
92 S.Ct. 1221, 1226, 31 L.Ed.2d 536 (1972).
While the opinion of Mr. Justice MARSHALL refrains from
relying on the Equal Protection clause, it concludes that if
petitioner's allegations are true, he has been denied due process
of law. The opinion seeks to equate petitioner's position with
that of a defendant who has been tried before a biased tribunal or
one lacking the indicia of impartiality. It has been held that an
accused is denied due process if the trier of fact is mentally
incompetent, Jordan v. Massachusetts, 225 U.S. 167, 32 S.Ct. 651,
56 L.Ed. 1038 (1912), has a personal interest in the outcome of
the proceedings, Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71
L.Ed. 749 (1927), has been subjected to pressures making a
dispassionate decision unlikely, Irvin v. Dowd, 366 U.S. 717, 81
S.Ct. 1639, 6 L.Ed.2d 751 (1961), Moore v. Dempsey, 261 U.S. 86,
43 S.Ct. 265, 67 L.Ed. 543 (1923), cf. Turner v. Louisiana, 379
U.S. 466, 85 S.Ct. 546, 13 L.Ed.2d 424 (1965), or has had direct
personal involvement with the events underlying a criminal
contempt charge. Mayberry v. Pennsylvania, 400 U.S. 455, 91 S.Ct.
499, 27 L.Ed.2d 532 (1971); In re Murchison, 349 U.S. 133, 75
S.Ct. 623, 99 L.Ed. 942 (1955). This case plainly falls in none of
those categories.
Although the prior cases have not required a showing that the
trier of fact was actually affected by prejudice in its
deliberations, in every case the circumstances were such as to
create a serious 'probability of unfairness.' In re Murchison, 349
U.S., at 136, 75 S.Ct. at 625. Recognizing this limitation, the
Court in Witherspoon v. Illinois, 391
17
Page 510
U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), found no denial of
due process where the determination of guilt had been entrusted to
a jury from which persons opposed to the death penalty had been
excluded. The Court rejected as 'tentative and fragmentary'
scientific evidence tending to show 'that jurors not opposed to
the death penalty tend to favor the prosecution in the
determination of guilt.' 391 U.S., at 517, 88 S.Ct. at 1774, 20
L.Ed.2d 776. The Court went on to state,
'We simply cannot conclude, either on the basis of the record
now before us or as a matter of judicial notice, that the
exclusion jurors opposed to capital punishment results in an
unrepresentative jury on the issue of guilt or substantially
increases the risk of conviction. In light of the presently
available information, we are not prepared to announce a per
se constitutional rule requiring the reversal of every
conviction returned by a jury selected as this one was.' 391
U.S., at 517—518, 88 S.Ct. at 1774, 20 L.Ed.2d 776.
See also Fay v. New York, 332 U.S. 261, 280—281, 67 S.Ct.
1613, 1623—1624, 91 L.Ed. 2043 (1947). Here three members of the
Court would establish such a per se rule without the benefit of
tentative, fragmentary, of any other kind of empirical data
indicating that all-white juries tend to be prejudiced against
white defendants in nonracial criminal poceedings.
The opinion of Mr. Justice MARSHALL seeks to magnify this
wholly speculative likelihood of prejudice by noting that the
effect of excluding 'any large and identifiable segment of the
community . . . is to remove from the jury room qualities of human
nature and varieties of human experience, the range of which is
unknown and perhaps unknowable,' and 'that its exclusion deprives
the jury of a perspective on human events that may have
unsuspected importance in any case that may be presented.' Ante,
at 503—504. I completely agree that juries should not be deprived
of the insights of the various
18
Page 511
segments of the community, for the 'common-sense judgment of a
jury,' referred to in Duncan v. Louisiana, 391 U.S. 145, 156, 88
S.Ct. 1444, 1451, 20 L.Ed.2d 491 (1968), is surely enriched when
all voices can be heard. But we are not here concerned with the
essential attributes of trial by jury. In fact, since petitioner
was tried two years before this Court's decision in Duncan, there
was no constitutional requirement that he be tried before a jury
at all. DeStefano v. Woods, 392 U.S. 631, 88 S.Ct. 2093, 20
L.Ed.2d 1308 (1968). Had the State of Georgia proceeded to try
petitioner before a judge, I assume the Court would not find it a
denial ofdue process if the judge were not the embodiment of all
the 'qualities of human nature and varieties of human experience.'
I do not mean to minimize the importance of these values, but they
really have very little to do with the narrow question whether
petitioner was convicted by a prejudiced tribunal.
Nor do I believe that the illegality of the alleged exclusion
can be viewed as tipping the scales toward finding a denial of due
process. The question of a jury's bias or prejudice is totally
factual in nature. If the possibility of prejudice is too remote
or speculative to support a finding of unconstitutionality, a
different result cannot be justified by relying on the element of
illegality. The constitutional and statutory prohibition against
such conduct is extraneous to the due process question, for it in
no way renders the possibility of prejudice less remote or less
speculative. If this were a borderline case on the facts, it might
conceivably be appropriate to resolve the doubt against the State
due to its complicity in the alleged unlawful discrimination. But,
judging from all existing authority, this is not a close case at
all.
The opinion of Mr. Justice WHITE, concurring in the judgment,
as I read it, rests on the statutory prohibition against racially
exclusive juries found in 18 U.S.C. § 243. The opinion draws on
dictum in Hill v. Texas, 316 U.S.
19
Page 512
400, 404, 62 S.Ct. 1159, 1161, 86 L.Ed. 1559 (1942), a case
involving a Negro defendant, as expressing the 'better view' that
§ 243 invalidates the conviction of any man tried before a jury
from which persons have been excluded on account of race.*
A closer look at the statute is warranted. From all
indications, § 243 was intended to serve two purposes: first, to
make explicit what was implicit in the Fourteenth Amendment, that
persons cannot be denied the right to serve on juries because of
their race; and second, to prevent racial exclusions from juries
by providing criminal penalties for persons violating the
statutory command. See Ex parte Virginia, 100 U.S. 339, 25 L.Ed.
676 (1880); Neal v. Delaware, 103 U.S. 370, 386, 26 L.Ed. 567
(1881). Insofar as the statute is declarative of rights secured by
the Equal Protection Clause, it provides no authority for reaching
a result that the Constitution itself does not require. No case
has ever held that § 243 confers extraconstitutional rights on
criminal defendants, and there is no support for the view that
Congress intended to confer such rights when it eancted this
legislation in 1875.
The opinion concurring in the judgment suggests that an
expansive reading of § 243 is appropriate to 'implement the strong
statutory policy' against the exclusion
20
Page 513
of persons from jury service on the basis of race. Under this
interpretation, the statute is viewed not so much as safeguarding
the rights of the white defendant, but as providing a prophylaxis
against discriminatory action in all cases, regardless of any harm
that might befall the accused. While Congress surely had the power
to implement the policies of the Fourteenth Amendment in this
manner, it chose instead to deter such violations of the
Fourteenth Amendment by imposing criminal sanctions. It has been
apparent, at least until recently, that such sanctions have not
satisfactorily served to deter. But it is not for this Court to
correct the inadequacies of a statutory enactment. Moreover, it
does nothing to promote adherence to the policies of the
Fourteenth Amendment to allow a criminal defendant who has made no
objection at trial and who has no credible claim of personal
prejudice to mount a post-conviction attack alleging that
discriminatory jury selection has taken place in the past.
1
The history of this litigation is long and complicated.
Petitioner was indicted on June 6, 1966. His first trial resulted
in a conviction that was reversed on Fourth Amendment grounds, 114
Ga.App. 595, 152 S.E.2d 647 (1966). A second trial, held on
December 8, 1966, resulted in the conviction challenged here,
which was affirmed, Peters v. State, 115 Ga.App. 743, 156 S.E.2d
195 (1967). Petitioner for the first time raised the claim of
discriminatory jury selection in a petition for federal habeas
corpus, which was summarily denied on July 5, 1967. The Court of
Appeals affirmed on the ground that petitioner had failed to
exhaust then-available state remedies with respect to his
otherwise highly colorable claim, Peters v. Rutledge, 397 F.2d
731, 735—741 (CA5 1968). Petitioner then filed a second petition
for federal habeas corpus on the same ground, alleging that
intervening state court decisions clearly foreclosed his claim in
the state courts. That petition was denied on the grounds (1) that
it was repetitious, (2) that petitioner had failed to exhaust, and
(3) that his claims were lacking in merit. App. 15. The Court of
Appeals again affirmed, rejecting the first two grounds and
resting entirely on the third, i.e., rejecting petitioner's
substantive claims. 441 F.2d 370 (1971). The exhaustion point thus
having been resolved in petitioner's favor below, the State quite
properly does not press it here.
2
See Brief for Appellee in Court of Appeals 28—43.
3
The jury lists were made up from the tax digests, which
were by law segregated according to race; moreover, the jury lists
contained a proportion of Negroes much smaller than the proportion
in the population or in the tax digests. The jury-selection system
of Muscogee County, Georgia, was explored in detail and struck
down as unconstitutional in Vanleeward v. Rutledge, 369 F.2d 584
(CA5 1966), contemporaneously with petitioner's trial. On
petitioner's first federal appeal, the Court of Appeals suggested,
though it did not hold, that the Vanleeward findings and
conclusions on this point should be regarded as conclusive with
respect to Peters, and thereby the expense and delay of a full
evidentiary hearing might be avoided, 397 F.2d, at 740.4 A number of state courts and lower federal courts have
imposed a 'same class' rule on challenges to discriminatory jury
selection, holding that the exclusion of a class from jury service
is subject to challenge only by a member of the excluded class.
Only a few courts have rejected the rule; e.g., Allen v. State,
110 Ga.App. 56, 137 S.E.2d 711 (1964) (not followed by other
panels of same court); State v. Madison 240 Md. 265, 213 A.2d 880
(1965). The cases are collected, and criticized, in Note, The
Defendant's Challenge to a Racial Criterion in Jury Selection, 74
Yale L.J. 919 (1965). See also Note, The Congress, The Court and
Jury Selection, 52 Va.L.Rev. 1069 (1966). This Court avoided
passing on the 'same-class' rule in Fay v. New York, 332 U.S. 261,
289—290, 67 S.Ct. 1613, 1628—1629, 91 L.Ed. 2043 (1947), and has
never since then approved or rejected it.
5
He also claims his own rights under the Equal Protection
Clause have been violated, a claim we need not consider in light
of our disposition.6 Alexander v. Louisiana, 405 U.S. 625, 92 S.Ct. 1221, 31
L.Ed.2d 536 (1972); Arnold v. North Carolina, 376 U.S. 773, 84
S.Ct. 153, 11 L.Ed.2d 110 (1964); Eubanks v. Louisiana, 356 U.S.
584, 78 S.Ct. 970, 2 L.Ed.2d 991 (1958); Reece v. Georgia, 350
U.S. 85, 76 S.Ct. 167, 100 L.Ed. 77 (1955); Cassell v. Texas, 339
U.S. 282, 70 S.Ct. 629, 94 L.Ed. 839 (1950); Hill v. Texas, 316
U.S. 400, 62 S.Ct. 1159, 86 L.Ed. 1559 (1942); Smith v. Texas, 311
U.S. 128, 61 S.Ct. 164, 85 L.Ed. 84 (1940); Pierre v. Louisiana,
306 U.S. 354, 59 S.Ct. 536, 83 L.Ed. 757 (1939); Rogers v.
Alabama, 192 U.S. 226, 24 S.Ct. 257, 48 L.Ed. 417 (1904); Carter
v. Texas, 177 U.S. 442, 20 S.Ct. 687, 44 L.Ed. 839 (1900); Bush v.
Kentucky, 107 U.S. 110, 1 S.Ct. 625, 27 L.Ed. 354 (1883).7 Avery v. Georgia, 345 U.S. 559, 73 S.Ct. 891, 97 L.Ed.
1244 (1953); Hollins v. Oklahoma, 295 U.S. 394, 55 S.Ct. 784, 79
L.Ed. 1500 (1935).8 Sims v. Georgia, 389 U.S. 404, 88 S.Ct. 523, 19 L.Ed.2d
634 (1967); Jones v. Georgia, 389 U.S. 24, 88 S.Ct. 4, 19 L.Ed.2d
25 (1967); Whitus v. Georgia, 385 U.S. 545, 87 S.Ct. 643, 17
L.Ed.2d 599 (1967); Coleman v. Alabama, 377 U.S. 129, 84 S.Ct.
1152, 12 L.Ed.2d 190 (1964); Patton v. Mississippi, 332 U.S. 463,
68 S.Ct. 184, 92 L.Ed. 76 (1947); Hale v. Kentucky, 303 U.S. 613,
58 S.Ct. 753, 82 L.Ed. 1050 (1938); Norris v. Alabama, 294 U.S.
587, 55 S.Ct. 579, 79 L.Ed. 1074 (1935); Martin v. Texas, 200 U.S.
316, 26 S.Ct. 338, 50 L.Ed. 497 (1906); Neal v. Delaware, 103 U.S.
370, 26 L.Ed. 567 (1881); Strauder v. West Virginia, 100 U.S. 303,
25 L.Ed. 664 (1880).
9
The principle of the representative jury was first
articulated by this Court as a requirement of equal protection, in
cases vindicating the right of a Negro defendant to challenge the
systematic exclusion of Negroes from his grand and petit juries.
E.g., Smith v. Texas, 311 U.S. 128, 130, 61 S.Ct. 164, 165, 85
L.Ed. 84 (1940). Subsequently, in the exercise of its supervisory
power over federal courts, this Court extended the principle, to
permit any defendant to challenge the arbitrary exclusion from
jury service of his own or any other class. E.g., Glasser v.
United States, 315 U.S. 60, 83—87, 62 S.Ct. 457, 470—473, 86 L.Ed.
680 (1942); Thiel v. Southern Pacific Co., 328 U.S. 217, 220, 66
S.Ct. 984, 985, 90 L.Ed. 1181 (1946); Ballard v. United States,
329 U.S. 187, 67 S.Ct. 261, 91 L.Ed. 181 (1946). Finally it
emerged as an aspect of the constitutional right to jury trial in
Williams v. Florida, 399 U.S. 78, 100, 90 S.Ct. 1893, 1905, 26
L.Ed.2d 446 (1970).10 It is of course a separate question whether his challenge
would prevail, i.e., whether the exclusion might be found to have
sufficient justification. See Rawlins v. Georgia, 201 U.S. 638,
640, 26 S.Ct. 560, 561, 50 L.Ed. 899 (1906), holding that a State
may exclude certain occupational categories from jury service 'on
the bona fide ground that it (is) for the good of the community
that their regular work should not be interrupted.' We have no
occasion here to consider what interests might justify an
exclusion, or what standard should be applied, since the only
question in this case is not the validity of an exclusion but
simply standing to challenge it.
11
Or the class may be expanded slightly to include white
civil rights workers, see Allen v. State, 110 Ga.App. 56, 62, 137
S.E.2d 711, 715 (1964) (alternative holding).
12
In rejecting, for the federal courts, the exclusion of
women from jury service this Court made the following
observations, which are equally relevant to the exclusion of other
discernible groups: 'The truth is that the two sexes are not
fungible; a community made up exclusively of one is different from
a community composed of both; the subtle interplay of influence
one on the other is among the imponderables. To insulate the
courtroom from either may not in a given case make an iota of
difference. Yet a flavor, a distinct quality is lost if either sex
is excluded.' Ballard v. United States, 329 U.S. 187, 193—194, 67
S.Ct. 261, 264, 91 L.Ed. 181 (1946) (footnote omitted).13 Hill v. Texas, 316 U.S. 400, 406, 62 S.Ct. 1159, 1162, 86
L.Ed. 1559 (1942).
*
The passage quoted from Hill v. Texas, supra, even if taken
at face value, does not mandate reversal in this case. It is
expressly limited to the case where 'timely objection has laid
bare a discrimination in the selection of grand jurors . . ..' 316
U.S., at 406, 62 S.Ct. at 1162. As indicated earlier, petitioner
first made his allegations seven months after his trial. Moreover,
assuming, arguendo, that there is a statutory right not to be
tried before a racially exclusive jury, it is not clear to me why
petitioner's failure to raise the matter in the state courts
should not preclude him from raising it on a federal habeas
attack. The Court has spoken of a presumption against the waiver
of fundamental, constitutional rights, see, e.g., Johnson v.
Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461
(1938), but has never intimated that a similar presumption should
apply with respect to statutory rights.
| 12
|
407 U.S. 514
92 S.Ct. 2182
33 L.Ed.2d 101
Willie Mae BARKER, Petitioner,v.John W. WINGO, Warden.
No. 71—5255.
Argued April 11, 1972.
Decided June 22, 1972.
Syllabus
Petitioner was not brought to trial for murder until more
than five years after he had been arrested, during which time the
prosecution obtained numerous continuances, initially for the
purpose of first trying petitioner's alleged accomplice so that
his testimony, if conviction resulted, would be available at
petitioner's trial. Before the accomplice was finally convicted,
he was tried six times. Petitioner made no objection to the
continuances until three and one-half years after he was arrested.
After the accomplice was finally convicted, petitioner, after
further delays because of a key prosecution witness' illness, was
tried and convicted. In this habeas corpus proceeding the Court of
Appeals, concluding that petitioner had waived his right to a
speedy trial for the period prior to his demand for trial, and in
any event had not been prejudiced by the delay, affirmed the
District Court's judgment against petitioner. Held: A defendant's
constitutional right to a speedy trial cannot be established by
any inflexible rule but can be determined only on an ad hoc
balancing basis, in which the conduct of the prosecution and that
of the defendant are weighed. The court should assess such factors
as the length of and reason for the delay, the defendant's
assertion of his right, and prejudice to the defendant. In this
case the lack of any serious prejudice to petitioner and the fact,
as disclosed by the record, that he did not want a speedy trial
outweigh opposing considerations and compel the conclusion that
petitioner was not deprived of his due process right to a speedy
trial. Pp. 519—536.
442 F.2d 1141, affirmed.
James E. Milliman, Cincinnati, Ohio, for petitioner, pro hac
vice, by special leave of Court.
Page 515
Robert W. Willmott, Jr., Asst. Atty. Gen., Frankfort, Ky.,
for respondent, pro hac vice, by special leave of Court.
djQ Mr. Justice POWELL delivered the opinion of the Court.
Although a speedy trial is guaranteed the accused by the
Sixth Amendment to the Constitution,1 this Court has dealt with
that right on infrequent occasions. See Beavers v. Haubert, 198
U.S. 77, 25 S.Ct. 573, 49 L.Ed. 950 (1905); Pollard v. United
States, 352 U.S. 354, 77 S.Ct. 481, 1 L.Ed.2d 393 (1957); United
States v. Ewell, 383 U.S. 116, 86 S.Ct. 773, 15 L.Ed.2d 627
(1966); United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30
L.Ed.2d 468 (1971). See also United States v. Provoo, 17 F.R.D.
183 (D.Md.), aff'd, 350 U.S. 857, 76 S.Ct. 101, 100 L.Ed. 761
(1955). The Court's opinion in Kloper v. North Carolina, 386 U.S.
213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967), established that the right
to a speedy trial is 'fundamental' and is imposed by the Due
Process Clause of the Fourteenth Amendment on the States.2 See
Smith v. Hooey, 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607 (1969);
Dickey v. Florida, 398 U.S. 30, 90 S.Ct. 1564, 26 L.Ed.2d 26
(1970). As Mr. Justice Brennan
1
Page 516
pointed out in his concurring opinion in Dickey, in none of these
cases have we attempted to set out the criteria by which the
speedy trial right is to be judged. 398 U.s., at 40—41, 90 S.Ct.
at 1570. This case compels us to make such an attempt.
I
On July 20, 1958, in Christian County, Kentucky, an elderly
couple was beaten to death by intruders wielding an iron tire
tool. Two suspects, Silas Manning and Willie Barker, the
petitioner, were arrested shortly thereafter. The grand jury
indicted them on September 15. Counsel was appointed on September
17, and Barker's trial was set for October 21. The Commonwealth
had a stronger case against Manning, and it believed that Barker
could not be convicted unless Manning testified against him.
Manning was naturally unwilling to incriminate himself.
Accordingly, on October 23, the day Silas Manning was brought to
trial, the Commonwealth sought and obtained the first of what was
to be a series of 16 continuances of Barker's trial.3 Barker made
no objection. By first convicting Manning, the Commonwealth would
remove possible problems of self-incrimination and would be able
to assure his testimony against Barker.
The Commonwealth encountered more than a few difficulties in
its prosecution of Manning. The first trial ended in a hung jury.
A second trial resulted in a conviction, but the Kentucky Court of
Appeals reversed because of the admission of evidence obtained by
an illegal search. Manning v. Commonwealth, 328 S.W.2d 421 (1959).
At his third trial, Manning was again convicted, and the Court of
Appeals again reversed
2
Page 517
because the trial court had not granted a change of venue. Manning
v. Commonwealth, 346 S.W.2d 755 (1961). A fourth trial resulted in
a hung jury. Finally, after five trials, Manning was convicted, in
March 1962, of murdering one victim, and after a sixth trial, in
December 1962, he was convicted of murdering the other.4
The Christian County Circuit Court holds three terms each
year—in February, June, and September. Barker's initial trial was
to take place in the September term of 1958. The first continuance
postponed it until the February 1959 term. The second continuance
was granted for one month only. Every term thereafter for as long
as the Manning prosecutions were in process, the Commonwealth
routinely moved to continue Barker's case to the next term. When
the case was continued from the June 1959 term until the following
September, Barker, having spent 10 months in jail, obtained his
release by posting a $5,000 bond. He thereafter remained free in
the community until his trial. Barker made no objection, through
his counsel, to the first 11 continuances.
When on February 12, 1962, the Commonwealth moved for the
twelfth time to continue the case until the following term,
Barker's counsel filed a motion to dismiss the indictment. The
motion to dismiss was denied two weeks later, and the
Commonwealth's motion for a continuance was granted. The
Commonwealth was granted further continuances in June 1962 and
September 1962, to which Barker did not object.
In February 1963, the first term of court following Manning's
final conviction, the Commonwealth moved to set Barker's trial for
March 19. But on the day scheduled for trial, it again moved for a
continuance until the June term. It gave as its reason the illness
3
Page 518
of the ex-sheriff who was the chief investigating officer in the
case. To this continuance, Barker objected unsuccessfully.
The witness was still unable to testify in June, and the
trial, which had been set for June 19, was continued again until
the September term over Barker's objection. This time the court
announced that the case would be dismissed for lack of prosecution
if it were not tried during the next term. The final trial date
was set for October 9, 1963. On that date, Barker again moved to
dismiss the indictment, and this time specified that his right to
a speedy trial had been violated.5 The motion was denied; the
trial commenced with Manning as the chief prosecution witness;
Barker was convicted and given a life sentence.
Barker appealed his conviction to the Kentucky Court of
Appeals, relying in part on his speedy trial claim. The court
affirmed. Barker v. Commonwealth, 385 S.W.2d 671 (1964). In
February 1970 Barker petitioned for habeas corpus in the United
States District Court for the Western District of Kentucky.
Although the District Court rejected the petition without holding
a hearing, the court granted petitioner leave to appeal in forma
pauperis and a certificate of probable cause to appeal. On appeal,
the Court of Appeals for the Sixth Circuit affirmed the District
Court. 442 F.2d 1141 (1971). It ruled that Barker had waived his
speedy trial claim for the entire period before February 1963, the
date on which the court believed he had first objected to the
delay by filing a motion to dismiss. In this belief the court was
mistaken, for the record re-
4
Page 519
veals that the motion was filed in February 1962. The Commonwealth
so conceded at oral argument before this Court.6 The court held
further that the remaining period after the date on which Barker
first raised his claim and before his trial—which it thought was
only eight months but which was actually 20 months—was not unduly
long. In addition, the court held that Barker had shown no
resulting prejudice, and that the illness of the exsheriff was a
valid justification for the delay. We granted Barker's petition
for certiorari. 404 U.S. 1037, 92 S.Ct. 719, 30 L.Ed.2d 729
(1972).
II
The right to a speedy trial is generically different from any
of the other rights enshrined in the Constitution for the
protection of the accused. In addition to the general concern that
all accused persons be treated according to decent and fair
procedures, there is a societal interest in providing a speedy
trial which exists separate from, and at times in opposition to,
the interests of the accused. The inability of courts to provide a
prompt trial has contributed to a large backlog of cases in urban
courts which, among other things, enables defendants to negotiate
more effectively for pleas of guilty to lesser offenses and
otherwise manipulate the system.7 In addition, persons released on
bond for lengthy periods awaiting trial have an opportunity to
commit other crimes.8 It must be of little comfort to the
residents of Christian County, Kentucky, to know that Barker was
at large on bail for over four years while accused of a vicious
5
Page 520
and brutal murder of which he was ultimately convicted. Moreover,
the longer an accused is free awaiting trial, the more tempting
becomes his opportunity to jump bail and escape.9 Finally, delay
between arrest and punishment may have a detrimental effect on
rehabilitation.10
If an accused cannot make bail, he is generally confined, as
was Barker for 10 months, in a local jail. This contributes to the
overcrowding and generally deplorable state of those
institutions.11 Lengthy exposure to these conditions 'has a
destructive effect on human character and makes the rehabilitation
of the individual offender much more difficult.'12 At times the
result may even be violent rioting.13 Finally, lengthy pretrial
detention is costly. The cost of maintaining a prisoner in jail
varies from $3 to $9 per day, and this amounts to millions across
6
Page 521
the Nation.14 In addition, society loses wages which might have
been earned, and it must often support families of incarcerated
breadwinners.
A second difference between the right to speedy trial and the
accused's other constitutional rights is that deprivation of the
right may work to the accused's advantage. Delay is not an
uncommon defense tactic. As the time between the commission of the
crime and trial lengthens, witnesses may become unavailable or
their memories may fade. It the witnesses support the prosecution,
its case will be weakened, sometimes seriously so. And it is the
prosecution which carries the burden of proof. Thus, unlike the
right to counsel or the right to be free from compelled
self-in-crimination, deprivation of the right to speedy trial does
not per se prejudice the accused's ability to defend himself.
Finally, and perhaps most importantly, the right to speedy
trial is a more vague concept than other procedural rights. It is,
for example, impossible to determine with precision when the right
has been denied. We cannot definitely say how long is too long in
a system where justice is supposed to be swift but deliberate.15
As a consequence, there is no fixed point in the criminal process
when the State can put the defendant to the choice of either
exercising or waiving the right to a speedy trial. If, for
example, the State moves for
7
Page 522
a 60-day continuance, granting that continuance is not a violation
of the right to speedy trial unless the circumstances of the case
are such that further delay would endanger the values the right
protects. It is impossible to do more than generalize about when
those circumstances exist. There is nothing comparable to the
point in the process when a defendant exercises or waives his
right to counsel or his right to a jury trial. Thus, as we
recognized in Beavers v. Haubert, supra, any inquiry into a speedy
trial claim necessitates a functional analysis of the right in the
particular context of the case:
'The right of a speedy trial is necessarily relative. It is
consistent with delays and depends upon circumstances. It
secures rights to a defendant. It does not preclude the
rights of public justice.' 198 U.s., at 87, 25 S.Ct. at 576,
49 L.Ed. 950.
The amorphous quality of the right also leads to the
unsatisfactorily severe remedy of dismissal of the indictment when
the right has been deprived. This is indeed a serious consequence
because it means that a defendant who may be guilty of a serious
crime will go free, without having been tried. Such a remedy is
more serious than an exclusionary rule or a reversal for a new
trial,16 but it is the only possible remedy.
III
Perhaps because the speedy trial right is so slippery, two
rigid approaches are urged upon us as ways of eliminating some of
the uncertainty which courts ex-
8
Page 523
perience in protecting the right. The first suggestion is that we
hold that the Constitution requires a criminal defendant to be
offered a trial within a specified time period. The result of such
a ruling would have the virtue of clarifying when the right is
infringed and of simplifying courts' application of it.
Recognizing this, some legislatures have enacted laws, and some
courts have adopted procedural rules which more narrowly define
the right.17 The United States Court of Appeals for the Second
Circuit has promulgated rules for the district courts in that
Circuit establishing that the government must be ready for trial
within six months of the date of arrest, except in unusual
circumstances, or the charge will be dismissed.18 This type of
rule is also recommended by the American Bar Association.19
But such a result would require this Court to engage in
legislative or rulemaking activity, rather than in the
adjudicative process to which we should confine our efforts. We do
not establish procedural rules for the States, except when
mandated by the Constitution. We find no constitutional basis for
holding that the speedy trial right can be quantified into a
specified number of days or months. The States, of course, are
free to prescribe a reasonable period consistent with
constitutional standards, but our approach must be less precise.
The second suggested alternative would restrict con-
9
Page 524
sideration of the right to those cases in which the accused has
demanded a speedy trial. Most States have recognized what is
loosely referred to as the 'demand rule,'20 although eight States
reject it.21 It is not clear, however, precisely what is meant by
that term. Although every federal court of appeals that has
considered the question has endorsed some kind of demand rule,
some have regarded the rule within the concept of waiver,22
whereas others have viewed it as a factor to be weighed
10
Page 525
in assessing whether there has been a deprivation of the speedy
trial right.23 We shall refer to the former approach as the
demand-waiver doctrine. The demandwaiver doctrine provides that a
defendant waives any consideration of his right to speedy trial
for any period prior to which he has not demanded a trial. Under
this rigid approach, a prior demand is a necessary condition to
the consideration of the speedy trial right. This essentially was
the approach the Sixth Circuit took below.
Such an approach, by presuming waiver of a fundamental
right24 from inaction, is inconsistent with this Court's
pronouncements on waiver of constitutional rights. The Court has
defined waiver as 'an intentional relinquishment or abandonment of
a known right or privilege.' Johnson v. Zerbst, 304 U.S. 458, 464,
58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938). Courts should 'indulge
every reasonable presumption against waiver,' Aetna Ins. Co. v.
Kennedy, 301 U.S. 389, 393, 57 S.Ct. 809, 812, 81 L.Ed. 1177
(1937), and they should 'not presume acqui-
11
Page 526
escence in the loss of fundamental rights,' Ohio Bell Tel. Co. v.
Public Utilities Comm'n, 301 U.S. 292, 307, 57 S.Ct. 724, 731, 81
L.Ed. 1093 (1937). In Carnley v. Cochran, 369 U.S. 506, 82 S.Ct.
884, 8 L.Ed.2d 70 (1962), we held:
'Presuming waiver from a silent record is impermissible. The
record must show, or there must be an allegation and evidence
which show, that an accused was offered counsel but
intelligently and understandably rejected the offer. Anything
less is not waiver.' Id., at 516, 82 S.Ct., at 890.
The Court has ruled similarly with respect to waiver of other
rights designed to protect the accused. See, e.g., Miranda v.
Arizona, 384 U.S. 436, 475—476, 86 S.Ct. 1602, 1628—1627, 16
L.Ed.2d 694 (1966); Boykin v. Alabama, 395 U.S. 238, 89 S.Ct.
1709, 23 L.Ed.2d 274 (1969).
In excepting the right to speedy trial from the rule of
waiver we have applied to other fundamental rights, courts that
have applied the demand-waiver rule have relied on the assumption
that delay usually works for the benefit of the accused and on the
absence of any readily ascertainable time in the criminal process
for a defendant to be given the choice of exercising or waiving
his right. But it is not necessarily true that delay benefits the
defendant. There are cases in which delay appreciably harms the
defendant's ability to defend himself.25
12
Page 527
Moreover, a defendant confined to jail prior to trial is obviously
disadvantaged by delay as is a defendant released on bail but
unable to lead a normal life because of community suspicion and
his own anxiety.
The nature of the speedy trial right does make it impossible
to pinpoint a precise time in the process when the right must be
asserted or waived, but that fact does not argue for placing the
burden of protecting the right solely on defendants. A defendant
has no duty to bring himself to trial;26 the State has that duty
as well as the duty of insuring that the trial is consistent with
due process.27 Moreover, for the reasons earlier expressed,
society has a particular interest in bringing swift prosecutions,
and society's representatives are the ones who should protect that
interest.
It is also noteworthy that such a rigid view of the
demand-waiver rule places defense counsel in an awkward position.
Unless he demands a trial early and often, he is in danger of
frustrating his client's right. If counsel is willing to tolerate
some delay because he finds it reasonable and helpful in preparing
his own case, he may be unable to obtain a speedy trial for his
client at the end of that time. Since under the demandwaiver rule
no time
13
Page 528
runs until the demand is made, the government will have whatever
time is otherwise reasonabel to bring the defendant to trial after
a demand has been made. Thus, if the first demand is made three
months after arrest in a jurisdiction which prescribes a six-month
rule, the prosecution will have a total of nine months—which may
be wholly unreasonable under the circumstances. The result in
practice is likely to be either an automatic, pro forma demand
made immediately after appointment of counsel or delays which, but
for the demand-waiver rule, would not be tolerated. Such a result
is not consistent with the interests of defendants, society, or
the Constitution.
We reject, therefore, the rule that a defendant who fails to
demand a speedy trial forever waives his right.28 This does not
mean, however, that the defendant has no responsibility to assert
his right. We think the better rule is that the defendant's
assertion of or failure to assert his right to a speedy trial is
one of the factors to be considered in an inquiry into the
deprivation of the right. Such a formulation avoids the rigidities
of the demand-waiver rule and the resulting possible unfairness in
its application. It allows the trial court
14
Page 529
to exercise a judicial discretion based on the circumstances,
including due consideration of any applicable formal procedural
rule. It would permit, for example, a court to attach a different
weight to a situation in which the defendant knowingly fails to
object from a situation in which his attorney acquiesces in long
delay without adequately informing his client, or from a situation
in which no counsel is appointed. It would also allow a court to
weigh the frequency and force of the objections as opposed to
attaching significant weight to a purely pro forma objection.
In ruling that a defendant has some responsibility to assert
a speedy trial claim, we do not depart from out holdings in other
cases concerning the waiver of fundamental rights, in which we
have placed the entire responsibility on the prosecution to show
that the claimed waiver was knowingly and voluntarily made. Such
cases have involved rights which must be exercised or waived at a
specific time or under clearly identifiable circumstances, such as
the rights to plead not guilty, to demand a jury trial, to
exercise the privilege against self-incrimination, and to have the
assistance of counsel. We have shown above that the right to a
speedy trial is unique in its uncertainty as to when and under
what circumstances it must be asserted or may be deemed waived.
But the rule we announce today, which comports with constitutional
principles, places the primary burden on the courts and the
prosecutors to assure that cases are brought to trial. We hardly
need add that if delay is attributable to the defendant, then his
waiver may be given effect under standard waiver doctrine, the
demand rule aside.
We, therefore, reject both of the inflexible approaches—the
fixed-time period because it goes further than the Constitution
requires; the demandwaiver rule because it is insensitive to a
right which he have deemed
15
Page 530
fundamental. The approach we accept is a balancing test, in which
the conduct of both the prosecution and the defendant are
weighed.29
IV
A balancing test necessarily compels courts to approach
speedy trial cases on an ad hoc basis. We can do little more than
identify some of the factors which courts should assess in
determining whether a particular defendant has been deprived of
his right. Though some might express them in different ways, we
identify four such factors: Length of delay, the reason for the
delay, the defendant's assertion of his right, and prejudice to
the defendant.30
The length of the delay is to some extent a triggering
mechanism. Until there is some delay which is presumptively
prejudicial, there is no necessity for inquiry into the other
factors that go into the balance. Nevertheless, because of the
imprecision of the right to speedy trial, the length of delay that
will provoke such an inquiry is necessarily dependent upon the
pecu-
16
Page 531
liar circumstances of the case.31 To take but one example, the
delay that can be tolerated for an ordinary street crime is
considerably less than for a serious, complex conspiracy charge.
Closely related to length of delay is the reason the
government assigns to justify the delay. Here, too, different
weights should be assigned to different reasons. A deliberate
attempt to delay the trial in order to hamper the defense should
be weighted heavily against the government.32 A more neutral
reason such as negligence or overcrowded courts should be weighted
less heavily but nevertheless should be considered since the
ultimate responsibility for such circumstances must rest with the
government rather than with the defendant. Finally, a valid
reason, such as a missing witness, should serve to justify
appropriate delay.
We have already discussed the third factor, the defendant's
responsibility to assert his right. Whether and how a defendant
asserts his right is closely related to the other factors we have
mentioned. The strength of his efforts will be affected by the
length of the delay, to some extent by the reason for the delay,
and most particularly by the personal prejudice, which is not
always readily identifiable, that he experiences. The more serious
the deprivation, the more likely a defendant is to complain. The
defendant's assertion of his speedy trial right, then, is entitled
to strong evidentiary weight in determining
17
Page 532
whether the defendant is being deprived of the right. We
emphasize that failure to assert the right will make it difficult
for a defendant to prove that he was denied a speedy trial.
A fourth factor is prejudice to the defendant. Prejudice, of
course, should be assessed in the light of the interests of
defendants which the speedy trial right was designed to protect.
This Court has identified three such interests: (i) to prevent
oppressive pretrial incarceration; (ii) to minimize anxiety and
concern of the accused; and (iii) to limit the possibility that
the defense will be impaired.33 Of these, the most serious is the
last, because the inability of a defendant adequately to prepare
his case skews the fairness of the entire system. If witnesses die
or disappear during a delay, the prejudice is obvious. There is
also prejudice if defense witnesses are unable to recall
accurately events of the distant past. Loss of memory, however, is
not always reflected in the record because what has been forgotten
can rarely be shown.
We have discussed previously the societal disadvantages of
lengthy pretrial incarceration, but obviously the disadvantages
for the accused who cannot obtain his release are even more
serious. The time spent in jail awaiting trial has a detrimental
impact on the individual. It often means loss of a job; it
disrupts family life; and it enforces idleness. Most jails offer
little or no recreational or rehabilitative programs.34 The time
spent in
18
Page 533
jail is simply dead time. Moreover, if a defendant is locked up,
he is hindered in his ability to gather evidence, contact
witnesses, or otherwise prepare his defense.35 Imposing those
consequences on anyone who has not yet been convicted is serious.
It is especially unfortunate to impose them on those persons who
are ultimately found to be innocent. Finally, even if an accused
is not incarcerated prior to trial, he is still disadvantaged by
restraints on his liberty and by living under a cloud of anxiety,
suspicion, and often hostility. See cases cited in n. 33, supra.
We regard none of the four factors identified above as either
a necessary or sufficient condition to the finding of a
deprivation of the right of speedy trial. Rather, they are related
factors and must be considered together with such other
circumstances as may be relevant. In sum, these factors have no
talismanic qualities; courts must still engage in a difficult and
sensitive balancing process.36 But, because we are dealing with a
fundamental right of the accused, this process must be carried out
with full recognition that the accused's interest in a speedy
trial is specifically affirmed in the Constitution.
V
The difficulty of the task of balancing these factors is
illustrated by this case, which we consider to be close. It is
clear that the length of delay between arrest and trial—well over
five years—was extraordinary. Only
19
Page 534
seven months of that period can be attributed to a strong excuse,
the illness of the exsheriff who was in charge of the
investigation. Perhaps some delay would have been permissible
under ordinary circumstances, so that Manning could be utilized as
a witness in Barker's trial, but more than four years was too long
a period, particularly since a good part of that period was
attributable to the Commonwealth's failure or inability to try
Manning under circumstances that comported with due process.
Two counterbalancing factors, however, outweigh these
deficiencies. The first is that prejudice was minimal. Of course,
Barker was prejudiced to some extent by living for over four years
under a cloud of suspicion and anxiety. Moreover, although he was
released on bond for most of the period, he did spend 10 months in
jail before trial. But there is no claim that any of Barker's
witnesses died or otherwise became unavailable owing to the delay.
The trial transcript indicates only two very minor lapses of
memory—one on the part of a prosecution witness—which were in no
way significant to the outcome.
More important than the absence of serious prejudice, is the
fact that Barker did not want a speedy trial. Counsel was
appointed for Barker immediately after his indictment and
represented him throughout the period. No question is raised as to
the competency of such counsel.37 Despite the fact that counsel
had notice of the motions for continuances,38 the record shows no
action whatever taken between October 21, 1958, and February 12,
1962, that could be construed as the assertion of the speedy trial
right. On the latter date, in response to another motion for
continuance, Barker moved
20
Page 535
to dismiss the indictment. The record does not show on what ground
this motion was based, although it is clear that no alternative
motion was made for an immediate trial. Instead the record
strongly suggests that while he hoped to take advantage of the
delay in which he had acquiesced, and thereby obtain a dismissal
of the charges, he definitely did not want to be tried. Counsel
conceded as much at oral argument:
'Your honor, I would concede that Willie Mae Barker probably
I don't know this for a fact—probably did not want to be
tried. I don't think any man wants to be tried. And I don't
consider this a liability on his behalf. I don't blame him.'
Tr. of Oral Arg. 39.
The probable reason for Barker's attitude was that he was
gambling on Manning's acquittal. The evidence was not very strong
against Manning, as the reversals and hung juries suggest, and
Barker undoubtedly thought that if Manning were acquitted, he
would never be tried. Counsel also conceded this:
'Now, it's true that the reason for this delay was the
Commonwealth of Kentucky's desire to secure the testimony of
the accomplice, Silas Manning. And it's true that if Silas
Manning were never convicted, Willie Mae Barker would never
have been convicted. We concede this. Id., at 15.39
21
Page 536
That Barker was gambling on Manning's acquittal is also
suggested by his failure, following the pro forma motion to
dismiss filed in February 1962, to object to the Commonwealth's
next two motions for continuances. Indeed, it was not until March
1963, after Manning's convictions were final, that Barker, having
lost his gamble, began to object to further continuances. At that
time, the Commonwealth's excuse was the illness of the ex-sheriff,
which Barker has conceded justified the further delay.40
We do not hold that there may never be a situation in which
an indictment may be dismissed on speedy trial grounds where the
defendant has failed to object to continuances. There may be a
situation in which the defendant was represented by incompetent
counsel, was severely prejudiced, or even cases in which the
continuances were granted ex parte. But barring extraordinary
circumstances, we would be reluctant indeed to rule that a
defendant was denied this constitutional right on a record that
strongly indicates, as does this one, that the defendant did not
want a speedy trial. We hold, therefore, that Barker was not
deprived of his due process right to a speedy trial.
The judgment of the Court of Appeals is affirmed.
Affirmed.
djQ Mr. Justice WHITE, with whom Mr. Justice BRENNAN joins,
concurring.
Although the Court rejects petitioner's speedy trial claim
and affirms denial of his petition for habeas corpus,
22
Page 537
it is apparent that had Barker not so clearly acquiesced in the
major delays involved in this case, the result would have been
otherwise. From the Commonwealth's point of view, it is fortunate
that the case was set for early trial and that postponements took
place only upon formal requests to which Barker had opportunity to
object.
Because the Court broadly assays the factors going into
constitutional judgments under the speedy trial provision, it is
appropriate to emphasize that one of the major purposes of the
provision is to guard against inordinate delay between public
charge and trial, which, wholly aside from possible prejudice to a
defense on the merits, may 'seriously interfere with the
defendant's liberty, whether he is free on bail or not, and that
may disrupt his employment, drain his financial resources, curtail
his associations, subject him to public obloquy, and create
anxiety in him, his family and his friends.' United States v.
Marion, 404 U.S. 307, 320, 92 S.Ct. 455, 463, 30 L.Ed.2d 468
(1971). These factors are more serious for some than for others,
but they are inevitably present in every case to some extent, for
every defendant will either be incarcerated pending trial or on
bail subject to substantial restrictions on his liberty. It is
also true that many defendants will believe that time is on their
side and will prefer to suffer whatever disadvantages delay may
entail. But, for those who desire an early trial, these personal
factors should prevail if the only countervailing considerations
offered by the State are those connected with crowded dockets and
prosecutorial case loads. A defendant desiring a speedy trial,
therefore, should have it within some reasonable time; and only
special circumstances presenting a more pressing public need with
respect to the case itself should suffice to justify delay. Only
if such special considerations are in the case and if they
outweigh the inevitable personal prejudice resulting from delay
would
23
Page 538
it be necessary to consider whether there has been or would be
prejudice to the defense at trial. '(T)he major evils protected
against by the speedy trial guarantee exist quite apart from
actual or possible prejudice to an accused's defense.' United
States v. Marion, supra, at 320, 92 S.Ct., at 963.
Of course, cases will differ among themselves as to the
allowable time between charge and trial so as to permit
prosecution and defense adequately to prepare their case. But
unreasonable delay in run-of-the-mill criminal cases cannot be
justified by simply asserting that the public resources provided
by the State's criminal-justice system are limited and that each
case must await its turn. As the Court points out, this approach
also subverts the State's own goals in seeking to enforce its
criminal laws.
1
The Sixth Amendment provides:
'In all criminal prosecutions, the accused shall enjoy the
right to a speedy and public trial, by an impartial jury of the
State and district wherein the crime shall have been committed,
which district shall have been previously ascertained by law, and
to be informed of the nature and cause of the accusation; to be
confronted with the witnesses against him; to have compulsory
process for obtaining Witnesses in his favor, and to have the
Assistance of Counsel for his defense.'2.'We hold here that the right to a speedy trial is as
fundamental as any of the rights secured by the Sixth Amendment.'
386 U.S., at 223, 87 S.Ct., at 993.
3
There is no explanation in the record why, although
Barker's initial trial was set for October 21, no continuance was
sought until October 23, two days after trial should have begun.
4
Apparently Manning chose not to appeal these final two
convictions.
5
The written motion Barker filed alleged that he had
objected to every continuance since February 1959. The record does
not reflect any objections until the motion to dismiss, filed in
February 1962, and the objections to the continuances sought by
the Commonwealth in March 1963 and June 1963.
6
Tr. of Oral Arg. 33.7 Report of the President's Commission on Crime in the
District of Columbia 256 (1966).8 In Washington, D.C., in 1968, 70.1% of the persons
arrested for robbery and released prior to trial were re-arrested
while on bail. Mitchell, Bail Reform and the Constitutionality of
Pretrial Detention, 55 Va.L.Rev. 1223, 1236 (1969), citing Report
of the Judicial Council Committee to Study the Operation of the
Bail Reform Act in the District of Columbia 20—21 (1969).
9
The number of these offenses has been increasing. See
Annual Report of the Director of the Administrative Office of the
United States Courts, 1971, p. 321.10 '(I)t is desirable that punishment should follow offence
as closely as possible; for its impression upon the minds of men
is weakened by distance, and, besides, distance adds to the
uncertainty of punishment, by affording new chances of escape.' J.
Bentham, The Theory of Legislation 326 (Ogden ed. 1931).11 To Establish Justice, To Insure Domestic Tranquility,
Final Report of the National Commission on the Causes and
Prevention of Violence 152 (1969).12 Testimony of James V. Bennett, Director, Bureau of
Prisons, Hearings on Federal Bail Procedures before the
Subcommittee on Constitutional Rights and the Subcommittee on
Improvements in Judicial Machinery of the Senate Committee on the
Judiciary, 88th Cong., 2d Sess., 46 (1964).13 E.g., the 'Tombs' riots in New York City in 1970. N.Y.
Times, Oct. 3, 1970, p. 1, col. 8.
14
The Challenge of Crime in a Free Society, A Report by the
President's Commission on Law Enforcement and Administration of
Justice 131 (1967).15 '(I)n large measure because of the many procedural
safeguards provided an accused, the ordinary procedures for
criminal prosecution are designed to move at a deliberate pace. A
requirement of unreasonable speed would have a deleterious effect
both upon the rights of the accused and upon the ability of
society to protect itself.' United States v. Ewell, 383 U.S. 116,
120, 86 S.Ct. 773, 776, 15 L.Ed.2d 627 (1966).
16
Mr. Justice White noted in his opinion for the Court in
Ewell, supra, 383 U.S., at 121, 86 S.Ct., at 777, that overzealous
application of this remedy would infringe 'the societal interest
in trying people accused of crime, rather than granting them
immunization because of legal error. ..'
17
For examples, see American Bar Association Project on
Standards for Criminal Justice, Speedy Trial 14—16 (Approved Draft
1968); Note, The Right to a Speedy Criminal Trial, 57 Col.L.Rev.
846, 863 (1957).18 Second Circuit Rules Regarding Prompt Disposition of
Criminal Cases (1971).19 ABA Project, supra, n. 17, at 14. For an example of a
proposed statutory rule, see Note, The Lagging Right to a Speedy
Trial, 51 Va.L.Rev. 1587, 1619, (1965).
20
E.g., Pines v. District Court of Woodbury County, 233
Iowa 1284, 10 N.W.2d 574 (1943). See generally Note, The Right to
a Speedy (Criminal Trial, 57 Col.L.Rev. 846, 853 (1957); Note, The
Lagging Right to a Speedy Trial, 51 Va.L.Rev. 1587, 1601—1602
(1965).21 See State v. Maldonado, 92 Ariz. 70, 373 P.2d 583 (en
banc), cert. denied, 371 U.S. 928, 83 S.Ct. 299, 9 L.Ed.2d 236
(1962); Hicks v. People, 148 Colo. 26, 364 P.2d 877 (1961) (en
banc); People v. Prosser, 309 N.Y. 353, 130 N.E.2d 891 (1955);
Zehrlaut v. State, 230 Ind. 175, 102 N.E.2d 203 (1951); Flanary v.
Commonwealth, 184 Va. 204, 35 S.E.2d 135 (1945); Ex parte
Chalfant, 81 W.Va. 93, 93 S.E. 1032 (1917); State v. Hess, 180
Kan. 472, 304 P.2d 474 (1956); State v. Dodson, 226 Or. 458, 360
P.2d 782 (1961). But see State v. Vawter, 236 Or. 85, 386 P.2d 915
(1963).22 See United States v. Hill, 310 F.2d 601 (CA4 1962); Bruce
v. United States, 351 F.2d 318 (CA5 1965), cert. denied, 384 U.S.
921, 86 S.Ct. 1370, 16 L.Ed.2d 553 (1966); United States v. Perez,
398 F.2d 658 (CA7 1968), cert. denied, 393 U.S. 1080, 89 S.Ct.
851, 21 L.Ed.2d 772 (1969); Pietch v. United States, 110 F.2d 817
(CA10), cert. denied, 310 U.S. 648, 60 S.Ct. 1100, 84 L.Ed. 1414
(1940); Smith v. United States, 118 U.S.App.D.C. 38, 331 F.2d 784
(1964) (en banc). The opinion below in this case demonstrates that
the Sixth Circuit Takes a similar approach.
'As an indication of the importance which these courts have
attached to the demand rule, see Perez, supra, in which the court
held that a defendant waived any speedy trial claim, because he
knew of an indictment and made no demand for an immediate trial,
even though the record gave no indication that he was represented
by counsel at the time when he should have made his demand, and
even though he was not informed by th court or the prosecution of
his right to a speedy trial.
23
Although stating that they recognize a demand rule, the
approach of the Eighth and Ninth Circuits seems to be that a
denial of speedy trial can be found despite an absence of a demand
under some circumstances. See Bandy v. United States, 408 F.2d 518
(CA8 1969) (a purposeful or oppressive delay may overcome a
failure to demand); Moser v. United States, 381 F.2d 363 (CA9
1967) (despite a failure to demand, the court balanced other
considerations).
The Second Circuit's approach is unclear. There are cases in
which a failure to demand is strictly construed as a waiver. E.g.,
United States v. DeMasi, 445 F.2d 251 (1971). In other cases, the
court has seemed to be willing to consider claims in which there
was no demand. E.g., United States ex rel. Solomon v. Mancusi, 412
F.2d 88, cert. denied, 396 U.S. 936, 90 S.Ct. 269, 24 L.Ed.2d 236
(1969). Certainly the District Courts in the Second Circuit have
not regarded the demand rule as being rigid. See United States v.
Mann, 291 F.Supp. 268 (SDNY 1968); United States v. Dillon, 183
F.Supp. 541 (SDNY 1960).
The First Circuit also seems to reject the more rigid
approach. Compare United States v. Butler, 426 F.2d 1275 (1970),
with Needel v. Scafati, 412 F.2d 761, cert. denied, 396 U.S. 861,
90 S.Ct. 133, 24 L.Ed.2d 113 (1969).24 See n. 2, supra.
25
'If a defendant deliberately by-passes state procedure
for some strategic, tactical, or other reason, a federal judge on
habeas corpus may deny relief if he finds that the by-passing was
the considered choice of the petitioner. The demand doctrine
presupposes that failure to demand trial is a deliberate choice
for supposed advantage on the assumption that delay always
benefits the accused, but the delay does not inherently benefit
the accused any more than it does the state. Consequently, a man
should not be presumed to have exercised a deliberate choice
because of silence or inaction that could equally mean that he is
unaware of the necessity for a demand.' Note, The Lagging Right to
a Speedy Trial, 51 Va.L.Rev. 1587, 1610 (1965) (footnotes
omitted).
26
As Mr. Chief Justice Burger wrote for the Court in Dickey
v. Florida:
'Although a great many accused persons seek to put off the
confrontation as long as possible, the right to a prompt inquiry
into criminal charges is fundamental and the duty of the charging
authority is to provide a prompt trial.' 398 U.S. 30, 37—38, 90
S.Ct. 1564, 1569, 26 L.Ed.2d 26 (footnote omitted).27 As a circuit judge, Mr. Justice Blackmun wrote:
'The government and, for that matter, the trial court are not
without responsibility for the expeditious trial of criminal
cases. The burden for trial promptness is not solely upon the
defense. The right to 'a speedy . . . trial's is constitutionally
guaranteed and, as such, is not to be honored only for the
vigilant and the knowledgeable.' Hodges v. United States, 408 F.2d
543, 551 (CA8 1969).
28
The American Bar Association also rejects the rigid
demand-waiver rule:
'One reason for this position is that there are a number of
situations, such as where the defendant is unaware of the charge
or where the defendant is without counsel, in which it is unfair
to require a demand . . . Jurisdictions with a demand requirement
are faced with the continuing problem of defining exceptions, a
process which has not always been carried out with uniformity . .
. More important, the demand requirement is inconsistent with the
public interest in prompt disposition of criminal cases. . . .
(T)he trial of a criminal case should not be unreasonably delayed
merely because the defendant does not think that it is in his best
interest to seek prompt disposition of the charge.' ABA Project,
supra, n. 17, at 17.
29
Nothing we have said should be interpreted as
disapproving a presumptive rule adopted by a court in the exercise
of its supervisory powers which establishes a fixed time period
within which cases must normally be brought. See n. 18, supra.30 See, e.g., United States v. Simmons, 338 F.2d 804, 807
(CA2 1964), cert. denied, 380 U.S. 983, 85 S.Ct. 1352, 14 L.Ed.2d
276 (1965); Note, The Right to a Speedy Trial, 20 Stan.L.Rev. 476,
478 n. 15 (1968).
In his concurring opinion in Dickey, Mr. Justice Brennan
identified three factors for consideration: the source of the
delay, the reasons for it, and whether the delay prejudiced the
interests protected by the right. 398 U.S., at 48, 90 S.Ct., at
1574. He included consideration of the defendant's failure to
assert his right in the cause-of-delay category, and he thought
the length of delay was relevant primarily to the reasons for
delay and its prejudicial effects. Id., n. 12. In essence,
however, there is little difference between his approach and the
one we adopt today. See also Note, The Right to a Speedy Trial,
supra, for another slightly different approach.
31
For example, the First Circuit thought a delay of nine
months overly long, absent a good reason, in a case that depended
on eyewitness testimony. United States v. Butler, 426 F.2d 1275,
1277 (1970).32 We have indicated on previous occasions that it is
improper for the prosecution intentionally to delay 'to gain some
tactical advantage over (defendants) or to harass them.' United
States v. Marion, 404 U.S. 307, 325, 92 S.Ct. 455, 466, 30 L.Ed.2d
468 (1971). See Pollard v. United States, 352 U.S. 354, 361, 77
S.Ct. 481, 485—486, 1 L.Ed.2d 393 (1957).
33
United States v. Ewell, 383 U.S., at 120, 86 S.Ct., at
776; Smith v. Hooey, 393 U.S. 374, 377—378, 89 S.Ct. 575, 576—577,
21 L.Ed.2d 607 (1969). In Klopfer v. North Carolina, 386 U.S. 213,
221—222, 87 S.Ct. 988, 992—993, 18 L.Ed.2d 1 (1967), we indicated
that a defendant awaiting trial on bond might be subjected to
public scorn, deprived of employment, and chilled in the exercise
of his right to speak for, associate with, and participate in
unpopular political causes.34 See To Establish Justice, To Insure Domestic Tranquility,
Final Report of the National Commission on the Causes and
Prevention of Violence 152 (1969).
35
There is statistical evidence that persons who are
detained between arrest and trial are more likely to receive
prison sentences than those who obtain pretrial release, although
other factors bear upon this correlation. See Wald, Pretrial
Detention and Ultimate Freedom: A Statistrical Study, 39
N.Y.U.L.Rev. 631 (1964).36 For an example of how the speedy trial issue should be
approached, see Judge Frankel's excellent opinion in United States
v. Mann, 291 F.Supp. 268 (SDNY 1968).
37
Tr. of Oral Arg. 39.38 Id., at 4.
39
Hindsight is, of course, 20/20, but we cannot help noting
that if Barker had moved immediately and persistently for a speedy
trial following indictment, and if he had been successful, he
would have undoubtedly been acquitted since Manning's testimony
was crucial to the Cmmonwealth's case. It could not have been
anticipated at the outset, however, that Manning would have been
tried six times over a four-year period. Thus, the decision to
gamble on Manning's acquittal may have been a prudent choice at
the time it was made.
40
At oral argument, counsel for Barker stated:
'That was after the sheriff, the material witness, was ill;
the man who had arrested the petitioner, yes. And the Sixth
Circuit held that this was a sufficient reason for delay, and we
don't deny this. We concede that this was sufficient for the delay
from March 1963 to October, but it does not explain the delays
prior to that.' Tr. of Oral Arg. 19—20.
| 01
|
407 U.S. 484
92 S.Ct. 2214
33 L.Ed.2d 75
UNITED STATES, Petitioner,v.SCOTLAND NECK CITY BOARD OF EDUCATION et al. Pattie Black COTTON et al., Petitioners, v. SCOTLAND NECK CITY BOARD OF EDUCATION et al.
Nos. 70—130, 70—187.
Argued Feb. 29 and March 1, 1972.
Decided June 22, 1972.
Syllabus
A state statute authorized creation of a new school district
for Scotland Neck, N.C., a city that was part of the larger
Halifax County school district, then in the process of dismantling
a dual school system. The District Court in this litigation
instituted by the United States enjoined implementation of the
statute as creating a refuge for white students and promoting
school segregation in the county. The Court of Appeals reversed,
ruling that the statute's impact on dismantling the county dual
system was minimal and that it should not be regarded as an
alternative desegregation plan for the county since it was enacted
by the legislature and not by the school board. Held: Whether the
action affecting dismantling of a dual school system is initiated
by the legislature or by the school board is immaterial, North
Carolina State Board of Education v. Swann, 402 U.S. 43, 91 S.Ct.
1284, 28 L.Ed.2d 586; the criterion is whether the dismantling is
furthered or hindered by carving a new school district from the
larger district having the dual school system, and a proposal that
would impede the dismantling process may be enjoined. Wright v.
Council of City of Emporia, 407 U.S. 451, 92 S.Ct. 2196, 33
L.Ed.2d 51. Pp. 488—491.
442 F.2d 575, reversed.
Lawrence G. Wallace, Washington, D.C., for the United States.
1
Page 485
Adam Stein, Charlotte, N.C., for Pattie Black Cotton and
others.
William T. Joyner, Raleigh, N.C., and C. Kitchin Josey,
Scotland Neck, N.C., for Scotland Neck City Bd. of Ed. and others
in both cases.
djQ Mr. Justice STEWART delivered the opinion of the Court.
The petitioners in these consolidated cases challenge the
implementation of a North Carolina statute authorizing the
creation of a new school district for Scotland Neck, a city which
at the time of the statute's enactment was part of a larger school
district then in the process of dismantling a dual school system.
In a judgment entered the same day as its judgment in Council of
City of Emporia v. Wright, 442 F.2d 570, a decision which we
reverse today, 407 U.S. 451, 92 S.Ct. 2196, 33 L.Ed.2d 51, the
Court of Appeals held that the District Court erred in enjoining
the creation of the new school district.
Scotland Neck is a community of about 3,000 persons, located
in the southeastern portion of Halifax County, North Carolina.
Since 1936, the city has been a part of the Halifax County
Administrative Unit, a school district comprising the entire
county with the exception of two towns located in the northern
section. In the 1968—1969 school year, 10,655 students attended
schools in this system, of whom 77% were Negro, 22% white, and 1%
American Indian.
The schools of Halifax County were completely segregated by
race until 1965. In that year, the school board adopted a
freedom-of-choice plan that produced very
2
Page 486
little actual desegregation. In the 1967—1968 school year, all of
the white students in the county attended the four traditionally
all-white schools, while 97% of the Negro students attended the 14
traditionally all-Negro schools. The school-busing system, used by
90% of the students, was segregated by race, and faculty
desegregation was minimal.
In 1968, the United States Department of Justice entered into
negotiations with the Halifax County School Board to bring the
county's school system into compliance with federal law. An
agreement was reached whereby the school board undertook to
provide some desegregation in the fall of 1968, and to effect a
completely unitary system in the 1969—1970 school year. The State
Department of Public Instruction, acting on a request from the
county board, recommended a detailed plan (the Interim Plan) for
the unitary system that would have put some white students in
every school in the county, and that would have left a white
majority in only one school.
In January 1969, after the Interim Plan had been submitted to
the county school board but before any action had been taken upon
it, a bill was introduced in the state legislature to authorize
the creation of a new school district bounded by the city limits
of Scotland Neck, upon approval by a majority of the city's
voters.1 The bill was enacted on March 3, 1969, as Chapter 31 of
the 1969 Session Laws of North Carolina. The citizens of Scotland
Neck approved the new school
3
Page 487
district in a referendum a month later,2 and the new district
began taking steps toward beginning a separat e school system
in the fall of 1969.
The effect of Chapter 31 was to carve out of the Halifax
school district a new unit with 695 students, of whom 399 (57%)
were white and 296 (43%) were Negro. Under a transfer plan devised
by the newly appointed Scotland Neck City Board of Education, 360
students (350 white and 10 Negro) residing outside the city limits
applied to transfer into the Scotland Neck schools, while 44
students (all Negro) applied to transfer out of the city system to
a nearby school in the Halifax County system. The new district
planned to use the facilities of the formerly all-white Scotland
Neck High School, including one building located outside the city
limits that would be leased from the county.
The United States filed this lawsuit in June 1969 against
both city and county officials, seeking desegregation of the
existing Halifax County schools.3 The complaint asked for
preliminary and permanent injunctions against the implementation
of Chapter 31. Various Negro children, parents, and teachers, the
petitioners in No. 70—187, were permitted to intervene as
plaintiffs.
After a three-day hearing before two district judges on both
this case and a similar case involving two newly created school
districts in neighboring Warren County,
4
Page 488
the District Court preliminarily enjoined the implementation of
Chapter 31, finding that 'the Act in its application creates a
refuge for white students, and promotes segregated schools in
Halifax County,' and furtherthat '(t)he Act impedes and defeats
the Halifax County Board of Education from implementing its plan
to completely desegregate all of the public schools in Halifax
County by the opening of the school year 1969—70.'4 After further
hearings, the District Court on May 23, 1970, found Chapter 31
unconstitutional and permanently enjoined its enforcement. 314
F.Supp. 65. The Court of Appeals reversed, 442 F.2d 575, and we
granted certiorari. 404 U.S. 821, 92 S.Ct. 47, 30 L.Ed.2d 49.
The Court of Appeals did not believe that the separation of
Scotland Neck from the Halifax County system should be viewed as
an alternative plan for desegregating the county system, because
the 'severance was not part of a desegregation plan proposed by
the school board but was instead an action by the Legislature
redefining the boundaries of local governmental units.' 442 F.2d,
at 583. This suggests that an action of a state legislature
affecting the desegregation of a dual system stands on a footing
different from an action of a school board. But in North Carolina
State Board of Education v. Swann, 402 U.S. 43, 91 S.Ct. 1284, 28
L.Ed.2d 586, decided after the decision of the Court of Appeals in
this case, we held that 'if a state-imposed limitation on a school
authority's discretion operates to inhibit or obstruct . . . the
disestablishing of a dual school system, it must fall; state
policy must give way when it operates to hinder vindication of
federal constitutional guarantees.' Id., at 45, 91 S.Ct., at 1286.
The fact that the creation of the Scotland Neck school district
was authorized by a special act of the state legisla-
5
Page 489
ture rather than by the school board or city authorities thus has
no constitutional significance.
We have today held that any attempt by state or local
officials to carve out a new school district from an existing
district that is in the process of dismantling a dual school
system 'must be judged according to whether it hinders or furthers
the process of school desegregation. If the proposal would impede
the dismantling of a dual system, then a district court, in the
exercise of its remedial discretion, may enjoin it from being
carried out.' Wright v. Council of City of Emporia, supra, 407
U.S., at 460, 92 S.Ct., at 2202. The District Court in this case
concluded that Chapter 31 'was enacted with the effect of creating
a refuge for white students of the Halifax County School system,
and interferes with the desegregation of the Halifax County School
system . . ..' 314 F.Supp., at 78. The Court of Appeals, however,
did not regard the separation of Scotland Neck as creating a
refuge for white students seeking to escape desegregation, and it
held that 'the effect of the separation of the Scotland Neck
schools and students on the desegregation of the remainder of the
Halifax County system is minimal and insufficient to invalidate
Chapter 31.' 442 F.2d, at 582. Our review of the record leads us
to conclude that the District Court's determination was the only
proper inference to be drawn from the facts of this litigation,
and we thus reverse the judgment of the Court of Appeals.
The major impact of Chapter 31 would fall on the southeastern
portion of Halifax County, designated as District I in the Interim
Plan for unitary schools proposed by the State Department of
Public Instruction. The projected enrollment in the schools of
this district under the Interim Plan was 2,948 students, of whom
78% were Negro. If Chapter 31 were implemented, the Scotland Neck
schools would be 57%
6
Page 490
white, while the schools remaining in District I would be 89%
Negro. The traditional racial identities of the schools in the
area would be maintained; the formerly all-white Scotland Neck
school would retain a white majority, while the formerly all-Negro
Brawley school, a high school located just outside Scotland Neck,
would be 91% Negro.
In Swann v. Charlotte-Mecklenburg Board of Education, 402
U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554, we said that district
judges or school authorities 'should make every effort to achieve
the greatest possible degree of actual desegregation,' and that in
formulating a plan to remedy state-enforced school segregation
there should be 'a presumption against schools that are
substantially disproportionate in their racial composition.' Id.,
at 26, 91 S.Ct., at 1281. And we have said today in Wright v.
Council of City of Emporia, supra, 407 U.S., at 463, 92 S.Ct., at
2204 that 'desegregation is not achieved by splitting a single
school system operating 'white schools' and 'Negro schools' into
two new systems, each operating unitary schools within its
borders, where one of the two new systems, is, in fact, 'white'
and the other is, in fact, 'Negro."
In this litigation, the disparity in the racial composition
of the Scotland Neck schools and the schools remaining in District
I of the Halifax County system would be 'substantial' by any
standard of measurement. And the enthusiastic response among
whites residing outside Scotland Neck to the school board's
proposed transfer plan confirmed what the figures suggest: the
Scotland Neck school was to be the 'white school' of the area,
while the other District I schools would remain 'Negro schools.'
Given these facts, we cannot but conclude that the implementation
of Chapter 31 would have the effect of impeding the
disestablishment of the dual school system that existed in Halifax
County.
The primary argument made by the respondents in
7
Page 491
support of Chapter 31 is that the separation of the Scotland Neck
schools from those of Halifax County was necessary to avoid 'white
flight' by Scotland Neck residents into private schools that would
follow complete dismantling of the dual school system.
Supplemental affidavits were submitted to the Court of Appeals
documenting the degree to which the system has undergone a loss of
students since the unitary school plan took effect in the fall of
1970.5 But while this development may be cause for deep concern to
the respondents, it cannot, as the Court of Appeals recognized, be
accepted as a reason for achieving anything less than complete
uprooting of the dual public school system. See Monroe v. Board of
Commissioners, 391 U.S. 450, 459, 88 S.Ct. 1700, 1705, 20 L.Ed.2d
733.
Reversed.
djQ Mr. Chief Justice BURGER, with whom Mr. Justice BLACKMUN, Mr.
Justice POWELL, and Mr. Justice REHNQUIST join, concurring in the
result.
I agree that the creation of a separate school system in
Scotland Neck would tend to undermine desegregation efforts in
Halifax County, and I thus join in the result reached by the
Court. However, since I dissented from the Court's decision in
Wright v. Council of City of Emporia, 407 U.S., p. 471, 92 S.Ct.,
p. 2207, I feel constrained to set forth briefly the reasons why I
distinguish the two cases.
First, the operation of a separate school system in Scotland
Neck would preclude meaningful desegregation in the southeastern
portion of Halifax County. If Scotland Neck were permitted to
operate separate schools, more than 2,200 of the nearly 3,000
students in this sector would attend virtually all-Negro schools
located just
8
Page 492
outside of the corporate limits of Scotland Neck. The schools
located within Scotland Neck would be predominantly white. Further
shifts could reasonably be anticipated. In a very real sense, the
children residing in this relatively small area would continue to
attend 'Negro schools' and 'white schools.' The effect of the
withdrawal would thus be dramatically different from the effect
which could be anticipated in Emporia.
Second, Scotland Neck's action cannot be seen as the
fulfillment of its destiny as an independent governmental entity.
Scotland Neck had been a part of the county-wide school system for
many years; special legislation had to be pushed through the North
Carolina General Assembly to enable Scotland Neck to operate its
own school system. The movement toward the creation of a separate
school system in Scotland Neck was prompted solely by the
likelihood of desegregation in the county, not by any change in
the political status of the municipality. Scotland Neck was and is
a part of Halifax County. The city of Emporia, by contrast, is
totally independent from Greensville County; Emporia's only ties
to the county are contractual. When Emporia became a city, a
status derived pursuant to longstanding statutory procedures, it
took on the legal responsibility of providing for the education of
its children and was no longer entitled to avail itself of the
county school facilities.
Third, the District Court found, and it is undisputed, that
the Scotland Neck severance was substantially motivated by the
desire to create a predominantly white system more acceptable to
the white parents of Scotland Neck. In other words, the new system
was designed to minimize the number of Negro children attending
school with the white children residing in Scotland Neck. No
similar finding was made by the District Court in Emporia, and the
record shows that Emporia's decision was not based on the
projected racial composition of the proposed new system.
1
An earlier bill had been introduced in the 1965 session of
the legislature, which would have created a separate school
district for Scotland Neck and the four surrounding townships, an
area with a three-to-one Negro majority. It was contemplated that
the new district would operate under a freedom-of-choice plan
similar to that existing in the county at the time. The bill was
defeated in the State Senate.
2
The vote in the referendum was 813 to 332 in favor of the
new school district. Of Scotland Neck's 1,382 registered voters,
360 were Negro.3 After the preliminary injunction was issued in this case,
the District Court dismissed the Halifax County Board of Education
from that part of the case dealing with Scotland Neck's efforts to
implement a separate school system. On May 19, 1970, the court
ordered the county school board to implement, beginning in the
fall of 1970, the Interim Plan proposed by the State Department of
Public Instruction, with certain modifications proposed by the
school board.
4
The opinion of the District Court on the issuance of the
preliminary injunction is unreported.
5
The figures supplied to the Court of Appeals were updated
by an affidavit submitted to this Court, showing the total
enrollment in the Halifax County schools at the start of the 1971
1972 school year to have been 9,094, of whom 14% were white.
| 12
|
407 U.S. 371
92 S.Ct. 2174
33 L.Ed.2d 1
George William MILTON, Petitioner,v.Louie L. WAINWRIGHT, Director, Florida Divisions of Corrections.
No. 70—5012.
Argued Jan. 12, 1972.
Decided June 22, 1972.
Syllabus
Petitioner in this habeas corpus proceeding challenged on Fifth and Sixth Amendment grounds the introduction at his trial of a post-indictment, pretrial confession he made to a police officer posing as a fellow prisoner. The denial of habeas corpus relief is affirmed without reaching the merits of petitioner's claims; any possible error in the admission of the challenged confession was harmless beyond a reasonable doubt in light of three other unchallenged confessions and strong corroborative evidence of petitioner's guilt. Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284; Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705. Pp. 372—378.
428 F.2d 463, affirmed.
Neil P. Rutledge, Durham, N.C., for petitioner.
J. Robert Olian, Miami, Fla., for respondent pro hac vice, by special leave of Court.
Mr. Chief Justice BURGER delivered the opinion of the Court.
1
We granted the writ of certiorari on claims under the Fifth and Sixth Amendments arising out of the use of one of a number of confessions, all of which were received in evidence over objection. The confession challenged here was obtained by a police officer posing as an accused person confined in the cell with petitioner.
2
Petitioner Milton is presently serving a life sentence imposed in 1958 upon his conviction of first-degree murder following a jury trial in Dade County, Florida. During that trial, the State called as a witness a police officer who, at a time when petitioner had already been indicted and was represented by counsel, posed as a fellow prisoner and spent almost two full days sharing a cell with petitioner. The officer testified to incriminating statements made to him by petitioner during this period. Contending that the statements he made to the officer were involuntary under Fifth Amendment standards and were obtained in violation of his Sixth Amendment rights as subsequently interpreted in Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964), petitioner initiated the present habeas corpus proceeding in the United States District Court for the Southern District of Florida. The District Court, finding that petitioner had exhausted his state remedies in the course of several post-conviction proceedings in the Florida courts, ruled against petitioner on the merits of his claim, holding that his statements to the police officer were not inadmissible on Fifth Amendment grounds and that his Sixth Amendment claim could not prevail since '(n)o Court has declared Massiah retroactive, and this Court will not be the first to do so.' 306 F.Supp. 929, 933. The Court of Appeals affirmed the denial of relief to petitioner, 428 F.2d 463.
3
On the basis of the argument in the case and our examination of the extensive record of petitioner's 1958 trial, we have concluded that the judgment under review must be affirmed without reaching the merits of petitioner's present claim. Assuming, arguendo, that the challenged testimony should have been excluded, the record clearly reveals that any error in its admission was harmless beyond a reasonable doubt. Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969); Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). The jury, in addition to hearing the challenged testimony, was presented with overwhelming evidence of petitioner's guilt, including no less than three full confessions that were made by petitioner prior to his indictment. Those confessions have been found admissible in the course of previous post-conviction proceedings brought by petitioner in his attempts to have this conviction set aside, and they are not challenged here.
4
The crime for which petitioner was convicted occurred in the early morning hours of June 1, 1958. The woman with whom petitioner had been living was asleep while riding as a passenger in the rear seat of an automobile driven by petitioner; she died by drowning when the car ran into the Miami River with its rear windows closed and its rear doors securely locked from the outside with safety devices designed to ensure against accidental opening of the doors. Petitioner, who jumped from the car shortly before it reached the water, was nevertheless propelled into the river by the car's momentum; he was recovered from the water when a seaman nearby heard his cries for help and found him clinging to a boat moored in the river near the point of the automobile's entry. A few hours later the car, with the victim's body still inside, was retrieved from the bottom of the river a short distance downstream from its point of entry.
5
The following day the Miami police arrested petitioner on manslaughter charges and placed him in the city jail. Ten days after the woman's death, petitioner, having been advised of his right to remain silent, confessed that he had deliberately killed the woman and that the accident was simulated. He first made an oral confession to a police officer during a question-and-answer exchange that was preserved on a wirerecording device. He then repeated his confession during another exchange and these statements were taken down by a stenographer; after this stenographic recording was converted to a transcript, petitioner read it over in full and signed it at 11 p.m. on June 11.1
6
The following day, petitioner told a police officer that he would like to make some clarifying additions to the statements in the writing he had signed the previous night. The officer suggested that they first go with a photographer to the scene of the incident 'and reconstruct how this thing . . . occurred.' Petitioner agreed. He, the police officer, and a photographer then went to the scene of the crime where petitioner pointed out the route he had taken in driving the car to the river, the approximate point at which he had jumped out of the car, and the point of the car's entry into the river. Petitioner was then taken back to the police station where he went over his statement of the night before and indicated to the officer the parts of that statement he wanted to clarify. Once again, a stenographer was summoned and a question-and-answer exchange was taken down and transcribed to a writing that petitoner read over and signed.2 Approximately one week after he had made these confessions, petitioner secured the services of an attorney who advised him not to engage in any further discussions of his case with anyone else.
7
Following this, and while petitioner was under indictment and confined in the Dade County jail awaiting trial, the State, for reasons that are not altogether clear, assigned a police officer named Langford the special detail of posing as a prisoner and sharing petitioner's cell in order to 'seek information' from him.
8
Langford entered the cell with petitioner late one Friday afternoon and presented himself as a fellow prisoner under investigation for murder; he assumed a friendly pose toward his cellmate, offering petitioner some of his prison food at their first breakfast together the next morning and telling petitioner something of his own fictitious 'crime,' which he described as a robbery committed with an accomplice who had used Langford's gun to kill the robbery victim. Finally, petitioner began to boast that he had not made Langford's mistake of having an accomplice who might later serve as a witness; instead, he said, he had committed the 'perfect' crime with no surviving witnesses. By the time Langford left the cell on Sunday afternoon, petitioner had described his own crime in some detail and had predicted with much assurance that he would soon be released, that he would collect a lot of insurance money, and that he would then flee the State with the insurance money without ever being brought to trial for his 'perfect' crime. The incriminating statements made to Langford were essentially the same as those given in the prior confessions not challenged here.
9
At petitioner's trial in state court, the wire recording of his first confession was played back, first to the judge for a ruling on its admissibility, and then to the jury. Petitioner's two written confessions were also received in evidence, as were the photographs that were taken and the statements that were made by petitioner when he reconstructed the crime at the scene of its occurrence. In addition, Langford was permitted to testify to the statements amde to him by petitioner while the two men were sharing the cell in the county jail. Other evidence, highly damaging to petitioner in its totality, was also presented to the jury. For example, there was testimony that petitioner had told an acquaintance a few months before the murder that he disliked Minnie Claybon (the murder victim) and was interested only in getting some money out of her. The terms of certain insurance policies purchased by petitioner about two months before the crime were described in testimony given by the selling insurance agents; the policies provided for the payment of $8,500 to petitioner upon the accidental death of Miss Claybon, and the agents testified that petitioner had faithfully maintained his weekly premium payments on the policies. Other testimony, however, indicated that petitioner was hard pressed for money shortly before the murder, having fallen behind in his rent payments and having sold some of his personal clothing to raise small sums. There was testimony that petitioner had purchased the car in which Miss Claybon drowned on the very afternoon before the crime, making a cash down payment of $8; that the safety devices on the rear doors of the car had been left in the unlocked position by the car's former owner; that these devices could be put in the locked position only by loosening a screw, sliding the locking device into position, and then retightening the screw; and that these devices were found securely screwed in the locked position when the car, with the victim's body still inside, was recovered from the river. After hearing all the evidence, the jury found petitioner guilty of murder in the first degree, but recommended mercy; on that recommendation, the trial judge imposed the sentence of life imprisonment.
10
The petitioner has made a number of collateral attacks on his conviction, primarily in the courts of Florida. In response to one of his applications for post-conviction relief, the Florida Supreme Court issued a writ of habeas corpus, heard oral argument on the voluntariness of petitioner's wire-recorded and written confessions, but thereafter discharged the writ in a reported decision upholding the voluntariness of those confessions and their admissibility at trial. Milton v. Cochran, 147 So.2d 137 (1962), cert. denied, 375 U.S. 869, 84 S.Ct. 88, 11 L.Ed.2d 95 (1963). The issues raised in that proceeding are not now before us and must, for the purposes of the instant case, be treated as having been properly resolved by the Florida Supreme Court. Cf. Sup.Ct. Rule 23(1)(c).
11
In initiating the present habeas corpus proceeding in the District Court, petitioner sought to have his conviction set aside on the ground that the statements he made to police officer Langford should not have been admitted against him. Our review of the record, however, leaves us with no reasonable doubt that the jury at petitioner's 1958 trial would have reached the same verdict wihtout hearing Langford's testimony. The writ of habeas corpus has limited scope; the federal courts do not sit to re-try state cases de novo but, rather, to review for violation of federal constitutional standards. In that process we do not close our eyes to the reality of overwhelming evidence of guilt fairly established in the state court 14 years ago by use of evidence not challenged here; the use of the additional evidence challenged in this proceeding and arguably open to challenge was, beyond reasonable doubt, harmless.
12
Affirmed.
13
Mr. Justice STEWART, with whom Mr. Justice DOUGLAS, Mr. Justice BRENNAN, and Mr. Justice MARSHALL join, dissenting.
14
Under the guise of finding 'harmless error,' the Court today turns its back on a landmark constitutional precedent established 40 years ago. That precedent, which clearly controls this case, is Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158. I respectfully dissent.
15
In 1958 a Florida grand jury indicted the petitioner, George Milton, for firstdegree murder. This was an offense punishable by death under Florida law. After he had been indicted, Milton was remanded to the Dade County jail to await trial. He had retained a lawyer, who had advised him not to talk about his case with anyone.
16
Some two weeks later the State directed a police officer named Langford to enter Milton's cell, posing as a fellow prisoner also under indictment for murder, in order to 'seek information' from Milton. Langford entered the cell on a Friday evening. That night he 'tried to open him (Milton) up,' but Milton refused to talk about his case. The next day Langford devoted his efforts to gaining Milton's confidence. He shared his breakfast with Milton and gave him candy. He talked convincingly about his own purported crime. He tried to steer the conversation to the charge against Milton, but Milton repeatedly said he did not want to talk about it, and had been told not to talk about it by his lawyer. Finally, sometime between midnight and 3 a.m. on Sunday, after almost 36 hours of prodding by his supposed fellow prisoner, Milton allegedly confessed the murder to Langford.
17
At Milton's subsequent trial, Langford, over objection, was allowed to testify in detail to this alleged confession. Milton was convicted, and, upon the recommendation of the jury, he was not sentenced to death, but to life imprisonment. His appeals to the state appellate courts were unavailing, and he ultimately filed the present federal habeas corpus proceeding in the United States District Court for the Southern District of Florida, claiming that his conviction was invalid because he had been deprived of his constitutional right to the assistance of counsel after the indictment.
18
The District Judge denied the writ, apparently believing that the question before him was whether this Court's decision in Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246, was 'retroactive':
19
'This case was tried six years before the Supreme Court indicated in Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964), that confessions are involuntary per se if induced by officers or their agents from an accused after his indictment while he is without assistance of counsel. No Court has declared Massiah retroactive, and this Court will not be the first to do so. Counsel for Milton argues that Massiah was not declared retroactive because far from stating new principles of law, it merely restated principles derived from Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932). However, the Powell case dealt with the Sixth Amendment right to appointment of counsel in a capital case, a situation far different from this case. Milton knew what he was doing. He wasn't intimidated by the police, because he didn't even know his cellmate was a policeman. He had a lawyer who had told him not to make any statements concerning his case, but he chose not to follow that advice.' 306 F.Supp. 929, 933—934.
20
The Court of Appeals for the Fifth Circuit affirmed per curiam 'on the basis of (the District Court's) opinion,' 428 F.2d 463, and we granted certiorari, 403 U.S. 904, 91 S.Ct. 2209, 29 L.Ed.2d 679.
21
The District Court and the Court of Appeals were in error. They were mistaken, first, in thinking that the Massiah case had anything to do with the 'voluntariness' of a confession. They were mistaken, second, in thinking that any real question of 'retroactivity' was presented. They were mistaken, third, in thinking that Powell v. Alabama, supra, dealt only with 'appointment of counsel in a capital case.' And they were mistaken, fourth, in thinking that Powell v. Alabama was inapplicable to this case.
22
Powell v. Alabama, decided almost 40 years ago, was one of the truly landmark constitutional decisions of this Court. It held that under the Fourteenth Amendment a man indicted for a capital offense in a state court has an absolute right, not 'to appointment of,' but to the assistance of counsel. And that constitutional right is not restricted to the trial. The Court reversed the convictions in Powell, because:
23
'during perhaps the most critical period of the proceedings against these defendants, that is to say, from the time of their arraignment until the beginning of their trial, when consultation, thorough-going investigation and preparation were vitally important, the defendants did not have the aid of counsel in any real sense, although they were as much entitled to such aid during that period as at the trial itself.' 287 U.S., at 57, 53 S.Ct., at 59.
24
In Massiah v. United States, supra, we found that this constitutional right to counsel1 was violated when, after indictment, a defendant who had a lawyer was surreptitiously interrogated alone by an agent of the police. '(U)nder our system of justice,' we said, 'the most elemental concepts of due process of law contemplate that an indictment be followed by a trial, 'in an orderly courtroom, presided over by a judge, open to the public, and protected by all the procedural safeguards of the law.' . . .' '(A) Constitution which guarantees a defendant the aid of counsel at such a trial could surely vouchsafe no less to an indicted defendant under interrogation by the police in a completely extrajudicial proceeding. . . .' 'This view,' we said, 'no more than reflects a constitutional principle established as long ago as Powell v. Alabama, 287 U.S. 45 53 S.Ct. 55, 77 L.Ed. 158.' 377 U.S., at 204—205, 84 S.Ct., at 1202.
25
The 'retroactivity' of the Massiah decision is a wholly spurious issue. For Massiah marked no new departure in the law. It upset no accepted prosecutorial practice. Its 'retroactivity' would effect no wholesale jail deliveries. Cf. Tehan v. United States ex rel. Shott, 382 U.S. 406, 418—419, 86 S.Ct. 459, 466 467, 15 L.Ed.2d 453. In no case before Massiah had this Court, at least since Powell v. Alabama, ever countenanced the kind of post-indictment police interrogation there involved, let alone ever specifically upheld the constitutionality of any such interrogation.2
26
For four decades this Court has recognized that when a State indicts a man for a capital offense, the most rudimentary constitutional principles require that he be afforded the full and effective assistance of counsel:
27
'Let it be emphasized at the outset that this is not a case where the police were questioning a suspect in the course of investigating an unsolved crime. . . .
28
'Under our system of justice an indictment is supposed to be followed by an arraignment and a trial. At every stage in those proceedings the accused has an absolute right to a lawyer's help if the case is one in which a death sentence may be imposed. Powell v. Alabama.' Spano v. New York, 360 U.S. 315, 327, 79 S.Ct. 1202, 1209, 3 L.Ed.2d 1265 (concurring opinion).
29
So the question in this case is not whether Massiah is 'retroactive,'3 for the rule in that case has been settled law ever since Powell v. Alabama.
30
I can find no basis for the Court's holding today that the admission of Officer Langford's testimony was harmless. In Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705, we said that an 'error in admitting plainly relevant evidence which possibly influenced the jury adversely to a litigant cannot, under Fahy (v. Connecticut, 375 U.S. 85, 84 S.Ct. 229, 11 L.Ed.2d 171), be conceived of as harmless.' 386 U.S. at 23—24, 87 S.Ct. at 828. And on the question of whether a jury might possibly have been influenced, the State must 'prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.' Id. at 24, 87 S.Ct. at 828.
31
Neither the District Court nor the Court of Appeals even suggested the possibility of harmless error in this case, and with very good reasons. The Court today relies on the fact that the challenged 'confession' was only one of several introduced at the petitioner's trial. But it fails to mention that each of the previous statements was taken during an 18-day period after arrest but before indictment, when the petitioner was held in jail incommunicado and was questioned almost every day, often for hours at a time. For 10 days the petitioner denied that he had deliberately killed his wife. Finally, during a session in which two detectives working in tandem questioned him continuously for some eight hours, the petitioner allegedly confessed. Other statements followed that one, but all were taken during the period of incommunicado detention.
32
Under these circumstances, it is hardly surprising that the Miami police chose to plant an officer in the petitioner's jail cell two weeks after indictment, in the hope of obtaining admissions less tainted by the indicia of unreliability that surrounded the previous statements. They succeeded in doing so, and the alleged confession thus obtained was truly devastating to the defense at the trial. Langford's testimony was the first evidence of any incriminating statements introduced by the State at the trial, and it was referred to repeatedly by the prosecutor in his final argument.
33
The state courts determined that the petitioner's pre-indictment statements were voluntary, and that issue, as the Court notes, is not now before us. But the weight given by a jury to any alleged confession is affected by the circumstances under which it was obtained, and the ability of the petitioner to discredit in the minds of the jury the evidence of his prior statements was undoubtedly destroyed by the strong corroboration and elaboration supplied by the testimony of Officer Langford, who had been unconstitutionally planted in the petitioner's jail cell. Surely there is at the least a reasonable doubt whether in these circumstances the introduction of Langford's testimony did not contribute to the verdict of first-degree murder returned by the jury, particularly where a conviction for a lesser degree of homicide was a distinct possibility on the evidence.
34
To hold otherwise, in the absence of any finding of harmless error by any of the four courts that have previously ruled on the admissibility of Langford's testimony, is to violate the very principle that the Court restates today: 'The writ of habeas corpus has limited scope; the federal courts do not sit to re-try state cases de novo but rather to review for violation of federal constitutional standards.' Ante, at 733.
35
Despite its admonition, the Court today refuses to rule on the constitutional question squarely presented in this case. That question is whether the great constitutional lesson of Powell v. Alabama is to be ignored. I would not ignore it, but would honor its 'fundamental postulate . . . 'that there are certain immutable principles of justice which inhere in the very idea of free government which no member of the Union may disregard." Powell v. Alabama, 287 U.S., at 71—72, 53 S.Ct. at 65.
36
For these reasons, I would reverse the judgment before us.
1
In this first written confession, petitioner made the following statements:
'Minnie Lee Claybon (the murder victim) and myself had an insurance policy together. So I started thinking about the insurance and the money that I could get if something happened to her. I knew that I could use the money if something happened. So I decided to do something about it one way or the other, so one night we had been riding around in the car. So I decided to get the whole thing over with. So I drived the car into the river and she was killed.
'. . . I drove the car straight toward the river, and just as I got almost to the river, . . . I jumped from the car and the car went on into the river and I skidded and kept rolling over and over until I was in the river also. I hurt my shoulder. I couldn't move that arm. It was hurting real bad.'
2
In this second writing, petitioner confirmed in major part the statements he had made the night before, but said in addition that he had 'decided to kill' the woman 'about a month before this incident happened.' He further stated, however, that he was not thinking of the insurance money when he made that decision, but was thinking instead of the woman's habits of associating with other men, drinking too much, and staying out late a night. He reaffirmed in express terms that he had deliberately driven the car into the river with the intention of killing the woman.
1
Massiah involved a federal noncapital felony charge, where the defendant had an absolute Sixth Amendment right to counsel under Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461. The same absolute right was secured by Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, to defendants in non-capital state criminal cases under the Sixth and Fourteenth Amendments. This constitutional guarantee has now been further extended. See Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530.
2
An issue of the 'retroactivity' of a decision of this Court is not even presented unless the decision in question marks a sharp break in the web of the law. The issue is presented only when the decision overrules clear past precedent, e.g., Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601; Desist v. United States 394 U.S. 244, 89 S.Ct. 1030, 22 L.Ed.2d 248; Williams v. United States, 401 U.S. 646, 91 S.Ct. 1148, 28 L.Ed.2d 388; or disrupts a practice long accepted and widely relied upon, e.g., Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882; Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199; Cipriano v. City of Houma, 395 U.S. 701, 89 S.Ct. 1897, 23 L.Ed.2d 647.
3
Even on the erroneous premise that the 'retroactivity' of Massiah is here involved, the District Court was quite mistaken in stating that '(n)o Court has declared Massiah retroactive.' This Court in McLeod v. Ohio 381 U.S. 356, 85 S.Ct. 1556, 14 L.Ed.2d 682, reversed, citing Massiah, an Ohio conviction because a voluntary confession was admitted in evidence that had been obtained when police officers questioned the petitioner in the absence of counsel a week after he had been indicted. The conviction antedated Massiah by almost four years.
| 01
|
408 U.S. 92
92 S.Ct. 2286
33 L.Ed.2d 212
POLICE DEPARTMENT OF the CITY OF CHICAGO et al., Petitioners,v.Earl D. MOSLEY.
No. 70—87.
Argued Jan. 19, 1972.
Decided June 26, 1972.
Syllabus
City ordinance prohibiting all picketing within 150 feet of a school, except peaceful picketing of any school involved in a labor dispute, found by the Court of Appeals to be unconstitutional because overbroad, held violative of the Equal Protection Clause of the Fourteenth Amendment since it makes an impermissible distinction between peaceful labor picketing and other peaceful picketing. Pp. 94—102.
432 F.2d 1256, affirmed.
Harvey J. Barnett, Chicago, Ill., for respondent Earl D. Mosley.
Richard L. Curry, Chicago, Ill., for petitioners Police Department of City of Chicago and others.
Mr. Justice MARSHALL delivered the opinion of the Court.
1
At issue in this case is the constitutionality of the following Chicago ordinance:
2
'A person commits disorderly conduct when he knowingly:
3
'(i) Pickets or demonstrates on a public way within 150 feet of any primary or secondary school building while the school is in session and one-half hour before the school is in session and one-half hour after the school session has been concluded, provided, that this subsection does not prohibit the peaceful picketing of any school involved in a labor dispute. . . .' Municipal Code, c. 193 1(i).
4
The suit was brought by Earl Mosley, a federal postal employee, who for seven months prior to the enactment of the ordinance had frequently picketed Jones Commercial High School in Chicago. During school hours and usually by himself, Mosley would walk the public sidewalk adjoining the school, carrying a sign that read: 'Jones High School practices black discrimination. Jones High School has a black quota.' His lonely crusade was always peaceful, orderly, and quiet, and was conceded to be so by the city of Chicago.
5
On March 26, 1968, Chapter 193—1(i) was passed, to become effective on April 5. Seeing a newspaper announcement of the new ordinance, Mosley contacted the Chicago Police Department to find out how the ordinance would affect him; he was told that, if his picketing continued, he would be arrested. On April 4, the day before the ordinance became effective, Mosley ended his picketing next to the school.1 Thereafter, he brought this action in the United States District Court for the Northern District of Illinois, seeking declaratory and injunctive relief, pursuant to 28 U.S.C. s 2201 and 42 U.S.C. § 1983. He alleged a violation of constitutional rights in that (1) the statute punished activity protected by the First Amendment; and (2) by exempting only peaceful labor picketing from its general prohibition against picketing, the statute denied him 'equal protection of the law in violation of the First and Fourteenth Amendments . . ..'
6
After a hearing, the District Court granted a directed verdict dismissing the complaint. The Seventh Circuit reversed, holding that because the ordinance prohibited even peaceful picketing next to a school, it was overbroad and therefore 'patently unconstitutional on its face.' 462 F.2d 1256, 1259 (1970). We granted certiorari, 404 U.S. 821, 92 S.Ct. 42, 30 L.Ed.2d 48 (1971), to consider this case along with Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222, in which an almost identical ordinance was upheld by the Illinois Supreme Court, 46 Ill.2d 492, 496, 263 N.E.2d 866, 868 (1970). We affirm the judgment of the Seventh Circuit, although we decide this case on the ground not reached by that court. We hold that the ordinance is unconstitutional becuase it makes an impermissible distinction between labor picketing and other peaceful picketing.
7
* The city of Chicago exempts peaceful labor picketing from its general prohibition on pikceting next to a school.2 The question we consider here is whether this selective exclusion from a public place is permitted. Our answer is 'No.'
8
Because Chicago treats some picketing differently from others, we analyze this ordinance in terms of the Equal Protection Clause of the Fourteenth Amendment. Of course, the equal protection claim in this case is closely intertwined with First Amendment interests;3 the Chicago ordinance affects picketing, which is expressive conduct; moreover, it does so by classifications formulated in terms of the subject of the picketing. As in all equal protection cases, however, the crucial question is whether there is an appropriate governmental interest suitably furthered by the differential treatment. See Reed v. Reed, 404 U.S. 71, 75—77, 92 S.Ct. 251, 253—254, 30 L.Ed.2d 225 (1971); Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 92 S.Ct. 1400, 31 L.Ed.2d 768 (1972); Dunn v. Blumstein, 405 U.S. 330, 335, 92 S.Ct. 995, 999, 31 L.Ed.2d 274 (1972).
9
The central problem with Chicago's ordinance is that it describes permissible picketing in terms of its subject matter. Peaceful picketing on the subject of a school's labor-management dispute is permitted, but all other peaceful picketing is prohibited. The operative distinction is the message on a picket sign. But, above all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content. Cohen v. California, 403 U.S. 15, 24, 91 S.Ct. 1780, 1787, 29 L.Ed.2d 284 (1971); Street v. New York, 394 U.S. 576, 89 S.Ct. 1354, 22 L.Ed.2d 572 (1969); New York Times Co. v. Sullivan, 376 U.S. 254, 269—270, 84 S.Ct. 710, 720—721, 11 L.Ed.2d 686 (1964), and cases cited; NAACP v. Button, 371 U.S. 415, 445, 83 S.Ct. 328, 344, 9 L.Ed.2d 405 (1963); Wood v. Georgia, 370 U.S. 375, 388—389, 82 S.Ct. 1364, 1371—1372, 8 L.Ed.2d 569 (1962); Terminiello v. Chicago, 337 U.S. 1, 4, 69 S.Ct. 894, 895, 93 L.Ed. 1131 (1949); De Jonge v. Oregon, 299 U.S. 353, 365, 57 S.Ct. 255, 260, 81 L.Ed. 278 (1937). To permit the continued building of our politics and culture, and to assure self-fulfillment for each individual, our people are guaranteed the right to express any thought, free from government consorship. The essence of this forbidden consorship is content control. Any restriction on expressive activity because of its content would completely undercut the 'profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wise-open.' New York Times Co. v. Sullivan, supra, 376 U.S., at 270, 84 S.Ct., at 721.
10
Necessarily, then, under the Equal Protection Clause, not to mention the First Amendment itself, government may not grant the use of a forum to people whose views it finds acceptable, but deny use to those wishing to express less favored or more controversial views. And it may not select which issues are worth discussing or debating in public fcilities. There is an 'equality of status in the field of ideas,'4 and government must afford all points of view an equal opportunity to be heard. Once a forum is opened up to assembly or speaking by some groups, government may not prohibit others from assembling or speaking on the basis of what they intend to say. Selective exclusions from a public forum may not be based on content alone, and may not be justified by reference to content alone.
11
Guided by these principles, we have frequently condemned such discrimination among different users of the same medium for expression. In Niemotko v. Maryland, 340 U.S. 268, 71 S.Ct. 325, 95 L.Ed. 267 (1951), a group of Jehovah's Witnesses were denied a permit to use a city park for Bible talks, although other political and religious groups had been allowed to put the park to analogous uses. Concluding that the permit was denied because of the city's 'dislike for or disagreement with the Witnesses or their views,' this Court held that the permit refusal violated '(t)he right to equal protection of the laws, in the exercise of those freedoms of speech and religion protected by the First and Fourteenth Amendments.' Id., at 272, 71 S.Ct., at 328. The Court followed Niemotko in Fowler v. Rhode Island, 345 U.S. 67, 73 S.Ct. 526, 97 L.Ed. 828 (1953), where again the Jehovah's Witnesses were refused permission to conduct religious services in a park, although other religious groups had been permitted to do so. Similarly, because of their potential use as instruments for selectively suppressing some points of view, this Court has condemned licensing schemes that lodge broad discretion in a public official to permit speech-related activity, see, e.g., Shuttlesworth v. Birmingham, 394 U.S. 147, 89 S.Ct. 935, 22 L.Ed.2d 162 (1969); Cox v. Louisiana, 379 U.S. 536, 555—558, 85 S.Ct. 453, 464—466, 13 L.Ed.2d 471 (1965); Staub v. City of Baxley, 355 U.S. 313, 321—325, 78 S.Ct. 277, 281—284, 2 L.Ed.2d 302 (1958), and cases cited; Saia v. New York, 334 U.S. 558, 560 562, 68 S.Ct. 1148, 1149—1151, 92 L.Ed. 1574 (1948).5
12
The late Mr. Justice Black, who thought that picketing was not only a method of expressing an idea but also conduct subject to broad state regulation, nevertheless recognized the deficiencies of laws like Chicago's ordinance. This was the thrust of his opinion concurring in Cox v. Louisiana, 379 U.S. 536, 85 S.Ct. 453, 13 L.Ed.2d 471 (1965):
13
'(B)y specifically permitting picketing for the publication of labor union views (but prohibiting other sorts of picketing), Louisiana is attempting to pick and choose among the views it is willing to have discussed on its streets. It thus is trying to prescribe by law what matters of public interest people whom it allows to assemble on its streets may and may not discuss. This seems to me to be censorship in a most odious form, unconstitutional under the First and Fourteenth Amendments. And to deny this appellnt and his group use of the streets because of their views against racial discrimination, while allowing other groups to use the streets to voice opinions on other subjects, also amounts, I think, to an invidious discrimination forbidden by the Equal Protection Clause of the Fourteenth Amendment.' Id., at 581, 85 S.Ct., at 470.
14
We accept Mr. Justice Black's quoted views. Cf. NLRB v. Fruit & Vegetable Packers, 377 U.S. 58, 76, 84 S.Ct. 1063, 1073, 12 L.Ed.2d 129 (1964) (Black, J., concurring).
II
15
This is not to say that all picketing must always be allowed. We have continually recognized that reasonable 'time, place and manner' regulations of picketing may be necessary to further significant governmental interests. Cox v. New Hampshire, 312 U.S. 569, 575—576, 61 S.Ct. 762, 765—766, 85 L.Ed. 1049 (1941); Poulos v. New Hampshire, 345 U.S. 395, 398, 73 S.Ct. 760, 762, 97 L.Ed. 1105 (1953); Cox v. Louisiana, 379 U.S. 536, 554—555, 85 S.Ct. 453, 464—465, 13 L.Ed.2d 471 (1965); Cox v. Louisiana, 379 U.S., at 554—555, 85 S.Ct., at 464; Adderley v. Florida, 385 U.S. 39, 46 48, 87 S.Ct. 242, 246—247, 17 L.Ed.2d 149 (1966). Similarly, under an equal protection analysis, there may be sufficient regulatory interests justifying selective exclusions or distinctions among pickets. Conflicting demands on the same place may compel the State to make choices among potential users and uses. And the State may have a legitimate interest in prohibiting some picketing to protect public order. But these justifications for selective exclusions from a public forum must be carefully scrutinized. Because picketing plainly involves expressive conduct within the protection of the First Amendment, see, e.g., Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093 (1940); Chauffeurs, Teamsters & Helpers Local Union 795 v. Newell, 356 U.S. 341, 78 S.Ct. 779, 2 L.Ed.2d 809 (1958); Garner v. Louisiana, 368 U.S. 157, 185, 82 S.Ct. 248, 263, 7 L.Ed.2d 207 (1961) (Harlan, J., concurring in judgment); Edwards v. South Carolina, 372 U.S. 229, 83 S.Ct. 680, 9 L.Ed.2d 697 (1963); Cox v. Louisiana, supra, 379 U.S., at 546, 85 S.Ct., at 459; Amalgamated Food Employees v. Logan Valley Plaza, 391 U.S. 308, 314—315, 88 S.Ct. 1601, 1606—1607 (1968); id., at 337, 88 S.Ct., at 1618 (White, J., dissenting); Gregory v. City of Chicago, 394 U.S. 111, 112, 89 S.Ct. 946, 947, 22 L.Ed.2d 134 (1969); Shuttlesworth v. City of Birmingham, 394 U.S., at 155, 89 S.Ct., at 941, discriminations among pickets must be tailored to serve a substantial governmental interest. Cf. Williams v. Rhodes, 393 U.S. 23, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968).
III
16
In this case, the ordinance itself describes impermissible picketing not in terms of time, place, and manner, but in terms of subject matter. The regulation 'thus ship(s) from the neutrality of time, place, and circumstance into a concern about content.'6 This is never permitted. In spite of this, Chicago urges that the ordinance is not improper content censorship, but rather a device for preventing disruption of the school. Cities certainly have a substantial interest in stopping picketing which disrupts a school. 'The crucial question, however, is whether (Chicago's ordinance) advances that objective in a manner consistent with the commands of the Equal Protection Clause.' Reed v. Reed, 404 U.S., at 76, 92 S.Ct., at 254. It does not.
17
Although preventing school disruption is a city's legitimate concern, Chicago itself has determined that peaceful labor picketing during school hours is not an undue interference with school. Therefore, under the Equal Protection Clause, Chicago may not maintain that other picketing disrupts the school unless that picketing is clearly more disruptive than the picketing Chicago already permits. Cf. Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 511, 89 S.Ct. 733, 739, 21 L.Ed.2d 731 (1969); Wirta v. Alameda-Contra Costa Transit District, 68 Cal.2d 51, 64 Cal.Rptr. 430, 434 P.2d 982 (1967). If peaceful labor picketing is permitted, there is no justification for prohibiting all nonlabor picketing, both peaceful and nonpeaceful. 'Peaceful' nonlabor picketing, however the term 'peaceful' is defined, is obviously no more disruptive than 'peaceful' labor picketing. But Chicago's ordinance permits the latter and prohibits the former. Such unequal treatment is exactly what was condemned in Niemotko v. Maryland, 340 U.S., at 272—273, 71 S.Ct., at 327—328.
18
Similarly, we reject the city's argument that, although it permits peaceful labor picketing, it may prohibit all nonlabor picketing because, as a class, nonlabor picketing is more prone to produce violence than labor picketing.7 Predictions about imminent disruption from picketing involve judgments appropriately made on an individualized basis, not by means of broad classifications, especially those based on subject matter. Freedom of expression, and its intersection with the guarantee of equal protection, would rest on a soft foundation indeed if government could distinguish among picketers on such a wholesale and categorical basis. '(I)n our system, undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression.' Tinker v. Des Moines Independent Community School District, 393 U.S., at 508, 89 S.Ct., at 737. Some labor picketing is peaceful, some disorderly; the same is true of picketing on other themes. No labor picketing could be more peaceful or less prone to violence than Mosley's solitary vigil. In seeking to restrict nonlabor picketing that is clearly more disruptive than peaceful labor picketing, Chicago may not prohibit all nonlabor picketing at the school forum.
19
The Equal Protection Clause requires that statutes affecting First Amendment interests be narrowly tailored to their legitimate objectives. Williams v. Rhodes, 393 U.S. 23, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968); see generally Dunn v. Blumstein, 405 U.S., at 342—343, 92 S.Ct., at 1003.8 Chicago may not vindicate its interest in preventing disruption by the wholesale exclusion of picketing on all but one preferred subject. Given what Chicago tolerates from labor picketing, the excesses of some nonlabor picketing may not be controlled by a broad ordinance prohibiting both peaceful and violent picketing. Such excesses 'can be controlled by narrowly drawn statutes,' Saia v. New York, 334 U.S., at 562, 68 S.Ct., at 1150, focusing on the abuses and dealing evenhandedly with picketing regardless of subject matter. Chicago's ordinance imposes a selective restriction on expressive conduct far 'greater than is essential to the furtherance of (a substantial governmental) interest.' United States v. O'Brien, 391 U.S. 367, 377, 88 S.Ct. 1673, 1679, 20 L.Ed.2d 672 (1968). Far from being tailored to a substantial governmental interest, the discrimination among pickets is based on the content of their expression. Therefore, under the Equal Protection Clause, it may not stand.9
20
The judgment is affirmed. Judgment affirmed.
21
Mr. Justice BLACKMUN and Mr. Justice REHNQUIST concur in the result.
22
Mr. Chief Justice BURGER, concurring.
23
I join the Court's opinion but with the reservation that some of the language used in the discussion of the First Amendment could, if read out of context, be misleading. Numerous holdings of this Court attest to the fact that the First Amendment does not literally mean that we 'are guaranteed the right to express any thought, free from government censorship.' This statement is subject to some qualifications, as for example those of Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957); Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942). See also New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964).
1
Occasionally, thereafter, Mosley would picket across the street, outside the 150-foot zone. At the hearing below, Mosley testified that 'when I was across the street from the school, 150 feet away, you cannot hardly see me. The question that all of the people asked me was, 'Where is the school located?' They don't even see the school across the street, you know. So, what it does, it takes away a certain amount of the effectiveness . . .. (W)hen I am across the street, I am sort of out of the picture . . ..' App. 24—25.
2
By its terms, the statute exempts 'the peaceful picketing of any school involved in a labor dispute.' It is undisputed that this exemption applies only to labor picketing of a school involved in a labor dispute.
3
For discussions of the First Amendment-Equal Protection intersection, see Kalven, The Concept of the Public Forum: Cox v. Louisiana, 1965 Sup.Ct.Rev. 1, 29—30; T. Emerson, The System of Freedom of Expression 303—304, 305—307 (1970). Blasi, Prior Restraints on Demonstrations, 68 Mich.L.Rev. 1482, 1492—1497 (1970); Van Alstyne, Political Speakers at State Universities: Some Constitutional Considerations, 111 U.Pa.L.Rev. 328, 337—339 (1963); see also Niemotko v. Maryland, 340 U.S. 268, 272, 71 S.Ct. 325, 327, 95 L.Ed. 267 (1951).
4
A. Meiklejohn, Political Freedom: The Constitutional Powers of The People 27 (1948).
5
See also Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 510—511, 89 S.Ct. 733, 738—739, 21 L.Ed.2d 731 (1969); Adderley v. Florida, 385 U.S. 39, 47, 87 S.Ct. 242, 247, 17 L.Ed.2d 149 (1966); Carlson v. California, 310 U.S. 106, 112, 60 S.Ct. 746, 748, 84 L.Ed. 1104 (1940); Wirta v. Alameda-Contra Costa Transit District, 68 Cal.2d 51, 64 Cal.Rptr. 430, 434 P.2d 982 (1967); Bynum v. Schiro, 219 F.Supp. 204 (E.D.La.1963), aff'd, 375 U.S. 395, 84 S.Ct. 452, 11 L.Ed.2d 412 (1964); East Meadow Community Concerts Assn. v. Board of Education, 18 N.Y.2d 129, 272 N.Y.S.2d 341, 219 N.E.2d 172 (1966); Matter of Madole v. Barnes, 20 N.Y.2d 169, 282 N.Y.S.2d 225, 229 N.E.2d 20 (1967); United States v. Crowthers, 456 F.2d 1074 (CA4 1972); and the litigation in Ellis v. Dixon, 349 U.S. 458, 75 S.Ct. 850, 99 L.Ed. 1231 (1955). Cf. Flower v. United States, 407 U.S. 197, 92 S.Ct. 1842, 32 L.Ed.2d 653 (1972).
6
Kalven, The Concept of the Public Forum: Cox v. Louisiana, 1965 Sup.Ct.Rev. 29. Cf. Cox v. Louisiana, 379 U.S. 536, 556 n. 14, 85 S.Ct. 453, 465, 13 L.Ed.2d 471 where the Court noted that the exemption for labor picketing in a statute otherwise barring on its face all street assemblies and parades, 'points up the fact that the statute reaches beyond mere traffic regulation to restrictions on expression.'
7
The city notes in its brief, pp. 28—30:
'Although the civil rights movement has understandably endeavored to press into its service the constitutional precedents developed in labor relations litigation, there are important differences between labor picketing and picketing by civil rights groups. . . . Labor picketing is now usually token picketing. . . . It seldom leads to disruption of the public peace, hardly ever to window smashing, arson. Labor picketing can be carried on without interrupting classes or even distracting the students. . . . As we all know, student demonstrations at schools—and even such demonstrations by parents and 'concerned citizens'—are utterly different. Mass picketing, sit-ins, smashed windows have been the order of the day. The very purpose of such demonstrations often is to bring the educational process to a halt.'
8
In a variety of contexts we have said that 'even though the governmental purpose be legitimate and substantial, that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved.' Shelton v. Tucker, 364 U.S. 479, 488, 81 S.Ct. 247, 252, 5 L.Ed.2d 231 (1960). This standard, of course, has been carefully applied when First Amendment interests are involved. E.g., Schneider v. State, 308 U.S. 147, 164, 60 S.Ct. 146, 152, 84 L.Ed. 155 (1939); De Jonge v. Oregon, 299 U.S. 353, 364—365, 57 S.Ct. 255, 259—260, 81 L.Ed. 278 (1937); Cantwell v. Connecticut, 310 U.S. 296, 307, 60 S.Ct. 900, 904, 84 L.Ed. 1213 (1940); NAACP v. Button, 371 U.S. 415, 438, 83 S.Ct. 328, 340, 9 L.Ed.2d 405 (1963); Cox v. Louisiana, 379 U.S. 559, 562—564, 85 S.Ct. 476, 479—481, 13 L.Ed.2d 487 (1965); United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968).
9
Chicago argued below that the labor exemption in the ordinance was necessitated by federal pre-emption of the regulation of labor relations. The city now recognizes that the National Labor Relations Act specifically exempts States and subdivisions (and therefore cities and their public school boards) from the definition of 'employer' within the Act. 29 U.S.C. § 152. Nevertheless, Chicago urges that the pre-emption argument still has 'some merit.' It argues that 'since observance by employees of private employers of picket lines of public employees can have repercussions in the federal sphere, the City was well advised to avoid this quagmire of labor law and labor relations by exempting labor picketing from the ordinance.' Reply Brief 12. This attenuated interest, at best a claim of small administrative convenience and perhaps merely a confession of legislative laziness, cannot justify the blanket permission given to labor picketing and the blanket prohibition applicable to others.
| 23
|
408 U.S. 229
92 S.Ct. 2245
33 L.Ed.2d 312
John R. KOISv.State of WISCONSIN.
No. 71—5625.
June 26, 1972.
PER CURIAM.
1
Petitioner was convicted in the state trial court of violating a Wisconsin statute prohibiting the dissemination of 'lewd, obscene or indecent written matter, picture, sound recording, or film.' Wis.Stat. 944.21(1)(a) (1969). He was sentenced to consecutive one-year terms in the Green Bay Reformatory and fined $1,000 on each of two counts. The Supreme Court of Wisconsin, upheld his conviction against the contention that he had been deprived of freedom of the press in violation of the Fourteenth Amendment. 51 Wis.2d 668, 188 N.W.2d 467.
2
Petitioner was the publisher of an underground newspaper called Kaleidoscope. In an issue published in May 1968, that newspaper carried a story entitled 'The One Hundred Thousand Dollar Photos' on an interior page. The story itself was an account of the arrest of one of Kaleidoscope's photographers on a charge of possession of obscene material. Two relatively small pictures, showing a nude man and nude woman embracing in a sitting position, accompanied the article and were described in the article as 'similar' to those seized from the photographer. The article said that the photographer, while waiting in the district attorney's office, had heard that bail might be set at $100,000. The article went on to say that bail had in fact been set originally at $100, then raised to $250, and that later the photographer had been released on his own recognizance. The article purported to detail police tactics that were described as an effort to 'harass' Kaleidoscope and its staff.
3
Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957), held that obscenity was not protected under the First or Fourteenth Amendments. Material may be considered obscene when 'to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.' 354 U.S., at 489, 77 S.Ct. at 1311. In enunciating this test, the Court in Roth quoted from Thornhill v. Alabama, 310 U.S. 88, 101—102, 60 S.Ct. 736, 743—744, 84 L.Ed. 1093:
4
'The freedom of speech and of the press guaranteed by the Constitution embraces at the least the liberty to discuss publicly and truthfully all matters of public concern without previous restraint or fear of subsequent punishment. The exigencies of the colonial period and the efforts to secure freedom from oppressive administration developed a broadened conception of these liberties as adequate to supply the public need for information and education with respect to the significant issues of the times. . . .' (Emphasis supplied.)
5
We do not think it can fairly be said, either considering the article as it appears or the record before the state court, that the article was a mere vehicle for the publication of the pictures. A quotation from Voltaire in the flyleaf of a book will not constitutionally redeem an otherwise obscene publication, but if these pictures were indeed similar to the one seized—and we do not understand the State to contend differently—they are relevant to the theme of the article. We find it unnecessary to consider whether the State could constitutionally prohibit the dissemination of the pictures by themselves, because in the context in which they appeared in the newspaper they were rationally related to an article that itself was clearly entitled to the protection of the Fourteenth Amendment. Thornhill v. Alabama, supra. The motion for leave to proceed in forma pauperis and the petition for writ of certiorari are granted. The conviction on count one must therefore be reversed.
6
In its August 1968 issue, Kaleidoscope published a two-page spread consisting of 11 poems, one of which was entitled 'Sex Poem.' The second count of petitioner's conviction was for the dissemination of the newspaper containing this poem. The poem is an undisguisedly frank, play-by-play account of the author's recollection of sexual intercourse. But, as the Roth Court emphasized, 'sex and obscenity are not synonymous. . . . The portrayal of sex, e.g., in art, literature and scientific works, is not itself sufficient reason to deny material the constitutional protection of freedom of speech and press.' 354 U.S., at 487, 77 S.Ct., at 1310. A reviewing court must, of necessity, look at the context of the material, as well as its content.
7
In this case, considering the poem's content and its placement amid a selection of poems in the interior of a newspaper, we believe that it bears some of the earmarks of an attempt at serious art. While such earmarks are not inevitably a guarantee against a finding of obscenity, and while in this case many would conclude that the author's reach exceeded his grasp, this element must be considered in assessing whether or not the 'dominant' theme of the material appeals to prurient interest. While 'contemporary community standards,' Roth v. United States, 354 U.S., at 489, 77 S.Ct. at 1311, must leave room for some latitude of judgment, and while there is an undeniably subjective element in the test as a whole, the 'dominance' of the theme is a question of constitutional fact. Giving due weight and respect to the conclusions of the trial court and to the Supreme Court of Wisconsin, we do not believe that it can be said that the dominant theme of this poem appeals to prurient interest. The judgment on the second count, therefore, must also be reversed.
8
Reversed.
9
Mr. Justice STEWART concurs in the judgment.
10
Mr. Justice DOUGLAS, concurring in the judgment.
11
I concur in the judgment because neither logic, history, nor the plain meaning of the English language will support the obscenity exception this Court has engrafted onto the First Amendment.
12
This case, moreover, is further testimony to the morass in which this Court has placed itself in the area of obscenity. Men are sent to prison under definitions which they cannot understand, and on which lower courts and members of this Court cannot agree. Here, the Court is forced to examine the thematic content of the two newspapers for the publication of which petitioner was prosecuted in order to hold that they are constitutionally protected. Highly subjective inquiries such as this do not lend themselves to a workable or predictable rule of law, nor should they be the basis of fines or imprisonment.
13
In this case, the vague umbrella of obscenity laws was used in an attempt to run a radical newspaper out of business and to impose a two-year sentence and a $2,000 fine upon its publisher. If obscenity laws continue in this uneven and uncertain enforcement, then the vehicle has been found for the suppression of any unpopular tract. The guarantee of free expression will thus be diluted and in its stead public discourse will only embrace that which has the approval of five members of this Court.
14
The prospect is not imaginary now that the Bill of Rights, applicable to the States by reason of the Fourteenth Amendment, is coming to be a 'watered down' version, meaning not what it says but only what a majority of this Court thinks fit and proper.
| 23
|
408 U.S. 41
92 S.Ct. 2357
33 L.Ed.2d 179
David GELBARD and Sidney Parnas, Petitioners,v.UNITED STATES. UNITED STATES, Petitioner, v. Jogues EGAN and Anne Elizabeth Walsh.
Nos. 71—110, 71—263.
Argued March 27, 1972.
Decided June 26, 1972.
Syllabus
Where a grand jury witness is adjudicated in civil contempt under 28 U.S.C. § 1826(a) for refusing 'without just cause shown to comply with an order of the court to testify,' the witness may invoke as a defense 18 U.S.C. § 2515, which directs that '(w)henever any wire or oral communication has been intercepted, no part of the contents of such communication and no evidence derived therefrom may be received in evidence in any . . . proceeding in or before any . . . grand jury . . .,' since a showing that the interrogation would be based upon the illegal interception of the witness' communications would constitute the 'just cause' that precludes a finding of contempt. Pp. 46—61.
No. 71—110, 443 F.2d 837, reversed and remanded; No. 71—263, 450 F.2d 199 and 450 F.2d 231, affirmed.
Michael E. Tigar, San Francisco, Cal., for petitioners David Gelbard and Sidney Parnas.
Daniel M. Friedman, Washington, D.C., for the United States.
Jack J. Levine, Philadelphia, Pa., for Joguez Egan and Anne Elizabeth Walsh, pro hac viceBy special leave of Court.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
These cases present challenges to the validity of adjudications of civil contempt, pursuant to 28 U.S.C. § 1826(a),1 of witnesses before federal grand juries who refused to comply with court orders to testify. The refusals were defended upon the ground that interrogation was to be based upon information obtained from the witnesses' communications, allegedly intercepted by federal agents by means of illegal wiretapping and electronic surveillance. A provision of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 82 Stat. 211, as amended, 18 U.S.C. §§ 2510—2520, directs that '(w) henever any wire or oral communication has been intercepted, no part of the contents of such communication and no evidence derived therefrom may be received in evidence in any . . . proceeding in or before any . . . grand jury . . . if the disclosure of that information would be in violation of this chapter.' 18 U.S.C. § 2515.2 The question presented is whether grand jury witnesses, in proceedings under 28 U.S.C. § 1826(a), are entitled to invoke this prohibition of § 2515 as a defense to contempt charges brought against them for refusing to testify. In No. 71—110, the Court of Appeals for the Ninth Circuit held that they are not entitled to do so. United States v. Gelbard, 443 F.2d 837 (1971). In No. 71 263, the Court of Appeals for the Third Circuit, en banc, reached the contrary conclusion. In re Grand Jury Proceedings, Harrisburg, Pa. (Egan), 450 F.2d 199 (1971); In re Grand Jury Proceedings, Harrisburg, Pa. (Walsh), 450 F.2d 231 (1971). We granted certiorari. 404 U.S. 990, 92 S.Ct. 531, 30 L.Ed.2d 541 (1971).3 We disagree with the Court of Appeals for the Ninth Circuit and agree with the Court of Appeals for the Third Circuit.
2
No. 71—110. A federal district judge approved wiretaps by federal agents of the telephones of Perry Paul, an alleged bookmaker, and Jerome Zarowitz, a former executive of a Las Vegas casino. In the course of those taps, the agents overheard conversations between Paul and petitioner Gelbard and between Zarowitz and petitioner Parnas. Petitioners were subsequently called before a federal grand jury convened in Los Angeles to investigate possible violations of federal gambling laws. The Government asserted that petitioners would be questioned about third parties and that the questions would be based upon petitioners' intercepted telephone conversations. Petitioners appeared before the grand jury, but declined to answer any questions based upon their intercepted conversations until they were afforded an opportunity to challenge the legality of the interceptions. Following a hearing, the United States District Court for the Central District of California found petitioners in contempt and, pursuant to 28 U.S.C. § 1826(a), committed them to custody for the life of the grand jury or until they answered the questions.
3
No. 71—263. Respondents Egan and Walsh were called before a federal grand jury convened in Harrisburg, Pennsylvania, to investigate, among other possible crimes, an alleged plot to kidnap a Government official. Pursuant to 18 U.S.C. § 2514, both respondents were granted transactional immunity in return for their testimony. Respondents appeared before the grand jury, but refused to answer questions on the ground, among others, that the questions were based upon information overheard from respondents by means of the Government's illegal wiretapping and electronic surveillance. The Government did not reply to respondents' allegations.4 Following a hearing, the United States District Court for the Middle District of Pennsylvania found respondents in contempt, and they were also committed to custody pursuant to 28 U.S.C. § 1826(a).
4
Section 1826(a) expressly limits the adjudication of civil contempt to the case of a grand jury witness who 'refuses without just cause shown to comply with an order of the court to testify.' Our inquiry, then, is whether a showing that interrogation would be based upon the illegal interception of the witness' communications constitutes a showing of 'just cause' that precludes a finding of contempt. The answer turns on the construction of Title III of the Omnibus Crime Control Act.5
5
* In Title III, Congress enacted a comprehensive scheme for the regulation of wiretapping and electronic surveillance. See United States v. United States District Court, 407 U.S. 297, 301—306, 92 S.Ct. 2125, 2128—2131, 32 L.Ed.2d 752. Title III authorizes the interception of private wire and oral communications, but only when law enforcement officials are investigating specified serious crimes and receive prior judicial approval, an approval that may not be given except upon compliance with stringent conditions. 18 U.S.C. § 2516, 2518(1)—(8). If a wire or oral communication is intercepted in accordance with the provisions of Title III, the contents of the communication may be disclosed and used under certain circumstances. 18 U.S.C. § 2517. Except as expressly authorized in Title III, however, all interceptions of wire and oral communications are flatly prohibited. Unauthorized interceptions and the disclosure or use of information obtained through unauthorized interceptions are crimes, 18 U.S.C. § 2511(1), and the victim of such interception, disclosure, or use is entitled to recover civil damages, 18 U.S.C. § 2520. Title III also bars the use as evidence before official bodies of the contents and fruits of illegal interceptions, 18 U.S.C. § 2515, and provides procedures for moving to suppress such evidence in various proceedings, 18 U.S.C. § 2518(9)—(10).
6
The witnesses in these cases were held in contempt for disobeying court orders by refusing to produce evidence—their testimony—before grand juries. Consequently, their primary contention is that § 2515, the evidentiary prohibition of Title III, afforded them a defense to the contempt charges. In addressing that contention, we must assume, in the present posture of these cases, that the Government has intercepted communications of the witnesses and that the testimony the Government seeks from them would be, within the meaning of § 2515, 'evidence derived' from the intercepted communications. We must also assume that the communications were not intercepted in accordance with the specified procedures and thus that the witnesses' potential testimony would be 'disclosure' in violation of Title III. See 18 U.S.C. §§ 2511(1), 2517(3). In short, we proceed on the premise that § 2515 prohibits the presentation to grand juries of the compelled testimony of these witnesses.
7
The narrow question, then, is whether under these circumstances the witnesses may invoke the prohibition of § 2515 as a defense to contempt charges brought on the basis of their refusal to obey court orders to testify. We think they may.
8
The unequivocal language of § 2515 expresses the fundamental policy adopted by Congress on the subject of wiretapping and electronic surveillance. As the congressional findings for Title III make plain, that policy is strictly to limit the employment of those techniques of acquiring information:
9
'To safeguard the privacy of innocent persons, the interception of wire or oral communications where none of the parties to the communication has consented to the interception should be allowed only when authorized by a court of competent jurisdiction and should remain under the control and supervision of the authorizing court. Interception of wire and oral communications should further be limited to certain types of offenses and specific categories of crime with assurances that the interception is justified and that the information obtained thereby will not be misused.' § 801(d), 82 Stat. 211.6
10
The Senate committee report that accompanied Title III underscores the congressional policy:
11
'Title III has as it dual purpose (1) protecting the privacy of wire and oral communications, and (2) delineating on a uniform basis the circumstances and conditions under which the interception of wire and oral communications may be authorized. To assure the privacy of oral and wire communications, title III prohibits all wiretapping and electronic surveillance by persons other than duly authorized law enforcement officers engaged in the investigation or prevention of specified types of serious crimes, and only after authorization of a court order obtained after a showing and finding of probable cause.' S.Rep.No.1097, 90th Cong., 2d Sess., 66 (1968); U.S.Code Cong. & Admin.News, p. 2153. Hence, although Title III authorizes invasions of individual privacy under certain circumstances, the protection of privacy was an overriding congressional concern.7 Indeed, the congressional findings articulate clearly the intent to utilize the evidentiary prohibition of § 2515 to enforce the limitations imposed by Title III upon wiretapping and electronic surveillance:
12
'In order to protect effectively the privacy of wire and oral communications, to protect the integrity of court and administrative proceedings, and to prevent the obstruction of interstate commerce, it is necessary for Congress to define on a uniform basis the circumstances and conditions under which the interception of wire and oral communications may be authorized, to prohibit any unauthorized interception of such communications, and the use of the contents thereof in evidence in courts and administrative proceedings.' § 801(b), 82 Stat. 211 (emphasis added.8
13
And the Senate report, like the congressional findings, specifically addressed itself to the enforcement, by means of § 2515, of the limitations upon invasions of individual privacy:
14
'Virtually all concede that the use of wiretapping or electronic surveillance techniques by private unauthorized hands has little justification where communications are intercepted without the consent of one of the participants. No one quarrels with the proposition that the unauthorized use of these techniques by law enforcement agents should be prohibited. . . . Only by striking at all aspects of the problem can privacy be adequately protected. The prohibition, too, must be enforced with all appropriate sanctions. Criminal penalties have their part to play. But other remedies must be afforded the victim of an unlawful invasion of privacy. Provision must be made for civil recourse for damages. The perpetrator must be denied the fruits of his unlawful actions in civil and criminal proceedings. Each of these objectives is sought by the proposed legislation.' S.Rep.No.1097, supra, at 69; U.S.Code Cong., & Admin.News, p. 2156 (emphasis added.)
15
Section 2515 is thus central to the legislative scheme. Its importance as a protection for 'the victim of an unlawful invasion of privacy' could not be more clear.9 The purposes of § 2515 and Title III as a whole would be subverted were the plain command of § 2515 ignored when the victim of an illegal interception is called as a witness before a grand jury and asked questions based upon that interception. Moreover, § 2515 serves not only to protect the privacy of communications,10 but also to ensure that the courts do not become partners to illegal conduct: the evidentiary prohibition was enacted also 'to protect the integrity of court and administrative proceedings.' Consequently, to order a grand jury witness, on pain of imprisonment, to disclose evidence that § 2515 bars in unequivocal terms is both to thwart the congressional objective of protecting individual privacy by excluding such evidence and to entangle the courts in the illegal acts of Government agents.
16
In sum, Congress simply cannot be understood to have sanctioned orders to produce evidence excluded from grand jury proceedings by § 2515. Contrary to the Government's assertion that the invasion of privacy is over and done with, to compel the testimony of these witnesses compounds the statutorily proscribed invasion of their privacy by adding to the injury of the interception the insult of compelled disclosure. And, of course, Title III makes illegal not only unauthorized interceptions but also the disclosure and use of information obtained through such interceptions. 18 U.S.C. § 2511(1); see 18 U.S.C. § 2520. Hence, if the prohibition of § 2515 is not available as a defense to the contempt charge, disclosure through compelled testimony makes the witness the victim, once again, of a federal crime. Finally, recognition of § 2515 as a defense 'relieves judges of the anomalous duty of finding a person in civil contempt for failing to cooperate with the prosecutor in a course of conduct which, if pursued unchecked, could subject the prosecutor himself to heavy civil and criminal penalties.' In re Grand Jury Proceedings, Harrisburg, Pa. (Egan), 450 F.2d, at 220 (Rosenn, J., concurring). 'And for a court, on petition of the executive department, to sentence a witness, who is herself the victim of the illegal wiretapping, to jail for refusal to participate in the exploitation of that crime in violation of the explicit command of Section 2515 is to stand our whole system of criminal justice on its head.' In re Evans, 146 U.S.App.D.C. 310, 323, 452 F.2d 1239, 1252 (1971) (Wright, J., concurring).
II
17
Our conclusion that § 2515 is an available defense to the contempt charge finds additional support in 18 U.S.C. § 3504, enacted as part of the Organized Crime Control Act of 1970, 84 Stat. 935. Section 3504 is explicit confirmation that Congress intended that grand jury witnesses, in reliance upon the prohibition of § 2515, might refuse to answer questions based upon the illegal interception of their communications.
Section 3504 provides:
18
'(a) In any . . . proceeding in or before any . . . grand jury . . .
19
'(1) Upon a claim by a party aggrieved that evidence is inadmissible because it is the primary product of an unlawful act or because it was obtained by the exploitation of an unlawful act, the opponent of the claim shall affirm or deny the occurrence of the alleged unlawful act.'
20
Under § 3504(a)(2), disclosure of information relating to the claim of inadmissibility is not mandatory if the 'unlawful act' took place before June 19, 1968, the effective date of Title III. Under § 3504(a)(3), there is a five-year limitation upon the consideration of a claim of inadmissibility based upon 'the exploitation of an unlawful act' that took place before June 19, 1968. Section 3504 (b), by reference to Title III, defines an 'UNLAWFUL ACT' AS ONE INVOLVING ILLEGAL WIRetapping or electronic surveillance.11
21
Section 3504, then, establishes procedures to be followed 'upon a claim by a party aggrieved that evidence is inadmissible because' of an illegal interception. And § 3504 tracks § 2515 in its application to grand jury proceedings. Indeed, '(t)he language used in defining the types of proceedings, types of forums, and jurisdictions in which section 3504 is applicable was taken from 18 U.S.C. § 2515.' S.Rep.No.91—617, p. 154 (1969).12 In the application of § 3504 to 'any . . . proceeding in or before any . . . grand jury,' 'a party aggrieved' can only be a witness, for there is no other 'party' to a grand jury proceeding. Moreover, a 'claim . . . that evidence is inadmissible' can only be a claim that the witness' potential testimony is inadmissible. Hence, § 3504, by contemplating 'a claim by a party aggrieved that evidence is inadmissible because' of an illegal interception, necessarily recognizes that grand jury witnesses may rely upon the prohibition of § 2515 in claiming that the evidence sought from them is inadmissible in the grand jury proceedings. Upon such a claim by a grand jury witness, the Government, as 'the opponent of the claim,' is required under § 3504(a)(1) to 'affirm or deny the occurrence of the alleged' illegal interception. Section 3504 thus confirms that Congress meant that grand jury witnesses might defend contempt charges by invoking the prohibition of § 2515 against the compelled disclosure of evidence obtained in violation of Title III.
22
The Government urges, however, that the procedures prescribed in § 3504 are limited in application to claims of inadmissibility based upon illegal interceptions that took place before June 19, 1968, and that § 3504 cannot, therefore, provide support for a construction of § 2515. We disagree. While subsections (a)(2) and (a)(3) apply only when the illegal interception took place before June 19, 1968, it is clear both from the face of § 350413 and from its legislative history that subsection (a)(1), imposing the duty upon 'the opponent of the claim' to 'affirm or deny the occurrence of the alleged' illegal interception, is not similarly limited.
23
The omission of the June 19, 1968, date from subsection (a)(1) was not inadvertent. Subsection (a)(1) was not in the original Senate bill, although the bill did contain conterparts of present subsections (a)(2) and (a)(3) without the June 19, 1968, or any other date limitation.14 See Hearings before the Subcommittee on Criminal Laws and Procedures of the Senate Committee on the Judiciary on S. 30 et al., 91st Cong., 1st Sess., 102— 105 (1969). Subsection (a)(1) was added at the suggestion of the Department of Justice. At that time the Department followed the practice of searching Government files for information about wiretaps and eavesdropping. The Department advised the Senate Judiciary Committee that while it had been 'conduct(ing) such examinations as a matter of policy even in cases where no motion ha(d) been filed . . . defendants should be assured such an examination by a specific requirement of law rather than hav(ing) to rely upon the continued viability of a current policy.' Id., at 553. The Senate report on § 3504 explained that 'since (subsection (a)(1)) requires a pending claim as a predicate to disclosure, it sets aside the present wasteful practice of the Department of Justice in searching files without a motion from a defendant.' S.Rep.No.91—617, p. 154 (1969).
24
The reason assigned in the Senate for enacting subsection (a)(1) was thus as applicable to post- as it was to pre-June 19, 1968, interceptions. The same was true of the House. There subsection (a)(1) was supported on the ground that it would be beneficial to the victims of illegal interceptions. Senator McClellan, for example, who testified before the House Subcommittee, indicated that subsection (a)(1) 'places upon the Government an affirmative duty to answer a claim that evidence is inadmissible because of unlawful investigative conduct.' 'The first requirement (of § 3504), that the Government admit or deny the occurrence of the alleged invasion of the defendant's rights, actually places or codifies a burden upon the Government, rather than the defendant.' Hearings before Subcommittee No. 5 of the House Committee on the Judiciary on S. 30 et al., 91st Cong., 2d Sess., 84, 104 (1970). Other witnesses thought the provision unnecessary.15 Indeed, one organization submitted a report that disapproved subsection (a)(1) on the ground that the Government should admit illegalities without a prior claim. Id., at 562 (Section of Criminal Law of the American Bar Association). It is also significant that congressional questioning of a representative of the Department of Justice at the hearings was directed to the Department's views on the insertion of a date limitation only in subsections (a)(2) and (a)(3). Id., at 659; see the Department's written response, id. at 675—676.
25
The June 19, 1968, date was inserted in subsections (a)(2) and (a)(3) after the conclusion of the House hearings. It is apparent from the House report that only subsections (a)(2) and (a)(3) of the Senate version were to be limited by the June 19, 1968, date and that subsection (a)(1) was to be operative without regard to when the alleged illegal interception may have taken place:
26
'Paragraph (1) provides that upon a claim by an aggrieved party that evidence is inadmissible because it is the primary product of an unlawful act, or because it was obtained by the exploitation of an unlawful act, the opponent of the claim must affirm or deny the occurrence of the alleged unlawful act. Under this provision, upon a charge by the defendant with standing to challenge the alleged unlawful conduct, the Government would be required to affirm or deny that an unlawful act involving electronic surveillance had in fact occurred. If such an unlawful act had in fact occurred, paragraph (2), below, will govern disclosure of the contents of the electronic surveillance records or transcripts to the defendant and his counsel, unless paragraph (3) applies.' H.R.Rep.No.91—1549, p. 51 (1970); U.S.Code Cong. & Admin.News, p. 4027.
27
This explanation demonstrates that 'the opponent of the claim'16 has a duty to 'affirm or deny' whenever 'a party aggrieved' 'claims(s) . . . that evidence is inadmissible because it is' derived from an illegal interception. The date June 19, 1968, becomes relevant only after it is determined that an illegal interception took place and an issue thus arises as to disclosure of information bearing on the claim.17
III
28
The Government argues, finally, that while § 2515 could be construed to allow a grand jury witness to invoke its prohibition as a defense to a contempt charge, '(i)f this section were the only relevant portion of (Title III),' Brief for the United States in No. 71—263, p. 19, proceedings before grand juries are omitted from another provision of Title III, § 2518(10)(a), that authorizes '(a)ny aggrieved person,'18 in specified types of proceedings, to 'move to suppress the contents of any intercepted wire or oral communication, or evidence derived therefrom.'19 But it does not follow from the asserted omission of grand jury proceedings from the suppression provision that grant jury witnesses cannot invoke § 2515 as a defense in a contempt proceeding under 28 U.S.C. § 1826(a).20 The congressional concern with the applicability of § 2518(10)(a) in grand jury proceedings, so far as it is discernible from the Senate report, was apparently that defendants and potential defendants might be able to utilize suppression motions to impede the issuance of indictments: 'Normally, there is no limitation on the character of evidence that may be presented to a grand jury, which is enforcible by an individual, (United States v. Blue, 384 U.S. 251, 86 S.Ct. 1416, 16 L.Ed.2d 510 (1966)). There is no intent to change this general rule.' S.Rep.No.1097, 90th Cong., 2d Sess., 106 (1968); U.S.Code Cong. & Admin.News, p. 2195. The 'general rule,' as illustrated in Blue, is that a defendant is not entitled to have his indictment dismissed before trial simply because the Government 'acquire(d) incriminating evidence in violation of the (law),' even if the 'tainted evidence was presented to the grand jury.' 384 U.S., at 255 and n. 3, 86 S.Ct., at 1419; see Lawn v. United States, 355 U.S. 339, 78 S.Ct. 311, 2 L.Ed.2d 321 (1958); Costello v. United States, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397 (1956). But that rule has nothing whatever to do with the situation of a grand jury witness who has refused to testify and attempts to defend a subsequent charge of contempt. Hence, we cannot agree that the Senate report expressed the view that a grand jury witness would be foreclosed from raising the § 2515 defense in a contempt proceeding under § 1826(a).
29
Furthermore, grand jury witnesses do not normally discover whether they may refuse to answer questions by filing motions to suppress their potential testimony. The usual procedure is, upon the Government's motion, to have a court order a grand jury witness to testify upon penalty of contempt for noncompliance. Section 1826(a) embodies that traditional procedure. The asserted omission of grand jury proceedings from § 2518 (10)(a) may well reflect congressional acceptance of that procedure as adequate in these cases. Consequently, we cannot suppose that Congress, by providing procedures for suppression motions, intended to deprive grand jury witnesses of the § 2515 defense that would otherwise be available to them. Although the Government points to statements in the Senate report to the effect that § 2518(10)(a) 'limits' § 2515, we read those statements to mean that suppression motions, as a method of enforcing the prohibition of § 2515, must be made in accordance with the restrictions upon forums, procedures, and grounds specified in § 2518(10)(a).21
30
The judgment of the Court of Appeals for the Ninth Circuit in No. 71—110 is reversed and the case is remanded for further proceedings consistent with this opinion.22 The judgment of the Court of Appeals for the Third Circuit in No. 71—263 is affirmed.23
31
It is so ordered.
32
Affirmed in part, reversed and remanded in part.
33
Mr. Justice DOUGLAS, concurring.
34
Although I join in the opinion of the Court, I believe that, independently of any statutory refuge which Congress may choose to provide, the Fourth Amendment shields a grand jury witness from any question (or any subpoena) which is based upon information garnered from searches which invade his own constitutionally protected privacy.
35
I would hold that Title III of the Omnibus Crime Control and Safe Streets Act of 1968 offends the Fourth Amendment, as does all wiretapping and bugging, for reasons which I have often expressed elsewhere. E.g., Cox v. United States, 406 U.S. 934, 92 S.Ct. 1783, 32 L.Ed.2d 136; Williamson v. United States, 405 U.S. 1026, 92 S.Ct. 1297, 1323, 31 L.Ed.2d 487; Katz v. United States, 389 U.S. 347, 359, 88 S.Ct. 507, 515, 19 L.Ed.2d 576; Berger v. New York, 388 U.S. 41, 64, 87 S.Ct. 1873, 1886, 18 L.Ed.2d 1040; Osborn v. United States, 385 U.S. 323, 340, 87 S.Ct. 429, 438, 17 L.Ed.2d 394; Pugach v. Dollinger, 365 U.S. 458, 459, 81 S.Ct. 650, 5 L.Ed.2d 678; On Lee v. United States, 343 U.S. 747, 762, 72 S.Ct. 967, 976, 96 L.Ed. 1270. In each of the present cases a grand jury witness seeks to prove and suppress suspected unconstitutional seizures of his own telephone conversations. And, in every relevant respect, the proceedings below were in striking parallel to those in Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319.
36
In that case, after federal agents unlawfully seized papers belonging to the Silverthornes and to their lumber company, the documents were returned upon order of the court. In the interim, however, the agents had copied them. After returning the seized originals, the prosecutor attempted to regain possession of them by issuing a grand jury subpoena duces tecum. When the petitioners refused to comply with the subpoena they were convicted of contempt. In reversing those judgments, this Court, through Mr. Justice Holmes, held that the Government was barred from reaping any fruit from its forbidden act and wove into our constitutional fabric the celebrated maxim that '(t)he essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court but that it shall not be used at all.' 251 U.S., at 392, 40 S.Ct., at 183.
37
Petitioners Gelbard and Parnas and respondents Egan and Walsh occupy positions which are virtually identical to that of the Silverthornes and their company. They desire to demonstrate that but for unlawful surveillance of them the grand jury would not now be seeking testimony from them. And, as in Silverthorne, they are the victims of the alleged violations, seeking to mend no one's privacy other than their own. Finally, here, as there, the remedy preferred is permission to refuse to render the requested information.
38
Unless Silverthorne is to be overruled and uprooted from those decisions which have followed it, such as Nardone v. United States, 308 U.S. 338, 340—341, 60 S.Ct. 266, 267—268, 84 L.Ed. 307; Benanti v. United States, 355 U.S. 96, 103, 78 S.Ct. 155, 159, 2 L.Ed.2d 126; Elkins v. United States, 364 U.S. 206, 210, 80 S.Ct. 1437, 1440, 4 L.Ed.2d 1669; Mapp v. Ohio, 367 U.S. 643, 648, 81 S.Ct. 1684, 1687—1688, 6 L.Ed.2d 1081; Wong Sun v. United States, 371 U.S. 471, 484—485, 83 S.Ct. 407, 415—416, 9 L.Ed.2d 441; Harrison v. United States, 392 U.S. 219, 222, 88 S.Ct. 2008, 2010, 20 L.Ed.2d 1047; and Alderman v. United States, 394 U.S. 165, 171, 177, 89 S.Ct. 961, 965, 968—969, 22 L.Ed.2d 176, these witnesses deserve opportunities to prove their allegations and, if successful, to withhold from the Government any further rewards of its 'dirty business.' Olmstead v. United States, 277 U.S. 438, 470, 48 S.Ct. 564, 575, 72 L.Ed. 944 (Holmes, J., dissenting).
39
The Solicitor General does not propose that Silverthorne be overruled. Nor does he deny its remarkable similarity. Indeed, his analysis of the constitutional issue at stake here fails even to mention that landmark decision.1 And none of the precedents cited by him detract from Silverthorne's vitality.2
40
Rather, the Government treats this decision as a 'novel extension' of Fourth Amendment protections, leaning heavily upon the observation that the exclusionary rule has never been extended to 'provide that illegally seized evidence is inadmissible against anyone for any purpose.' Alderman, supra, 394 U.S. at 175, 89 S.Ct. at 967. This aphorism is contravened, concludes the Solicitor General, by any result permitting a nondefendant to 'suppress' evidence sought to be introduced at another's trial or to withhold testimony from a grand jury investigation of someone else.
41
To be sure, no majority of this Court has ever held that 'anything which deters illegal searches is thereby commanded by the Fourth Amendment.' Id., at 174, 89 S.Ct., at 967. But that concern is not at stake here. No one is attempting to assert vicariously the rights of others. Here it is only necessary to adhere to the basic principle that victims of unconstitutional practices are themselves entitled to effective remedies. For, 'where federally protected rights have been invaded, it has been the rule from the beginning that courts will be alert to adjust their remedies so as to grant the necessary relief.' Bell v. Hood, 327 U.S. 678, 684, 66 S.Ct. 773, 777, 90 L.Ed. 939. And see Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619.
42
The fact that the movants below sought to withhold evidence does not transform these cases into unusual ones. A witness is often permitted to retain exclusive custody of information where a contrary course would jeopardize important liberties such as First Amendment guarantees, Watkins v. United States, 354 U.S. 178, 77 S.Ct. 1173, 1 L.Ed.2d 1273; NAACP v. Alabama, 357 U.S. 449, 463, 78 S.Ct. 1163, 1172, 2 L.Ed.2d 1488; Gibson v. Florida Legislative Investigation Committee, 372 U.S. 539, 83 S.Ct. 889, 9 L.Ed.2d 929; Baird v. State Bar of Arizona, 401 U.S. 1, 6—7, 91 S.Ct. 702, 706—706, 27 L.Ed.2d 639; In re Stolar, 401 U.S. 23, 91 S.Ct. 713, 27 L.Ed.2d 657; Fifth Amendment privileges, Hoffman v. United States, 341 U.S. 479, 71 S.Ct. 814, 95 L.Ed. 1118, or traditional testimonial privileges.3
43
The same is true of Fourth Amendment authority to withhold evidence, even from a grand jury. Hale v. Henkel, 201 U.S. 43, 26 S.Ct. 370, 50 L.Ed. 652; Silverthorne, supra. No one would doubt, for example, that under Bell v. Hood, supra, and Bivens, supra (or Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492, where state police were concerned), a telephone subscriber could obtain an injunction against unlawful wiretapping of his telephone despite the fact that such termination might remove from the Government's reach evidence with which it could convict third parties.
44
A contrary judgment today would cripple enforcement of the Fourth Amendment. For, if these movants, who the Solicitor General concedes are not the prosecutors' targets, were required to submit to interrogation, then they (unlike prospective defendants) would have no further opportunity to vindicate their injuries. More generally, because surveillances are often 'directed primarily to the collecting and maintaining of intelligence with respect to subversive forces, and are not an attempt to gather evidence for specific criminal prosecutions,' United States v. United States District Court, 407 U.S. 297, 318—319, 92 S.Ct. 2125, 2137, 32 L.Ed.2d 752, the normal exclusionary threat of Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652, would be sharply attenuated and intelligence centers would be loosed from virtually every deterrent against abuse.4 Furthermore, even where the 'uninvited ear' is used to obtain criminal convictions, rather than for domestic spying, a rule different from our result today would supply police with an added incentive to record the conversations of suspected coconspirators in order to marshal evidence against alleged ringleaders. We are told that '(p)olice are often tempted to make illegal searches during the investigations of a large conspiracy. Once the police have established that several individuals are involved, they may deem it worthwhile to violate the constitutional rights of one member of the conspiracy (particularly a minor member) in order to obtain evidence for use against others.' White & Greenspan, Standing to Object to Search and Seizure, 118 U.Pa.L.Rev. 333, 351 (1970) (footnotes omitted). Because defendants are normally denied 'standing' to suppress evidence procured as a result of invasions of others' privacy, today's remedy is necessary to help neutralize the prosecutorial reward of such tactics.
45
Today's remedy assumes an added and critical measure of importance for, due to the clandestine nature of electronic eavesdropping, other inhibitions on officers' abuse, such as the threat of damage actions, reform through the political process, and adverse publicity, will be of little avail in guarding privacy.
46
Moreover, when a court assists the Government in extracting fruits from the victims of its lawless searches it degrades the integrity of the judicial system. For '(n)othing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence.' Mapp v. Ohio, 367 U.S. 643, 659, 81 S.Ct. 1684, 1694, 6 L.Ed.2d 1081. For this reason, our decisions have embraced the view that '(t)he tendency of those who execute the criminal laws of the country to obtain conviction by means of unlawful seizures and enforced confessions . . . should find no sanction in the judgments of the courts, which are charged at all times with support of the Constitution.' Weeks v. United States, 232 U.S. 383, 392, 34 S.Ct. 341, 344, 58 L.Ed. 652. As mentioned earlier, this principle was at the heart of the Silverthorne decision. Later in his dissent in Olmstead v. United States, 277 U.S., at 470, 48 S.Ct., at 575, a case in which federal wiretappers had violated an Oregon law, Mr. Justice Holmes, citing Silverthorne, thought that both the officers and the court were honor bound to observe the state law: '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.' In the same case, Justice Brandeis, who was then alone in his view that wiretapping was a search within the meaning of the Fourth Amendment, phrased it this way: 'In a government of laws, existence of the government will be imperilled if it fails to observe 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 contagious. If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.' Id., at 485, 48 S.Ct., at 575.
47
In an entrapment case, Mr. Justice Frankfurter, with whom Justices Harlan, Brennan, and I joined, thought that 'the federal courts have an obligation to set their face against enforcement of the law by lawless means' because '(p) ublic confidence in the fair and honorable administration of justice, upon which ultimately depends the rule of law, is the transcending value at stake.' Sherman v. United States, 356 U.S. 369, 380, 78 S.Ct. 819, 825, 2 L.Ed.2d 848 (concurring in result); see also his opinion for the Court in Nardone v. United States, 308 U.S. 338, 340—341, 60 S.Ct. 266, 267—268, 84 L.Ed. 307. In a SelfIncrimination Clause decision, Mr. Justice Brennan (joined by Mr. Justice Marshall and myself) used fewer words: 'it is monstrous that courts should aid or abet the lawbreaking police officer.' Harris v. New York, 401 U.S. 222, 232, 91 S.Ct. 643, 649, 28 L.Ed.2d 1 (dissenting opinion).
48
These standards are at war with the Government's claim that intelligence agencies may invoke the aid of the courts in order to compound their neglect of constitutional values. To be sure, at some point taint may become so attenuated that ignoring the original blunder will not breed contempt for law. But here judges are not asked merely to overlook infractions diminished by time and independent events. Rather, if these witnesses' allegations are correct, judges are being invited to become the handmaidens of intentional5 police lawlessness by ordering these victims to elaborate on their telephonic communications of which the prosecutors would have no knowledge but for their unconstitutional surveillance.
49
In summary, I believe that Silverthorne was rightly decided, that it was rooted in our continuing policy to equip victims of unconstitutional searches with effective means of redress, that it has enjoyed repeated praise in subsequent decisions, that it has not been seriously challenged here, and that it requires that we affirm the Third Circuit in Egan and Walsh and reverse the Ninth Circuit in Gelbard and Parnas.
50
Mr. Justice WHITE, concurring.
51
Under 28 U.S.C. § 1826(a) a witness who refuses to testify 'without just cause' may be held in contempt of court. Here, grand jury witnesses are involved, and the just cause claimed to excuse them is that the testimony demanded involves the disclosure and use of communications allegedly intercepted in violation of the controlling federal statute and hence inadmissible under 18 U.S.C. § 2515.
52
The United States asserts that § 2515 affords no excuse to grand jury witnesses under any circumstances. Reliance is placed on § 2518(10)(a) and the legislative history of the statute. I agree with the Court, however, that at least where the United States has intercepted communications without a warrant in circumstances where court approval was required, it is appropriate in construing and applying 28 U.S.C. § 1826 not to require the grand jury witness to answer and hence further the plain policy of the wiretap statute. This unquestionably works a change in the law with respect to the rights of grand jury witnesses, but it is a change rooted in a complex statute, the meaning of which is not immediately obvious as the opinions filed today so tellingly demonstrate.
53
Where the Government produces a court order for the interception, however, and the witness nevertheless demands a full-blown suppression hearing to determine the legality of the order, there may be room for striking a different accommodation between the due functioning of the grand jury system and the federal wiretap statute. Suppression hearings in these circumstances would result in protracted interruption of grand jury proceedings. At the same time, prosecutors and other officers who have been granted and relied on a court order for the interception would be subject to no liability under the statute, whether the order is valid or not; and, in any event, the deterrent value of excluding the evidence will be marginal at best. It is well, therefore, that the Court has left this issue open for consideration by the District Court on remand. See ante, at 61 n. 22.
54
Of course, where the Government officially denies the fact of electronic surveillance of the witness, the matter is at an end and the witness must answer.
55
Mr. Justice REHNQUIST, with whom THE CHIEF JUSTICE, Mr. Justice BLACKMUN, and Mr. Justice POWELL join, dissenting.
56
Disposition of these cases depends on the sorting out of admittedly conflicting implications from different sections of the principal statute involved. The Court's conclusion, while supportable, if regard be had only for the actual language of the sections, is by no means compelled by that language. Its conclusion is reached in utter disregard of the relevant legislative history, and quite without consideration of the sharp break that it represents with the historical modus operandi of the grand jury. It is, in my opinion, wrong.
57
The Court states the question to be whether witnesses threatened with contempt under 28 U.S.C. § 1826(a) 'are entitled to invoke this prohibition of § 2515 as a defense to contempt charges brought against them for refusing to testify.' Ante, at 43. The question as thus framed by the Court has been so abstracted and refined, and divorced from the particulars of these two cases, as to virtually invite the erroneous answer that the opinion of the Court gives.
58
Nor is it accurate to 'assume,' as the Court does, that the Government's overhearing of these witnesses was in violation of the applicable statute. Petitioner Gelbard contended in the trial court that the United States planned to use his electronically overheard conversations as one basis for questioning him before the grand jury, and so stated in a presentation to that court. The Government in a reply affidavit stated that whatever information had been gathered a § a result of electronic overhearing had been obtained from wiretaps conducted pursuant to court order as provided in 18 U.S.C. § 2518.1 Parnas, so far as this record shows, made no similar allegation in the trial court. The Court of Appeals in its opinion described the position taken by these witnesses in the following language:
59
'When cited for contempt in the district court, each attacked the constitutional validity of Section 2518, and additionally urged that he should not be required to testify until and unless first allowed to inspect all applications, orders, tapes and transcripts relating to such electronic surveillance and afforded an opportunity to suppress the use before the grand jury of any evidence so secured . . ..' 443 F.2d 837, 838.
60
Thus what was presented to the trial court in this proceeding under 18 U.S.C. § 1826(a) was not a neatly stipulated question of law, but a demand by the petitioners that they be permitted to roam at will among the prosecutor's records in order to see whether they might be able to turn up any evidence indicating that the Government's overhearing of their conversations had been unauthorized by statute. In order to determine whether this particular type of remedy is open to these petitioners at this particular stage of potential criminal proceedings it is not enough to recite, as the Court does, that 18 U.S.C. § 2515 prohibits the use of illegally overheard wire communications before grand juries as well as before other governmental bodies. This proposition is not disputed. The far more difficult inquiry posed by these facts is whether the granting to these petitioners, at this particular stage of these proceedings, of sweeping discovery as a prelude to a full hearing on the issue of alleged unlawful surveillance can fairly be inferred from the enactment by Congress of the two statutes relied on in the Court's opinion.
61
* It may be helpful at the outset to treat briefly the background of 28 U.S.C. § 1826(a). As the Court notes, this provision was enacted as a part of the Organized Crime Control Act of 1970, and the Senate Report states that it was intended to codify the 'present practice' of the federal courts. S.Rep.No.91 617, p. 148 (1969). The existing practice of the federal courts prior to the enactment of this section was based on Fed.Rule Crim.Proc. 42 and on 18 U.S.C. § 401, both of which dealt generally with the power of courts to punish for contempt. The enactment of § 1826(a) appears to have resulted from a desire on the part of Congress to treat separately from the general contempt power of courts their authority to deal with recalcitrant witnesses in court or grand jury proceedings. Since, as the Senate Report states, the enactment of this provision was designed to 'codify present practice' it is instructive to note the types of claims litigated in connection with grand jury matters under Rule 42 and 18 U.S.C. § 401 prior to the enactment of this new section. So far as the reported decisions of this Court and of the lower federal courts reveal, prior litigation with respect to grand juries has dealt almost exclusively with questions of privilege, and most of these cases have dealt with issues of the privilege against self-incrimination. While it is plain that the respondent in such proceedings was entitled to a hearing and to adduce evidence, it is equally plain that the typical hearing was short in duration and largely devoted to the arguments of counsel on an agreed statement of facts.2
62
Some of the flavor of the type of proceeding contemplated under the prior practice is gleaned from the following passage in the Court's opinion in Shillitani v. United States, 384 U.S. 364, 370, 86 S.Ct. 1531, 1535, 16 L.Ed.2d 622 (1966) (citations omitted):
63
'There can be no question that courts have inherent power to enforce compliance with their lawful orders through civil contempt . . .. And it is essential that courts be able to compel the appearance and testimony of witnesses . . .. A grand jury subpoena must command the same respect . . .. Where contempt consists of a refusal to obey a court order to testify at any stage in judicial proceedings, the witness may be confined until compliance . . ..'
64
These proceedings seem almost invariably to have been short and summary in nature, not because the defendant was to be denied a fair hearing, but because the type of issue that could be raised at such a proceeding was one which did not generally permit extensive factual development. Even where a court of appeals reversed a contempt adjudication because of the district court's failure to allow the defendant to testify on his own behalf with respect to material issues, there was no hint of either the right to, or the necessity for, any discovery proceedings against the Government. Hooley v. United States, 209 F.2d 219 (CA1 1954).
65
Congress was, of course, free to expand the scope of inquiry in these proceedings, to enlarge the issues to be tried, and to alter past practice in any other way that it chose consistently with the Constitution. But in view of the stated congressional intent to 'codify present practice' by the enactment of § 1826(a), we should require rather strong evidence of congressional purpose to conclude that Congress intended to engraft on the traditional and rather summary contempt hearings a new type of hearing in which a grand jury witness is accorded carte blanche discovery of all of the Government's 'applications, orders, tapes, and transcripts relating to such electronic surveillance' before he may be required to testify. 443 F.2d, at 838.
II
66
Just as Congress was not writing on a clean slate in the area of contempt hearings, it was not writing on a clean slate with respect to the nature of grand jury proceedings. These petitioners were called before a grand jury that had been convened to investigate violations of federal laws. We deal, therefore, not with the rights of a criminal defendant in the traditional adversary context of a trial, but with the status of witnesses summoned to testify before a body devoted to sifting evidence that could result in the presentment of criminal charges. Just as the cases arising under the antecedent of 28 U.S.C. § 1826(a) suggest a limitation on the type of issue which may be litigated in such a proceeding, cases dealing with the role of the grand jury stress the unique breadth of its scope of inquiry. In Blair v. United States, 250 U.S. 273, 282, 39 S.Ct. 468, 471, 63 L.Ed. 979 (1919), this Court defined the vital investigatory function of the grand jury:
67
'It is a grand inquest, a body with powers of investigation and inquisition, the scope of whose inquiries is not to be limited narrowly by questions of propriety or forecasts of the probable result of the investigation, or by doubts whether any particular individual will be found properly subject to an accusation of crime. As has been said before, the identity of the offender, and the precise nature of the offense, if there be one, normally are developed at the conclusion of the grand jury's labors, not at the beginning. . . .'
68
Another passage from Blair pointed out the citizen's obligation to obey the process of the grand jury:
69
'(I)t is clearly recognized that the giving of testimony and the attendance upon court or grand jury in order to testify are public duties which every person within the jurisdiction of the Government is bound to perform upon being properly summoned.' Id., at 281 39 S.Ct., at 471.
70
In Costello v. United States, 350 U.S. 359, 362, 76 S.Ct. 406, 408, 100 L.Ed. 397 (1956), the Court traced the development of the English grand jury and concluded that the probable intent of the Framers of our Constitution was to parallel that institution as it had existed in England where '(g)rand jurors were selected from the body of the people and their work was not hampered by rigid procedural or evidential rules.' 350 U.S., at 362, 76 S.Ct., at 408. The Court in Costello was at pains to point out the necessity of limiting the nature of challenges to evidence adduced before a grand jury if that body were to retain its traditional comprehensive investigative authority:
71
'If indictments were to be held open to challenge on the ground that there was inadequate or incompetent evidence before the grand jury, the resulting delay would be great indeed. The result of such a rule would be that before trial on the merits a defendant could always insist on the kind of preliminary trial to determine the competency and adequacy of the evidence before the grand jury.' 350 U.S., at 363, 76 S.Ct., at 408.
72
While this general statement applied by its terms only to one who was ultimately indicted by the grand jury, its reasoning applies with like force to one who seeks to make an evidentiary challenge to grand jury proceedings on the basis of his status as a prospective witness. Indeed, time-consuming challenges by witnesses during the course of a grand jury investigation would be far more inimical to the function of that body than would a motion to dismiss an indictment after it had concluded its deliberations.
73
In Laws v. United States, 355 U.S. 339, 78 S.Ct. 311, 2 L.Ed.2d 321 (1958), the Court refused to accord to petitioners the hearing, prior to trial, on the issue of whether or not a grand jury which indicted them had made direct or derivative use of materials the use of which by an earlier grand jury had been held to violate the petitioners' privilege against self-incrimination. In supporting its conclusion that the petitioners should not even be accorded a hearing to sustain these contentions, the Court quoted a passage from Costello describing the grand jury as
74
"(an) institution, in which laymen conduct their inquiries unfettered by technical rules. Neither justice nor the concept of a fair trial requires such a change. In a trial on the merits, defendants are entitled to a strict observance of all the rules designed to bring about a fair verdict. Defendants are not entitled, however, to a rule which would result in interminable delay but add nothing to the assurance of a fair trial." 355 U.S., at 350, 78 S.Ct., at 318.
75
It seems to me to be clear beyond cavil from these cases that prior to the enactment of the Omnibus Crime Control and Safe Streets Act of 1968, a hearing such as that which the Court awards these petitioners was not only unauthorized by law, but completely contrary to the ingrained principles which have long governed the functioning of the grand jury.
III
76
When Congress set out to enact the two statutes on which the Court relies, it was certainly not with any announced intent to change the nature of contempt hearings relating to grand jury proceedings, or to change the modus operandi of the grand jury. Instead, largely in response to the decisions of this Court in Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967), and Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), Congress undertook to draft comprehensive legislation both authorizing the use of evidence obtained by electronic surveillance on specified conditions, and prohibiting its use otherwise. S.Rep. No. 1097, 90th Cong., 2d Sess., 66 (1968); U.S.Code Cong. & Admin.News, p. 2112. The ultimate result was the 1968 Act. Critical to analysis of the issue involved here are §§ 2515 and 2518(10) (a) of that Act, which provide in pertinent part as follows:
77
'Whenever any wire or oral communication has been intercepted, no part of the contents of such communication and no evidence derived therefrom may be received in evidence in any trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority . . . if the disclosure of that information would be in violation of this chapter.' § 2515.
78
'Any aggrieved person in any trial, hearing, or proceeding in or before any court, department, officer, agency, regulatory body, or other authority of the United States, a State, or a political subdivision thereof, may move to suppress the contents of any intercepted wire or oral communication, or evidence derived therefrom, on the grounds that—
79
'(i) the communication was unlawfully intercepted;
80
'(ii) the order of authorization or approval under which it was intercepted is insufficient on its face; or
81
'(iii) the interception was not made in conformity with the order of authorization or approval. . . .' § 2518(10)(a).
82
Here is presented at the very least an implied conflict between two separate sections of the same Act. Section 2515 proscribes generally the use of unlawfully intercepted communications as evidence before a number of specified bodies, including a grand jury. Section 2518(10)(a) provides for the type of hearing that petitioners sought and were denied by the District Court; it provides such hearings in connection with a number of specified legal proceedings, but it conspicuously omits proceedings before a grand jury. The method by which the Court solves this dilemma is to state that if petitioners succeed after their discovery in establishing their claim of unlawful electronic surveillance, their questioning before the grand jury on the basis of such electronic surveillance would violate § 2515 as, of course, it presumptively would. Therefore, says the Court, petitioners must be entitled to the discovery and factual hearing which they seek, even though § 2518(10)(a) rather clearly denies it to them by implication.
83
A construction which I believe at least equally plausible, based simply on the juxtaposition of the various sections of the statute, is that § 2515 contains a basic proscription of certain conduct, but does not attempt to specify remedies or rights arising from a breach of that proscription; the specification of remedies is left to other sections. Other sections provide several remedies; criminal and civil sanctions are imposed by §§ 2511 and 2520, whereas § 2518(10)(a) accords a right to a suppression hearing in specified cases. Thus the fact that one who may be the victim of alleged unlawful surveillance on the part of the Government is not accorded an Alderman-type suppression hearing (Alderman v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969)) under the provisions of § 2518(10)(a) is not left remediless to such a degree that it must be presumed to have been an oversight; he is remitted to the institution of civil proceedings, or the filing of a complaint leading to the institution of a criminal prosecution. While the latter two remedies may not be as efficacious in many situations as a suppression hearing, the remission of an aggrieved party to those remedies certainly does not render nugatory the general proscription contained in § 2515.
84
The omission of 'grand jury' from the designated forums in § 2518(10)(a) is not explainable on the basis that though the testimony is sought to be adduced before a grand jury, the motion to suppress would actually be made in a court, which is one of the forums designated in § 2518(10)(a). The language 'in any trial, hearing, or proceeding in or before' quite clearly refers to the forum in which the testimony is sought to be adduced. But even more significant is the inclusion among the designated forums of 'department,' 'officer,' 'agency,' and 'regulatory body.' Congress has almost without exception provided that issues as to the legality and propriety of subpoenas issued by either agencies or executive departments should be resolved by the courts. It has accomplished his result by requiring the agency to bring an independent judicial action to enforce obedience to its subpoena. See, e.g., 15 U.S.C. § 79r, Public Utility Holding Company Act of 1935; 15 U.S.C. § 78u, Securities Exchange Act of 1934; 41 U.S.C. §§ 35—45, WalshHealey Act; 50 U.S.C.App. § 2155, Defense Production Act of 1950; 47 U.S.C. §§ 409(f) and (g), Communications Act of 1934; 46 U.S.C. § 1124, Merchant Marine Act, 1936; 26 U.S.C. § 7604, Internal Revenue Code of 1954; 16 U.S.C. § 825f(c), Electric Utility Companies Act; 15 U.S.C. § 717m(d), Natural Gas Act; 7 U.S.C. § 511n, Tobacco Inspection Act. This general mode of enforcement of agency investigative subpoenas was discussed in the context of the Fair Labor Standards Act in Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186, 66 S.Ct. 494, 90 L.Ed. 614 (1946).
85
Thus, if Congress in § 2518 had intended to focus on the forum in which the hearing as to the legality of the subpoena is to be determined, rather than the forum in which the testimony is sought to be adduced, it would have omitted not only grand juries, but departments, officers, agencies, and regulatory bodies as well from the coverage of § 2518(10)(a). For questions as to the legality of subpoenas issued by all these bodies are resolved in the courts. By omitting only grand juries in § 2518, Congress indicated that it was dealing with the forum in which the testimony was sought to be adduced, and that the suppression hearing authorized by the section was not to be available to grand jury witnesses.
86
In the light of these conflicting implications from the statutory language itself, resort to the legislative history is appropriate. Passages from the legislative history cited by the Court in its opinion do not focus at all on the availability of a suppression hearing in grand jury proceedings; they simply speak in general terms of the congressional intent to prohibit and penalize unlawful electronic surveillance, of which intent there can, of course, be no doubt. But several parts of the legislative history address themselves, far more particularly than any relied upon by the Court in its opinion, to the actual issue before us. The Senate Report, for example, indicates as plainly as possible that the exclusion of grand juries from the language of § 2518(10)(a) was deliberate:
87
'This provision (§ 2518(10)(a)) must be read in connection with sections 2515 and 2517, discussed above, which it limits. It provides the remedy for the right created by section 2515. Because no person is a party as such to a grand jury proceeding, the provision does not envision the making of a motion to suppress in the context of such a proceeding itself. Normally, there is no limitation on the character of evidence that may be presented to a grand jury, which is enforcible by an individual. (United States v. Blue, 384 U.S. 251, 86 S.Ct. 1416, 16 L.Ed.2d 510 (1966).) There is no intent to change this general rule. It is the intent of the provision only that when a motion to suppress is granted in another context, its scope may include use in a future grand jury proceeding.' S.Rep.No.1097, 90th Cong., 2d Sess., 106 (1968); U.S.Code Cong. & Admin.News, p. 2195. (Emphasis added.)
88
There is an intimation in the opinion of the Court that the reason this language was used may have been that grand juries do not pass upon motions to suppress, while courts do. This intimation is not only inconsistent with the language of the section itself, as pointed out, supra, at 80, but it attributes to the drafters of the report a lower level of understaning of the subject matter with which they were dealing than I believe is justified. It is also rather squarely contradicted by the statement that there is no limitation on the character of evidence that may be presented to a grand jury 'which is enforcible by an individual.' Had the report meant to stress the presumably well-known fact that grand juries do not themselves grant motions to suppress, it would not have used that language, nor would it have cited United States v. Blue, 384 U.S. 251, 86 S.Ct. 1416, 16 L.Ed.2d 510 (1966).
89
The fact that the report states the reason for the policy adopted in terms of the rights of an 'individual,' rather than in terms of the rights of a 'defendant,' makes the Court's discussion of the doctrine of various cases, ante, at 60, of doubtful help in construing the statute. Whatever United States v. Blue, supra, may be said to 'hold' after careful analysis by this Court, the drafters of the Senate Report undoubtedly took it to stand for the proposition for which they cited it. As stated by Mr. Justice Frankfurter, concurring in Green v. United States, 356 U.S. 165, 189, 78 S.Ct. 632, 646, 2 L.Ed.2d 672:
90
'The fact that scholarship has shown that historical assumptions regarding the procedure for punishment of contempt of court were ill-founded, hardly wipes out a century and a half of the legislative and judicial history of federal law based on such assumptions.'
91
Not only does the report dealing with § 2518(10)(a) make clear that it is to be construed in connection with § 2515, which it limits, but the section of the same report dealing with § 2515 re-emphasizes this conclusion. Speaking of the latter section, the report says:
92
'The provision must, of course, be read in light of section 2518(10)(a) discussed below, which defines the class entitled to make a motion to suppress. It largely reflects existing law. . . . Nor generally (is there any intention) to press the scope of the suppression rule beyond present search and seizure law. See Walder v. United States, 74 S.Ct. 354, 347 U.S. 62 (98 L.Ed. 503) (1954). . . . The provision thus forms an integral part of the system of limitations designed to protect privacy. Along with the criminal and civil remedies, it should serve to guarantee that the standards of the new chapter will sharply curtail the unlawful interception of wire and oral communications.' S.Rep.No.1097, 90th Cong., 2d Sess., 96 (1968).
93
The conclusion that § 2518(10)(a) is the exclusive source of the right to move to suppress is further fortified by the Senate Report's comment on § 2510(11) of the Act, which defines an 'aggrieved person' as one who is a party to an 'intercepted wire or oral communication or a person against whom the interception was directed.' The Senate Report, p. 91; U.S.Code Cong. & Admin.News, p. 2179, states:
94
'This definition defines the class of those who are entitled to invoke the suppression sanction of section 2515 discussed below, through the motion to suppress provided for by section 2518(10)(a), also discussed below. It is intended to reflect existing law. . . .' (Citations omitted.) (Emphasis added.)
95
Finally, § 2518(9) requires the Government to provide to each party to 'any trial, hearing or other proceeding' a copy of the court order authorizing surveillance if the Government intends to use the fruits thereof. The Senate Report, p. 105; U.S.Code Cong. & Admin.News, p. 2195, states:
96
"Proceeding' is intended to include all adversary type hearings. . . . It would not include a grand jury hearing. Compare (United States v. Blue, supra).'
97
If § 2515 of the Omnibus Crime Control and Safe Streets Act of 1968 stood alone without any informative legislative history, the Court's conclusion with respect to the rights of these petitioners would be plainly correct. If the conflicting implications from two sections of the same statute were present in a regulatory scheme which was to stand by itself, rather than to be superimposed on procedures such as contempt hearings and institutions such as the grand jury, the Court's conclusion would at least be tenable. But when the Court concludes that Congress, almost in a fit of absentmindedness, has drastically enlarged the right of potential grand jury witnesses to avoid testifying, and when such a conclusion is based upon one of two ambiguous implications from the language of the statute, and is contrary to virtually every whit of legislative history addressed to the point in issue, I think its conclusion is plainly wrong.
IV
98
The Court seeks to bolster its reasoning by reliance upon 18 U.S.C. § 3504(a) (1), which was a part of the Organized Crime Control Act of 1970. That section provides in pertinent part as follows:
99
'(a) In any . . . proceeding . . . before any . . . grand jury . . .
100
'(1) upon a claim by a party aggrieved that evidence is inadmissible because it is the primary product of an unlawful act or because it was obtained by the exploitation of an unlawful act, the opponent of the claim shall affirm or deny the occurrence of the alleged unlawful act.'
101
Assuming, arguendo, that this section does apply to petitioners in No. 71—110, the record in the District Court and the opinion of the Court of Appeals clearly show that only Gelbard made what might be called a 'claim' within the language of the section, and that the Government in its response did 'affirm or deny' the occurrence of the alleged unlawful act; in fact, the Government denied the occurrence of the unlawful act. This should be sufficient for disposition of the case as to these petitioners.
102
The Court, without giving much guidance to those who would seek to follow the path by which it reaches the conclusion, concludes that this section 'confirms that Congress meant that grand jury witnesses might defend contempt charges by invoking the prohibition of § 2515 against the compelled disclosure of evidence obtained in violation of Title III.' If the Court means to say any more than that, under the circumstances specified in § 3504, the Government must affirm or deny, I am at a loss how it extracts additional requirements from the language used by Congress in that section.
103
But even if the Court were correct in deciding that § 3504(a)(1) requires more than it says of the Government, I believe the Court errs in deciding that this section applies at all to these petitioners. Title VII as enacted actually consists of two parts, A and B. Part A is a series of findings by Congress, reading as follows:
104
'The Congress finds that claims that evidence offered in proceedings was obtained by the exploitation of unlawful acts, and is therefore inademissible in evidence, (1) often cannot reliably be determined when such claims concern evidence of events occurring years after the allegedly unlawful act, and (2) when the allegedly unlawful act has occurred more than five years prior to the event in question, there is virtually no likelihood that the evidence offered to prove the event has been obtained by the exploitation of that allegedly unlawful act.' § 701, 84 Stat. 935.
105
The House Report (to accompany S. 30) contains this comment on Part A:
106
'This section contains a special finding relating, as do the following sections of the title, to certain evidentiary problems created by electronic surveillance conducted by the Government prior to the enactment of Public Law 90—351 on June 19, 1968, which provided statutory authority for obtaining surveillance warrants in certain types of criminal investigations.' H.R.Rep.No.91—1549, p. 50 (1970); 2 U.S.Code Cong. & Admin.News 1970, p. 4026. (Emphasis supplied.)
107
The same report, in its introductory discussion of Title VII, contains the following statement:
108
'Title VII intends to limit disclosure of information illegally obtained by the Government to defendants who seek to challenge the admissibility of evidence because it is either the primary or indirect production (sic) of such an illegal act. The title also prohibits any challenge to the admissibility of evidence based on its being the fruit of an unlawful governmental act, if such act occurred 5 years or more before the event sought to be proved. As amended by the committee, the application of title VII is limited to Federal judicial and administrative proceedings, and to electronic or mechanical surveillance which occurred prior to June 19, 1968, the date of enactment of the Federal wiretapping and electronic surveillance law (chapter 119, title 18, United States Code).' Id., at 34; 2 U.S.Code Cong. & Admin.News 1970, p. 4009. (Emphasis supplied.)
109
The Senate Report, too, casts § 3504(a)(1) in quite a different light from that in which the Court puts it:
110
'Lastly, it should be noted that nothing in section 3504(a)(1) is intended to codify or change present law defining illegal conduct or prescribing requirements for standing to object to such conduct or to use of evidence given under an immunity grant. See, e.g., Giordano v. United States, 394 U.S. 310 (89 S.Ct. 1163, 22 L.Ed.2d 297) (1969); Alderman v. United States, 394 U.S. 165 (89 S.Ct. 961, 22 L.Ed.2d 176) (1969). Nevertheless, since it requires a pending claim as a predicate to disclosure, it sets aside the present wasteful practice of the Department of Justice in searching files without a motion from a defendant. . . .' S.Rep.No.91—617, p. 154 (1969). (Emphasis supplied.)
111
These conclusions in the Senate Report are supported by statements of the bill's managers in the House during the time it was being debated. Congressman Poff explained Title VII as follows:
112
'Title VII of S. 30, . . . would, first, reverse the Supreme Court's decision in Alderman v. United States, 394 U.S. 165 (89 S.Ct. 961, 22 L.Ed.2d 176) (1969) requiring, under its supervisory power, the disclosure of Government files in criminal trials, and . . . would, second, set a 5-year 'statute of limitations' on inserting issues dealing with the 'fruit of the poisonous tree' in similar cases.' 116 Cong.Rec. 35192.
113
Congressman Celler explained the amendments incorporating the pre-June 19, 1968, time limitation into subsections (a)(2) and (a)(3) of § 3504 that had been made by a subcommittee of the House Judiciary Committee in these words:
114
'As amended by the committee, the application of title VII is limited to Federal judicial and administrative proceedings, and to electronic or mechanical surveillance which occurred prior to June 19, 1968, the date of enactment of the Federal wiretapping and electronic surveillance law—chapter 119, title XVIII, United States Code.' Id., at 35196.
115
Even more specific was the explanation of the amendment made by Congressman Poff on the floor of the House after the time provisions had been included:
116
'TITLE VII—LITIGATION CONCERNING SOURCES OF EVIDENCE
117
'Mr. Chairman, title VII of the Organized Crime Control Act is designed to regulate motions to suppress evidence in certain limited situations where the motion is based upon unlawful electronic eavesdropping or wiretapping which occurred prior to the enactment of the Federal electronic surveillance laws on June 19, 1968. . . .
118
'Where there was in fact an unlawful overhearing prior to June 198 1968, the title provides for an in camera examination of the Government's transcripts and records to determine whether they may be relevant to the claim of inadmissibility. . . . To the extent that the court is permitted to determine relevancy in an ex parte proceeding, the title will modify the procedure established by the Supreme Court in Alderman v. United States (citation omitted). . . .
119
'As I have indicated, the title applies only to disclosures where the electronic surveillance occurred prior to June 19, 1968. It is not necessary that it apply to disclosure where an electronic surveillance occurred after that date, because such disclosure will be mandated, not by Alderman, but by section 2518 of title 18, United States Code, added by title III of the Omnibus Crime Control and Safe Streets Act of 1968. Section 2518(10)((a)) provides a specific procedure for motions to suppress the contents of any intercepted wire or oral communication, or evidence derived therefrom, on the grounds that the communication was unlawfully intercepted, that the authorization for the interception was insufficient, or that the interception was not made in conformity with the authorization obtained. It provides, insofar as the disclosure of intercepted communications is concerned, that upon the filing of a motion to suppress by an aggrieved person the trial judge may in his discretion make available to such person and his counsel for inspection such portions of an intercepted communication, or evidence derived therefrom, as the judge determines to be in the interest of justice—see Senate Report No. 1097, 90th Congress, 2d Session 106, 1968. The provisions of this title will, therefore control the disclosure of transcripts of electronic surveillances condeucted prior to June 19, 1968. Thereafter, existing statutory law, not Alderman, will control. Consequently, in view of these amendments to title VII, its enactment in conjunction with the provisions of title III of the 1968 act, provides the Federal Government with a comprehensive and integrated set of procedural rules governing suppression litigation concerning electronic surveillance.' Id., at 35293—35294. (Emphasis added.)
120
The weight of the findings actually enacted by Congress in Part A and the uniform tenor of the legislative history outweigh, in my opinion, the ambiguity arising from the failure to actually include a cutoff date in § 3504(a)(1).
121
Section 3504(a)(1) by its terms, even if read totally out of its context and background, as the Court seeks to do, affords these petitioners no help because the Government has complied with its requirements in these cases. But more importantly, the entire thrust of the findings actually adopted by Congress, and of the reports of both Houses, makes it as plain as humanly possible that this section was intended as a limitation on existing reghts of criminal defendants, not as an enlargement of them. Congress, displeased with the effect of this Court's decision in Alderman, supra, desired to put a statute of limitations type cutoff beyond which the Government would not be required to go in time in order to disprove taint. Equally displeased with the policy adopted by the Government of searching its files for evidence of taint even when none had been alleged by the defendant, it sought to put a stop to that practice by requiring the Government to 'affirm or deny' only where there is 'a claim by a party aggrieved that evidence is inadmissible.' Understanding of this background not only affords a complete explanation of the language used by Congress in this section, but illustrates the palpable error into which the Court has fallen in construing it. The Court has at least figuratively stood on its head both the language and the legislative history of this section in order to conclude that it was intended to expand the rights of criminal defendants.
V
122
Neither the Omnibus Crime Control and Safe Streets Act of 1968 nor the Organized Crime Control Act of 1970, when construed in accordance with the canons of statutory construction traditionally followed by this Court, supports the expansive and novel claims asserted by these petitioners. The Court having reached a contrary conclusion, I respectfully dissent.
1
Section 1826(a) provides:
'Whenever a witness in any proceeding before or ancillary to any court or grand jury of the United States refuses without just cause shown to comply with an order of the court to testify or provide other information, including any book, paper, document, record, recording or other material, the court, upon such refusal, or when such refusal is duly brought to its attention, may summarily order his confinement at a suitable place until such time as the witness is willing to give such testimony or provide such information. No period of such confinement shall exceed the life of—
'(1) the court proceeding, or
'(2) the term of the grand jury, including extensions,
before which such refusal to comply with the court order occurred, but in no event shall such confinement exceed eighteen months.'
This provision was enacted as part of the Organized Crime Control Act of 1970. It was intended to codify the existing practice of the federal courts. S.Rep.No. 91—617, pp. 33, 56—57, 148—149 (1969); H.R.Rep.No.91—1549, 33, 46 (1970); U.S.Code Cong. & Admin.News, p. 4007; see Shillitani v. United States, 384 U.S. 364, 86 S.Ct. 1531, 16 L.Ed.2d 622 (1966).
2
Section 2515 provides in full:
'Whenever any wire or oral communication has been intercepted, no part of the contents of such communication and no evidence derived therefrom may be received in evidence in any trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority of the United States, a State, or a political subdivision thereof if the disclosure of that information would be in violation of this chapter.'
3
The Third Circuit followed Egan in In re Grand Jury Investigation (Maratea), 444 F.2d 499 (1971) (en banc). The District of Columbia Circuit has aligned itself with the Third, see In re Evans, 146 U.S.App.D.C. 310, 452 F.2d 1239 (1971), while the Ninth has continued to follow Gelbard, see Bacon v. United States, 446 F.2d 667 (1971); Olsen v. United States, 446 F.2d 912 (1971); In re Russo, 448 F.2d 369 (1971); Reed v. United States, 448 F.2d 1276 (1971); United States v. Reynolds, 449 F.2d 1347 (1971). The First and Fifth Circuits have also adverted to the question. United States v. Doe (In re Marx), 451 F.2d 466 (CA1 1971); United States v. Doe (In re Popkin), 460 F.2d 328 (CA1 1972); Dudley v. United States, 427 F.2d 1140 (CA5 1970). See also United States ex rel. Rosado v. Flood, 394 F.2d 139 (CA2 1968); Carter v. United States, 417 F.2d 384 (CA9 1969).
4
See n. 23, infra.
5
In view of our disposition of these cases, we do not reach any of the constitutional issues tendered as to the right of a grand jury witness to rely upon the Fourth Amendment as a basis for refusing to answer questions. We also note that the constitutionality of Title III is not challenged in these cases.
6
'Paragraph (d) recognizes the responsible part that the judiciary must play in supervising the interception of wire or oral communications in order that the privacy of innocent persons may be protected: . . . the interception or use of wire or oral communications should only be on court order. Because of the importance of privacy, such interceptions should further be limited to major offenses and care must be taken to insure that no misuse is made of any information obtained.' S.Rep.No.1097, 90th Cong., 2d Sess., 89 (1968); U.S.Code Cong. & Admin.News, p. 2177.
7
In stating the problem addressed by Congress in Title III, the Senate report noted that '(b)oth proponents and opponents of wiretapping and electronic surveillance agree that the present state of the law in this area is extremely unsatisfactory and that the Congress should act to clarify the resulting confusion.' Id., at 67; U.S.Code Cong. & Admin.News, 1968, p. 2154. The report agreed: 'It would be, in short, difficult to devise a body of law from the point of view of privacy or justice more totally unsatisfactory in its consequences.' Id., at 69; U.S.Code Cong. & Admin.News 1968, p. 2156. The report then stressed that Title III would provide the protection for privacy lacking under the prior law:
'The need for comprehensive, fair and effective reform setting uniform standards is obvious. New protections for privacy must be enacted. Guidance and supervision must be given to State and Federal law enforcement officers. This can only be accomplished through national legislation. This the subcommittee proposes.' Ibid. (emphasis added).
8
'Paragraph (b) recognizes that to protect the privacy of wire and oral communications, to protect the integrity of court and administrative proceeding(s) and to prevent the obstruction of interstate commerce, it is necessary for Congress to define on a uniform basis the circumstances and conditions under which the interception of wire or oral communications may be authorized. It also finds that all unauthorized interception of such communications should be prohibited, as well as the use of the contents of unauthorized interceptions as evidence in courts and administrative hearings.' Id., at 89; U.S.Code Cong. & Admin.News 1968, p. 2177 (emphasis added).
9
'Section 2515 of the new chapter imposes an evidentiary sanction to compel compliance with the other prohibitions of the chapter. It provides that intercepted wire or oral communications or evidence derived therefrom may not be received in evidence in any proceeding before any court, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority of the United States, a State, or a political subdivision of a State, where the disclosure of that information would be in violation of this chapter. . . . (I)t is not limited to criminal proceedings. Such a suppression rule is necessary and proper to protect privacy. The provision thus forms an integral part of the system of limitations designed to protect privacy. Along with the criminal and civil remedies, it should serve to guarantee that the standards of the new chapter will sharply curtail the unlawful interception of wire and oral communications.' Id., at 96; U.S.Code Cong. & Admin.News 1968, p. 2184 (citations omitted).
10
Congressional concern with the protection of the privacy of communications is evident also in the specification of what is to be protected. 'The proposed legislation is intended to protect the privacy of the communication itself . . ..' Id., at 90; U.S.Code Cong. & Admin.News 1968, p. 2178. As defined in Title III, "contents,' when used with respect to any wire or oral communication, includes any information concerning the identity of the parties to such communication or the existence, substance, purport, or meaning of that communication.' 18 U.S.C. § 2510(8). The definition thus 'include(s) all aspects of the communication itself. No aspect, including the identity of the parties, the substance of the communication between them, or the fact of the communication itself, is excluded. The privacy of the communication to be protected is intended to be comprehensive.' S.Rep.No.1097, supra, at 91; U.S.Code Cong. & Admin.News, p. 2179.
11
Section 304 provides in full:
'(a) In any trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, or other authority of the United States—
'(1) upon a claim by a party aggrieved that evidence is inadmissible because it is the primary product of an unlawful act or because it was obtained by the exploitation of an unlawful act, the opponent of the claim shall affirm or deny the occurrence of the alleged unlawful act;
'(2) disclosure of information for a determination if evidence is inadmissible because it is the primary product of an unlawful act occurring prior to June 19, 1968, or because it was obtained by the exploitation of an unlawful act occurring prior to June 19, 1968, shall not be required unless such information may be relevant to a pending claim of such inadmissibility; and
'(3) no claim shall be considered that evidence of an event is inadmissible on the ground that such evidence was obtained by the exploitation of an unlawful act occurring prior to June 19, 1968, if such event occurred more than five years after such allegedly unlawful act.
'(b) As used in this section 'unlawful act' means any act (involving) the use of any electronic, mechanical, or other device (as defined in section 2510(5) of this title) in violation of the Constitution or laws of the United States or any regulation of standard promulgated pursuant thereto.'
No question as to the constitutionality of § 3504 is raised in these cases.
12
'The only exception is that section 350(4) omits legislative committees.' S.Rep.No.91—617, p. 154 (1969). In addition, the House amended § 3504, as passed by the Senate, so that, unlike § 2515, it 'applies only to trials and other proceedings conducted under authority of the United States.' H.R.Rep.No.91—1549, p. 51 (1970); U.S.Code Cong. & Admin.News, p. 4027.
13
The references to June 19, 1968, appear only in subsections (a)(2) and (a)(3). Subsection (a)(1) does not similarly limit the term 'unlawful act' with the phrase 'occurring prior to June 19, 1968.' See n. 11, supra. It is thus plan on the face of § 3504 that Congress did not make the duty imposed by subsection (a)(1) dependent upon the date of the alleged illegal interception.
14
The Senate passed § 3504 in a form that, so far as is pertinent to the issue before us, differed from the section as finally enacted only in that subsections (a)(2) and (a)(3) in the Senate version were not limited in application to illegal interceptions that took place before June 19, 1968. See S.Rep.No. 91—617, pp. 15, 70 (1969).
15
'(Subsection (a)(1)) provides that in an attack upon the admissibility of evidence because it is the product of an unlawful act . . ., the opponent of such claim shall affirm or deny the alleged unlawful act . . .. In this respect (§ 3504) is unnecessary.' Hearings before Subcommittee No. 5 of the House Judiciary Committee on S. 30 et al., 91st Cong., 2d Sess., 399 (1970) (report of the Committee on Federal Legislation of the New York County Lawyers' Association). 'That is the law now by Supreme Court decision. (Subsection (a) (1)) adds nothing to what exists right now.' Id., at 513 (testimony of Lawrence Speiser, representing the American Civil Liberties Union).
16
Congress, of course, was primarily concerned with 'certain evidentiary problems created by electronic surveillance conducted by the Government prior to the enactment of (Title III) on June 19, 1968, which provided statutory authority for obtaining surveillance warrants in certain types of criminal investigations (18 U.S.C. 2516).' H.R.Rep.No.91—1549, p. 50 (1970); U.S.Code Cong. & Admin.News, p. 4026. As the Senate report noted, however, § 3504 applies to '(c)ivil as well as criminal proceedings . . ., regardless of whether a government or governmental body or officer is or is not a party or witness.' S.Rep.No.91—617, p. 154 (1969), Moreover, 'unlawful acts,' as defined in § 3504(b), may be 'acts of private citizens as well as acts of Federal or State officials.' Ibid.
17
'Under paragraph (2) disclosure of the information shall be required to be made to a defendant who has demonstrated the illegality of the electronic surveillance (occurring prior to June 19, 1968) and his standing where such information is or 'may be' relevant to a claim of inadmissibility. In cases where the electronic surveillance occurred on or after June 19, 1968, disclosure is mandatory where illegality and standing are demonstrated. The provision thus alters the procedure announced in Alderman v. United States, 89 S.Ct. 961, 394 U.S. 165, 22 L.Ed.2d 176 ((1969)) with respect to 'unlawful acts' committed prior to June 19, 1968.' H.R.Rep.No.91—1549, p. 51 (1970); U.S.Code Cong. & Admin.News, p. 4027.
18
An 'aggrieved person,' for purposes of § 2518(10)(a), is 'a person who was a party to any intercepted wire or oral communication or a person against whom the interception was directed.' 18 U.S.C. § 2510(11); see S.Rep.No.1097, 90th Cong., 2d Sess., 91, 106 (1968); U.S.Code Cong. & Admin.News, p. 2112.
19
Section 2518(10) provides is pertinent part:
'(a) Any aggrieved person in any trial, hearing, or proceeding in or before any court, department, officer, agency, regulatory body, or other authority of the United States, a State, or a political subdivision thereof, may move to suppress the contents of any intercepted wire or oral communication, or evidence derived therefrom . . ..'
While on its face § 2518(10)(a) applies to grand jury proceedings, when compared with the list of proceedings in § 2515, see n. 2, supra, it appears that 'grand jury' was omitted from the list in § 2518(10)(a).
20
'Because no person is a party as such to a grand jury proceeding, the provision does not envision the making of a motion to suppress in the context of such a proceeding itself. . . . It is the intent of the provision only that when a motion to suppress is granted in another context, its scope may include use in a future grand jury proceeding.' S.Rep.No.1097, 90th Cong., 2d Sess., 106 (1968); U.S.Code Cong. & Admin.News, p. 2195. This assertion is not ambiguous, for motions to suppress evidence to be presented to a grand jury would presumably be made in court.
21
'This definition (§ 2510(11)) defines the class of those who are entitled to invoke the suppression sanction of section 2515 . . . through the motion to suppress provided for by section 2518(10)(a) . . ..' Id., at 91; U.S.Code Cong. & Admin.News 1968, p. 2179. 'The provision (§ 2515) must, of course, be read in light of section 2518(10)(a) . . . which defines the class entitled to make a motion to suppress.' Id., at 96; U.S.Code Cong. & Admin.News, p. 2185. 'This provision (§ 2518(10)(a)) must be read in connection with sections 2515 and 2517 . . . which it limits. It provides the remedy for the right created by section 2515.' Id., at 106; U.S.Code Cong. & Admin.News, p. 2195.
22
Because the District Court and the Court of Appeals erroneously held that grand jury witnesses have no right to invoke a § 2515 defense in contempt proceedings under § 1826(a), we need not decide whether Gelbard and Parnas may refuse to answer questions if the interceptions of their conversation were pursuant to court order. That is a matter for the District Court to consider in the first instance.
23
The Court of Appeals vacated the judgments of contempt and remanded for hearings to determine whether the questions asked respondents resulted from the illegal interception of their communications. 450 F.2d, at 217. Although, in this Court, the Government now denies that there was any overhearing, in view of our affirmance that is a matter for the District Court to consider in the first instance.
1
At oral argument, counsel for the United States contended that Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319, was distinguishable. First, it was said that in these cases there has yet been no showing of illegal surveillance. Tr. of Oral Arg. 26. The point is, however, that these witnesses claim to be able to make such a showing, although none of the trial courts below have permitted hearings on the issue. Second, it was also argued that Silverthorne was inapposite because there the very papers seized unlawfully were the ones later sought under the court's subpoena. Ibid. But there is little doubt that Mr. Justice Holmes' reasoning would also have relieved the Silverthornes from testifying before the grand jury as to the contents of the purloined papers.
2
Three of the cases cited by the Solicitor General stand for nothing more than the rule that a defendant may not challenge prior to trial the evidence from which the indictment was drawn. Costello v. United States, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397; Lawn v. United States, 355 U.S. 339, 78 S.Ct. 311, 2 L.Ed.2d 321; United States v. Blue, 384 U.S. 251, 86 S.Ct. 1416, 16 L.Ed.2d 510. To be sure, the other authorities cited rejected various privileges from testifying but only for reasons which are not in conflict with Silverthorne Lumber Co. v. United States, supra. For example, in Murphy v. Waterfront Comm'n, 378 U.S. 52, 84 S.Ct. 1594, 12 L.Ed.2d 678; and Piemonte v. United States, 367 U.S. 556, 81 S.Ct. 1720, 6 L.Ed.2d 1028, in light of our dispositions in those cases, no threatened constitutional violation remained as a predicate for a privilege. For in Murphy we eliminated the threat that testimony to a state grand jury given in exchange for a state immunity grant could, despite the witness' fears to the contrary, be used against him by other jurisdictions. And in Piemonte the Fifth Amendment basis for declining to answer was dissolved by the majority's finding that there had been a proper grant of immunity. True, Goldstein v. United States, 316 U.S. 114, 121, 62 S.Ct. 1000, 1004, 86 L.Ed. 1312, and Alderman v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176, denied standing to defendants to suppress the fruits of Fourth Amendment injuries to others, but that issue is not presented here inasmuch as all of these movants purported to be victims of intercepted conversations. Finally, Blair v. United States, 250 U.S. 273, 39 S.Ct. 468, 63 L.Ed. 979, held that a grand jury witness may not withhold evidence solely because he believes that the statutes (which the grand jury suspects may have been violated) are unconstitutional. That contention, of course, has not been tendered by these grand jury witnesses. Moreover, Blair itself recognizes that 'for special reasons a witness may be excused from telling all that he knows.' Id., at 281, 39 S.Ct., at 471. 'Special reasons' presumably was meant to include Fourth Amendment grounds, as was permitted shortly thereafter in Silverthorne.
3
E.g., Alexander v. United States, 138 U.S. 353, 11 S.Ct. 350, 34 L.Ed. 954 (lawyer-client); Blau v. United States, 340 U.S. 332, 71 S.Ct. 301, 95 L.Ed. 306 (marital); United States v. Reynolds, 345 U.S. 1, 73 S.Ct. 528, 97 L.Ed. 727 (military aircraft specifications).
4
Our remark in United States v. United States District Court, 407 U.S. 297, 318—319, 92 S.Ct. 2125, 2137, 32 L.Ed.2d 752, was our understanding only of the motivation behind federal national security wiretapping. But the statistical evidence shows that nonsecurity wiretapping also is seldom used to convict criminals. In 1969, court-ordered federal wiretapping seized 44,940 conversations but only 26 convictions were obtained. In 1970, federal court orders permitted the seizure of 147,780 communications, with 48 convictions. H. Schwartz, A Report on the Costs and Benefits of Electronic Surveillance ii-v (1971).
5
As Mr. Justice Fortas said, wiretapping 'is usually the product of calculated, official decision rather than the error of an individual agent of the state.' Alderman v. United States, 394 U.S., at 203, 89 S.Ct., at 982.
1
In the case of respondents Egan and Walsh, the Government in the District Court did not state whether it had engaged in electronic surveillance. In this Court, however, the Government represented that respondents Egan and Walsh had not been subjected to electronic surveillance. In light of this development, I would remand their case to the District Court in order to give the respondents another opportunity to testify. For this reason, references to 'petitioners' throughout this opinion are meant to be to only petitioners Gelbard and Parnas.
2
See, e.g., Blau v. United States, 340 U.S. 159, 71 S.Ct. 223, 95 L.Ed. 170 (1950); Rogers v. United States, 340 U.S. 367, 71 S.Ct. 438, 95 L.Ed. 344 (1951); Curcio v. United States, 354 U.S. 118, 77 S.Ct. 1145, 1 L.Ed.2d 1225 (1957); United States v. George, 444 F.2d 310 (CA6 1971); In re October 1969 Grand Jury, 435 F.2d 350 (CA7 1970).
| 01
|
408 U.S. 169
92 S.Ct. 2338
33 L.Ed.2d 266
Catherine J. HEALY et al., Petitioners,v.F. Don JAMES et al.
No. 71—452.
Argued March 28, 1972.
Decided June 26, 1972.
Syllabus
Petitioners, seeking to form a local chapter of Students for a Democratic Society (SDS) at a state-supported college, were denied recognition as a campus organization. Recognition would have entitled petitioners to use campus facilities for meetings and to use of the campus bulletin board and school newspaper. The college president denied recognition because he was not satisfied that petitioners' group was independent of the National SDS, which he concluded has a philosophy of disruption and violence in conflict with the college's declaration of student rights. Petitioners thereupon brought this action for declaratory and injunctive relief. The District Court first ordered a further administrative hearing, after which the president reaffirmed his prior decision. Approving the president's judgment, the District Court held that petitioners had failed to show that they could function free from the National SDS and that the college's refusal to approve the group, which the court found 'likely to cause violent acts of disruption,' did not violate petitioners' associational rights. The Court of Appeals, purporting not to reach the First Amendment issues, affirmed on the ground that petitioners had failed to avail themselves of the due process accorded to them and to meet their burden of complying with the prevailing standards for recognition. Held:
1. The courts erred in (1) discounting the cognizable First Amendment associational interest that petitioners had in furthering their personal beliefs and (2) assuming that the burden was on petitioners to show entitlement to recognition by the college rather than on the college to justify its nonrecognition of the group, once petitioners had made application conformably to college requirements. Pp. 180—185.
2. Insofar as the denial of recognition to petitioners' group was based on an assumed relationship with the National SDS, or was a result of disagreement with the group's philosophy, or was a consequence of a fear of disruption, for which there was no support in the record, the college's decision violated the petitioners' First Amendment rights. A proper basis for nonrecognition might have been afforded, however, by a showing that the group refused to comply with a rule requiring them to abide by reasonable campus regulations. Since the record is not clear whether the college has such a rule and, if so, whether petitioners intend to observe it, these issues remain to be resolved. Pp. 185—194.
2 Cir., 445 F.2d 1122, reversed and remanded.
Melvin L. Wulf, New York City, for petitioners.
F. Michael Ahern, Hartford, Conn., for respondents.
Mr. Justice POWELL delivered the opinion of the Court.
1
This case, arising out of a denial by a state college of official recognition to a group of students who desired to form a local chapter of Students for a Democratic Society (SDS), presents this Court with questions requiring the application of well-established First Amendment principles. While the factual background of this particular case raises these constitutional issues in a manner not heretofore passed on by the Court, and only infrequently presented to lower federal courts, our decision today is governed by existing precedent.
2
As the case involves delicate issues concerning the academic community, we approach our task with special caution, recognizing the mutual interest of students, faculty members, and administrators in an environment free from disruptive interference with the educational process. We also are mindful of the equally significant interest in the widest latitude for free expression and debate consonant with the maintenance of order. Where these interests appear to compete, the First Amendment, made binding on the States by the Fourteenth Amendment, strikes the required balance.
3
* We mention briefly at the outset the setting in 1969—1970. A climate of unrest prevailed on many college campuses in this country. There had been widespread civil disobedience on some campuses, accompanied by the seizure of buildings, vandalism, and arson. Some colleges had been shut down altogether, while at others files were looted and manuscripts destroyed. SDS chapters on some of those campuses had been a catalytic force during this period.1 Although the causes of campus disruption were many and complex, one of the prime consequences of such activities was the denial of the lawful exercise of First Amendment rights to the majority of students by the few. Indeed, many of the most cherished characteristics long associated with institutions of higher learning appeared to be endangered. Fortunately, with the passage of time, a calmer atmosphere and greater maturity now pervade our campuses. Yet, it was in this climate of earlier unrest that this case arose.
4
Petitioners are students attending Central Connecticut State College (CCSC), a state-supported institution of higher learning. In September 1969 they undertook to organize what they then referred to as a 'local chapter' of SDS. Pursuant to procedures established by the College, petitioners filed a request for official recognition as a campus organization with the Student Affairs Committee, a committee composed of four students, three faculty members, and the Dean of Student Affairs. The request specified three purposes for the proposed organization's existence. It would provide 'a forum of discussion and self-education for students developing an analysis of American society'; it would serve as 'an agency for integrating thought with action so as to bring about constructive changes'; and it would endeavor to provide 'a coordinating body for relating the problems of leftist students' with other interested groups on campus and in the community.2 The Committee, while satisfied that the statement of purposes was clear and unobjectionable on its face, exhibited concern over the relationship between the proposed local group and the National SDS organization. In response to inquiries, representatives of the proposed organization stated that they would not affiliate with any national organization and that their group would remain 'completely independent.'
5
In response to other questions asked by Committee members concerning SDS' reputation for campus disruption, the applicants made the following statements, which proved significant during the later stages of these proceedings:
6
'Q. How would you respond to issues of violence as other S.D.S. chapters have?
7
'A. Our action would have to be dependent upon each issue.
8
'Q. Would you use any means possible?
9
'A. No I can't say that; would not know until we know what the issues are.
10
'Q. Could you envision the S.D.S. interrupting a class?
11
'A. Impossible for me to say.'
12
With this information before it, the Committee requested an additional filing by the applicants, including a formal statement regarding affiliations. The amended application filed in response stated flatly that 'CCSC Students for a Democratic Society are not under the dictates of any National organization.'3 At a second hearing before the Student Affairs Committee, the question of relationship with the National organization was raised again. One of the organizers explained that the National SDS was divided into several 'factional groups,' that the national-local relationship was a loose one, and that the local organization accepted only 'certain ideas' but not all of the National organization's aims and philosophies.
13
By a vote of six to two the Committee ultimately approved the application and recommended to the President of the College, Dr. James, that the organization be accorded official recognition. In approving the application, the majority indicated that its decision was premised on the belief that varying viewpoints should be represented on campus and that since the Young Americans for Freedom, the Young Democrats, the Young Republicans, and the Liberal Party all enjoyed recognized status, a group should be available with which 'left wing' students might identify. The majority also noted and relied on the organization's claim of independence. Finally, it admonished the organization that immediate suspension would be considered if the group's activities proved incompatible with the school's policies against interference with the privacy of other students or destruction of property. The two dissenting members based their reservation primarily on the lack of clarity regarding the organization's independence.
14
Several days later, the President rejected the Committee's recommendation, and issued a statement indicating that petitioners' organization was not to be accorded the benefits of official campus recognition. His accompanying remarks, which are set out in full in the margin,4 indicate several reasons for his action. He found that the organization's philosophy was antithetical to the school's policies,5 and that the group's independence was doubtful. He concluded that approval should not be granted to any group that 'openly repudiates' the College's dedication to academic freedom.
15
Denial of official recognition posed serious problems for the organization's existence and growth. Its members were deprived of the opportunity to place announcements regarding meetings, rallies, or other activities in the student newspaper; they were precluded from using various campus bulletin boards; and—most importantly—nonrecognition barred them from using campus facilities for holding meetings. This latter disability was brought home to petitioners shortly after the President's announcement. Petitioners circulated a notice calling a meeting to discuss what further action should be taken in light of the group's official rejection. The members met at the coffee shop in the Student Center ('Devils' Den') but were disbanded on the President's order since nonrecognized groups were not entitled to use such facilities.6
16
Their efforts to gain recognition having proved ultimately unsuccessful, and having been made to feel the burden of nonrecognition, petitioners resorted to the courts. They filed a suit in the United States District Court for the District of Connecticut, seeking declaratory and injunctive relief against the President of the College, other administrators, and the State Board of Trustees. Petitioners' primary complaint centered on the denial of First Amendment rights of expression and association arising from denial of campus recognition. The cause was submitted initially on stipulated facts, and, after a short hearing, the judge ruled that petitioners had been denied procedural due process because the President had based his decision on conclusions regarding the applicant's affiliation which were outside the record before him. The court concluded that if the President wished to act on the basis of material outside the application he must at least provide petitioners a hearing and opportunity to introduce evidence as to their affiliations. 311 F.Supp. 1275, at 1279, 1281. While retaining jurisdiction over the case, the District Court ordered respondents to hold a hearing in order to clarify the several ambiguities surrounding the President's decision. One of the matters to be explored was whether the local organization, true to its repeated affirmations, was in fact independent of the National SDS. Id., at 1282. And if the hearing demonstrated that the two were not separable, the respondents were instructed that they might then review the 'aims and philosophy' of the National organization. Ibid.
17
Pursuant to the court's order, the President designated Dean Judd, the Dean of Student Affairs, to serve as hearing officer and a hearing was scheduled. The hearing, which spanned two dates and lasted approximately two hours, added little in terms of objective substantive evidence to the record in this case. Petitioners introduced a statement offering to change the organization's name from 'CCSC local chapter of SDS' to 'Students for a Democratic Society of Central Connecticut State College.' They further reaffirmed that they would 'have no connection whatsoever to the structure of an existing national organization.'7 Petitioners also introduced the testimony of their faculty adviser to the effect that some local SDS organizations elsewhere were unaffiliated with any national organization. The hearing officer, in addition to introducing the minutes from the two pertinent Student Affairs Committee meetings, also introduced, sua sponte, portions of a transcript of hearings before the United States House of Representatives Internal Security Committee investigating the activities of SDS. Excerpts were offered both to prove that violent and disruptive activities had been attributed to SDS elsewhere and to demonstrate that there existed a national organization that recognized and cooperated with regional and local college campus affiliates. Petitioners did not challenge the asserted existence of a National SDS, nor did they question that it did have a system of affiliations of some sort. Their contention was simply that their organization would not associate with that network. Throughout the hearing the parties were acting at cross purposes. What seemed relevant to one appeared completely immaterial to the other. This failure of the hearing to advance the litigation was, at bottom, the consequence of a more basic failure to join issue on the considerations that should control the President's ultimate decision, a problem to which we will return in the ensuing section.
18
Upon reviewing the hearing transcript and exhibits, the President reaffirmed his prior decision to deny petitioners recognition as a campus organization. The reasons stated, closely paralleling his initial reasons, were that the group would be a 'disruptive influence' at CCSC and that recognition would be 'contrary to the orderly process of change' on the campus.
19
After the President's second statement issued, the case then returned to the District Court, where it was ordered dismissed. The court concluded, first, that the formal requisites of procedural due process had been complied with, second, that petitioners had failed to meet their burden of showing that they could function free from the National organization, and, third, that the College's refusal to place its stamp of approval on an organization whose conduct it found 'likely to cause violent acts of disruption' did not violate petitioners' associational rights. 319 F.Supp. 113, at 116.
20
Petitioners appealed to the Court of Appeals for the Second Circuit where, by a two-to-one vote, the District Court's judgment was affirmed. The majority purported not to reach the substantive First Amendment issues on the theory that petitioners had failed to avail themselves of the due process accorded them and had failed to meet their burden of complying with the prevailing standards for recognition. 445 F.2d 1122, at 1131—1132. Judge Smith dissented, disagreeing with the majority's refusal to address the merits and finding that petitioners had been deprived of basic First Amendment rights. Id., at 1136. This Court granted certiorari 404 U.S. 983, 92 S.Ct. 452, 30 L.Ed.2d 366 and, for the reasons that follow, we conclude that the judgments of the courts below must be reversed and the case remanded for reconsideration.
II
21
At the outset we note that state colleges and universities are not enclaves immune from the sweep of the First Amendment. 'It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.' Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 506, 89 S.Ct. 733, 736, 21 L.Ed.2d 731 (1969). Of course, as Mr. Justice Fortas made clear in Tinker, First Amendment rights must always be applied 'in light of the special characteristics of the . . . environment' in the particular case. Ibid. And, where state-operated educational institutions are involved, this Court has long recognized 'the need for affirming the comprehensive authority of the States and of school officials, consistent with fundamental constitutional safeguards, to prescribe and control conduct in the schools.' Id., at 507, 89 S.Ct. at 737. Yet, the precedents of this Court leave no room for the view that, because of the acknowledged need for order, First Amendment protections should apply with less force on college compuses than in the community at large. Quite to the contrary, '(t)he vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools.' Shelton v. Tucker, 364 U.S. 479, 487, 81 S.Ct. 247, 251, 5 L.Ed.2d 231 (1960). The college classroom with its surrounding environs is peculiarly the "marketplace of ideas," and we break no new constitutional ground in reaffirming this Nation's dedication to safeguarding academic freedom. Keyishian v. Board of Regents, 385 U.S. 589, 603, 87 S.Ct. 675, 683, 17 L.Ed.2d 629 (1967); Sweezy v. New Hampshire by Wyman, 354 U.S. 234, 249—250 (1957) (plurality opinion of Mr. Chief Justice Warren), 262, 77 S.Ct. 1203, 1211—1212, 1217, 1 L.Ed.2d 1311 (Frankfurter, J., concurring in result).
22
Among the rights protected by the First Amendment is the right of individuals to associate to further their personal beliefs. While the freedom of association is not explicitly set out in the Amendment, it has long been held to be implicit in the freedoms of speech, assembly, and petition. See, e.g., Baird v. State Bar of Arizona, 401 U.S. 1, 6, 91 S.Ct. 702, 705, 27 L.Ed.2d 639 (1971); NAACP v. Button, 371 U.S. 415, 430, 83 S.Ct. 328, 336, 9 L.Ed.2d 405 (1963); Louisiana ex rel. Gremillion v. NAACP, 366 U.S. 293, 296, 81 S.Ct. 1333, 1335, 6 L.Ed.2d 301 (1961); NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958) (Harlan, J., for a unanimous Court). There can be no doubt that denial of official recognition, without justification, to college organizations burdens or abridges that associational right. The primary impediment to free association flowing from nonrecognition is the denial of use of campus facilities for meetings and other appropriate purposes. The practical effect of nonrecognition was demonstrated in this case when, several days after the President's decision was announced, petitioners were not allowed to hold a meeting in the campus coffee shop because they were not an approved group.
23
Petitioners' associational interests also were circumscribed by the denial of the use of campus bulletin boards and the school newspaper. If an organization is to remain a viable entity in a campus community in which new students enter on a regular basis, it must possess the means of communicating with these students. Moreover, the organization's ability to participate in the intellectual give and take of campus debate, and to pursue its stated purposes, is limited by denial of access to the customary media for communicating with the administration, faculty members, and other students.8 Such impediments cannot be viewed as insubstantial.
24
Respondents and the courts below appear to have taken the view that denial of official recognition in this case abridged no constitutional rights. The District Court concluded that
25
'President James' discretionary action in denying this application cannot be legitimately magnified and distorted into a constitutionally cognizable interference with the personal ideas or beliefs of any segment of the college students; neither does his action deter in any material way the individual advocacy of their personal beliefs; nor can his action be reasonably construed to be an invasion of, or having a chilling effect on academic freedom.' 319 F.Supp., at 116.
26
In that court's view all that was denied petitioners was the 'administrative seal of official college respectability.'9 Ibid. A majority of the Court of Appeals agreed that petitioners had been denied only the 'college's stamp of approval.' 445 F.2d at 1131. Respondents take that same position here, arguing that petitioners still may meet as a group off campus, that they still may distribute written material off campus, and that they still may meet together informally on campus—as individuals, but not as CCSC—SDS.
27
We do not agree with the characterization by the courts below of the consequences of nonrecognition. We may concede, as did Mr. Justice Harlan in his opinion for a unanimous Court in NAACP v. Alabama ex rel. Patterson, 357 U.S., at 461, 78 S.Ct., at 1171, that the administration 'has taken no direct action . . . to restrict the rights of (petitioners) to associate freely. . . .' But the Constitution's protection is not limited to direct interference with fundamental rights. The requirement in Patterson that the NAACP disclose its membership lists was found to be an impermissible, though indirect, infringement of the members' associational rights. Likewise, in this case, the group's possible ability to exist outside the campus community does not ameliorate significantly the disabilities imposed by the President's action. We are not free to disregard the practical realities. Mr. Justice Stewart has made the salient point: 'Freedom such as these are protected not only against heavy-handed frontal attack, but also from being stifled by more subtle governmental interference.' Bates v. City of Little Rock, 361 U.S. 516, 523, 80 S.Ct. 412, 416, 4 L.Ed.2d 480 (1960). See also Sweezy v. New Hampshire by Wyman, 354 U.S., at 263, 77 S.Ct., at 1218 (Frankfurter, J., concurring in result); Watkins v. United States, 354 U.S. 178, 197, 77 S.Ct. 1173, 1184, 1 L.Ed.2d 1273 (1957).
28
The opinions below also assumed that petitioners had the burden of showing entitlement to recognition by the College.10 While petitioners have not challenged the procedural requirement that they file an application in conformity with the rules of the College,11 they do question the view of the courts below that final rejection could rest on their failure to convince the administration that their organization was unaffiliated with the National SDS. For reasons to be stated later in this opinion, we do not consider the issue of affiliation to be a controlling one. But, apart from any particular issue, once petitioners had filed an application in conformity with the requirements, the burden was upon the College administration to justify its decision of rejection. See, e.g., Law Students Civil Rights Research Council v. Wadmond, 401 U.S. 154, 162—163, 91 S.Ct. 720, 726—727, 27 L.Ed.2d 749 (1971); United States v. O'Brien, 391 U.S. 367, 376—377, 88 S.Ct. 1673, 1678 1679, 20 L.Ed.2d 672 (1968); Speiser v. Randall, 357 U.S. 513, 78 S.Ct. 1332, 2 L.Ed.2d 1460 (1958). It is to be remembered that the effect of the College's denial of recognition was a form of prior restraint, denying to petitioners' organization the range of associational activities described above. While a college has a legitimate interest in preventing disruption on the campus, which under circumstances requiring the safeguarding of that interest may justify such restraint, a 'heavy burden' rests on the college to demonstrate the appropriateness of that action. See Near v. Minnesota ex rel. Olson, 283 U.S. 697, 713—716, 51 S.Ct. 625, 630 631, 75 L.Ed. 1357 (1931); Organization for a Better Austin v. Keefe, 402 U.S. 415, 418, 91 S.Ct. 1575, 1577, 29 L.Ed.2d 1 (1971); Freedman v. Maryland, 380 U.S. 51, 57, 85 S.Ct. 734, 738, 13 L.Ed.2d 649 (1965).
III
29
These fundamental errors—discounting the existence of a cognizable First Amendment interest and misplacing the burden of proof—require that the judgments below be reversed. But we are unable to conclude that no basis exists upon which nonrecognition might be appropriate. Indeed, based on a reasonable reading of the ambiguous facts of this case, there appears to be at least one potentially acceptable ground for a denial of recognition. Because of this ambiguous state of the record we conclude that the case should be remanded and, in an effort to provide guidance to the lower courts upon reconsideration, it is appropriate to discuss the several bases of President James' decision. Four possible justifications for nonrecognition, all closely related, might be derived from the record and his statements. Three of those grounds are inadequate to substantiate his decision: a fourth, however, has merit.
A.
30
From the outset the controversy in this case has centered in large measure around the relationship, if any, between petitioners' group and the National SDS. The Student Affairs Committee meetings, as reflected in its minutes, focused considerable attention on this issue; the court-ordered hearing also was directed primarily to this question. Despite assurances from petitioners and their counsel that the local group was in fact independent of the National organization, it is evident that President James was significantly influenced by his apprehension that there was a connection. Aware of the fact that some SDS chapters had been associated with disruptive and violent campus activity, he apparently considered that affiliation itself was sufficient justification for denying recognition.12
31
Although this precise issue has not come before the Court heretofore, the Court has consistently disapproved governmental action imposing criminal sanctions or denying rights and privileges solely because of a citizen's association with an unpopular organization. See, e.g., United States v. Robel, 389 U.S. 258, 88 S.Ct. 419, 19 L.Ed.2d 508 (1967); Keyishian v. Board of Regents, 385 U.S., at 605—610, 87 S.Ct., at 684—688; Elfbrandt v. Russell, 384 U.S. 11, 86 S.Ct. 1238, 16 L.Ed.2d 321 (1966); Scales v. United States, 367 U.S. 203, 81 S.Ct. 1469, 6 L.Ed.2d 782 (1961). In these cases it has been established that 'guilt by association alone, without (establishing) that an individual's association poses the threat feared by the Government,' is an impermissible basis upon which to deny First Amendment rights. United States v. Robel, supra, 389 U.S., at 265, 88 S.Ct., at 424. The government has the burden of establishing a knowing affiliation with an organization possessing unlawful aims and goals, and a specific intent to further those illegal aims.13
32
Students for a Democratic Society, as conceded by the College and the lower courts, is loosely organized, having various factions and promoting a number of diverse social and political views only some of which call for unlawful action.14 Not only did petitioners proclaim their complete independence from this organization,15 but they also indicated that they shared only some of the beliefs its leaders have expressed.16 On this record it is clear that the relationship was not an adequate ground for the denial of recognition.
B
33
Having concluded that petitioners were affiliated with, or at least retained an affinity for, National SDS, President James attributed what he believed to be the philosophy of that organization to the local group. He characterized the petitioning group as adhering to 'some of the major tenets of the national organization,' including a philosophy of violence and disruption.17 Understandably, he found that philosophy abhorrent. In an article signed by President James in an alumni periodical, and made a part of the record below, he announced his unwillingness to 'sanction an organization that openly advocates the destruction of the very ideals and freedoms upon which the academic life is founded.' He further emphasized that the petitioners' 'philosophies' were 'counter to the official policy of the college.'
34
The mere disagreement of the President with the group's philosophy affords no reason to deny it recognition. As repugnant as these views may have been, especially to one with President James' responsibility, the mere expression of them would not justify the denial of First Amendment rights. Whether petitioners did in fact advocate a philosophy of 'destruction' thus becomes immaterial. The College, acting here as the instrumentality of the State, may not restrict speech or association simply because it finds the views expressed by any group to be abhorrent. As Mr. Justice Black put it most simply and clearly:
35
'I do not believe that it can be too often repeated that the freedoms of speech, press, petition and assembly guaranteed by the First Amendment must be accorded to the ideas we hate or sooner or later they will be denied to the ideas we cherish.' Communist Party v. Subversive Activities Control Board, 367 U.S. 1, 137, 81 S.Ct. 1357, 1431, 6 L.Ed.2d 625 (dissenting opinion) (1961).
C
36
As the litigation progressed in the District Court, a third rationale for President James' decision—beyond the questions of affiliation and philosophy—began to emerge. His second statement, issued after the court-ordered hearing, indicates that he based rejection on a conclusion that this particular group would be a 'disruptive influence at CCSC.' This language was underscored in the second District Court opinion. In fact, the court concluded that the President had determined that CCSC—SDS' 'prospective campus activities were likely to cause a disruptive influence at CCSC.' 319 F.Supp., at 116.
37
If this reason, directed at the organization's activities rather than its philosophy, were factually supported by the record, this Court's prior decisions would provide a basis for considering the propriety of nonrecognition. The critical line heretofore drawn for determining the permissibility of regulation is the line between mere advocacy and advocacy 'directed to inciting or producing imminent lawless action and . . . likely to incite or produce such action.' Brandenburg v. Ohio, 395 U.S. 444, 447, 89 S.Ct. 1827, 1829, 23 L.Ed.2d 430 (1969) (unanimous per curiam opinion). See also Scales v. United States, 367 U.S., at 230—232, 81 S.Ct., at 1486—1488; Noto v. United States, 367 U.S. 290, 298, 81 S.Ct. 1517, 1521, 6 L.Ed.2d 836 (1961); Yates v. United States, 354 U.S. 298, 77 S.Ct. 1064, 1 8l.Ed.2d 1356 (1957). In the context of the 'special characteristics of the school environment,'18 the power of the government to prohibit 'lawless action' is not limited to acts of a criminal nature. Also prohibitable are actions which 'materially and substantially disrupt the work and discipline of the school.' Tinker v. Des Moines Independent Community School District, 393 U.S., at 513, 89 S.Ct., at 740. Associational activities need not be tolerated where they infringe reasonable campus rules, interrupt classes, or substantially interfere with the opportunity of other students to obtain an education.
38
The 'Student Bill of Rights' at CCSC, upon which great emphasis was placed by the President, draws precisely this distinction between advocacy and action. It purports to impose no limitations on the right of college student organizations 'to examine and discuss all questions of interest to them.' (Emphasis supplied.) But it also states that students have no right (1) 'to deprive others of the opportunity to speak or be heard,' (2) 'to invade the privacy of others,' (3) 'to damage the property of others,' (4) 'to disrupt the regular and essential operation of the college,' or (5) 'to interfere with the rights of others.'19 The line between permissible speech and impermissible conduct tracks the constitutional requirement, and if there were an evidential basis to support the conclusion that CCSC—SDS posed a substantial threat of material disruption in violation of that command the President's decision should be affirmed.20
39
The record, however, offers no substantial basis for that conclusion. The only support for the view expressed by the President, other than the reputed affiliation with National SDS, is to be found in the ambivalent responses offered by the group's representatives at the Student Affairs Committee hearing, during which they stated that they did not know whether they might respond to 'issues of violence' in the same manner that other SDS chapters had on other campuses. Nor would they state unequivocally that they could never 'envision . . . interrupting a class.' Whatever force these statements might be thought to have is largely dissipated by the following exchange between petitioners' counsel and the Dean of Student Affairs during the court-ordered hearing:
40
'Counsel: '. . . I just read the document that you're offering (minutes from Student Affairs Committee meeting) and I can't see that there's anything in it that intimates that these students contemplate any illegal or disruptive practice.'
41
Dean: 'No. There's no question raised to that, counselor. . . .' App. 73—74.
42
Dean Judd's remark reaffirms, in accord with the full record, that there was no substantial evidence that these particular individuals acting together would constitute a disruptive force on campus. Therefore, insofar as nonrecognition flowed from such fears, it constituted little more than the sort of 'undifferentiated fear or apprehension of disturbance (which) is not enough to overcome the right to freedom of expression.' Tinker v. Des Moines Independent Community School District, 393 U.S., at 508, 89 S.Ct., at 737.
D
43
These same references in the record to the group's equivocation regarding how it might respond to 'issues of violence' and whether it could ever 'envision . . . interrupting a class,' suggest a fourth possible reason why recognition might have been denied to these petitioners. These remarks might well have been read as announcing petitioners' unwillingness to be bound by reasonable school rules governing conduct. The College's Statement of Rights, Freedoms, and Responsibilities of Students contains, as we have seen, an explicit statement with respect to campus disruption. The regulation, carefully differentiating between advocacy and action, is a reasonable one, and petitioners have not questioned it directly.21 Yet their statements raise considerable question whether they intend to abide by the prohibitions contained therein.22
44
As we have already stated in Parts B and C, the critical line for First Amendment purposes must be drawn between advocacy, which is entitled to full protection, and action, which is not. Petitioners may, if they so choose, preach the propriety of amending or even doing away with any or all campus regulations. They may not, however, undertake to flout these rules. Mr. Justice Blackmun, at the time he was a circuit judge on the Eighth Circuit, stated:
45
'We . . . hold that a college has the inherent power to promulgate rules and regulations; that it has the inherent power properly to discipline; that it has power appropriately to protect itself and its property; that it may expect that its students adhere to generally accepted standards of conduct.' Esteban v. Central Missouri State College, 415 F.2d 1077, 1089 (CA8 1969), cert. denied, 398 U.S. 965, 90 S.Ct. 2169, 26 L.Ed.2d 548 (1970).
46
Just as in the community at large, reasonable regulations with respect to the time, the place, and the manner in which student groups conduct their speech-related activities must be respected.23 A college administration may impose a requirement, such as may have been imposed in this case, that a group seeking official recognition affirm in advance its willingness to adhere to reasonable campus law. Such a requirement does not impose an impermissible condition on the students' associational rights. Their freedom to speak out, to assemble, or to petition for changes in school rules is in no sense infringed. It merely constitutes an agreement to conform with reasonable standards respecting conduct. This is a minimal requirement, in the interest of the entire academic community, of any group seeking the privilege of official recognition.
47
Petitioners have not challenged in this litigation the procedural or substantive aspects of the College's requirements governing applications for official recognition. Although the record is unclear on this point, CCSC may have, among its requirements for recognition, a rule that prospective groups affirm that they intend to comply with reasonable campus regulations. Upon remand it should first be determined whether the College recognition procedures contemplate any such requirement. If so, it should then be ascertained whether petitioners intend to comply. Since we do not have the terms of a specific prior affirmation rule before us, we are not called on to decide whether any particular formulation would or would not prove constitutionally acceptable. Assuming the existence of a valid rule, however, we do conclude that the benefits of participation in the internal life of the college community may be denied to any group that reserves the right to violate any valid campus rules with which it disagrees.24
IV
48
We think the above discussion establishes the appropriate framework for consideration of petitioners' request for campus recognition. Because respondents failed to accord due recognition to First Amendment principles, the judgments below approving respondents' denial of recognition must be reversed. Since we cannot conclude from this record that petitioners were willing to abide by reasonable campus rules and regulations, we order the case remanded for reconsideration. We note, in so holding, that the wide latitude accorded by the Constitution to the freedoms of expression and association is not without its costs in terms of the risk to the maintenance of civility and an ordered society. Indeed, this latitude often has resulted, on the campus and elsewhere, in the infringement of the rights of others. Though we deplore the tendency of some to abuse the very constitutional privileges they invoke, and although the infringement of rights of others certainly should not be tolerated, we reaffirm this Court's dedication to the principles of the Bill of Rights upon which our vigorous and free society is founded.
49
Reversed and remanded.
50
Mr. Chief Justice BURGER, concurring.
51
I am in agreement with what is said in the Court's opinion and I join in it. I do so because I read the basis of the remand as recognizing that student organizations seeking the privilege of official campus recognition must be willing to abide by valid rules of the institution applicable to all such organizations. This is a reasonable condition insofar as it calls for the disavowal of resort to force, disruption, and interference with the rights of others.
52
The District Judge was troubled by the lack of a comprehensive procedural scheme that would inform students of the steps to be taken to secure recognized standing, and by the lack of articulated criteria to be used in evaluating eligibility for recognition. It was for this reason, as I read the record, that he remanded the matter to the college for a factual inquiry and for a more orderly processing in a de novo hearing within the college administrative structure. It is within that structure and within the academic community that problems such as these should be resolved. The courts, state or federal, should be a last resort. Part of the educational experience of every college student should be an experience in responsible self-government and this must be a joint enterprise of students and faculty. It should not be imposed unilaterally from above, nor can the terms of the relationship be dictated by students. Here, in spite of the wisdom of the District Court in sending the case back to the college, the issue identified by the Court's opinion today was not adequately addressed in the hearing.
53
The relatively placid life of the college campus of the past has not prepared either administrators or students for their respective responsibilities in maintaining an atmosphere in which divergent views can be asserted vigorously, but civilly, to the end that those who seek to be heard accord the same right to all others. The 'Statement on Rights, Freedoms and Responsibilities of Students,' sometimes called the 'Student Bill of Rights,' in effect on this campus, and not questioned by petitioners, reflected a rational adjustment of the competing interests. But it is impossible to know from the record in this case whether the student group was willing to acknowledge an obligation to abide by that 'Bill of Rights.'
54
Against this background, the action of the Court in remanding on this issue is appropriate.
55
Mr. Justice DOUGLAS.
56
While I join the opinion of the Court, I add a few words.
57
As Dr. Birenbaum* says, the status quo of the college or university is the governing body (trustees or overseers), administrative officers, who include caretakers, and the police, and the faculty. Those groups have well-defined or vaguely inferred values to perpetuate. The customary technique has been to conceive of the minds of students as receptacles for the information which the faculty have garnered over the years. Education is commonly thought of as the process of filling the receptacles with what the faculty in its wisdom deems fit and proper.
58
Many, inside and out of faculty circles, realize that one of the main problems of faculty members is their own re-education or re-orientation. Some have narrow specialties that are hardly relevant to modern times. History has passed others by, leaving them interesting relics of a bygone day. More often than not they represent those who withered under the pressures of McCarthyism or other forces of conformity and represent but a timid replica of those who once brought distinction to the ideal of academic freedom.
59
The confrontation between them and the oncoming students has often been upsetting. The problem is not one of choosing sides. Students—who, by reason of the Twenty-sixth Amendment, become eligible to vote when 18 years of age—are adults who are members of the college or university community. Their interests and concerns are often quite different from those of the faculty. They often have values, views, and ideologies that are at war with the ones which the college has traditionally espoused or indoctrinated. When they ask for change, they, the students, speak in the tradition of Jefferson and Madison and the First Amendment.
60
The First Amendment does not authorize violence. But it does authorize advocacy, group activities, and espousal of change.
61
The present case is minuscule in the events of the 60's and 70's. But the fact that it has to come here for ultimate resolution indicates the sickness of our academic world, measured by First Amendment standards. Students as well as faculty are entitled to credentials in their search for truth. If we are to become an integrated, adult society, rather than a stubborn status quo opposed to change, students and faculties should have communal interests in which each age learns from the other. Without ferment of one kind or another, a college or university (like a federal agency or other human institution) becomes a useless appendage to a society which traditionally has reflected the spirit of rebellion.
APPENDIX TO OPINION OF DOUGLAS, J.
62
'A compulsory ghetto fails as a community because its inhabitants lack the power to develop common goals and to pursue them effectively together. It fails too because of a fatal disconnection between the possession and use of power and the cognition that knowledge, as a form of power, carries with it political responsibility. In these respects the campus is now like the compulsory ghetto.
63
'Those who deplore a view of the university in terms of its powerful political role in American society must account for the institution's use of political power in its own terms, for its own purposes. I have come to feel lately—partly, I guess, because of the legal reasoning styles to which I have been exposed—that those playing around with the structure of their universities these days are playing with tinker toys. New committees, new senates and new student-participation formulae do not necessarily mean that anything has changed. Indeed, if Berkeley, Columbia, Harvard and Chicago are valid examples, restructuring turns out to be one of the brilliant new inventions for sustaining the status quo. The vested interests and essential privileges involved in current effects to restructure the university have yet completely to surface. A substantial part of our melting iceberg is still below the waterline.
64
'That part of the student critique of the university which most deserves our attention bears upon what we teach, how we teach it, and the terms on which it is taught. One of the interesting things their critique points out is that our building programs, corporate investments, relationships to the immediate community and to the society, and our views of citizenship inside the university, all turn out to be projections and applications of what we call or have called education. Their critique suggests the perfectly absurd conclusion that there is a relationship between their long hair and our long war, between being a nurse and being a Negro, between the freshman political-science course and the pollution of fresh air, between education for freedom and being free. Obviously, the contemporary American student activist is crazy.
65
'We have probably made a mistake by revealing to our students that there really is too much to know, and only one way to learn it—our way. They have come to accept this as gospel, and it has encouraged them to view curriculum development as essentially a sophisticated art of selection, interpretation and emphasis in which they have a vested interest. Understanding this, naturally they have begun to ask the key political questions bearing upon our vested interests and privileges: What experience and talent should be empowered to select? Who should be empowered to employ those who will interpret, and to deploy the wealth required to support the enterprise?
66
'Obviously the control over who will be kept out and over punishment-and-reward systems inside is extremely important. While our students still generally concede that the older adults who teach them may know something they don't, they are also asserting the uniqueness of their own experience, claiming that they may know something which those now in charge don't. They have returned to the kindergarten level to rediscover a principle long revered in American education—that the student plays a positive and active role, that he has something definite and essential to contribute to his own education.
67
'The young—suspended precariously in a society obsessed by Vietnam violence, race violence, crime violence and culture violence—are restating the eternal questions about education: What is important to learn, and how may people best learn together? Regarding these enduring questions, they are also asking the eternal question of a society which officially encourages its young to grow up free (even while keeping them in bondage), namely: Who shall judge? Regarding the problems these questions suggest, academic tradition responds through an uptight delineation of jurisdictions and powers within the university.
68
'Today's campus disruptions were born in the years 1776 to 1787. Although the mind of Thomas Jefferson was anchored in the traditions of Heidelberg, Oxford, Paris, Bologna, Rome, Greece, the religions of the early Christians and the ancient Hebrews, minds like his transformed the old into something quite new, as in the case of his proposal for a university in Virginia. What was created then was not, of course, the latest thing, nor was it necessarily the Truth. But it was an adventure, a genuine new departure, unlike most of the institutions of learning we have created in this country since the Morrill Act—that is, most of our higher-education establishment.
69
'The traditions of the university in the West are anti- if not counter-revolutionary. Operating within these traditions, the university has produced revolutionary knowledge, but institutionally the uses of the knowledge have been directed mainly toward the confirmation of the status quo, particularly the political and cultural status quo. The themes of peace, integration, equality, freedom and the humane uses of knowledge are ones which traditionally fall beyond the purview of the university.
70
'But in principle the main themes of our society run counter to this deployment of knowledge. In spite of Vietnam, poverty, racism and the overbearing logic of our technology—in spite of Bedford-Stuyvesant—the main themes of our country, in principle, were and still are revolutionary. They are reflected in such questions as these: Can the revolutionary knowledge developed in the universities be used humanely, to conform with what Jefferson and his colleagues apparently meant? What does equality mean, and whatever it meant or means, can we still achieve a version of it consistent with this adventure? Are reason and democracy really consistent? Is war in behalf of peace, given what we know now, realistic? Can Negroes who were once property suddenly become people? Are some genocides more decent than others, some cesspools more fragrant than others?
71
'In any event, I know that Bedford-Stuyvesant is crammed full of red-white-and-blue Americans. They really believe that we ought to practice what we preach, and that's the problem. We've oversold America to ourselves, and so many of my very good friends—looking at the street violence and the circuses in the courts and on the campuses—who believe we confront a deeply un-American phenomenon, who think we face a serious threat to American values, completely misread what is going on there. We face a vibrant, far-reaching reassertion of what this country claims, what it has always claimed it is.' W. Birenbaum, Something For Everybody Is Not Enough 67—69, 248—249.
72
Mr. Justice REHNQUIST, concurring in the result.
73
While I do not subscribe to some of the language in the Court's opinion, I concur in the result that it reaches. As I understand the Court's holding, the case is sent back for reconsideration because respondents may not have made it sufficiently clear to petitioners that the decision as to recognition would be critically influenced by petitioners' willingness to agree in advance to abide by reasonable regulations promulgated by the college.
74
I find the implication clear from the Court's opinion that the constitutional limitations on the government's acting as administrator of a college differ from the limitations on the government's acting as sovereign to enforce its criminal laws. The Court's quotations from Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 506, 89 S.Ct. 733, 736, 21 L.Ed.2d 731 (1969), to the effect that First Amendment rights must always be applied 'in light of the special characteristics of the . . . environment,' and from Esteban v. Central Missouri State College, 415 F.2d 1077, 1089 (CA8, 1969), to the effect that a college 'may expect that its students adhere to generally accepted standards of conduct,' emphasize this fact.
75
Cases such as United Public Workers v. Mitchell, 330 U.S. 75, 67 S.Ct. 556, 91 L.Ed. 754 (1947), and Pickering v. Board of Education etc., 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). make it equally clear that the government in its capacity as employer also differs constitutionally from the government in its capacity as the sovereign executing criminal laws. The Court in Pickering said:
76
'The problem in any case is to arrive at a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.' 391 U.S., at 568, 88 S.Ct., at 1734.
77
Because of these acknowledged distinctions of constitutional dimension based upon the role of the government, I have serious doubt as to whether cases dealing with the imposition of criminal sanctions, such as Brandenburg v. Ohio, 395 U.S. 444, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969), Scales v. United States, 367 U.S. 203, 81 S.Ct. 1469, 6 L.Ed.2d 782 (1961), and Yates v. United States, 354 U.S. 298, 77 S.Ct. 1064, 1 L.Ed.2d 1356 (1957), are properly applicable to this case dealing with the government as college administrator. I also doubt whether cases dealing with the prior restraint imposed by injunctive process of a court, such as Near v. Minnesota ex rel. Olson, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931), are precisely comparable to this case, in which a typical sanction imposed was the requirement that the group abandon its plan to meet in the college coffee shop.
78
Prior cases dealing with First Amendment rights are not fungible goods, and I think the doctrine of these cases suggests two important distinctions. The government as employer or school administrator may impose upon employees and students reasonable regulations that would be impermissible if imposed by the government upon all citizens. And there can be a constitutional distinction between the infliction of criminal punishment, on the one hand, and the imposition of milder administrative or disciplinary sanctions, on the other, even though the same First Amendment interest is implicated by each.
79
Because some of the language used by the Court tends to obscure these distinctions, which I believe to be important, I concur only in the result.
1
See Report of the President's Commission on Campus Unrest (1970); Report of the American Bar Association Commission on Campus Government and Student Dissent (1970).
2
The statement of purposes is set out as an Appendix to the Second Circuit's opinion and appears following the dissent thereto. 445 F.2d 1122, 1135—1139 (1971).
3
445 F.2d, at 1133. During the Committee's consideration of petitioners' application, one of the group's representatives was asked why, if it indeed desired to remain independent, it chose to use a nationally known name. The witness' response was that 'the name brings to mind the type of organization we wish to bring across that is, a left-wing organization which will allow students interested in such to express themselves.'
4
The President stated:
'Though I have full appreciation for the action of the Student Affairs Committee and the reasons stated in their minutes for the majority vote recommending approval of a local chapter of Students for a Democratic Society, it is my judgment that the statement of purpose to form a local chapter of Students for a Democratic Society carries full and unmistakable adherence to at least some of the major tenets of the national organization, loose and divided though that organization may be. The published aims and philosophy of the Students for a Democratic Society, which include disruption and violence, are contrary to the approved policy (by faculty, students, and administration) of Central Connecticut State College which states:
"Students do not have the right to invade the privacy of others, to damage the property of others, to disrupt the regular and essential operation of the college, or to interfere with the rights of others.'
'The further statement on the request for recognition that 'CCSC Students for a Democratic Society are not under the dictates of any National organization' in no way clarifies why if a group intends to follow the established policy of the college, they wish to become a local chapter of an organization which openly repudiates such a policy.
'Freedom of speech, academic freedom on the campus, the freedom of establishing an open forum for the exchange of ideas, the freedoms outlined in the Statement on Rights, Freedoms, and Responsibilities of Students that 'college students and student organizations shall have the right to examine and discuss all questions of interest to them, to express opinion publicly and privately, and to support causes by orderly means. They may organize public demonstrations and protest gatherings and utilize the right of petition'—these are all precious freedoms that we cherish and are freedoms on which we stand. To approve any organization or individual who joins with an organization which openly repudiates those principles is contrary to those freedoms and to the approved 'Statement on the Rights, Freedoms, and Responsibilities of Students' at Central.' App. 15—16.
5
In 1969, CCSC adopted, as have many other colleges and universities, a Statement on Rights, Freedoms and Responsibilities of Students. This statement, commonly referred to as the 'Student Bill of Rights,' is printed as an Appendix to the Second Circuit's majority opinion in this case, 445 F.2d, at 1135—1139, see n. 2, supra. Part V of that statement establishes the standards for approval of campus organizations and imposes several basic limitations on their campus activities:
'A. Care shall be taken in the establishment and organization of campus groups so that the basic rights, freedoms and responsibilities of students will be preserved.
'B. Student organizations shall submit a clear statement of purpose, criteria for membership, rules of procedures and a list of officers as a condition of institutional recognition. They shall not be required to submit a membership list as a condition of institutional recognition.
'C. Membership in campus organizations shall be limited to matriculated students (day or evening) at the college. Membership shall not be restricted by race, religion or nationality. The members shall have sole power to determine organization policy consistent with the regulations of the college.
'D. Each organization is free to choose its own adviser. Advisers to organizations shall advise but not control the organizations and their policies.
'E. College students and student organizations shall have the right to examine and discuss all questions of interest to them, to express opinion publicly and privately, and to support causes by orderly means. They may organize public demonstrations and protest gatherings and utilize the right of petition. Students do not have the right to deprive others of the opportunity to speak or be heard, to invade the privacy of others, to damage the property of others, to disrupt the regular and essential operation of the college, or to interfere with the rights of others.'
6
During the meeting petitioners were approached by two of the College's deans, who served petitioners with a memorandum from the President stating:
'Notice has been received by this office of a meeting of the 'C.C.S.C.—S.D.S. on Thursday—November 6 at 7:00 p.m. at the Devils' Den.'
'Such meeting may not take place in the Devils' Den of the Student Center nor in or on any other property of the college since the C.C.S.C.—S.D.S. is not a duly recognized college organization.
'You are hereby notified by this action to cease and desist from meeting on college property.'
7
D.C., 319 F.Supp. 113, 114 (1970). The hearing officer, over petitioners' objection, ruled that the statement was inadmissible, apparently on the ground that it would constitute an amendment to the original application and would be beyond the permissible scope of the hearing. Whatever the merits of this ruling, the statement was in the record reviewed by the President and was relied on in the subsequent District Court opinion without reference to its prior exclusion. Ibid.
8
It is unclear on this record whether recognition also carries with it a right to seek funds from the school budget. Petitioners' counsel at oral argument indicated that official recognition entitled the group to 'make application for use of student funds.' Tr. of Oral Arg. 4. The first District Court opinion, however, states flatly that '(r)ecognition does not thereby entitle an organization to college financial support.' 311 F.Supp. 1275, 1277. Since it appears that, at the least, recognition only entitles a group to apply for funds, and since the record is silent as to the criteria used in allocating such funds, we do not consider possible funding as an associational aspect of nonrecognition in this case.
9
These statements are in contrast to the first opinion by the District Court, which reflected a full appreciation of the constitutional significance of petitioners' claim. 311 F.Supp., at 1280—1282.
10
445 F.2d, at 1131; 319 F.Supp., at 116.
11
The standards for official recognition require applicants to provide a clear statement of purposes, criteria for membership, rules of procedure, and a list of officers. Applicants must limit membership to 'matriculated students' and may not discriminate on the basis of race, religion or nationality. The standards further state that groups may 'examine and discuss all questions of interest,' and they may conduct demonstrations and utilize their right of petition, but they are prohibited from interfering with the rights of other students. See n. 5, supra. Petitioners have not challenged these standards and their validity is not here in question.
12
See n. 4, supra, for the complete text of the President's statement.
13
In addition to the cases cited in the text above, see also Law Students Civil Rights Research Council v. Wadmond, 401 U.S. 154, 164—166, 91 S.Ct. 720, 727—728, 27 L.Ed.2d 749 (1971); In re Stolar, 401 U.S. 23, 28, 91 S.Ct. 713, 716, 27 L.Ed.2d 657 (1971); Aptheker v. Secretary of State, 378 U.S. 500, 84 S.Ct. 1659, 12 L.Ed.2d 992 (1964); Noto v. United States, 367 U.S. 290, 299—300, 81 S.Ct. 1517, 1521—1522, 6 L.Ed.2d 836 (1961).
14
See Hearings before a Subcommittee of the House Committee on Appropriations, 92d Cong., 2d Sess., pt. 1, p. 916 (1972), in which the former Director of the Federal Bureau of Investigation, J. Edgar Hoover, stated that while violent factions have spun off from SDS, its present leadership is 'critical of bombing and violence.'
15
Petitioners asserted their independence both orally and in a written submission before the Student Affairs Committee. They restated their nonaffiliation in a formal statement filed prior to the courtordered hearing. The only indication to the contrary is their unwillingness to eschew use of the SDS name altogether. But see n. 3, supra.
16
Representatives of the group stated during the Student Affairs Committee meetings that they did not identify with all of the National's statements, but wished simply to 'pick . . . certain ideas' from that organization.
17
See n. 4, supra.
18
Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 506, 89 S.Ct. 733, 736, 21 L.Ed.2d 731 (1969).
19
See n. 5, supra.
20
It may not be sufficient merely to show the existence of a legitimate and substantial state interest. Where state action designed to regulate prohibitable action also restricts associational rights—as non-recognition does—the State must demonstrate that the action taken is reasonably related to protection of the State's interest and that 'the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.' United States v. O'Brien, 391 U.S. 367, 377, 88 S.Ct. 1673, 1679, 20 L.Ed.2d 672 (1968). See also NAACP v. Alabama ex rel. Flowers, 377 U.S. 288, 84 S.Ct. 1302, 12 L.Ed.2d 325 (1964); Gibson v. Florida Legislative Investigation Committee, 372 U.S. 539, 546, 83 S.Ct. 889, 893, 9 L.Ed.2d 929 (1963); NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958). On this record, absent a showing of any likelihood of disruption or unwillingness to recognize reasonable rules governing campus conduct, it is not necessary for us to decide whether denial of recognition is an appropriately related and narrow response.
21
See n. 5, supra.
22
The Court of Appeals found that petitioners 'failed candidly to respond to inquiries whether they would resort to violence and disruption on the CCSC campus, including interruption of classes.' 445 F.2d, at 1131. While petitioners' statements may be read as intimating a rejection of reasonable regulations in advance, there is in fact substantial ambiguity on this point. The questions asked by members of the Student Affairs Committee do not appear to have been propounded with any clear distinction in mind between that which the petitioners might advocate and the conduct in which they might engage. Nor did the Student Affairs Committee attempt to obtain a clarification of the petitioners' ambiguous answers by asking specifically whether the group was willing to abide by the Student Bill of Rights governing all campus organizations.
Moreover, this question was not among those referred by the District Court to the administrative hearing, and it was there addressed only tangentially. The group members who had made statements before the Student Affairs Committee did not testify, and their position was not clarified. Their counsel, whose tactics were characterized as 'disruptive' by the Court of Appeals, elected to make argumentative statements rather than elicit relevant testimony. Id., at 1126. Indeed, the District Court's failure to identify the question of willingness to abide by the College's rules and regulations as a significant subject of inquiry, coupled with the equivocation on the part of the group's representatives, lends support to our view that a remand is necessary.
23
See, e.g., Adderley v. Florida, 385 U.S. 39, 47—48, 87 S.Ct. 242, 247—248, 17 L.Ed.2d 149 (1966); Cox v. Louisiana, 379 U.S. 536, 558, 85 S.Ct. 453, 466, 13 L.Ed.2d 471 (1965); Louisiana ex rel. Gremillion v. NAACP, 366 U.S. 293, 297, 81 S.Ct. 1333, 1336, 6 L.Ed.2d 301 (1961).
24
In addition to the College administration's broad rulemaking power to assure that the traditional academic atmosphere is safeguarded, it may also impose sanctions on those who violate the rules. We find, for instance, that the Student Affairs Committee's admonition to petitioners in this case suggests one permissible practice—recognition, once accorded, may be withdrawn or suspended if petitioners fail to respect campus law. See, e.g., University of Southern Mississippi Chapter of Mississippi Civil Liberties Union v. University of Southern Mississippi, 452 F.2d 564 (CA5 1971); American Civil Liberties Union v. Radford College, 315 F.Supp. 893 (W.D.Va.1970).
*
See the Appendix to this opinion.
| 23
|
33 L.Ed.2d 238
92 S.Ct. 2382
408 U.S. 125
UNITED STATES, Petitioner,v.Marian A. BYRUM, Executrix Under the Last Will and Testament of Milliken C. Byrum.
No. 71—308.
Argued March 1, 1972.
Decided June 26, 1972.
Rehearing Denied Oct. 10, 1972.
See 93 S.Ct. 94.
Syllabus
Decedent transferred to an irrevocable trust for the benefit of his children (and if they died before the trust ended, their surviving children) stock in three unlisted corporations that he controlled, retaining the right to vote the transferred stock, to veto the transfer by the trustee (a bank) of any of the stock, and to remove the trustee and appoint another corporate trustee as successor. The right to vote the transferred stock, together with the vote of the stock decedent owned at the time of his death, gave him a majority vote in each of the corporations. The Commissioner of Internal Revenue determined that the transferred stock was includable in decedent's gross estate under § 2036(a) of the Internal Revenue Code of 1954, which requires the inclusion in a decedent's gross estate of the value of any property he has transferred by inter vivos gift, if he retained for his lifetime '(1) the . . . enjoyment of . . . the property transferred, or (2) the right, either alone or in conjunction with any person, to designate the persons who shall . . . enjoy . . . the income therefrom.' The Commissioner claimed that decedent's right to vote the transferred shares and to veto any sale by the trustee, together with the ownership of other shares, made the transferred shares includable under § 206(a)(2), because decedent retained control over corporate dividend policy and, by regulating the flow of income to the trust, could shift or defer the beneficial enjoyment of trust income between the present beneficiaries and remaindermen, and under § 2036(a)(1) because, by reason of decedent's retained control over the corporations, he had the right to continue to benefit economically from the transferred shares during his lifetime. Held:
1. Decedent did not retain the 'right,' within the meaning of § 2036(a)(2), to designate who was to enjoy the trust income. Pp. 131—144.
(a) A settlor's retention of broad management powers did not necessarily subject an inter vivos trust to the federal estate tax. Pp. 131—135.
(b) In view of legal and business constraints applicable to the payment of dividends, especially where there are minority stockholders, decedent's right to vote a majority of the shares in these corporations did not give him a de facto position tantamount to the power to accumulate income in the trust. Pp. 135—144.
2. Decedent's voting control of the stock did not constitute retention of the enjoyment of the transferred stock within the meaning of § 2036(a)(1), since the decedent had transferred irrevocably the title to the stock and right to the income therefrom. Pp. 145—150.
440 F.2d 949, affirmed.
Matthew J. Zinn, Washington, D.C., for the petitioner.
Larry H. Snyder, Columbus, Ohio, for respondent.
Mr. Justice POWELL delivered the opinion of the Court.
1
Decedent, Milliken C. Byrum, created in 1958 an irrevocable trust to which he transferred shares of stock in three closely held corporations. Prior to transfer, he owned at least 71% of the outstanding stock of each corporation. The beneficiaries were his children or, in the event of their death before the termination of the trust, their surviving children. The trust instrument specified that there be a corporate trustee. Byrum designated as sole trustee an independent corporation, Huntington National Bank. The trust agreement vested in the trustee broad and detailed powers with respect to the control and management of the trust property. These powers were exercisable in the trustee's sole discretion, subject to cervote the shares of unlisted stock held in tain rights reserved by Byrum: (i) to the trust estate; (ii) to disapprove the sale or transfer of any trust assets, including the shares transferred to the trust; (iii) to approve investments and reinvestments; and (iv) to remove the trustee and 'designate another corporate Trustee to serve as successor.' Until the youngest living child reached age 21, the trustee was authorized in its 'absolute and sole discretion' to pay the income and principal of the trust to or for the benefit of the beneficiaries, 'with due regard to their individual needs for education, care, maintenance and support.' After the youngest child reached 21, the trust was to be divided into a separate trust for each child, to terminate when the beneficiaries reached 35. The trustee was authorized in its discretion to pay income and principal from these trusts to the beneficiaries for emergency or other 'worthy need,' including education.1
2
When he died in 1964, Byrum owned less than 50% of the common stock in two of the corporations and 59% in the third. The trust had retained the shares transferred to it, with the result that Byrum had continued to have the right to vote not less than 71% of the common stock in each of the three corporations.2 There was ninority stockholders, unrelated to Byrum, in each corporation.
3
Following Byrum's death, the Commissioner of Internal Revenue determined that the transferred stock was properly included within Byrum's gross estate under § 2036(a) of the Internal Revenue Code of 1954, 26 U.S.C. § 2036(a). That section provides for the inclusion in a decedent's gross estate of all property which the decedent has transferred by inter vivos transaction, if he has retained for his lifetime '(1) the possession or enjoyment of, or the right to the income from, the property' transferred, or '(2) the right, either alone or in conjunction with any person, to designate the persons who shall possess or enjoy the property or the income therefrom.'3 The Commissioner determined that the stock transferred into the trust should be included in Byrum's gross estate because of the rights reserved by him in the trust agreement. It was asserted that his right to vote the transferred shares and to veto any sale thereof by the trustee, together with the ownership of other shares, enabled Byrum to retain the 'enjoyment of . . . the property,' and also allowed him to determine the flow of income to the trust and thereby 'designate the persons who shall . . . enjoy . . . the income.
4
The executrix of Byrum's estate paid an additional tax of $13,202.45, and thereafter brought this refund action in District Court. The facts not being in dispute, the court ruled for the executrix on cross motions for summary judgment. 311 F.Supp. 892 (S.D.Ohio 1970). The Court of Appeals affirmed, one judge dissenting. 440 F.2d 949 (C.A.6, 1971). We granted the Government's petition for certiorari. 404 U.S. 937, 92 S.Ct. 278, 30 L.Ed.2d 249 (1971).
5
* The Government relies primarily on its claim, made under § 2036(a)(2), that Byrum retained the right to designate the persons who shall enjoy the income from the transferred property. The argument is a complicated one. By retaining voting control over the corporations whose stock was transferred, Byrum was in a position to select the corporate directors. He could retain this position by not selling the shares he owned and by vetoing any sale by the trustee of the transferred shares. These rights, it is said, gave him control over corporate dividend policy. By increasing, decreasing, or stopping dividends completely, it is argued that Byrum could 'regulate the flow of income to the trust' and thereby shift or defer the beneficial enjoyment of trust income between the present beneficiaries and the remaindermen. The sum of this retained power is said to be tantamount to a grantor-trustee's power to accumulate income in the trust, which this Court has recognized constitutes the power to designate the persons who shall enjoy the income from transferred property.4
6
At the outset we observe that this Court has never held that trust property must be included in a settlor's gross estate solely because the settlor retained the power to manage trust assets. On the contrary, since our decision in Reinecke v. Northern Trust Co., 278 U.S. 339, 49 S.Ct. 123, 73 L.Ed. 410 (1929), it has been recognized that a settlor's retention of broad powers of management does not necessarily subject an inter vivos trust to the federal estate tax.5 Although there was no statutory analogue to § 2036(a)(2) when Northern Trust was decided, several lower court decisions decided after the enactment of the predecessor of § 2036(a)(2) have upheld the settlor's right to exercise managerial powers without incurring estate-tax liability.6 In Estate of King v. Commissioner, 37 T.C. 973 (1962), a settlor reserved the power to direct the trustee in the management and investment of trust assets. The Government argued that the settlor was thereby empowered to cause investments to be made in such a manner as to control significantly the flow of income into the trust. The Tax Court rejected this argument, and held for the taxpayer. Although the court recognized that the settlor had reserved 'wide latitude in the exercise of his discretion as to the types of investments to be made,' id., at 980, it did not find this control over the flow of income to be equivalent to the power to designate who shall enjoy the income from the transferred property.
7
Essentially the power retained by Byrum is the same managerial power retained by the settlors in Northern Trust and in King. Although neither case controls this one—Northern Trust, because it was not decided under § 2036(a)(2) or a predecessor; and King, because it is a lower court opinion—the existence of such precedents carries weight.7 The holding of Northern Trust, that the settlor of a trust may retain broad powers of management without adverse estate-tax consequences, may have been relied upon in the drafting of hundreds of inter vivos trusts.8 The modification of this principle now sought by the Government could have a seriously adverse impact, especially upon settlors (and their estates) who happen to have been 'controlling' stockholders of a closely held corporation. Courts properly have been reluctant to depart from an interpretation of tax law which has been generally accepted when the departure could have potentially far-reaching consequences. When a principle of taxation requires reexamination, Congress is better equipped than a court to define precisely the type of conduct which results in tax consequences. When courts readily undertake such tasks, taxpayers may not rely with assurance on what appear to be established rules lest they be subsequently overturned. Legislative enactments, on the other hand, although not always free from ambiguity, at least afford the taxpayers advance warning.
8
The Government argues, however, that our opinion in United States v. O'Malley, 383 U.S. 627, 86 S.Ct. 1123, 16 L.Ed.2d 145 (1966), compels the inclusion in Byrum's estate of the stock owned by the trust. In O'Malley, the settlor of an inter vivos trust named himself as one of the three trustees. The trust agreement authorized the trustees to pay income to the life beneficiary or to accumulate it as a part of the principal of the trust in their 'sole discretion.' The agreement further provided that net income retained by the trustees, and not distributed in any calendar year, "shall become a part of the principal of the Trust Estate." Id., at 629 n. 2, 86 S.Ct., at 1124. The Court characterized the effect of the trust as follows:
9
'Here Fabrice (the settlor) was empowered, with the other trustees, to distribute the trust income to the income beneficiaries or to accumulate it and add it to the principal, thereby denying to the beneficiaries the privilege of immediate enjoyment and conditioning their eventual enjoyment upon surviving the termination of the trust.' Id., at 631, 86 S.Ct., at 1126.
10
As the retention of this legal right by the settlor, acting as a trustee 'in conjunction' with the other trustees, came squarely within the language and intent of the predecessor of § 2036(a)(2), the taxpayer conceded that the original assets transferred into the trust were includable in the decedent's gross estate. Id., at 632, 86 S.Ct., at 1126. The issue before the Court was whether the accumulated income, which had been added to the principal pursuant to the reservation of right in that respect, was also includable in decedent's estate for tax purposes. The Court held that it was.
11
In our view, and for the purposes of this case, O'Malley adds nothing to the statute itself. The facts in that case were clearly within the ambit of what is now § 2036(a). That section requires that the settlor must have 'retained for his life . . . (2) the right . . . to designate the persons who shall possess or enjoy the property or the income therefrom.' O'Malley was covered precisely by the statute for two reasons: (1) there the settlor had reserved a legal right, set forth in the trust instrument; and (2) this right expressly authorized the settlor, 'in conjunction' with others, to accumulate income and thereby 'to designate' the persons to enjoy it.
12
It must be conceded that Byrum reserved no such 'right' in the trust instrument or otherwise. The term 'right,' certainly when used in a tax statute, must be given its normal and customary meaning. It connotes an ascertainable and legally enforceable power, such as that involved in O'Malley.9 Here, the right ascribed to Byrum was the power to use his majority position and influence over the corporate directors to 'regulate the flow of dividends' to the trust. That 'right' was neither ascertainable nor legally enforceable and hence was not a right in any normal sense of that term.10
13
Byrum did retain the legal right to vote shares held by the trust and to veto investments and reinvestments. But the corporate trustee alone, not Byrum, had the right to pay out or withhold income and thereby to designate who among the beneficiaries enjoyed such income. Whatever power Byrum may have possessed with respect to the flow of income into the trust was derived not from an enforceable legal right specified in the trust instrument, but from the fact that he could elect a majority of the directors of the three corporations. The power to elect the directors conferred no legal right to command them to pay or not to pay dividends. A majority shareholder has a fiduciary duty not to misuse his power by promoting his personal interests at the expense of corporate interests.11 Moreover, the directors also have a fiduciary duty to promote the interests of the corporation.12 However great Byrum's influence may have been with the corporate directors, their responsibilities were to all stockholders and were enforceable according to legal standards entirely unrelated to the needs of the trust or to Byrum's desires with respect thereto.
14
The Government seeks to equate the de facto position of a controlling stockholder with the legally enforceable 'right' specified by the statute. Retention of corporate control (through the right to vote the shares) is said to be 'tantamount to the power to accumulate income' in the trust which resulted in estate-tax consequences in O'Malley. The Government goes on to assert that '(t)hrough exercise of that retained power, (Byrum) could increase or decrease corporate dividends . . . and thereby shift or defer the beneficial enjoyment of trust income.'13 This approach seems to us not only to depart from the specific statutory language,14 but also to misconceive the realities of corporate life.
15
There is no reason to suppose that the three corporations controlled by Byrum were other than typical small businesses. The customary vicissitudes of such enterprises—bad years; product obsolescence; new competition; disastrous litigation; new, inhibiting Government regulations; even bankruptcy—prevent any certainty or predictability as to earnings or dividends. There is no assurance that a small corporation will have a flow of net earnings or that income earned will in fact be available for dividends. Thus, Byrum's alleged de facto 'power to control the flow of dividends' to the trust was subject to business and economic variables over which be had little or no control.
16
Even where there are corporate earnings, the legal power to declare dividends is vested solely in the corporate board. In making decisions with respect to dividends, the board must consider a number of factors. It must balance the expectation of stockholders to reasonable dividends when earned against corporate needs for retention of earnings. The first responsibility of the board is to safeguard corporate financial viability for the long term. This means, among other things, the retention of sufficient earnings to assure adequate working capital as well as resources for retirement of debt, for replacement and modernization of plant and equipment, and for growth and expansion. The nature of a corporation's business, as well as the policies and long-range plans of management, are also relevant to dividend payment decisions.15 Directors of a closely held, small corporation must bear in mind the relatively limited access of such an enterprise to capital markets. This may require a more conservative policy with respect to dividends than would expected of an established corporation with securities listed on national exchanges.16
17
Nor do small corporations have the flexibility or the opportunity available to national concerns in the utilization of retained earnings. When earnings are substantial, a decision not to pay dividends may result only in the accumulation of surplus rather than growth through internal or external expansion. The accumulated earnings may result in the imposition of a penalty tax.17
18
These various economic considerations are ignored at the directors' peril. Although vested with broad discretion in determining whether, when, and what amount of dividends shall be paid, that discretion is subject to legal restraints. If, in obedience to the will of the majority stockholder, corporate directors disregard the interests of shareholders by accumulating earnings to an unreasonable extent, they are vulnerable to a derivative suit.18 They are similarly vulnerable if they make an unlawful payment of dividends in the absence of net earnings or available surplus,19 or if they fail to exercise the requisite degree of care in discharging their duty to act only in the best interest of the corporation and its stockholders.
19
Byrum was similarly inhibited by a fiduciary duty from abusing his position as majority shareholder for personal or family advantage to the detriment of the corporation or other stockholders. There were a substantial number of minority stockholders in these corporations who were unrelated to Byrum.20 Had Byrum and the directors violated their duties, the minority shareholders would have had a cause of action under Ohio law.21 The Huntington National Bank, as trustee, was one of the minority stockholders, and it had both the right and the duty to hold Byrum responsible for any wrongful or negligent action as a controlling stockholder or as a director of the corporations.22 Although Byrum had reserved the right to remove the trustee, he would have been imprudent to do this when confronted by the trustee's complaint against his conduct. A successor trustee would succeed to the rights of the one removed.
20
We conclude that Byrum did not have an unconstrained de facto power to regulate the flow of dividends to the trust, much less the 'right' to designate who was to enjoy the income from trust property. His ability to affect, but not control, trust income, was a qualitatively different power from that of the settlor in O'Malley, who had a specific and enforceable right to control the income paid to the beneficiaries.23 Even had Byrum managed to flood the trust with income, he had no way of compelling the trustee to pay it out rather than accumulate it. Nor could he prevent the trustee from making payments from other trust assets,24 although admittedly there were few of these at the time of Byrum's death. We cannot assume, however, that no other assets would come into the trust from reinvestments or other gifts.25
21
We find no merit to the Government's contention that Byrum's de facto 'control,' subject as it was to the economic and legal contraints set forth above, was tantamount to the right to designate the persons who shall enjoy trust income, specified by § 2036(a)(2).26
II
22
The Government asserts an alternative ground for including the shares transferred to the trust within Byrum's gross estate. It argues that by retaining control, Byrum guaranteed himself continued employment and remuneration, as well as the right to determine whether and when the corporations would be liquidated or merged. Byrum is thus said to have retained 'the . . . enjoyment of . . . the property' making it includable within his gross estate under § 2036(a)(1). The Government concedes that the retention of the voting rights of an 'unimportant minority interest' would not require inclusion of the transferred shares under § 2036(a)(1). It argues, however, 'where the cumulative effect of the retained powers and the rights flowing from the shares not placed in trust leaves the grantor in control of a close corporation, and assures that control for his lifetime, he has retained the 'enjoyment' of the transferred stock.'27 Brief for United States 23.
23
It is well settled that the terms 'enjoy' and 'enjoyment,' as used in various estate tax statutes, 'are not terms of art, but connote substantial present economic benefit rather than technical vesting of title or estates.' Commissioner of Internal Revenue v. Estate of Holmes, 326 U.S. 480, 486, 66 S.Ct. 257, 260, 90 L.Ed. 228 (1946).28 For example, in Reinecke v. Northern Trust Co., 278 U.S. 339, 49 S.Ct. 123, 73 L.Ed. 410 (1929), in which the critical inquiry was whether the decedent had created a trust 'intended . . . 'to take effect in possession or enjoyment at or after his death,"29 id., at 348, 49 S.Ct., at 126, the Court held that reserved powers of management of trust assets, similar to Byrum's power over the three corporations, did not subject an inter vivos trust to the federal estate tax. In determining whether the settlor had retained the enjoyment of the transferred property, the Court said:
24
'Nor did the reserved powers of management of the trusts save to decedent any control over the economic benefits or the enjoyment of the property. He would equally have reserved all these powers and others had he made himself the trustee, but the transfer would not for that reason have been incomplete. The shifting of the economic interest in the trust property which was the subject of the tax was thus complete as soon as the trust was made. His power to recall the property and of control over it for his own benefit then ceased and as the trusts were not made in contemplation of death, the reserved powers do not serve to distinguish them from any other gift inter vivos not subject to the tax.' 278 U.S., at 346—347, 49 S.Ct., at 125.
25
The cases cited by the Government reveal that the terms 'possession' and 'enjoyment,' used in § 2036(a)(1), were used to deal with situations in which the owner of property divested himself of title but retained an income interest or, in the case of real property, the lifetime use of the property. Mr. Justice Black's opinion for the Court in Commissioner of Internal Revenue v. Estate of Church, 335 U.S. 632, 69 S.Ct. 322, 93 L.Ed. 288 (1949), traces the history of the concept. In none of the cases cited by the Government has a court held that a person has retained possession or enjoyment of the property if he has transferred title irrevocably, made complete delivery of the property and relinquished the right to income where the property is income producing.30
26
The Government cites only one case, Estate of Holland v. Commissioner, 1 T.C. 564 (1943),31 in which a decedent had retained the right to vote transferred shares of stock and in which the stock was included within the decedent's gross estate. In that case, it was not the mere power to vote the stock, giving the decedent control of the corporation, which caused the Tax Court to include the shares. The court held that "on an inclusive view of the whole arrangement, this withholding of the income until decedent's death, coupled with the retention of the certificates under the pledge and the reservation of the right to vote the stock and to designate the company officers" subjects the stock to inclusion within the gross estate. Id., at 565. The settlor in Holland retained a considerably greater interest than Byrum retained, including an income interest.32
27
As the Government concedes, the mere retention of the right-to-vote shares does not constitute the type of 'enjoyment' in the property itself contemplated by § 2036(a)(1). In addition to being against the weight of precedent, the Government's argument that Byrum retained 'enjoyment' within the meaning of § 2036(a)(1) is conceptually unsound. This argument implies, as it must under the express language of § 2036(a), that Byrum 'retained for his life . . . (1) the possession or enjoyment' of the 'property' transferred to the trust or the 'income' therefrom. The only property he transferred was corporate stock. He did not transfer 'control' (in the sense used by the Government) as the trust never owned as much as 50% of the stock of any corporation. Byrum never divested himself of control, as he was able to vote a majority of the shares by virtue of what he owned and the right to vote those placed in the trust. Indeed, at the time of his death he still owned a majority of the shares in the largest of the corporations and probably would have exercised control of the other two by virtue of being a large stockholder in each.33 The statutory language plainly contemplates retention of an attribute of the property transferred—such as a right to income, use of the property itself, or a power of appointment with respect either to income or principal.34
28
Even if Byrum had transferred a majority of the stock, but had retained voting control, he would not have retained 'substantial present economic benefit,' 326 U.S., at 486, 66 S.Ct., at 260. The Government points to the retention of two 'benefits.' The first of these, the power to liquidate or merge, is not a present benefit; rather, it is a speculative and contingent benefit which may or may not be realized. Nor is the probability of continued employment and compensation the substantial 'enjoyment of. . . (the transferred) property' within the meaning of the statute. The dominant stockholder in a closely held corporation, if he is active and productive, is likely to hold a senior position and to enjoy the advantage of a significant voice in his own compensation. These are inevitable facts of the free-enterprise system, but the influence and capability of a controlling stockholder to favor himself are not without constraints. Where there are minority stockholders, as in this case, directors may be held accountable if their employment, compensation, and retention of officers violate their duty to act reasonably in the best interest of the corporation and all of its stockholders.35 Moreover, this duty is policed, albeit indirectly, by the Internal Revenue Service, which disallows the deduction of unreasonable compensation paid to a corporate executive as a business expense.36 We conclude that Byrum's retention of voting control was not the retention of the enjoyment of the transferred property within the meaning of the statute.
29
For the reasons set forth above, we hold that this case was correctly decided by the Court of Appeals and accordingly the judgment is affirmed.
30
Judgment affirmed.
31
Mr. Justice WHITE, with whom Mr. Justice BRENNAN and Mr. Justice BLACKMUN join, dissenting.
32
I think the majority is wrong in all substantial respects.
33
* The tax code commands the payment of an estate tax on transfers effective in name and form during life if the now deceased settlor retained during his life either (1) 'the possession or enjoyment of' the property transferred or (2) the right to designate the persons who would enjoy the transferred property or the income therefrom. 26 U.S.C. §§ 2036(a)(1) and (2). Our cases explicate this congressional directive to mean that if one wishes to avoid a tax at death he must be self-abnegating enough to totally surrender his property interest during life.
34
'(A)n estate tax cannot be avoided by any trust transfer except by a bona fide transfer in which the settlor, absolutely, unequivocally, irrevocably, and without possible reservations, parts with all of his title and all of his possession and all of his enjoyment of the transferred property.' Commissioner of Internal Revenue v. Estate of Church, 335 U.S. 632, 645, 69 S.Ct. 322, 329, 93 L.Ed. 288 (1949).
35
In this case the taxpayer's asserted alienation does not measure up to this high standard. Byrum enjoyed the continued privilege of voting the shares he 'gave up' to the trust. By means of these shares he enjoyed majority control of two corporations. He used that control to retain salaried positions in both corporations. To my mind this is enjoyment of property put beyond taxation only on the pretext that it is not enjoyed.
36
Byrum's lifelong enjoyment of the voting power of the trust shares contravenes § 2036(a)(2) as well as § 2036(a)(1) because it afforded him control over which trust beneficiaries—the life tenants or the remaindermen—would receive the benefit of the income earned by these shares. He secured this power by making the trust to all intents and purposes exclusively dependent on shares it could not sell in corporations he controlled.1 Thus, by instructing the directors he elected in the controlled corporations that he thought dividends should or should not be declared Byrum was able to open or close the spigot through which income flowed to the trust's life tenants. When Byrum closed the spigot by deferring dividends of the controlled corporations, thereby perpetuating his own 'enjoyment' of these funds, he also in effect transferred income from the life tenants to the remaindermen whose share values were swollen by the retained income. The extent to which such income transfers can be effected is suggested by the pay-out record of the corporations here in question, as reflected in the trust's accounts. Over the first five years of its existence on shares later valued by the Internal Revenue Service at $89,000, the trust received a total of only $339 in dividends. In the sixth year, Byrum died. The corporations raised their dividend rate from 10¢ a share to $2 per share and paid $1,498 into the trust. See 'Income Cash Ledger,' App. 25—26.
37
Byrum's control over the flow of trust income renders his estate scheme repugnant to § 2036(a)(2) as well as § 2036(a)(1).
38
To me it is thus clear that Byrum's shares were not truly, totally, 'absolutely, unequivocally' alienated during his life. When it is apparent that, if tolerated, Byrum's scheme will open a gaping hole in the estate tax laws, on what basis does the majority nonetheless conclude that Byrum should have his enjoyment, his control, and his estate free from taxes?
II
39
I can find nothing in the majority's three arguments purporting to deal with § 2036(a)(1), that might justify the conclusion that Byrum did not 'enjoy' a benefit from the shares his estate now asserts are immune from taxation.
40
1. The majority says that in Reinecke v. Northern Trust Co., 278 U.S. 339, 49 S.Ct. 123, 73 L.Ed. 410 (1929), 'the Court held that reserved powers of management of trust assets, similar to Byrum's power over the three corporations, did not subject an inter vivos trust to the federal estate tax.' This reading of Northern Trust is not warranted by the one paragraph in that antique opinion on the point for which it is now cited, see 278 U.S., at 346—347, 49 S.Ct., at 125, nor by the circumstances of that case. No one has ever suggested that Adolphus Bartlett, the settlor in Northern Trust, used or could have used the voting power of the shares he transferred to a trust to control or, indeed, exercise any significant influence in any company. A mere glance at the nature of these securities transferred by Bartlett (e.g., 1,000 shares of the Northern Trust Co., 784 shares of the Commonwealth Edison Co., 300 shares of the Illinois Central R. Co., 200 preferred shares of the Chicago & North Western R. Co., 300 common shares of the Chicago & North Western R. Co.)2 shatters any theory that might lead one to believe that the Court in Northern Trust was concerned with anything like the transactions in this case. On what basis, then, does the majority say that Northern Trust involved a decision on facts 'similar to Byrum's power over the three corporations?' And on what basis does it say that the Government's position that Byrum's use of trust shares to retain control renders those shares taxable is 'against the weight of precedent?'
41
2. The majority implies that trust securities are taxable only if the testator retained title or the right to income from the securities until death. But this ignores the plain language of the statute which proscribes 'enjoyment' as well as 'possession or . . . the right to income.'
42
3. The majority concludes with the assertion that Byrum secured no 'substantial present economic benefits' from his retention of control.3 It is suggested that control is not important, that it either cannot be held by a private shareholder or that it is of so little use and relevance the taxpayer can hardly be said to have 'enjoyed' it. This view of corporate life is refuted by the case law;4 by the commentators;5 and by everyday transactions on the stock exchange where offers and trades repeatedly demonstrate that the power to 'control' a corporation will fetch a substantial premium.6 Moreover, the majority's view is belied by Byrum's own conduct. He obviously valued control because he forbade the bank that served as trustee to sell the trust shares in these corporations without his—Byrum's approval, whatever their return, their prospects, their value, or the trust's needs. Trust Agreement 5.15, App. 14.
43
In sum, the majority's discourse on § 2036(a)(1) is an unconvincing rationalization for allowing Byrum the tax-free 'enjoyment' of the control privileges he retained through the voting power of shares he supposedly 'absolutely' and 'unequivocally' gave up.
III
44
I find no greater substance in the greater length of the majority's discussion of § 2036(a)(2).
A.
45
Approaching the § 2036(a)(2) problem afresh, one would think United States v. O'Malley, 383 U.S. 627, 86 S.Ct. 1123, 16 L.Ed.2d 145 (1966), would control this case. In O'Malley the settlor '(had) relinquished all of his rights' to stock, but he appointed himself one of three trustees for each of the five trusts he created, and he drafted the trust agreement so that the trustees had the freedom to allocate trust income to the life tenant or to accumulate it for the remainderman 'in their sole discretion.' The District Court held that the value of securities transferred was includable in the settlor's gross estate under § 811(c) and (d) of the Internal Revenue Code of 1939, as amended, § 811(c)(1)(B) being the similarly worded predecessor of § 2036(a), because the settlor had retained the power to allocate income between the beneficiaries without being constrained by a 'definite ascertainable standard' according to which the trust would be administered. O'Malley v. United States, D.C., 220 F.Supp. 30, 33 (1963). The court noted 'plaintiff's contention that the required external standard is imposed generally by the law of Illinois,' but found this point to be 'without merit.'
46
'The cases cited by plaintiff clearly set out fundamental principles of trust law: that a trust requires a named beneficiary; that the legal and equitable estates be separated; and, that the trustees owe a fiduciary duty to the beneficiaries. These statements of the law are not particular to Illinois. Nor do these requirements so circumscribe the trustee's powers in an otherwise unrestricted trust so as to hold such a trust governed by an external standard and thus excludable from the application of § 811(c) and (d).' 220 F.Supp., at 33—34.
47
It was another aspect of that case that brought the matter to the Court of Appeals, 340 F.2d 930 (CA7 1964), and then here. We were asked to decide whether the lower court's holding should be extended and the accumulated income as well as the principal of the trust included in the settlor's taxable estate because the settlor had retained excessive power to designate the income beneficiaries of the shares transferred. We held that, though capable of exercise only in conjunction with one other trustee, the power to allocate income without greater constraint than that imposed 'is a significant power . . . of sufficient substance to be deemed the power to 'designate' within the meaning of (the predecessor of § 2036(a)(2)).' 383 U.S., at 631, 86 S.Ct., at 1126.
48
O'Malley makes the majority's position in this case untenable. O'Malley establishes that a settlor serving as a trustee is barred from retaining the power to allocate trust income between a life tenant and a remainderman if he is not constrained by more than general fiduciary requirements. See also Commissioner of Internal Revenue v. Estate of Holmes, 326 U.S. 480, 66 S.Ct. 257, 90 L.Ed. 228 (1946),7 and Lober v. United States, 346 U.S. 335, 74 S.Ct. 98, 98 L.Ed. 15 (1953). Now the majority would have us accept the incompatible position that a settlor seeking tax exemption may keep the power of income allocation by rendering the trust dependent on an income flow he controls because the general fiduciary obligations of a director are sufficient to eliminate the power to designate within the meaning of § 2036(a)(2).8
B
49
The majority would prop up its untenable position by suggesting that a controlling shareholder is constrained in his distribution or retention of dividends by fear of derivative suits, accumulated earnings taxes, and 'various economic considerations . . . ignored at the directors' peril.' I do not deny the existence of such constraints, but their restraining effect on an otherwise tempting gross abuse of the corporate dividend power hardly guts the great power of a controlling director to accelerate or retard, enlarge or diminish, most dividends. The penalty taxes only take effect when accumulations exceed $100,000, 26 U.S.C. § 535(c); Byrum was free to accumulate up to that ceiling. The threat of a derivative suit is hardly a greater deterrent to accumulation. As Cary puts it:
50
'The cases in which courts have refused to require declaration of dividends or larger dividends despite the existence of current earnings or a substantial surplus or both are numerous; plaintiffs have won only a small minority of the cases. The labels are 'business judgment'; 'business purpose'; 'non-interference in internal affairs.' The courts have accepted the general defense of discretion, supplemented by one or more of a number of grounds put forward as reasons for not paying dividends or larger dividends . . .' W. Cary, Cases and Materials on Corporations 1587 (4th ed. 1969).
51
And cf. Commissioner of Internal Revenue v. Sunnen, 333 U.S. 591, 609, 68 S.Ct. 715, 724, 92 L.Ed. 898 (1948).
52
The ease with which excess taxes, derivative suits, and economic vicissitudes alike may be circumvented or hurdled if a controlling shareholder chooses to so arrange his affairs is suggested by the pay-out record of Byrum's corporations noted above.
C
53
The majority proposes one other method of distinguishing O'Malley. Section 2036(a)(2), it is said, speaks of the right to designate income beneficiaries. O'Malley involved the effort of a settlor to maintain a legal right to allocate income. In the instant case only the power to allocate income is at stake. The Government's argument is thus said to depart from 'the specific statutory language'9 and to stretch the statute beyond endurance by allocating tax according to the realities of the situation rather than by the more rigid yardstick of formal control.10
54
This argument conjures up an image of congressional care in the articulation of § 2036(a)(2) that is entirely at odds with the circumstances of its passage. The 1931 legislation, which first enacted what is now § 2036(a)(2) in language not materially amended since that date, passed both Houses of Congress in one day—the last day of the session. There was no printed committee report. Substantial references to the bill appear in only two brief sections of the Congressional Record.11 Under the circumstances I see no warrant for reading the words in a niggardly way.
55
Moreover, it appears from contemporary evidence that if the use of the word 'right' was intended to have any special meaning it was to expand rather than to contract the reach of the restraint effected by the provision in which it appeared. The House Report on the Revenue Act of 1932 notes in relation to amendment of the predecessor of § 2036(a)(1) that:
56
'The insertion of the words 'the right to the income' in place of the words 'the income' is designed to reach a case where decedent had the right to the income, though he did not actually receive it. This is also a clarifying change.' H.R.Rep.No.708, 72d Cong., 1st Sess., 47.
57
And see S.Rep.No. 665, 72d Cong., 1st Sess., 50, to the same effect.
58
I repeat the injunction of Mr. Justice Frankfurter, 25 years ago: 'This is tax language and should be read in its tax sense.' United States v. Ogilvie Hardware Co., 330 U.S. 709, 721, 67 S.Ct. 997, 1003, 91 L.Ed. 1192 (1947) (dissenting opinion).
59
Lest this by itself not be considered enough to refute the majority's approach, I must add that it is quite repugnant to the words and sense of our opinion in O'Malley to read it as though it pivoted on an interpretation of 'right' rather than power. The opinion could hardly have been more explicitly concerned with the realities of a settlor's retained power rather than the theoretical legal form of the trust. Thus we said:
60
'Here Fabrice (the settlor) was empowered . . .. This is a significant power . . . of sufficient substance to be deemed the power to 'designate' within the meaning of (the predecessor of § 2036(a)(2)) . . ..' 383 U.S., at 631, 86 S.Ct., at 1126 (emphasis supplied).
And we said:
61
'With the creation of the trusts, he relinquished all of his rights to income except the power to distribute that income to the income beneficiaries or to accumulate it and hold it for the remaindermen of the trusts.' 383 U.S., at 632, 86 S.Ct., at 1126 (emphasis supplied).
And we spoke of:
62
'This power he exercised by accumulating and adding income to principal and this same power he held until the moment of his death. . . .' 383 U.S., at 634, 86 S.Ct., at 1127 (emphasis supplied).
63
Other passages could be quoted.
IV
64
Apparently sensing that considerations of logic, policy, and recent case law point to the inclusion of Byrum's trust in his estate, the majority would blunt these considerations by invoking the principle that courts should refrain from decisions detrimental to litigants who have taken a position in legitimate reliance on possibly outdated, but once established, case law. This principle is said to bring great weight to bear in Byrum's favor.
65
I need not quarrel with the principle. I think, however, that its application in this context is inappropriate.
66
The majority recites these facts: This Court has never held that retention of power to manage trust assets compels inclusion of a trust in a settlor's estate. In fact, Reinecke v. Northern Trust Co., 278 U.S. 339, 49 S.Ct. 123, 73 L.Ed. 410 (1929), specifically held a trust arrangement immune from taxation though the settlor retained power to decide how the trust assets were to be invested. Though Northern Trust was decided before the passage of § 2036(a) (2), it has been followed by 'several' more recent lower court decisions. Though most of the lower court decisions provide only the most oblique reference to circumstances like those of this case, a 1962 unappealed Tax Court decision, Estate of King v. Commissioner, 37 T.C. 973, is squarely in point.
67
On the basis of these two authorities, a 1929 Supreme Court decision and an unreviewed 1962 Tax Court decision, the majority concludes that there exists a 'generally accepted' rule that Byrum might do what he had done here. It is said that the hypothesized rule 'may' have been relied upon by 'hundreds' of others; if so, its modification 'could' have a serious impact, especially upon settlors who 'happen' to have been controlling shareholders in closely held corporations and who 'happen' to have transferred shares in those corporations to trusts while forbidding the trustee to sell the shares without approval and while retaining voting rights in those shares. Therefore the rule ought not to be 'modified' by this Court.
A.
68
The argument, apparently, is that what 'appear(s) to be established' should become established because it has appeared. Judges can and will properly differ on the questions of what deference to accord reliance on a well-established rule, but I doubt that we are precluded from reaching what would otherwise be a right result simply because in the minds of some litigants a contrary rule had heretofore 'appear(ed) to be established.' If the majority's approach were widely accepted, artful claims of past understanding would consistently suffice to frustrate judicial as well as administrative efforts at present rationalization of the law and every precedent—even at the tax court level—might lay claim to such authority that the Government and the tax bar could afford to leave no case unappealed.
B
69
Of course, the reliance argument is doubly infirm if the majority's rule cannot be said to have 'appear(ed) to be established.' Did Byrum have a sound basis for calculating that there was no substantial risk of taxation when he persisted in retaining the powers and privileges described above? 1. Again the majority turns to Reinecke v. Northern Trust Co., but it is no more credible to use Northern Trust as a foundation for Byrum's § 2036(a)(2) position than it was to use it as a basis for the Court's § 2036(a)(1) argument. Northern Trust was decided on January 2, 1929, two years and three months before Congress passed the first version of § 2036(a)(2). Section 402(c) of the Act of 1921, the provision under which Northern Trust was decided, proscribed only transfers in which the settlor attempted to retain 'possession or enjoyment' until his death. It is thus not surprising that Northern Trust focused on the question of the settlor's 'power to recall the property and of control over it for his own benefit,' 278 U.S., at 347, 49 S.Ct., at 125 (emphasis added), and made no mention of possible tax liability because of a retained power to designate which beneficiaries would enjoy the trust income. A holding in this context cannot be precedent of 'weight' for a decision as to the efficacy of a trust agreement made—as this trust was—27 years after the precedecessor of § 2036(a)(2) was enacted.
70
I note also that Northern Trust rests on a conceptual framework now rejected in modern law. The case is the elder sibling of May v. Heiner, 281 U.S. 238, 50 S.Ct. 286, 74 L.Ed. 826, a three-page 1930 decision which quotes Northern Trust, at length. May in effect held that under § 402(c) a settlor may be considered to have fully alienated property from himself even if he retains the very substantial string of the right to income from the property so long as he survives. The logic of May v. Heiner is the logic of Northern Trust. As one authority has written:
71
'When retention of a life estate was not taxable under the rule of May v. Heiner, it followed that mere retention of a right to designate the persons to receive the income during the life of the settlor was not taxable . . ..' I. J. Beveridge, Law of Federal Estate Taxation § 8.06, p. 324 (1956).
72
That logic no longer survives. When three Supreme Court per curiams affirmed May on March 2, 1931, and thus indicated that this view would not be confined to its facts, the Treasury Department, on the next morning, wrote Congress imploring it to promptly and finally reject the Court's lenient view of the estate tax system. Congress responded by enacting the predecessor § 2036(a)(2) that very day. The President signed the law that evening. Thus the holding of May and the underlying approach of Northern Trust have no present life. I note further that though Congress has refused to permit pre-1931 trusts to be liable to a rule other than that of May, in 1949 this Court itself came to the conclusion that May was wrong, and effected 'a complete rejection' of its reasoning. Commissioner of Internal Revenue v. Estate of Church, 335 U.S. 632,12 645, 69 S.Ct. 322, 329, 93 L.Ed. 288.
73
I seriously doubt that one could have confidently relied on Reinecke v. Northern Trust Co. when Byrum drafted his trust agreement in 1958. This Court is certainly not bound by its logic, in 1972. I do not mean any disrespect, but as Mr. Justice Cardozo said about another case, Northern Trust is a decision 'as mouldy as the grave from which counsel . . . brought it forth to face the light of a new age.' B. Cardozo, The Growth of the Law, in Selected Writings 244 (M. Hall ed. 1947).
74
2. The majority argues that there were several lower court cases decided after the enactment of § 2036(a)(2) upon which Byrum was entitled to rely, and it is quite true that cases exist holding that a settlor's retention of the power to invest the assets of a trust does not by itself render the trust taxable under § 2036(a)(2). But the majority's emphasis on these cases as a proper foundation for Byrum's reliance is doubly wrong. First, it could not have evaded Byrum's attention and should not escape the majority that all cited prior cases—save King (the tax court case written four years after Byrum structured his trust) involved retention of power to invest by the settlor's appointment of himself as a trustee; that is, they posed instances in which the settlor's retained power was constrained by a fiduciary obligation to treat the life tenant beneficiaries and remainderman beneficiaries exactly as specified in the trust instrument. Thus, the 'freedom' to reallocate income between life tenants and remaindermen by, e.g., investing in wasting assets with a high present return and no long-term value, was limited by a judicially enforceable strict standard capable of invocation by the trust beneficiaries by reference to the terms of the trust agreement. See Jennings v. Smith, 161 F.2d 74 (CA2 1947), the leading case. Byrum must have realized that the situation he was structuring was quite different. By according himself power of control over the trust income by an indirect means, he kept himself quite free of a fiduciary obligation measured by an ascertainable standard in the trust agreement. Putting aside the question of whether the situation described should be distinguished from Byrum's scheme, surely it must be acknowledged that there was an apparent risk that these situations could be distinguished by reviewing courts.
75
Second, the majority's analysis of the case law skips over the uncertainty at the time Byrum was drafting his trust agreement about even the general rule that a settlor could retain control over a trust's investments if he bound himself as a trustee to an ascertainable method of income distribution. While Byrum and his lawyer were pondering the terms of the trust agreement now in litigation, the Court of Appeals for the First Circuit was reconsidering whether a settlor could retain power over his trust's investments even when he bound himself to a fiduciary's strictest standards of disinterested obligation to his trust's beneficiaries. Early in 1958 the United States District Court for the District of Massachusetts had ruled that a settlor could not maintain powers of management of a trust even as a trustee without assuming estate tax liability. State Street Trust Co. v. United States, 160 F.Supp. 877. The estate's executor appealed this decision and argued it before the First Circuit panel on October 7, 1958. Byrum's trust agreement was made amidst this litigation, on December 8. On January 23, 1959, the First Circuit affirmed the District Court. 263 F.2d 635.13
76
The point is not simply that Byrum was on notice that he risked taxability by retaining the powers he retained when he created his trust—though that is true. It is also that within a month of the trust's creation it should have been crystal clear that Byrum ran a substantial risk of taxation by continued retention of control over the trust's stock. Any retained right can be resigned. That Byrum persisted in holding these rights can only be viewed as an indication of the value he placed upon their enjoyment, and of the tax risk he was willing to assume in order to retain control.
77
The perception that a settlor ran substantial risk of estate tax if he insisted on retaining power over the flow of trust income is hardly some subtle divination of a latter-day observer of the 1958—1959 tax landscape. Contemporary observers saw the same thing. A summary of the field in the 1959 Tax Law Review concluded: 'Until the law is made more definite, a grantor who retains any management powers is proceeding at his own risk. . . . (T)here is no certainty . . ..' Gray & Covey, State Street—A Case Study of Sections 2036(a)(2) and 2038, 15 Tax L.Rev. 75, 102. The relevant subcommittee of the American Bar Association Committee on Estate and Tax Planning hardly thought reliance appropriate. It wrote in 1960 that:
78
'The tax-wise draftsman must now undertake to review every living trust in his office intended to be excluded from the settlor's estate in which the settlor acts as a trustee with authority to:
79
'1. Exercise broad and virtually unlimited investment powers . . .. Tax-Wise Drafting of Fiduciary Powers, 4 Tax Counsellor's Quarterly 333, 336.
80
More could be said, but I think it is clear that the majority should find no solace in its reliance argument.
V
81
The majority, I repeat, has erred in every substantial respect. It remains only to note that if it is wrong in any substantial respect—i.e., either in its § 2036(a)(1) or (a)(2) arguments—Byrum's trust is by law liable to taxation.
1
The Trust Agreement in pertinent part provided:
'Article IV. Irrevocable Trust.
'This Trust shall be irrevocable and Grantor reserves no rights, powers, privileges or benefits either as to the Trust estate or the control or management of the trust property, except as set forth herein.
'Article V. Powers Of The Trustee.
'The Trustee shall have and possess and may exercise at all times not only the rights, powers and authorities incident to the office or required in the discharge of this trust, or impliedly conferred upon or vested in it, but there is hereby expressly conferred upon and vested in the Trustee all the rights, powers and authorities embodied in the following paragraphs in this Article, which are shown by way of illustration but not by way of limitation:
'Sell. 5.02 To sell at public or private sale, to grant options to sell, to exchange, re-exchange or otherwise dispose of all or part
of the property, real or personal, at any time belonging to the Trust Estate, upon such terms and conditions and for such consideration as said Trustee shall determine, and to execute and deliver all instruments of sale or conveyance necessary or desirable therefor.
'Investments. 5.05 To invest any money in the Trust Estate in stocks, bonds, investment trusts, common trust funds and any other securities or property, real or personal, secured or unsecured, whether the obligations of individuals, corporations, trusts, associations, governments, expressly including shares and/or obligations of its own corporation, or otherwise, either within or outside of the State of Ohio, as the Trustee shall deem advisable, without any limitation whatsoever as to the character of investment under any statute or rule of law now or hereafter enacted or existing regarding trust funds or investments by fiduciaries or otherwise.
'Voting. 5.06 To vote by proxy or in person any stock or security comprising a part of the Trust Estate, at any meeting, except that, during Grantor's lifetime, all voting rights of any stocks which are not listed on a stock exchange, shall be exercised by Grantor, and after Grantor's death, the voting rights of such stocks shall be exercised by Grantor's wife during her lifetime.
'Leases. 5.09 To make leases for any length of time, whether longer or shorter than the duration of this Trust, to commence at the present time or in the future; to extend any lease; to grant options to lease or to renew any lease; it being expressly understood that the Trustee may grant or enter into ninety-nine year leases, renewable forever.
'Income Allocation. 5.13 To determine in its discretion how all receipts and disbursements, capital gains and losses, shall be charged, credited or apportioned between income and principal.
'Limitation. 5.15 Notwithstanding the powers of the Trustee granted in paragraphs 5.02, 5.05, 5.09 and 5.11 above, the Trustee shall not exercise any of the powers granted in said paragraphs unless (a) during Grantor's lifetime said Grantor shall approve of the action taken by the Trustee pursuant to said powers, (b) after the
death of the Grantor and as long as his wife, Marian A. Byrum, shall live, said wife shall approve of the action taken by the Trustee pursuant to said powers.
'Article VI. Distribution Prior To Age 21.
'Until my youngest living child reaches the age of twenty-one (21) years, the Trustee shall exercise absolute and sole discretion in paying or applying income and/or principal of the Trust to or for the benefit of Grantor's child or children and their issue, with due regard to their individual needs for education, care, maintenance and support and not necessarily in equal shares, per stirpes. The decision of the Trustee in the dispensing of Trust funds for such purposes shall be final and binding on all interested persons.
'Article VI. Division At Age 21.
'Principal Disbursements. 6.02 If prior to attaining the age of thirty-five (35), any one of the children of Grantor shall have an emergency such as an extended illness requiring unusual medical or hospital expenses, or any other worthy need including education of such child, the Trustee is hereby authorized and empowered to pay such child or use for his or her benefit such amounts of income and principal of the Trust as the Trustee in its sole judgment and discretion shall determine.
'Article VIII. Removal of Trustee.
'If the Trustee, The Huntington National Bank of Columbus, Columbus, Ohio, shall at any time change its name or combine with one or more corporations under one or more different names, or if its assets and business at any time shall be purchased and absorbed by another trust company or corporation authorized by law to accept these trusts, the new or successor corporation shall be considered as the said The Huntington National Bank of Columbis, Ohio, and shall continue said Trusts and succeed to all the rights, privileges, duties and obligations herein conferred upon said The Huntington National Bank of Columbus, Columbus, Ohio, Trustee.
'Grantor, prior to his death, and after the death of the Grantor, the Grantor's wife, Marian A. Byrum, during her lifetime, may remove or cause the removal of The Huntington National Bank of Columbus, Ohio, or any successor Trustee, as Trustee under the
Trusts and may thereupon designate another corporate Trustee to serve as successor Trustee hereunder.
'Article IX. Miscellaneous Provisions.
'Discretion. 9.02 If in the opinion of the Trustee it shall appear that the total income of any beneficiary of any Trust fund created hereunder is insufficient for his or her proper or suitable support, care and comfort, and education and that of said beneficiary's children, the Trustee is authorized to pay to or for such beneficiary or child such additional amounts from the principal of the Trust Estate as it shall deem advisable in order to provide suitably and properly for the support, care, comfort, and education of said beneficiary and of said beneficiary's children, and the action of the Trustee in making such payments shall be binding on all persons.'
2
The actual proportions were:
Total
Percentage
Percentage Percentage Owned by
Owned by Owned by Decedent
Decedent Trust and Trust
Byrum Lithographing Co.,
Inc. 59 12 71
Graphic Realty, Inc. 35 48 83
Bychrome Co. 42 46 88
3
26 U.S.C. § 2036 provides:
'(a) General rule.
'The value of the gross estate shall include the value of all property to the extent of any interest therein of which the decedent has at any time made a transfer (except in case of a bona fide sale for an adequate and full consideration in money or money's worth), by trust or otherwise, under which he has retained for his life or for any period not ascertainable without reference to his death or for any period which does not in fact end before his death—
'(1) the possession or enjoyment of, or the right to the income from, the property, or
'(2) the right, either alone or in conjunction with any person, to designate the persons who shall possess or enjoy the property or the income therefrom.'
4
United States v. O'Malley, 383 U.S. 627, 86 S.Ct. 1123, 16 L.Ed.2d 145 (1966).
It is irrelevant to this argument how many shares Byrum transferred to the trust. Had he retained in his own name more than 50% of the shares (as he did with one corporation), rather than retaining the right to vote the transferred shares, he would still have had the right to elect the board of directors and the same power to 'control' the flow of dividends. Thus, the Government is arguing that a majority shareholder's estate must be taxed for stock transferred to a trust if he owned at least 50% of the voting stock after the transfer or if he retained the right to vote the transferred stock and could thus vote more than 50% of the stock. It would follow also that if a settlor controlled 50% of the voting stock and similarly transferred some other class of stock for which the payment of dividends had to be authorized by the directors, his estate would also be taxed. Query: what would happen if he had the right to vote less than 50% of the voting stock but still 'controlled' the corporation? See n. 10, infra.
5
The Court has never overturned this ruling. See McCormick v. Burnet, 283 U.S. 784, 51 S.Ct. 343, 75 L.Ed. 1413 (1931); Helvering v. Duke, 290 U.S. 591, 54 S.Ct. 95, 78 L.Ed. 521 (1933) (affirmed by an equally divided Court). In Commissioner of Internal Revenue v. Estate of Church, 335 U.S. 632, 69 S.Ct. 322, 93 L.Ed. 288 (1949), and Estate of Spiegel v. Commissioner, 335 U.S. 701, 69 S.Ct. 301, 93 L.Ed. 330 (1949), the Court invited, sua sponte, argument of this question, but did not reach the issue in either opinion.
6
See, e.g., Old Colony Trust Co. v. United States, 423 F.2d 601 (CA1 1970); United States v. Powell, 307 F.2d 821 (CA10 1962); Estate of Ford v. Commissioner, 53 T.C. 114 (1969), aff'd, 450 F.2d 878 (CA2 1971); Estate of Wilson v. Commissioner, 13 T.C. 869 (1949) (en banc), aff'd, 187 F.2d 145 (CA3 1951); Estate of Budd v. Commissioner, 49 T.C. 468 (1968); Estate of Pardee v. Commissioner, 49 T.C. 140 (1967); Estate of King v. Commissioner, 37 T.C. 973 (1962).
7
The dissenting opinion attempts to distinguish the cases, holding that a settlor-trustee's retained powers of management do not bring adverse estate-tax consequences, on the ground that management of trust assets is not the same as the power retained by Byrum because a settlor-trustee is bound by a fiduciary duty to treat the life tenant beneficiaries and remaindermen as the trust instrument specifies. But the argument that in the reserved-power-of-management cases there was 'a judicially enforceable strict standard capable of invocation by the trust beneficiaries by reference to the terms of the trust agreement', post, at 166, ignores the fact that trust agreements may and often do provide for the widest investment discretion.
8
Assuming, arguendo, that Mr. Justice WHITE is correct in suggesting that in 1958, when this trust instrument was drawn, the estate-tax consequences of the settlor's retained powers of management were less certain than they are now, this Court's failure to overrule Northern Trust, plus the existence of recent cases such as King and the cases cited in n. 6, have undoubtedly been relied on by the draftsmen of more recent trusts with considerable justification. Our concern as to this point is not so much with whether Byrum properly relied on the precedents, but with the probability that others did rely thereon in good faith.
9
Although Mr. Justice WHITE'S dissent argues that the use of the word 'power' in O'Malley implies that the Court's concern was with practical reality rather than legal form, an examination of that opinion does not indicate that the term was used other than in the sense of legally empowered. At any rate, the 'power' was a right reserved to the settlor in the trust instrument itself.
10
The 'control' rationale, urged by the Government and adopted by the dissenting opinion, would create a standard—not specified in the statute—so vague and amorphous as to be impossible of ascertainment in many instances. See n. 13, infra. Neither the Government nor the dissent sheds light on the absence of an ascertainable standard. The Government speaks vaguely of drawing the line between 'an unimportant minority interest' (whatever that may be) and 'voting control.' The dissenting opinion does not address this problem at all. See Comment, Sale of Control Stock and the Brokers' Transaction Exemption—Before and After the Wheat Report, 49 Tex.L.Rev. 475, 479—481 (1971).
11
Such a fiduciary relationship would exist in almost every, if not every, State. Ohio, from which this case arises, is no exception:
'(I)f the majority undertakes, either directly or indirectly, through the directors, to conduct, manage, or direct the corporation's affairs, they must do so in good faith, and with an eye single to the best interests of the corporation. It is clear that the interests of the majority are not always identical with the interests of all the shareholders. The obligation of the majority or of the dominant group of shareholders acting for, or through, the corporation is fiduciary in nature. A court of equity will grant appropriate relief where the
majority or dominant group of shareholders act in their own interest or in the interest of others so as to oppress the minority or commit a fraud upon their rights.' 13 Ohio Jur.2d, Corporations § 662, pp. 90—91 (footnotes omitted).
See Overfield v. Pennroad Corp., 42 F.Supp. 586 (ED Pa.1941), rev'd on other grounds, 146 F.2d 889 (CA3 1944).
12
'The directors of the corporation represent the corporation, not just one segment of it, but all of it. The fiduciary nature of the directors' obligation requires that, in the management of the corporation's affairs, they do not presume to play favorites among the shareholders or among classes of shareholders.' 12 Ohio Jur.2d, Corporations § 497, p. 618.
13
The Government uses the terms 'control' and 'controlling stockholder' as if they were words of art with a fixed and ascertainable meaning. In fact, the concept of 'control' is a nebulous one. Although in this case Byrum possessed 'voting control' of the three corporations (in view of his being able to vote more than 50% of the stock in each), the concept is too variable and imprecise to constitute the basis per se for imposing tax liability under § 2036(a). Under most circumstances, a stockholder who has the right to vote
more than 50% of the voting shares of a corporation 'controls it' in the sense that he may elect the board of directors. But such a stockholder would not control, under the laws of most States, certain corporate transactions such as mergers and sales of assets. Moreover, control—in terms of effective power to elect the board under normal circumstances—may exist where there is a right to vote far less than 50% of the shares. This will vary with the size of the corporation, the number of shareholders, and the concentration (or lack of it) of ownership. See generally 2 L.Loss, Securities Regulation 770—783 (1961). Securities law practitioners recognize that possessing 10% or more of voting power is a factor on which the Securities and Exchange Commission relies as one of the indicia of control. SEC, Disclosure to Investors—The Wheat Report 245—247 (1969).
14
In advocating this de facto approach, the Government relies on our opinion in Commissioner of Internal Revenue v. Sunnen, 333 U.S. 591, 68 S.Ct. 715, 92 L.Ed. 898 (1948). Sunnen was a personal income tax case in which the Court found the taxpayer had made an assignment of income. The reasoning relied on the de facto power of a controlling shareholder to regulate corporate business for his personal objectives. This case is an estate tax case, not an income tax case. Moreover, unlike assignment-of-income cases in which the issue is who has the power over income, this case concerns a statute written in terms of the 'right' to designate the recipient of income. The use of the term 'right' implies that restraints on the exercise of power are to be recognized and that such restraints deprive the person exercising the power of a 'right' to do so.
15
The spectrum of types of corporate businesses, and of permissible policies with respect to the retention of earnings, is broad indeed. It ranges from the public utility with relatively assured and stable income to the new and speculative corporation engaged in a cyclical business or organized to exploit a new patent or unproved technology. Some corporations pay no dividends at all, as they are organized merely to hold static assets for prolonged periods (e.g., land, mineral resources, and the like). Corporations which emphasize growth tend to low dividend payments, whereas mature corporations may pursue generous dividend policies.
16
Thomas v. Matthews, 94 Ohio St. 32, 55—56, 113 N.E. 669, 675 (1916):
'(I)t is the duty of the directors, in determining the amount of net earnings available for the payment of dividends, to take into
account the needs of the company in its business and sums necessary in the operation of its business until the income from further operations is available, the amount of its debts, the necessity or advisability of paying its debts, or at least reducing them within the limits of the company's credit, the preservation of its capital stock as represented in the assets of the company as a fund for the protection of its creditors, and the character of its surplus assets, whether cash, credits or merchandise.'
17
Internal Revenue Code of 1954, Subc. G, pt. I, §§ 531 537, 26 U.S.C. §§ 531—537.
18
Had Byrum caused the board to follow a dividend policy, designed to minimize or cut off income to the trust, which resulted in the imposition of the penalty for accumulated earnings not distributed to shareholders, there might have been substantial grounds for a derivative suit. A derivative suit also would have been a possibility had dividends been paid imprudently to increase the trust's income at the expense of corporate liquidity. Minority shareholders in Ohio may bring derivative suits under Ohio Rules Civ.Proc. 23.1.
19
In most States, the power to declare dividends is vested solely in the directors. 11 W. Fletcher, Cyclopedia Corporations, c. 58, § 5320. Ohio is no exception, and it limits the authority of directors to pay
dividends depending on available corporate surplus. Ohio Rev.Code Ann. § 1701.33. Although liability generally exists irrespective of a statute, nearly all States have statutes regulating the liability of directors who participate in the payment of improper dividends. 12 Fletcher, supra, c. 58, § 5432. Again, Ohio is no exception. Ohio Rev.Code Ann. § 1701.95.
20
App. 30—32. In Byrum Lithographing Co., Inc., none of the other 11 stockholders appears to be related by name to Byrum. In Bychrome Co. five of the eight stockholders appear to be unrelated to the Byrums; and in Graphic Realty Co. 11 of the 14 stockholders appear to be unrelated.
21
See Wilberding v. Miller, 90 Ohio St. 28, 42, 106 N.E. 665, 669 (1914):
'An arbitrary disregard to the rights of stockholders to dividends or other improper treatment of the assets of the company would be relieved against.'
22
The trust instrument explicitly granted the trustee the power '(t)o enforce, abandon, defend against, or have adjudicated by legal proceedings, arbitration or by compromise, any claim or demand whatsoever arising out of or which may exist against the Trust Estate.' App. 10—11.
23
The Government cites two other opinions of this Court, in addition to O'Malley, to support its argument. In both Commissioner of Internal Revenue v. Estate of Holmes, 326 U.S. 480, 66 S.Ct. 257, 90 L.Ed.2d 228 (1946), and Lober v. United States, 346 U.S. 335, 74 S.Ct. 98, 98 L.Ed. 15 (1953), the grantor reserved to himself the power to distribute to the beneficiaries the entire principal and accumulated income of the trust at any time. This power to terminate the trust and thereby designate the beneficiaries at a time selected by the settlor, is not comparable to the powers reserved by Byrum in this case.
24
While the trustee could not acquire or dispose of investments without Byrum's approval, he was not subject to Byrum's orders. Byrum could prevent the acquisition of an asset, but he could not require the trustee to acquire any investment. Nor could he compel a sale, although he could prevent one. Thus, if there were other income-producing assets in the trust, Byrum could not compel the trustee to dispose of them.
25
In purporting to summarize the basis of our distinction of O'Malley, the dissenting opinion states:
'Now the majority would have us accept the incompatible position that a settlor seeking tax exemption may keep the power of income
allocation by rendering the trust dependent on an income flow he controls because the general fiduciary obligations of a director are sufficient to eliminate the power to designate within the meaning of § 2036(a)(2).' Post, at 157.
This statement, which assumes the critical and ultimate conclusion, incorrectly states the position of the Court. We do not hold that a settlor 'may keep the power of income allocation' in the way Mr. Justice WHITE sets out; we hold, for the reasons stated in this opinion, that this settlor did not retain the power to allocate income within the meaning of the statute.
26
The dissenting opinion's view of the business world will come as a surprise to many. The dissent states:
'Thus, by instructing the directors he elected in the controlled corporations that he thought dividends should or should not be declared Byrum was able to open or close the spigot through which income flowed to the trust's life tenants.' Post, at 152.
This appears to assume that all corporations, including the small family type involved in this case, have a regular and dependable flow of earnings available for dividends, and that if there is a controlling stockholder he simply turns the 'spigot' on or off as dividends may be desired. For the reasons set forth in this opinion, no such dream world exists in the life of many corporations. But whatever the situation may be generally, the fallacy in the dissenting opinion's position here is that the record simply does not support it. This case was decided on a motion for summary judgment. The record does not disclose anything with respect to the earnings or financial conditions of these corporations. We simply do not know whether there were any earnings for the years in question, whether there was an earned surplus in any of the corporations, or whether—if some earnings be assumed—they were adequate in light of other corporate needs to justify dividend payments. Nor can we infer from the increase in dividend payments in the year following Byrum's death that higher dividends could have been paid previously. The increase could be explained as easily by insurance held by the corporations on Byrum's life.
27
At one point Mr. Justice WHITE seems to imply that Byrum also retained the enjoyment of the right to the income from the transferred shares:
'When Byrum closed the spigot by deferring dividends of the controlled corporations, thereby perpetuating his own 'enjoyment' of these funds, he also in effect transferred income from the life tenants to the remaindermen.' (Emphasis added.) Post, at 152.
But, of course, even if dividends were deferred, the funds remained in the corporation; Byrum could not use them himself.
28
See 26 CFR § 20.2036—1(b)(2):
'The 'use, possession, right to the income, or other enjoyment of the transferred property's is considered as having been retained by or reserved to the decedent to the extent that the use, possession, right to the income, or other enjoyment is to be applied toward the discharge of a legal obligation of the decedent, or otherwise for his pecuniary benefit.'
Although Mr. Justice WHITE questions the Court's failure to interpret 'possession or enjoyment' with 'extreme literalness,' post, at 154 n. 3, apparently the Commissioner does not do so either. Reflection on the expensive nature of those words, particularly 'enjoyment,' will demonstrate why interpreting them with 'extreme literalness' is an impossibility.
29
Northern Trust was decided under the Revenue Act of 1921, § 402(c), 42 Stat. 278.
30
Helvering v. Hallock, 309 U.S. 106, 60 S.Ct. 444, 84 L.Ed. 604 (1949); Commissioner of Internal Revenue v. Estate of Church, 335 U.S. 632, 69 S.Ct. 322, 93 L.Ed. 288 (1946); Lober v. United States, 346 U.S. 335, 74 S.Ct. 98, 98 L.Ed. 15 (1953); United States v. Estate of Grace, 395 U.S. 316, 89 S.Ct. 1730, 23 L.Ed.2d 332 (1969); Estate of McNichol v. Commissioner of Internal Revenue, 265 F.2d 667 (CA3), cert. denied, 361 U.S. 829, 80 S.Ct. 78, 4 L.Ed.2d 71 (1950); Guynn v. United States, 437 F.2d 1148 (CA4 1971). In all of these cases, as in Church, the grantor retained either title or an income interest or the right to use real property for his lifetime.
Despite Mr. Justice WHITE'S suggestion, post, at 154, we have not 'ignore(d) the plain language of the statute which proscribes 'enjoyment' as well as 'possession or . . . the right to income." Rather, the cases we have cited clearly establish that the terms 'possession' and 'enjoyment' have never been used as the dissent argues.
31
The cited opinion supplemented an earlier opinion of the Board of Tax Appeals in the same case, 47 B.T.A. 807 (1942).
32
A more analogous case is Yeazel v. Coyle, 68—1 U.S.T.C. 12,524 (ND Ill.1968), in which a settlor-trustee, who transferred 60% of the shares of a wholly owned corporation to a trust, was found not to have retained the enjoyment of the property for her lifetime.
33
The Government, for the reasons discussed in n. 4, supra, makes no distinction between retention of control by virtue of owning 50% or more of the voting shares and such retention by a combination of stock owned and that with respect to which the right to vote was retained.
34
The interpretation given § 2036(a) by the Government and by Mr. Justice WHITE'S dissenting opinion would seriously disadvantage settlors in a control posture. If the settlor remained a controlling stockholder, any transfer of stock would be taxable to his estate. See n. 4, supra. The typical closely held corporation is small, has a checkered earning record, and has no market for its shares. Yet its shares often have substantial asset value. To prevent the crippling liquidity problem that would result from the imposition of estate taxes on such shares, the controlling shareholder's estate planning often includes an irrevocable trust. The Government and the dissenting opinion would deny to controlling shareholders the privilege of using this generally acceptabel method of estate planning without adverse tax consequences. Yet a settlor whose wealth consisted of listed securities of corporations he did not control would be permitted the tax advantage of the irrevocable trust even though his more marketable assets present a far less serious liquidity problem. The language of the statute does not support such a result and we cannot believe Congress intended it to have such discriminatory and far-reaching impact.
35
Directors of Ohio corporations have been held liable for payment of excessive compensation. Berkwitz v. Humphrey, 163 F.Supp. 78 (ND Ohio 1958).
36
26 U.S.C. § 162(a)(1) permits corporations to deduct 'reasonable' compensation as business expenses. If the Internal Revenue Service determines that compensation exceeds the bounds of reason, it will not permit a deduction. See, e.g., Botany Worsted Mills v. United States, 278 U.S. 282, 49 S.Ct. 129, 73 L.Ed. 379 (1929).
Moreover, there is nothing in the record of this case with respect to Byrum's compensation. There is no showing that his control of these corporations gave him an 'enjoyment' with respect to compensation that he would not have had upon rendering similar services without owning any stock.
1
The trust held $89,000 worth of stock in Byrum-controlled corporations and only one other asset: three Series E United States Savings Bonds worth a total of $300 at maturity. See 'Yearly List of (Trust) Assets,' App. 27—29. Consequently, I do not accord much weight to the majority's point that Byrum could not prevent the trustee from making payments 'from other trust assets.'
2
Transcript of Record 3, in No. 90, O.T. 1928, Reinecke v. Northern Trust Co., 278 U.S. 339, 49 S.Ct. 123, 73 L.Ed. 410 (1929).
3
I am constrained to note that nowhere in the statute (which the majority elsewhere in its argument would read with extreme literalness) do the words 'substantial' and 'present'—or suggestions to that effect—appear. The phrase 'substantial present economic benefit' does appear in Commissioner v. Estate of Holmes, 326 U.S. 480, 486, 66 S.Ct. 257, 260, 90 L.Ed. 228 (1946), from which it is quoted by the majority. But there the Court held Holmes' estate liable to taxation on the corpus of an irrevocable trust because the settlor (Holmes) had kept the power for himself as trustee to distribute or retain trust income at his discretion. The Court held that this power enabled the settlor to retard or accelerate the beneficiaries' 'enjoyment' at his whim. The donor had thus kept 'so strong a hold over the actual and immediate enjoyment of what he (allegedly had put) beyond his own power' that he could not be said to have 'divested himself of that degree of control which (a provision analogous to § 2036(a)(2)) requires in order to avoid the tax.' 326 U.S., at 487, 66 S.Ct., at 260. Holmes is thus strong precedent contrary to the majority's § 2036(a)(2) argument. See also Lober v. United States, 346 U.S. 335, 74 S.Ct. 98, 98 L.Ed. 15 (1953); it certainly is not a case in
which the Court intended or attempted to narrow the meaning of § 2036(a)(1).
4
See, e.g., Honigman v. Green Giant Co., D.C., 208 F.Supp. 754, aff'd, 309 F.2d 667 (CA8 1962), cert. denied, 372 U.S. 941, 83 S.Ct. 934, 9 L.Ed.2d 967 (1963); Essex Universal Corp. v. Yates, 305 F.2d 572 (CA2 1962); Perlman v. Feldmann, 219 F.2d 173 (CA2 1955).
5
'(S)hareholders in a close corporation are usually vitally interested in maintaining their proportionate control . . ..' 1 F. O'Neal, Close Corporations § 3.39, p. 43 (1971). At least since Perlman v. Feldmann, supra, the academic dispute has not been over the existence of control, or its value, but, rather, over who is to benefit from the premium received upon its sale. See Leech, Transactions in Corporate Control, 104 U.Pa.L.Rev. 725 (1956); Hill, The Sale of Controlling Shares, 70 Harv.L.Rev. 986 (1957); Bayne, The Sale-of-Control Premium: The Disposition, 57 Calif.L.Rev. 615 (1969); Bayne, The Noninvestment Value of Control Stock, 45 Ind.L.J. 317 (1970).
6
See, e.g., the transactions described in Bayne, supra, n. 5 at 617.
7
See n. 3, supra.
8
This incompatibility was readily perceived by the Internal Revenue Service. Shortly after O'Malley was handed down, it promulgated Rev.Rul. 67—54 (1967) which concluded:
'Where a decedent transfers nonvoting stock in trust and holds for the remainder of his life voting stock giving him control over the divi-
dend policy of the corporation, he has retained, for a period which did not in fact end before his death, the right to determine the income from the nonvoting stock. If he also retains control over the disposition of the nonvoting stock, whether as trustee, by restriction upon the trustee, or alone or in conjunction with another, he has in fact made a transfer whereby he has retained for his life the right to designate the persons who shall possess or enjoy the transferred property or the income therefrom. Since under section 20.2036—1(b)(3) of the Estate Tax Regulations it is immaterial in what capacity a power was exercisable by the decedent, it is sufficient that the power was exercisable in the capacity of controlling stockholder. Under the facts of this case, therefore, the decedent has made a transfer with a reserved power within the meaning of section 2036(a) of the Code.'
9
This call for literalness strongly contrasts with the majority's § 2036(a) (2) analysis, see n. 3, supra.
10
The majority's argument ignores the fact that within a wide area of discretion Byrum had the 'right' to allocate corporate income to purposes other than payment of dividends, and thus the 'right' to shut off income to the trust's life tenants.
11
The intent of Congressmen and the care with which they measured the language which the majority thinks was carefully limited is suggested by the following:
'Mr. HAWLEY. Mr. Speaker, I ask unanimous consent for the present consideration of a joint resolution (H.J.Res. 529) relating to the revenue, reported from the Committee on Ways and Means. (The resolution, § 2036(a)(1) and (2) substantially as they appear today, was read.)
'The SPEAKER. Is there objection?
'Mr. SCHAFER of Wisconsin. Reserving the right to object, I shall object unless the gentleman explains just what the bill is.
'Mr. HAWLEY. Mr. Speaker and gentlemen, the Supreme Court yesterday handed down a decision to the effect that if a person creates a trust of his property and provides that, during his lifetime, he shall enjoy the benefits of it, and when it is distributed heirs—the Supreme Court held that it heirs—the Supreme Court hedl that it goes to his heirs free of any estate tax.
'Mr. SCHAFER of Wisconsin. This is a bill to tax the rich man. I shall not object.
'Mr. COLLINS. I would like to have a little more explanation.
'Mr. SABATH. Reserving the right to object, all the resolution purports to do is to place a tax on these trusts that have been in vogue for the last few years for the purpose of evading the inheritance tax on the part of some of these rich estates?
'Mr. HAWLEY. It provides that hereafter no such method shall be used to evade the tax.
'Mr. SABATH. That is good legislation.' 74 Cong.Rec. 7198.
12
In considering this and its companion case, Estate of Spiegel v. Commissioner of Internal Revenue, 335 U.S. 701, 69 S.Ct. 301, 93 L.Ed. 330 (1949), the Court in effect invited argument on whether Northern Trust itself should be overruled. Journal of the Supreme Court, Oct. T.1947, pp. 296—297. Though the Court held for the Government without having to reach this issue, I note that in the 23 years since Church and Spiegel no opinion of this Court has once cited, much less relied upon, Northern Trust. Mr. Justice Reed, dissenting in Church and concurring in Spiegel, announced at the time that he thought these cases overruled Northern Trust.
13
The First Circuit again shifted its position on this question in Old Colony Trust Co. v. United States, 423 F.2d 601 (1970), but this change is obviously irrelevant to the majority's argument as to the legitimacy of Byrum's reliance from 1958 to 1964.
| 1112
|
408 U.S. 224
92 S.Ct. 2284
33 L.Ed.2d 308
Elisha COMBS, Petitioner,v.UNITED STATES.
No. 71—517.
Argued April 11, 1972.
Decided June 26, 1972.
James N. Perry, Cincinnati, Ohio, for petitioner.
William Bradford Reynolds, Washington, D.C., for respondent.
PER CURIAM.
1
We granted certiorari on claims that evidence introduced against petitioner was obtained through an unlawful search that petitioner has standing to challenge. The Government now suggests that the warrant authorizing the search was invalid, but that further factual determinations are required to resolve the question of petitioner's standing to challenge the admission in evidence of the allegedly stolen goods seized by Government agents.
2
Petitioner and his father were convicted after a joint trial1 under an indictment charging them with having violated 18 U.S.C. § 6592 by receiving, possessing, and concealing 26 cases of tax-paid whiskey known by them to have been stolen from an interstate shipment. The Government's evidence at trial tended to show that petitioner delivered 40 cases of whiskey to the Newport, Kentucky, home of a Mrs. Ballard, who had previously expressed her willingness to buy it. The day after the delivery, Mrs. Ballard, having sold some of the whiskey but having thereafter heard that it was stolen property, telephoned petitioner and told him to remove the remainder of the whiskey from her home. Petitioner and one Martin then moved the whiskey to the home of petitioner's estranged wife; a few days later, however, petitioner telephoned Martin and told him that 'the heat was on' and the whiskey would have to be moved once again. The two men then transported the whiskey to Hazard, Kentucky, where they stored it in a shed on a farm owned by petitioner's father.
3
Sometime later, Martin told an FBI agent of the stolen whiskey; when the agent in turn passed the information on to the Kentucky state police, the latter obtained a warrant authorizing a search for, and seizure of, the whiskey at the property of petitioner's father. The warrant was supported by an affidavit, which the Government now suggests was insufficient under the holding of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). Armed with that warrant, the state police went to the farm owned by petitioner's father and conducted a search, which led to the discovery and seizure of 26 cases of whiskey identified as having been stolen from a railroad shipment intended for delivery to the Michigan Liquor Control Board. Petitioner was not living on his father's property, nor was he present there when the search and seizure took place.
4
Prior to trial, the defendants jointly moved the District Court to suppress the whiskey from evidence on the ground that there was no showing of probable cause to support the issuance of the warrant. The District Court, following an evidentiary hearing,3 denied the motion on the merits, and the evidence was subsequently introduced at trial. Following the conviction of petitioner and his father, only the petitioner appealed, raising the single issue of the validity of the warrant; the Court of Appeals did not reach the merits of his claim respecting the warrant, however, holding only that he lacked standing to challenge the legality of the search and seizure. 446 F.2d 515.
5
In concluding that petitioner lacked such standing, the Court of Appeals noted, inter alia, that he had 'asserted no possessory or proprietary claim to the searched premises' during the course of the trial. 446 F.2d, at 516. Clearly, however, petitioner's failure to make any such assertion, either at the trial or at the pretrial suppression hearing, may well be explained by the related failure of the Government to make any challenge in the District Court to petitioner's standing to raise his Fourth Amendment claim. In any event, the record now before us is virtually barren of the facts necessary to determine whether petitioner had an interest in connection with the searched premises that gave rise to 'a reasonable expectation (on his part) of freedom from governmental intrusion' upon those premises. Mancusi v. DeForte, 392 U.S. 364, 368, 88 S.Ct. 2120, 2124, 20 L.Ed.2d 1154 (1968).4 If petitioner can establish facts showing such an interest, he will have demonstrated a basis for standing to attack the search; re-examination of the validity of the warrant in light of the Government's present position on that issue would then be appropriate to resolve the question whether evidence of the seized whiskey was properly introduced at petitioner's trial.
6
Since there has not yet been any factual determination of whether petitioner had an interest in the searched premises that was protectible under the doctrine of Mancusi v. DeForte, we vacate the judgment of the Court of Appeals and remand with directions that the case be sent back to the District Court for further proceedings consistent with this opinion.
7
Vacated and remanded.
8
Mr. Justice DOUGLAS concurs in the result.
1
Both men were convicted, but petitioner's father did not appeal; another codefendant at the trial was petitioner's brother, who was acquitted on a related charge.
2
Section 659 provides as follows:
'Whoever . . . unlawfully takes, carries away, or conceals, or by fraud or deception obtains from any . . . railroad car, . . . or other vehicle, or from any . . . station house, platform or depot . . . with intent to convert to his own use any goods or chattels moving as or which are a part of . . . an interstate or foreign shipment . . .; or
'Whoever buys or receives or has in his possession any such goods or chattels, knowing the same to have been embezzled or stolen; . . .
'Shall . . . be fined not more than $5,000 or imprisoned not more than ten years, or both . . ..'
3
No evidence relating to petitioner's standing was introduced at the hearing.
4
The Court in Mancusi relied upon Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960), as having done away with 'the requirement that to establish standing one must show legal possession or ownership of the searched premises.' 392 U.S., at 369, 88 S.Ct., at 2124. In Jones, the Court held that the petitioner then before it had standing and enunciated two rules as alternative grounds for its decision. First, the Jones Court ruled that the 'possession on the basis of which (an accused) is to be . . . convicted suffices to give him standing under any fair and rational conception of the requirements of Rule 41(e),' Fed.Rule Crim.Proc.; second, the Court ruled that 'anyone legitimately on premises where a search occurs' has standing to challenge the legality of that search. 362 U.S., at 264, 267, 80 S.Ct., at 734. The Government has urged that we take the opportunity, said to be presented by the instant case, to re-examine the first alternative holding of Jones. Even assuming we were disposed to do so, the Court of Appeals did not, in the opinion it filed in this case, deal with the question whether the nature of the charge against petitioner brought his case within the coverage of the first aspect of the Jones holding, and we decline to reach or consider issues not yet passed on by that court.
| 01
|
408 U.S. 204
92 S.Ct. 2308
33 L.Ed.2d 293
Vincent R. MANCUSI, Correctional Superintendent, Petitioner,v.William C. STUBBS.
No. 71—237.
Argued April 17, 1972.
Decided June 26, 1972.
Syllabus
New York State sentenced respondent as a second offender, based on his 1964 felony conviction in Tennessee. Respondent's petition for federal habeas corpus, denied by the District Court, was granted by the Court of Appeals, which concluded that the Tennessee conviction violated his Sixth and Fourteenth Amendment right to confront witnesses and thus was not available as the predicate for a 'second offender' stiffer punishment. The State then resentenced respondent to the same sentence, based upon still another conviction in Texas. Held:
1. New York State's resentencing of respondent did not moot the instant case since the respondent's appeal involving the validity of the Texas conviction is still in the New York state courts, and therefore New York State has a present interest in the availability of the Tennessee conviction as a predicate for the stiffer punishment. Pp. 205—207.
2. Upon discovering that a State's witness had removed himself permanently to a foreign country, the State of Tennessee was powerless to compel his attendance at respondent's second trial, either through its own process or through established procedures depending upon the voluntary assistance of another government; the resultant predicate of unavailability was sufficiently strong not to warrant a federal habeas corpus court's upsetting the State's determination that the witness was not available. Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255, distinguished. Pp. 207—213.
3. Where a State's witness is bona fide unavailable, the requirements of the Confrontation Clause are met when prior-recorded testimony of the witness is admitted, as occurred in the 1964 trial, if that prior testimony bears 'indicia of reliability' that would afford 'the trier of fact a satisfactory basis for evaluating the truth of the prior statement.' Dutton v. Evans, 400 U.S. 74, 89, 91 S.Ct. 210, 27 L.Ed.2d 213. Pp. 213—216.
442 F.2d 561, reversed.
Maria L. Marcus, New York City, for petitioner.
Bruce K. Carpenter, Buffalo, N.Y., for respondent.
Mr. Justice REHNQUIST delivered the opinion of the Court.
1
Respondent Stubbs was convicted of a felony in a New York State court and sentenced as a second offender under the laws of that State by reason of a prior Tennessee murder conviction obtained in 1964. He thereafter sought federal habeas corpus, claiming that the Tennessee conviction was had in violation of his Sixth and Fourteenth Amendment right to confront witnesses against him, and thus could not be used by New York as the predicate for a stiffer punishment. The District Court denied habeas corpus, but the Court of Appeals reversed, 442 F.2d 561 (CA2 1971). We granted certiorari, 404 U.S. 1014, 92 S.Ct. 671, 30 L.Ed.2d 661 and reverse for the reasons hereinafter stated.
2
* Prior to our consideration of the merits it is necessary to deal with a suggestion that because petitioner did not seek a stay of the mandate of the Court of Appeals, but rather obeyed it and resentenced Stubbs, this case is therefore moot. The parties agreed at oral argument that Stubbs upon resentencing in New York had received the same sentence, based upon still another conviction in Texas. However, he was appealing from that sentence on grounds that the Texas conviction was constitutionally infirm, and that appeal had not run its course even through the state courts.
3
Until it can be said with certainty that the New York courts may validly resentence respondent to the same term as they imposed prior to the decision of the Court of Appeals now under review here, petitioner continues to have an interest in the availability of the Tennessee conviction as a support for second-offender sentencing of respondent. Petitioner's obedience to the mandate of the Court of Appeals and the judgment of the District Court does not moot this case.1 In Bakery Sales Drivers Local Union No. 33 v. Wagshal, 333 U.S. 437, 68 S.Ct. 630, 92 L.Ed. 792 (1948), the union appealed from an injunction issued by the United States District Court on the ground that it had been issued in violation of the provisions of the Norris-LaGuardia Act. Dealing with a 'preliminary claim' of mootness in that case, the Court said:
4
'The claim of mootness is also based on an affidavit stating that after dismissal of the appeal by the Court of Appeals, the union lifted its boycott. Since the record does not show that a stay of the injunction was granted pending action in this Court, we must assume that the union's action was merely obedience to the judgment now here for review. We therefore turn to the merits.' 333 U.S., at 442, 68 S.Ct., at 633.
5
Much earlier the Court had stated a similar view of mootness in these circumstances:
6
'There can be no question that a debtor against whom a judgment for money is recovered may pay that judgment and bring a writ of error to reverse it, and if reversed can recover back his money. And a defendant in an action of ejectment may bring a writ of error, and failing to give a supersedeas bond, may submit to the judgment by giving possession of the land, which he can recover, if he reverses the judgment, by means of a writ of restitution. In both these cases the defendant has mrely submitted to perform the judgment of the court, and has not thereby lost his right to seek a reversal of that judgment by writ of error or appeal.' Dakota County v. Glidden, 113 U.S., 222, 224, 5 S.Ct. 428, 429, 28 L.Ed. 981 (1885).
7
Under these authorities the case is not moot, and we turn to the merits.
II
8
In July 1954, respondent was convicted in the Tennessee trial court of murder in the first degree, assault with intent to murder, and two counts of kidnaping. The jury impaneled for that trial could have concluded from the evidence presented to it that respondent, a few days after his release from a Texas penitentiary in June 1954, kidnaped Mr. and Mrs. Alex Holm and forced them at gunpoint to accompany him in their car. Stubbs drove the car and sat in the front seat, while the Holms sat in the back seat. Mr. Holm testified that somewhere east of Blountville, Tennessee, Stubbs, without saying anything, shot him twice in the head and shot and killed Mrs. Holm. Stubbs then left the car, obtained a ride as a hitchhiker, and was ultimately arrested at a roadblock. At the time of his arrest, Stubbs explained the blood on his clothing as having resulted from his having fallen off a cliff while fishing.
9
Stubbs took the stand in his own defense, admitted that he had kidnaped the Holms at gunpoint, and that as he drove the Holms' car, with them in the back seat, he at intervals pointed the gun in Mrs. Holm's face. He testified that during the ride he apologized for forcing a ride; that the Holms then assured him they would let him out at Bristol, Tennessee, and would not cause him any trouble; and that he therefore laid the pistol on the front seat of the car. He also testified that near Bristol, Tennessee:
10
'It seems awful strange, but everything just seemed to be awful still and I remember a tree and it just seemed to come up just like that in clear focus, but in a reddish haze. I mean there was no pain or nothing. . . . I felt a sharp pain that seem to start in my head and go all the way down through me and I reached up with both hands and I heard this loud roar, bang . . . Stuff started running down my face and down my shirt and all that I could think of that he has got the gun. . . . I just went outside through the car door. . . .' After that, Stubbs testified, 'everything went black.'
11
Nine years after his state court trial for murder, Stubbs sought release on federal habeas corpus from the United States District Court for the Middle District of Tennessee.
12
He successfully urged upon that court the contention that he had been denied the effective assistance of counsel in this 1954 trial because counsel had been appointed for him only four days before the trial took place. Stubbs v. Bomar, Civil Action No. 3585 (MD Tenn.1964). The State of Tennessee then elected to retry him, and did so in 1964. By that time Holm, who had been born in Sweden but had become a naturalized American citizen, had returned to Sweden and taken up permanent residence there. Tennessee issued a subpoena that was sent to Texas authorities in an attempt to serve Holm at his last known United States address. No service having been obtained, the State at trial called Holm's son as a witness and elicited from him the fact that his father now resided in Sweden. Over appropriate objection on constitutional grounds, the Tennessee trial judge then permitted Holm's testimony at the earlier trial to be read to the jury. Stubbs again took the stand, recited his version of the events, and was again convicted. This conviction was in due course affirmed by the Supreme Court of Tennessee. Stubbs v. State, 216 Tenn. 567, 393 S.W.2d 150 (1965).
13
Respondent has challenged the present second-offender sentence that was imposed upon him by the New York courts on the ground that his 1964 conviction upon retrial was constitutionally infirm because he was denied his Sixth and Fourteenth Amendment right to confront the witness Holm. The Court of Appeals sustained this contention, relying on this Court's opinion in Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968).
14
In Barber, a prospective witness for the prosecution in an Oklahoma felony trial was incarcerated in a federal prison in Texas. The court there said:
15
'We start with the fact that the State made absolutely no effort to obtain the presence of Woods at trial other than to ascertain that he was in a federal prison outside Oklahoma. It must be acknowledged that various courts and commentators have heretofore assumed that the mere absence of a witness from the jurisdiction was sufficient ground for dispensing with confrontation on the theory that 'it is impossible to compel his attendance, because the process of the trial Court is of no force without the jurisdiction, and the party desiring his testimony is therefore helpless.' 5 Wigmore, Evidence § 1404 (3d ed. 1940).
16
'Whatever may have been the accuracy of that theory at one time, it is clear that at the present time increased cooperation between the States themselves and between the States and the Federal Government has largely deprived it of any continuing validity in the criminal law. For example, in the case of a prospective witness currently in federal custody, 28 U.S.C. § 2241(c)(5) gives federal courts the power to issue writs of habeas corpus ad testificandum at the request of state prosecutorial authorities. (Citations omitted.) In addition, it is the policy of the United States Bureau of Prisons to permit federal prisoners to testify in state court criminal proceedings pursuant to writs of habeas corpus ad testificandum issued out of state courts. . . .
17
'In this case the state authorities made no effort to avail themselves of either of the above alternative means of seeking to secure Woods' presence at petitioner's trial.' (Footnotes omitted.) Id., at 723—724, 88 S.Ct., at 1321.
18
Because the State had made no attempt to use one of these methods to obtain the attendance of the witness at trial, the Court reversed the conviction on that ground without considering whether the testimony taken at the preliminary hearing was subject to cross-examination. The Court said:
19
'Moreover, we would reach the same result on the facts of this case had petitioner's counsel actually cross-examined Woods at the preliminary hearing. See Motes v. United States, 178 U.S. 458, 20 S.Ct. 993, 44 L.Ed. 1150 (1900). The right to confrontation is basically a trial right. It includes both the opportunity to cross-examine and the occasion for the jury to weigh the demeanor of the witness. A preliminary hearing is ordinarily a much less searching exploration into the merits of a case than a trial, simply because its function is the more limited one of determining whether probable cause exists to hold the accused for trial. While there may be some justification for holding that the opportunity for cross-examination of a witness at a preliminary hearing satisfies the demands of the confrontation clause where the witness is shown to be actually unavailable, this is not, as we have pointed out, such a case.' 390 U.S., at 725—726, 88 S.Ct., at 1322.
20
In this case, of course, Holm was not merely absent from the State of Tennessee; he was a permanent resident of Sweden. Respondent argues that Tennessee might have obtained Holm as a trial witness by attempting to invoke 28 U.S.C. § 1783(a), which provided as of the time here relevant that:
21
'A court of the United States may subpoena, for appearance before it, a citizen or resident of the United States who . . . is beyond the jurisdiction of the United States and whose testimony in a criminal proceeding is desired by the Attorney General. . . .' (1958 ed.) (Emphasis supplied.)
22
We have been cited to no authority applying this section to permit subpoena by a federal court for testimony in a state felony trial, and certainly the statute on its face does not appear to be designed for that purpose.2
23
The Uniform Act to secure the attendance of witnesses from without a State, the availability of federal writs of habeas corpus ad testificandum, and the established practice of the United States Bureau of Prisons to honor state writs of habeas corpus ad testificandum, all supported the Court's conclusion in Barber that the State had not met its obligations to make a good-faith effort to obtain the presence of the witness merely by showing that he was beyond the boundaries of the prosecuting State. There have been, however, no corresponding developments in the area of obtaining witnesses between this country and foreign nations. Upon discovering that Holm resided in a foreign nation, the State of Tennessee, so far as this record shows, was powerless to compel his attendance at the second trial, either through its own process or through established procedures depending on the voluntary assistance of another government. Cf. People v. Trunnell, 19 Cal.App.3d 567, 96 Cal.Rptr. 810 (1971). We therefore hold that the predicate of unavailability was sufficiently stronger here than in Barber that a federal habeas court was not warranted in upsetting the determination of the state trial court as to Holm's unavailability. Before it can be said that Stubbs' constitutional right to confront witnesses was not infringed, however, the adequacy of Holm's examination at the first trial must be taken into consideration.
24
In addition to Barber v. Page, recent decisions of this Court that have dealt at same length with the requirements of the Confrontation Clause are California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970), and Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970). The focus of the Court's concern has been to insure that there 'are indicia of reliability which have been widely viewed as determinative of whether a statement may be placed before the jury though there is no confrontation of the declarant,' Dutton v. Evans, supra, at 89, 91 S.Ct. at 220 and to 'afford the trier of fact a satisfactory basis for evaluating the truth of the prior statement,' California v. Green, supra, 399 U.S. at 161, 90 S.Ct. at 1936. It is clear from these statements, and from numerous prior decisions of this Court, that even though the witness be unavailable his prior testimony must bear some of these 'indicia of reliability' referred to in Dutton.
25
At least since the decision of this Court in Mattox v. United States, 156 U.S. 237, 15 S.Ct. 337, 39 L.Ed. 409 (1895), prior-recorded testimony has been admissible in appropriate cases. The circumstances surrounding the giving of Alex Holm's testimony at the 1954 trial were significantly more conducive to an assurance of reliability than were those obtaining in Barber v. Page, supra. The 1954 Tennessee proceeding was a trial of a serious felony on the merits, conducted in a court of record before a jury, rather than before a magistrate.3 Stubbs was represented by counsel who could and did effectively cross-examine prosecution witnesses.
26
Stubbs urges that because the 1954 conviction was itself overturned by a federal habeas court on a finding of ineffective assistance of counsel, that court must necessarily have concluded that the cross-examination of Holm conducted by such counsel likewise fell short of constitutional standards. The federal habeas judge in Stubbs v. Bomar, supra, however, rested his determination on an apparent per se rule of ineffective assistance that was conclusively presumed from the short interval between the time of counsel's appointment and the date of the trial. If the habeas court had rendered its decision after our holding in Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970), which disapproved any such per se rule, it might have addressed itself to the effectiveness of the examination of the witness Holm. But it did not in fact do so. When Stubbs appealed his 1964 conviction to the Supreme Court of Tennessee, that court in affirming the judgment expressly determined that the prior cross-examination of Holm had been adequate. Stubbs v. State, 216 Tenn. 567, 393 S.W.2d 150 (1965). Whatever might be the case in other circumstances, the State of New York was not bound under any theory of res judicata by Stubbs v. Bomar as to the efficacy of the prior cross-examination of the witness Holm.
27
Stubbs also contends that even though the prior determination may not be binding upon subsequent review, the fact that counsel was appointed only four days before trial necessarily requires a finding that the cross-examination of Holm was constitutionally inadequate. Counsel for Stubbs at the 1964 trial placed in the record a list of 12 questions not asked of Holm in 1954, which he said he would have asked had the witness been present at the second trial. With one exception these were directed to the events leading up to and surrounding the shooting. Though not asked in haec verba in 1954, they were nonetheless adverted to in the earlier cross-examination. No one defense counsel will ever develop precisely the same lines of inquiry or frame his questions in exactly the words of another, but from this record counsel at the retrial did not in his proffer show any new and significantly material line of cross-examination that was not at least touched upon in the first trial.
28
The Court of Appeals concluded that the cross-examination had been inadequate. It reached this conclusion, at least in part, because it felt that Holm could have been questioned about whether Stubbs, although originally having kidnaped the Holms at gunpoint, later became in effect their guest. Parts of Stubbs' own testimony presented that version of the events to the jury, and the Second Circuit thought it significant because even if Stubbs fired his pistol accidentally, he might still have been found guilty of felony murder unless the felony of kidnaping had ended. Under this theory, if Stubbs had during the trip been transmogrified from a kidnaper into a guest, at least the argument to the jury as to whether the kidnaping had ended before the shooting would have been strengthened by any support Holm's testimony might have given to this notion.
29
The Tennessee trial court, however, did not charge that the jury could convict Stubbs of Felony murder as a result of a death occurring during a kidnaping. Its charge authorized conviction upon a finding of premeditated murder, or upon a finding of murder during the commission of robbery.4 The failure to elicit from Holm his own views as to whether Stubbs had become a guest in the Holm car prior to the time that he turned from the front seat, shot Mr. Holm, and killed Mrs. Holm—however interesting they might have been to hear—could not have prejudiced Stubbs' case as to any issue that the jury was authorized to deliberate under the trial judge's charge.
30
Since there was an adequate opportunity to cross-examine Holm at the first trial, and counsel for Stubbs availed himself of that opportunity, the transcript of Holm's testimony in the first trial bore sufficient 'indicia of reliability' and afforded "the trier of fact a satisfactory basis for evaluating the truth of the prior statement," Dutton v. Evans, 400 U.S., at 89, 91 S.Ct., at 220. The witness Holm, consistently with the requirement of the Confrontation Clause, could have been and was found by the trial court to be unavailable at the time of the second trial. There was, therefore, no constitutional error in permitting his prior-recorded testimony to be read to the jury at that trial, and no constitutional infirmity in the judgment of conviction resulting from that trial that would prevent the New York courts from considering that conviction in sentencing Stubbs as a second offender. The judgment of the Court of Appeals is therefore reversed.
31
Reversed.
32
Mr. Justice MARSHALL, dissenting.
33
* I would dismiss the writ in this case as improvidently granted. The question presented to the courts below concerns the constitutional validity of a 1964 Tennessee conviction. The New York courts had relied on that conviction to sentence respondent as a multiple offender, after his conviction in 1966 for a New York offense. It was conceded at oral argument, however, that New York has no present interest whatever in that Tennessee conviction. For, after the United States Court of Appeals held that it was constitutionally defective, New York substituted for the Tennessee conviction an earlier Texas conviction, and reinstated precisely the same enhanced sentence it had previously imposed.1
34
In determining that this case is nevertheless appropriate for adjudication here, the Court seems to rely on two separate factors. First, it reasons that the event that seems to moot the case—the resentencing—was merely the State's obedience to the adverse judgment below, and for that reason cannot moot the controversy. And, second, it reasons that the resentencing may prove to be defective as a matter of law, that New York may in the future wish to rely on the Tennessee conviction again, if the Texas conviction should prove to have defects of its own.
35
The first proposition falls wide of the mark in this case. It is well established that an unsuccessful litigant does not moot his case by complying with an unfavorable judgment pending the disposition of his appeal. Thus, a debtor does not moot his case by paying the judgment against him pendente lite. Dakota County v. Glidden, 113 U.S. 222, 5 S.Ct. 428, 28 L.Ed. 981 (1885). And if a union is enjoined from boycotting or striking at a particular store, the union does not moot the case by lifting the boycott or strike pendente lite. Bakery Sales Drivers Local Union No. 33 v. Wagshal, 333 U.S. 437, 68 S.Ct. 630, 92 L.Ed. 792 (1948). But that principle does not protect the unsuccessful litigant who goes beyond what is required of him, and obtains relief in some way not prohibited by the judgment against him. Thus, the debtor does moot his case by entering into a compromise in settlement of the debt. Dakota County v. Glidden, 113 U.S., at 224—227, 5 S.Ct., at 429 430. And the union might well moot its case if all the striking employees left the store and obtained other employment elsewhere.
36
This case would come within the principle of Dakota County and Bakery Drivers, if New York had simply abandoned, temporarily, its attempt to impose an enhanced recidivist sentence, pending review of the judgment below. But New York did more than merely submit to the decision below; it found a complete substitute for the result it had sought in the Court of Appeals, and the result it continues to seek here.2 By reversing the judgment below, this Court gives New York no relief it has not already obtained.
37
The Court offers a second reason to disregard the resentencing in this case, however, and that reason is perhaps independent of the first. The Court argues that the Texas conviction, and the resentencing based on it, may be found invalid in other proceedings, in which case New York may wish to revive its interest in the Tennessee conviction. Thus, the argument rests on the Court's estimate that the controversy that gave rise to this litigation has a substantial probability of recurring. That analysis might in my view carry considerable weight, if it were applied uniformly in all cases. But this Court has regularly refused to adjudicate the claims of litigants who argue that illegal action will probably harm them in the future. E.g., Socialist Labor Party v. Gilligan, 406 U.S. 583, 92 S.Ct. 1716, 32 L.Ed.2d 317 (1972); SEC v. Medical Committee, 404 U.S. 403, 92 S.Ct. 577, 30 L.Ed.2d 560 (1972).3 Moreover, in this case the Court can find that the controversy will probably recur only by presuming that the Texas conviction is probably invalid. Such a presumption flies in the face of the principle that state convictions are ordinarily presumed valid.4 The Court betrays a surprising lack of confidence in the criminal processes of our States, for which there is no warrant in this record.
38
In these circumstances, the possibility that this controversy will be revived is too remote and speculative to keep the case alive under established precedents. It is certainly too remote and speculative to warrant invoking the discretionary certiorari jurisdiction of this Court.
II
39
Because the Court reaches out to decide the merits of this case, I think it appropriate to state my views on that subject as well.
40
Respondent was convicted of murder in Tennessee after a trial in which the principal prosecution witness, one Alex Holm, did not appear. Instead, Holm's testimony was introduced through a transcript of a previous trial on the same charge. The State made absolutely no effort to secure Holm's presence at the second trial, relying wholly on the claim that Holm was unavailable because he had become a resident of Sweden. The Court today concludes that the State did not thereby deny Stubbs his right 'to be confronted with the witnesses against him,' guaranteed by the Sixth and Fourteenth Amendments. To reach that result, the Court necessarily distinguishes our holding in Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968), on untenable grounds, and utterly ignores its rationale.
41
In Barber v. Page, the petitioner had been convicted on the basis of testimony introduced through a transcript of a preliminary hearing. The witness in question was incarcerated in a federal prison. We held that the State could not, consistent with constitutional requirements, use that transcript in lieu of the witness himself unless two conditions were met: (1) the witness was shown to be actually unavailable to testify at trial, and (2) the witness had been adequately confronted and cross-examined at the prior hearing. In Barber we concluded that neither condition had been met; the State had failed to make a good-faith effort to secure the presence of the witness at trial, and hence it could not be said that the witness was unavailable; moreover, the preliminary hearing did not afford an adequate pre-trial opportunity for confrontation and cross-examination.
42
The Court purports to apply the two-part test of Barber to the facts of this case. It devotes considerable space to the second part of the test, analyzing the opportunity for confrontation and cross-examination of Holm at the first trial of Stubbs, and concluding that the opportunity there was significantly greater than at the preliminary hearing in Barber. The Court's distinction for this purpose between a preliminary hearing and a prior trial is tenable, in my view, although on the peculiar facts of this case the Court's conclusion is somewhat troublesome. But the Court fails totally to explain how the first part of the Barber test is satisfied here. On that question, the Court has only this to say: 'the predicate of unavailability was sufficiently stronger here than in Barber that a federal habeas court was not warranted in upsetting the determination of the state trial court as to Holm's unavailability.'
43
The difficulty with that position is that there never has been any factual inquiry resulting in a determination as to Holm's unavailability. Rather, the courts have consistently presumed his unavailability from the bare fact that he lives in Sweden. The Tennessee Supreme Court thought it was enough that Holm was out of the jurisdiction of the United States, beyond the reach of compulsory process, Stubbs v. State, 216 Tenn. 567, 574—575, 393 S.W.2d 150, 153—154 (1965), as did the dissenting judge in the United States Court of Appeals, 442 F.2d 561, 565 (1971). Apparently this Court takes the same view. But in Barber v. Page we squarely rejected any such presumption of unavailability. In that case, the claim was made that the court had no power to compel the absent witness to appear. We held that nevertheless the State was obliged to make a good-faith effort to secure his appearance, for "the possibility of a refusal is not the equivalent of asking and receiving a rebuff." 390 U.S., at 724, 88 S.Ct., at 1322, quoting the decision below, 381 F.2d 479, 481 (CA10 1966) (Aldrich, J., dissenting). As we said in Barber:
44
'In short, a witness is not 'unavailable' for purposes of the foregoing exception to the confrontation requirement unless the prosecutorial authorities have made a good-faith effort to obtain his presence at trial.' 390 U.S., at 724—725, 88 S.Ct., at 1322.
45
The Court seeks to distinguish Barber on the ground that in that case the absent witness was a federal prisoner, and while the State had no power to compel his appearance, it could at least have sought the cooperation of the federal prison authorities who did have such power. Here, on the other hand, the absent witness was a resident of a foreign nation, and hence it is argued that even federal authorities would have no power to help. In support of that analysis, the Court seems to place substantial reliance on the fact that at the time of Stubbs' trial, the federal courts had statutory power to subpoena American citizens living abroad, but that power was apparently available only to compel their appearance before federal courts. Act of June 25, 1948, c. 646, 62 Stat. 949, 28 U.S.C. § 1783 (1958 ed.). If the Court's decision today does in fact rest on the lack of federal power to compel the appearance of Holm at a state trial, then the holding in this case is of very limited significance. For less than three months after the trial of Stubbs, Congress amended § 1783 to provide:
46
'A court of the United States may order the issuance of a subpoena requiring the appearance as a witness before it, or before a person or body designated by it, of a national or resident of the United States who is in a foreign country . . ..' Act of Oct. 3, 1964, Pub.L.No. 88—619, § 10(a), 78 Stat. 997 (emphasis added).
47
Since October 3, 1964, then, it appears that the federal courts have had the power to assist state courts in securing the presence of witnesses like Alex Holm, and hence for trials occurring since that date, Barber would seem to control.
48
I cannot agree, however, that if neither state nor federal authorities had the power to compel Holm's appearance, that fact relieved the State of its obligation to make a good-faith effort to secure his presence. It simply reduced the likelihood that any effort would succeed. The State's obligation would hardly be framed in terms of 'good-faith effort' if that effort were required only in circumstances where success was guaranteed. If, as the Court contends it is more difficult to produce at trial a resident of Sweden than a federal prisoner, that fact might justify a failure to produce the witness; it cannot justify a failure even to try. At a minimum, the State could have notified Mr. Holm that the trial was scheduled, and invited him to come at his own expense. Beyond that, it could have offered to pay his expenses. Finally, it could have sought federal assistance in invoking the cooperation of Swedish authorities, as a matter of international comity.
49
As in Barber, 'so far as this record reveals, the sole reason why (the witness) was not present to testify in person was because the State did not attempt to seek his presence. The right of confrontation may not be dispensed with so lightly.' 390 U.S., at 725, 88 S.Ct., at 1322.
50
I respectfully dissent.
51
Mr. Justice DOUGLAS joins in Part II of this opinion.
1
The dissent states that this case is controlled by SEC v. Medical Committee, 404 U.S. 403, 92 S.Ct. 577, 30 L.Ed.2d 560 (1972). In that case, respondent committee had requested Dow Chemical to place the committee's proposed resolution on the proxy statement for the annual meeting of Dow Chemical stockholders. Dow Chemical initially refused the request, and the committee thereupon invoked the aid of the SEC to bring suit against Dow Chemical to compel inclusion of the proposal. The SEC refused to bring suit, and the committee then succeeded in having the agency's refusal set aside by the Court of Appeals. While review of this latter action was pending here, Dow Chemical acceded to the committee's request. The committee thereby accomplished the purpose for which it sought ancillary assistance from the SEC, not because of compliance by the SEC with the judgment under review, but because of the action of Dow Chemical, which was not required to do anything by that judgment.
There would be a rough parallel between our case and SEC v. Medical Committee if, pending review here of the ruling of the Court of Appeals in favor of Stubbs, the Governor of New York should pardon Stubbs. But, on the facts we have before us now, the mootness issue is controlled by Bakery Sales Drivers Local Union No. 33 v. Wagshal, 333 U.S. 437, 68 S.Ct. 630, 92 L.Ed. 792 (1948), and Dakota County v. Glidden, 113 U.S. 222, 5 S.Ct. 428, 28 L.Ed. 981 (1885), rather than by SEC v. Medical Committee.
2
Stubbs argues that the 1964 amendment to 28 U.S.C. § 1783, authorizing a subpoena to bring a witness 'before a person or body designated by' the District Court, sheds a different light on this case. That amendment was not available to the Tennessee authorities for Stubbs' 1964 trial, and therefore we have no occasion to decide whether it would afford assistance to state authorities on the facts represented by this case.
3
The significant difference between the nature of examination at a preliminary hearing and at a trial on the merits is discussed both in Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968), and in Mr. Justice Brennan's dissenting opinion in California v. Green, 399 U.S. 149, 196—199, 90 S.Ct. 1930, 1955—1956, 26 L.Ed.2d 489 (1970).
4
This was in accord with the Tennessee felony-murder statute which provides:
'Every murder . . . committed in the perpetration of, or attempt to perpetrate, any murder in the first degree, arson, rape, robbery, burglary, or larceny, is murder in the first degree.' Tenn. Code Ann. § 39—2402.
1
Under the then-applicable New York sentencing statute, former N.Y.Penal Law § 1941, one prior conviction was sufficient to trigger the recidivist sentencing provisions, and Stubbs received the maximum authorized recidivist sentence. New York has subsequently amended its law to increase the maximum recidivist sentence, and to provide that two prior convictions are necessary to trigger the recidivist statute, N.Y.Penal Law § 70.10. The new provisions do not, however, apply to this case, because the underlying New York conviction here was obtained before the effective date of the new statute. N.Y.Penal Law § 5.05.
2
The Court seeks to distinguish SEC v. Medical Committee, 404 U.S. 403, 92 S.Ct. 577, 30 L.Ed.2d 560 (1972), on the ground that in that case the action relied on to moot the case was taken by a third party rather than by a litigant. I can see no relevant difference, however, between the action of a third party, and the action of a litigant which goes beyond mere pendente lite compliance with the court order, so long as that action gives the litigant the relief he seeks. If burning down a building will moot a case, surely that is so whether the fire is set by a litigant or a lightning bolt, though the litigant may, of course, be subject to sanctions quite apart from the case he has rendered moot.
3
Indeed, the claim we rejected in SEC is closely analogous to the claim here. In each case, events subsequent to the decision below removed the occasion for present conflict between the parties, but it was alleged that within a short time the conflict could be expected to recur. In SEC, the Court found that allegation too speculative to keep the controversy alive.
4
Even when an appeal is pending, see e.g., Bloch v. United States, 226 F.2d 185, 188 (CA9 1955), cert. denied, 350 U.S. 948, 76 S.Ct. 323, 100 L.Ed. 826 (1956); United States v. Empire Packing Co., 174 F.2d 16, 20 (CA7), cert. denied, 337 U.S. 959, 69 S.Ct. 1534, 99 L.Ed. 1758 (1949); Proposed Rules of Evidence for the United States District Courts § 609(e) (1972), and Advisory Committee's Note.
| 01
|
408 U.S. 1
92 S.Ct. 2318
33 L.Ed.2d 154
Melvin R. LAIRD, Secretary of Defense, et al., Petitioners,v.Arlo TATUM et al.
No. 71—288.
Argued March 27, 1972.
Decided June 26, 1972.
Syllabus
Prior to its being called upon in 1967 to assist local authorities in quelling civil disorders in Detroit, Michigan, the Department of the Army had developed only a general contingency plan in connection with its limited domestic mission under 10 U.S.C. § 331. In response to the Army's experience in the various civil disorders it was called upon to help control during 1967 and 1968, Army Intelligence established a data-gathering system, which respondents describe as involving the 'surveillance of lawful civilian political activity.' Held: Respondents' claim that their First Amendment rights are chilled, due to the mere existence of this data-gathering system, does not constitute a justiciable controversy on the basis of the record in this case, disclosing as it does no showing of objective harm or threat of specific future harm. Pp. 3—16.
144 U.S.App.D.C. 72, 444 F.2d 947, reversed.
Solicitor Gen. Erwin N. Griswold for petitioners.
Frank Askin, Newark, N.J., for respondents.
Sam J. Ervin, Jr., Morgantown, N.C., for the Unitarian Universalist Assn. and others, as amici curiae.
Mr. Chief Justice BURGER delivered the opinion of the Court.
1
Respondents brought this class action in the District Court seeking declaratory and injunctive relief on their claim that their rights were being invaded by the Department of the Army's alleged 'surveillance of lawful and peaceful civilian political activity.' The petitioners in response describe the activity as 'gathering by lawful means . . . (and) maintaining and using in their intelligence activities . . . information relating to potential or actual civil disturbances (or) street demonstrations.' In connection with respondents' motion for a preliminary injunction and petitioners' motion to dismiss the complaint, both parties filed a number of affidavits with the District Court and presented their oral arguments at a hearing on the two motions. On the basis of the pleadings,1 the affidavits before the court, and the oral arguments advanced at the hearing, the District Court granted petitioners' motion to dismiss, holding that there was no justiciable claim for relief.
2
On appeal, a divided Court of Appeals reversed and ordered the case remanded for further proceedings. We granted certiorari to consider whether, as the Court of Appeals held, respondents presented a justiciable controversy in complaining of a 'chilling' effect on the exercise of their First Amendment rights where such effect is allegedly caused, not by any 'specific action of the Army against them, (but) only (by) the existence and operation of the intelligence gathering and distributing system, which is confined to the Army and related civilian investigative agencies.' 144 U.S.App.D.C. 72, 78, 444 F.2d 947, 953. We reverse.
3
(1)
4
There is in the record a considerable amount of background information regarding the activities of which respondents complained; this information is set out primarily in the affidavits that were filed by the parties in connection with the District Court's consideration of respondents' motion for a preliminary injunction and petitioners' motion to dismiss. See Fed.Rule Civ.Proc. 12(b). A brief review of that information is helpful to an understanding of the issues.
5
The President is authorized by 10 U.S.C. § 3312 to make use of the armed forces to quell insurrection and other domestic violence if and when the conditions described in that section obtain within one of the States. Pursuant to those provisions, President Johnson ordered federal troops to assist local authorities at the time of the civil disorders in Detroit, Michigan, in the summer of 1967 and during the disturbances that followed the assassination of Dr. Martin Luther King. Prior to the Detroit disorders, the Army had a general contingency plan for providing such assistance to local authorities, but the 1967 experience led Army authorities to believe that more attention should be given to such preparatory planning. The data-gathering system here involved is said to have been established in connection with the development of more detailed and specific contingency planning designed to permit the Army, when called upon to assist local authorities, to be able to respond effectively with a minimum of force. As the Court of Appeals observed,
6
'In performing this type function the Army is essentially a police force or the back-up of a local police force. To quell disturbances or to prevent further disturbances the Army needs the same tools and, most importantly, the same information to which local police forces have access. Since the Army is sent into territory almost invariably unfamiliar to most soldiers and their commanders, their need for information is likely to be greater than that of the hometown policeman.
7
'No logical argument can be made for compelling the military to use blind force. When force is employed it should be intelligently directed, and this depends upon having reliable information—in time. As Chief Justice John Marshall said of Washington, 'A general must be governed by his intelligence and must regulate his measures by his information. It is his duty to obtain correct information; . . ..' So we take it as undeniable that the military, i.e., the Army, need a certain amount of information in order to perform their constitutional and statutory missions. 144 U.S.App.D.C., at 77—78, 444 F.2d, at 952—953 (footnotes omitted).
8
The system put into operation as a result of the Army's 1967 experience consisted essentially of the collection of information about public activities that were thought to have at least some potential for civil disorder, the reporting of that information to Army Intelligence headquarters at Fort Holabird, Maryland, the dissemination of these reports from headquarters to major Army posts around the country, and the storage of the reported information in a computer data bank located at Fort Holabird. The information itself was collected by a variety of means, but it is significant that the principal sources of information were the news media and publications in general circulation. Some of the information came from Army Intelligence agents who attended meetings that were open to the public and who wrote field reports describing the meetings, giving such data as the name of the sponsoring organization, the identity of speakers, the approximate number of persons in attendance, and an indication of whether any disorder occurred. And still other information was provided to the Army by civilian law enforcement agencies.
9
The material filed by the Government in the District Court reveals that Army Intelligence has field offices in various parts of the country; these offices are staffed in the aggregate with approximately 1, 000 agents, 94% of whose time3 is devoted to the organization's principal mission,4 which is unrelated to the domestic surveillance system here involved.
10
By early 1970 Congress became concerned with the scope of the Army's domestic surveillance system; hearings on the matter were held before the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary. Meanwhile, the Army, in the course of a review of the system, ordered a significant reduction in its scope. For example, information referred to in the complaint as the 'blacklist' and the records in the computer data bank at Fort Holabird were found unnecessary and were destroyed, along with other related records. One copy of all the material relevant to the instant suit was retained, however, because of the pendency of this litigation. The review leading to the destruction of these records was said at the time the District Court ruled on petitioners' motion to dismiss to be a 'continuing' one (App. 82), and the Army's policies at that time were represented as follows in a letter from the Under Secretary of the Army to Senator Sam J. Ervin, Chairman of the Senate Subcommittee on Constitutional Rights:
11
'(R)eports concerning civil disturbances will be limited to matters of immediate concern to the Army—that is, reports concerning outbreaks of violence or incidents with a high potential for violence beyond the capability of state and local police and the National Guard to control. These reports will be collected by liaison with other Government agencies and reported by teletype to the Intelligence Command. They will not be placed in a computer . . .. These reports are destroyed 60 days after publication or 60 days after the end of the disturbance. This limited reporting system will ensure that the Army is prepared to respond to whatever directions the President may issue in civil disturbance situations and without 'watching' the lawful activities of civilians.' (App. 80.)
12
In briefs for petitioners filed with this Court, the Solicitor General has called our attention to certain directives issued by the Army and the Department of Defense subsequent to the District Court's dismissal of the action; these directives indicate that the Army's review of the needs of its domestic intelligence activities has indeed been a continuing one and that those activities have since been significantly reduced.
13
(2)
14
The District Court held a combined hearing on respondents' motion for a preliminary injunction and petitioners' motion for dismissal and thereafter announced its holding that respondents had failed to state a claim upon which relief could be granted. It was the view of the District Court that respondents failed to allege any action on the part of the Army that was unlawful in itself and further failed to allege any injury or any realistic threats to their rights growing out of the Army's actions.5
15
In reversing, the Court of Appeals noted that respondents 'have some difficulty in establishing visible injury':
16
'(They) freely admit that they complain of no specific action of the Army against them . . . There is no evidence of illegal or unlawful surveillance activities. We are not cited to any clandestine intrusion by a military agent. So far as is yet shown, the information gathered is nothing more than a good newspaper reporter would be able to gather by attendance at public meetings and the clipping of articles from publications available on any newsstand.' 144 U.S.App.D.C., at 78, 444 F.2d, at 953.
17
The court took note of petitioners' argument 'that nothing (detrimental to respondents) has been done, that nothing is contemplated to be done, and even if some action by the Army against (respondents) were possibly foreseeable, such would not present a presently justiciable controversy.' With respect to this argument, the Court of Appeals had this to say:
18
'This position of the (petitioners) does not accord full measure to the rather unique argument advanced by appellants (respondents). While (respondents) do indeed argue that in the future it is possible that information relating to matters far beyond the responsibilities of the military may be misused by the military to the detriment of these civilian (respondents), yet (respondents) do not attempt to establish this as a definitely foreseeable event, or to base their complaint on this ground. Rather, (respondents) contend that the present existence of this system of gathering and distributing information, allegedly far beyond the mission requirements of the Army, constitutes an impermissible burden on (respondents) and other persons similarly situated which exercises a present inhibiting effect on their full expression and utilization of their First Amendment rights . . ..' Id., at 79, 444 F.2d, at 954. (Emphasis in original.)
19
Our examination of the record satisfies us that the Court of Appeals properly identified the issue presented, namely, whether the jurisdiction of a federal court may be invoked by a complainant who alleges that the exercise of his First Amendment rights is being chilled by the mere existence, without more, of a governmental investigative and data-gathering activity that is alleged to be broader in scope than is reasonably necessary for the accomplishment of a valid governmental purpose. We conclude, however, that, having properly identified the issue, the Court of Appeals decided that issue incorrectly.6
20
In recent years this Court has found in a number of cases that constitutional violations may arise from the deterrent, or 'chilling,' effect of governmental regulations that fall short of a direct prohibition against the exercise of First Amendment rights. E.g., Baird v. State Bar of Arizona, 401 U.S. 1, 91 S.Ct. 702, 27 L.Ed.2d 639 (1971); Keyishian v. Board of Regents, 385 U.S. 589, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967); Lamont v. Postmaster General, 381 U.S. 301, 85 S.Ct. 1493, 14 L.Ed.2d 398 (1965); Baggett v. Bullitt, 377 U.S. 360, 84 S.Ct. 1316, 12 L.Ed.2d 377 (1964). In none of these cases, however, did the chilling effect arise merely from the individual's knowledge that a governmental agency was engaged in certain activities or from the individual's concomitant fear that, armed with the fruits of those activities, the agency might in the future take some other and additionl action detrimental to that individual. Rather, in each of these cases, the challenged exercise of governmental power was regulatory, proscriptive, or compulsory in nature, and the complainant was either presently or prospectively subject to the regulations, proscriptions, or compulsions that he was challenging.
21
For example, the petitioner in Baird v. State Bar of Arizona had been denied admission to the bar solely because of her refusal to answer a question regarding the organizations with which she had been associated in the past. In announcing the judgment of the Court, Mr. Justice Black said that 'a State may not inquire about a man's views or associations solely for the purpose of withholding a right or benefit because of what he believes.' 401 U.S., at 7, 91 S.Ct. at 706. Some of the teachers who were the complainants in Keyishian v. Board of Regents had been discharged from employment by the State, and the others were threatened with such discharge, because of their political acts or associations. The Court concluded that the State's 'complicated and intricate scheme' of laws and regulations relating to teacher loyalty could not withstand constitutional scrutiny; it was not permissible to inhibit First Amendment expression by forcing a teacher to 'guess what conduct or utterance' might be in violation of that complex regulatory scheme and might thereby 'lose him his position.' 385 U.S. at 604, 87 S.Ct. at 684. Lamont v. Postmaster General dealt with a governmental regulation requiring private individuals to make a special written request to the Post Office for delivery of each individual mailing of certain kinds of political literature addressed to them. In declaring the regulation invalid, the Court said: 'The addressee carries an affirmative obligation which we do not think the Government may impose on him.' 381 U.S., at 307, 85 S.Ct., at 1496. Baggett v. Bullitt dealt with a requirement that an oath of vague and uncertain meaning be taken as a condition of employment by a governmental agency. The Court said: 'Those with a conscientious regard for what they solemnly swear or affirm, sensitive to the perils posed by the oath's indefinite language, avoid the risk of loss of employment, and perhaps profession, only by restricting their conduct to that which is unquestionably safe. Free speech may not be so inhibited.' 377 U.S., at 372, 84 S.Ct., at 1323.
22
The decisions in these cases fully recognize that governmental action may be subject to constitutional challenge even though it has only an indirect effect on the exercise of First Amendment rights. At the same time, however, these decisions have in no way eroded the
23
'established principle that to entitle a private individual to invoke the judicial power to determine the validity of executive or legislative action he must show that he has sustained, or is immediately in danger of sustaining, a direct injury as the result of that action . . ..' Ex parte Levitt, 302 U.S. 633, 634, 58 S.Ct. 1, 82 L.Ed. 493 (1937).
24
The respondents do not meet this test; their claim, simply stated, is that they disagree with the judgments made by the Executive Branch with respect to the type and amount of information the Army needs and that the very existence of the Army's data-gathering system produces a constitutionally impermissible chilling effect upon the exercise of their First Amendment rights. That alleged 'chilling' effect may perhaps be seen as arising from respondents' very perception of the system as inappropriate to the Army's role under our form of government, or as arising from respondents' beliefs that it is inherently dangerous for the military to be concerned with activities in the civilian sector, or as arising from respondents' less generalized yet speculative apprehensiveness that the Army may at some future date misuse the information in some way that would cause direct harm to respondents.7 Allegations of a subjective 'chill' are not an adequate substitute for a claim of specific present objective harm or a threat of specific future harm; 'the federal courts established pursuant to Article III of the Constitution do not render advisory opinions.' United Public Workers of America (C.I.O.) v. Mitchell, 330 U.S. 75, 89, 67 S.Ct. 556, 564, 91 L.Ed. 754 (1947).
25
Stripped to its essentials, what respondents appear to be seeking is a broad-scale investigation, conducted by themselves as private parties armed with the subpoena power of a federal district court and the power of cross-examination, to probe into the Army's intelligence-gathering activities, with the district court determining at the conclusion of that investigation the extent to which those activities may or may not be appropriate to the Army's mission. The following excerpt from the opinion of the Court of Appeals suggests the broad sweep implicit in its holding:
26
'Apparently in the judgment of the civilian head of the Army not everything being done in the operation of this intelligence system was necessary to the performance of the military mission. If the Secretary of the Army can formulate and implement such judgment based on facts within his Departmental knowledge, the United States District Court can hear evidence, ascertain the facts, and decide what, if any, further restrictions on the complained-of activities are called for to confine the military to their legitimate sphere of activity and to protect (respondents') allegedly infringed constitutional rights.' 144 U.S.App.D.C., at 83, 444 F.2d, at 958. (Emphasis added.)
27
Carried to its logical end, this approach would have the federal courts as virtually continuing monitors of the wisdom and soundness of Executive action; such a role is appropriate for the Congress acting through its committees and the 'power of the purse'; it is not the role of the judiciary, absent actual present or immediately threatened injury resulting from unlawful governmental action.
28
We, of course, intimate no view with respect to the propriety or desirability, from a policy standpoint, of the challenged activities of the Department of the Army; our conclusion is a narrow one, namely, that on this record the respondents have not presented a case for resolution by the courts.
29
The concerns of the Executive and Legislative Branches in response to disclosure of the Army surveillance activities—and indeed the claims alleged in the complaint—reflect a traditional and strong resistance of Americans to any military intrusion into civilian affairs. That tradition has deep roots in our history and found early expression, for example, in the Third Amendment's explicit prohibition against quartering soldiers in private homes without consent and in the constitutional provisions for civilian control of the military. Those prohibitions are not directly presented by this case, but their philosophical underpinnings explain our traditional insistence on limitations on military operations in peacetime. Indeed, when presented with claims of judicially cognizable injury resulting from military intrusion into the civilian sector, federal courts are fully empowered to consider claims of those asserting such injury; there is nothing in our Nation's history or in this Court's decided cases, including our holding today, that can properly be seen as giving any indication that actual or threatened injury by reason of unlawful activities of the military would go unnoticed or unremedied.
30
Reversed.
31
Mr. Justice DOUGLAS, with whom Mr. Justice MARSHALL concurs, dissenting.
32
* If Congress had passed a law authorizing the armed services to establish surveillance over the civilian population, a most serious constitutional problem would be presented. There is, however, no law authorizing surveillance over civilians, which in this case the Pentagon concededly had undertaken. The question is whether such authority may be implied. One can search the Constitution in vain for any such authority.
33
The start of the problem is the constitutional distinction between the 'militia' and the Armed Forces. By Art. I, § 8, of the Constitution the militia is specifically confined to precise duties: 'to execute the Laws of the Union, suppress Insurrections and repel Invasions.'
34
This obviously means that the 'militia' cannot be sent overseas to fight wars. It is purely a domestic arm of the governors of the several States,1 save as it may be called under Art. I, § 8, of the Constitution into the federal service. Whether the 'militia' could be given powers comparable to those granted the FBI is a question not now raised, for we deal here not with the 'militia' but with 'armies.' The Army, Navy, and Air Force are comprehended in the constitutional term 'armies.' Article I, § 8, provides that Congress may 'raise and support Armies,' and 'provide and maintain a Navy,' and make 'Rules for the Government and Regulation of the land and naval Forces.' And the Fifth Amendment excepts from the requirement of a presentment or indictment of a grand jury 'cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger.'
35
Acting under that authority, Congress has provided a code governing the Armed Services. That code sets the procedural standards for the Government and regulation of the land and naval forces. It is difficult to imagine how those powers can be extended to military surveillance over civilian affairs.2
36
The most pointed and relevant decisions of the Court on the limitation of military authority concern the attempt of the military to try civilians. The first leading case was Ex parte Milligan, 4 Wall. 2, 124, 18 L.Ed. 281, where the Court noted that the conflict between 'civil liberty' and 'martial law' is 'irreconcilable.' The Court which made that announcement would have been horrified at the prospect of the military—absent a regime of martial law—establishing a regime of surveillance over civilians. The power of the military to establish such a system is obviously less than the power of Congress to authorize such surveillance. For the authority of Congress is restricted by its power to 'raise' armies, Art. I, § 8; and, to repeat, its authority over the Armed Forces is stated in these terms, 'To make Rules for the Government and Regulation of the land and naval Forces.' The Constitution contains many provisions guaranteeing rights to persons. Those include the right to indictment by a grand jury and the right to trial by a jury of one's peers. They include the procedural safeguards of the Sixth Amendment in criminal prosecutions; the protection against double jeopardy, cruel and unusual punishments—and, of course, the First Amendment. The alarm was sounded in the Constitutional Convention about the dangers of the armed services. Luther Martin of Maryland said, 'when a government wishes to deprive its citizens of freedom, and reduce them to slavery, it generally makes use of a standing army.'3 That danger, we have held, exists not only in bold acts of usurpation of power, but also in gradual encroachments. We held that court-martial jurisdiction cannot be extended to reach any person not a member of the Armed Forces at the times both of the offense and of the trial, which eliminates discharged soldiers. United States ex rel. Toth v. Quarles, 350 U.S. 11, 76 S.Ct. 1, 100 L.Ed. 8. Neither civilian employees of the Armed Forces overseas, McElroy v. United States ex rel. Guagliardo, 361 U.S. 281, 80 S.Ct. 305, 4 L.Ed.2d 282; Grisham v. Hagan, 361 U.S. 278, 80 S.Ct. 310, 4 L.Ed.2d 279, nor civilian dependents of military personnel accompanying them overseas, Kinsella v. United States ex rel. Singleton, 361 U.S. 234, 80 S.Ct. 297, 4 L.Ed.2d 268; Reid v. Covert, 354 U.S. 1, 77 S.Ct. 1222, 1 L.Ed.2d 1148, may be tried by court-martial. And even as respects those in the Armed Forces we have held that an offense must be 'service connected' to be tried by court-martial rather than by a civilian tribunal. O'Callahan v. Parker, 395 U.S. 258, 272, 89 S.Ct. 1683, 1690, 23 L.Ed.2d 291.
37
The upshot is that the Armed Services—as distinguished from the 'militia'—are not regulatory agencies or bureaus that may be created as Congress desires and granted such powers as seem necessary and proper. The authority to provide rules 'governing' the Armed Services means the grant of authority to the Armed Services to govern themselves, not the authority to govern civilians. Even when 'martial law' is declared, as it often has been, its appropriateness is subject to judicial review, Sterling v. Constantin, 287 U.S. 378, 401, 403—404, 53 S.Ct. 190, 197, 77 L.Ed. 375.4
38
Our tradition reflects a desire for civilian supremacy and subordination of military power. The tradition goes back to the Declaration of Independence, in which it was recited that the King 'has affected to render the Military independent of and superior to the Civil power.' Thus, we have the 'militia' restricted to domestic use, the restriction of appropriations to the 'armies' to two years, Art. I, § 8, and the grant of command over the armies and the militia when called into actual service of the United States to the President, our chief civilian officer. The tradition of civilian control over the Armed Forces was stated by Chief Justice Warren:5
39
'The military establishment is, of course, a necessary organ of government; but the reach of its power must be carefully limited lest the delicate balance between freedom and order be upset. The maintenance of the balance is made more difficult by the fact that while the military serves the vital function of preserving the existence of the nation, it is, at the same time, the one element of government that exercises a type of authority not easily assimilated in a free society. . . .
40
'In times of peace, the factors leading to an extraordinary deference to claims of military necessity have naturally not been as weighty. This has been true even in the all too imperfect peace that has been our lot for the past fifteen years—and quite rightly so, in my judgment. It is instructive to recall that our Nation at the time of the Constitutional Convention was also faced with formidable problems. The English, the French, the Spanish, and various tribes of hostile Indians were all ready and eager to subvert or occupy the fledgling Republic. Nevertheless, in that environment, our Founding Fathers conceived a Constitution and Bill of Rights replete with provisions indicating their determination to protect human rights. There was no call for a garrison state in those times of precarious peace. We should heed no such call now. If we were to fail in these days to enforce the freedom that until now has been the American citizen's birthright, we would be abandoning for the foreseeable future the constitutional balance of powers and rights in whose name we arm.'
41
Thus, we have until today consistently adhered to the belief that
42
'(i)t is an unbending rule of law, that the exercise of military power, where the rights of the citizen are concerned, shall never be pushed beyond what the exigency requires.' Raymond v. Thomas, 91 U.S. 712, 716, 23 L.Ed. 434.
43
It was in that tradition that Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 72 S.Ct. 863, 96 L.Ed. 1153, was decided, in which President Truman's seizure of the steel mills in the so-called Korean War was held unconstitutional. As stated by Justice Black:
44
'The order cannot properly be sustained as an exercise of the President's military power as Commander in Chief of the Armed Forces. The Government attempts to do so by citing a number of cases upholding broad powers in military commanders engaged in day-to-day fighting in a theater of war. Such cases need not concern us here. Even though 'theater of war' be an expanding concept, we cannot with faithfulness to our constitutional system hold that the Commander in Chief of the Armed Forces has the ultimate power as such to take possession of private property in order to keep labor disputes from stopping production. This is a job for the Nation's lawmakers, not for its military authorities.' Id., at 587, 72 S.Ct., at 867.
45
Madison expressed the fear of military dominance:6
46
'The veteran legions of Rome were an overmatch for the undisciplined valor of all other nations, and rendered her the mistress of the world.
47
'Not the less true is it, that the liberties of Rome proved the final victim to her military triumphs; and that the liberties of Europe, as far as they ever existed, have, with few exceptions, been the price of her military establishments. A standing force, therefore, is a dangerous, at the same time that it may be a necessary, provision. On the smallest scale it has its inconveniences. On an extensive scale its consequences may be fatal. On any scale it is an object of laudable circumspection and precaution. A wise nation will combine all these considerations; and, whilst it does not rashly preclude itself from any resource which may become essential to its safety, will exert all its prudence in diminishing both the necessity and the danger of resorting to one which may be inauspicious to its liberties.
48
'The clearest marks of this prudence are stamped on the proposed Constitution. The Union itself, which it cements and secures, destroys every pretext for a military establishment which could be dangerous. America united, with a handful of troops, or without a single soldier, exhibits a more forbidding posture to foreign ambition than America disunited, with a hundred thousand veterans ready for combat.'
49
As Chief Justice Warren has observed, the safeguards in the main body of the Constitution did not satisfy the people on their fear and concern of military dominance:7
50
'They were reluctant to ratify the Constitution without further assurances, and thus we find in the Bill of Rights Amendments 2 and 3, specifically authorizing a decentralized militia, guaranteeing the right of the people to keep and bear arms, and prohibiting the quartering of troops in any house in time of peace without the consent of the owner. Other Amendments guarantee the right of the people to assemble, to be secure in their homes against unreasonable searches and seizures, and in criminal cases to be accorded a speedy and public trial by an impartial jury after indictment in the district and state wherein the crime was committed. The only exceptions made to these civilian trial procedures are for cases arising in the land and naval forces. Although there is undoubtedly room for argument based on the frequently conflicting sources of history, it is not unreasonable to believe that our Founders' determination to guarantee the preeminence of civil over military power was an important element that prompted adoption of the Constitutional Amendments we call the Bill of Rights.'
51
The action in turning the 'armies' loose on surveillance of civilians was a gross repudiation of our traditions. The military, though important to us, is subservient and restricted purely to military missions. It even took an Act of Congress to allow a member of the Joint Chiefs of Staff to address the Congress;8 and that small step did not go unnoticed but was in fact viewed with alarm by those respectful of the civilian tradition. Walter Lippmann has written that during World War II, he was asked to convey a message to Winston Churchill, while the latter was in Washington together with his chiefs of staff. It was desired that Churchill should permit his chiefs of staff to testify before Congress as to the proper strategy for waging the war. Lippmann explains, however, that he 'never finished the message. For the old lion let out a roar demanding to know why I was so ignorant of the British way of doing things that I could dare to suggest that a British general should address a parliamentary body.
52
'As I remember it, what he said was 'I am the Minister of Defense and I, not the generals, will state the policy of His Majesty's government." The Intervention of the General, Washington Post, Apr. 27, 1967, Sec. A, p. 21, col. 1.9
53
The act of turning the military loose on civilians even if sanctioned by an Act of Congress, which it has not been, would raise serious and profound constitutional questions. Standing as it does only on brute power and Pentagon policy, it must be repudiated as a usurpation dangerous to the civil liberties on which free men are dependent. For, as Senator Sam Ervin has said, 'this claim of an inherent executive branch power of investigation and surveillance on the basis of people's beliefs and attitudes may be more of a threat to our internal security than any enemies beyond our borders.' Privacy and Government Investigations, 1971 U.Ill.L.F. 137, 153.
II
54
The claim that respondents have no standing to challenge the Army's surveillance of them and the other members of the class they seek to represent is too transparent for serious argument. The surveillance of the Army over the civilian sector—a part of society hitherto immune from its control—is a serious charge. It is alleged that the Army maintains files on the membership, ideology, programs, and practices of virtually every activist political group in the country, including groups such as the Southern Christian Leadership Conference, Clergy and Laymen United Against the War in Vietnam, the American Civil Liberties Union, Women's Strike for Peace, and the National Association for the Advancement of Colored People. The Army uses undercover agents to infiltrate these civilian groups and to reach into confidential files of students and other groups. The Army moves as a secret group among civilian audiences, using cameras and electronic ears for surveillance. The data it collects are distributed to civilian officials in state, federal, and local governments and to each military intelligence unit and troop command under the Army's jurisdiction (both here and abroad); and these data are stored in one or more data banks.
55
Those are the allegations; and the charge is that the purpose and effect of the system of surveillance is to harass and intimidate the respondents and to deter them from exercising their rights of political expression, protest, and dissent 'by invading their privacy, damaging their reputations, adversely affecting their employment and their opportunities for employment, and in other ways.' Their fear is that 'permanent reports of their activities will be maintained in the Army's data bank, and their 'profiles' will appear in the so-called 'Blaklist' and that all of this information will be released to numerous federal and state agencies upon request.'
56
Judge Wilkey, speaking for the Court of Appeals, properly inferred that this Army surveillance 'exercises a present inhibiting effect on their full expression and utilization of their First Amendment rights.' 144 U.S.App.D.C. 72, 79, 444 F.2d 947, 954. That is the test. The 'deterrent effect' on First Amendment rights by government oversight marks an unconstitutional intrusion, Lamont v. Postmaster General, 381 U.S. 301, 307, 85 S.Ct. 1493, 1496, 14 L.Ed.2d 398. Or, as stated by Mr. Justice Brennan, 'inhibition as well as prohibition against the exercise of precious First Amendment rights is a power denied to government.' Id., at 309, 85 S.Ct., at 1497. When refusal of the Court to pass on the constitutionality of an Act under the normal consideration of forbearance 'would itself have an inhibitory effect on freedom of speech' then the Court will act. United States v. Raines, 362 U.S. 17, 22, 80 S.Ct. 519, 523, 4 L.Ed.2d 524.
57
As stated by the Supreme Court of New Jersey, 'there is good reason to permit the strong to speak for the weak or the timid in First Amendment matters.' Anderson v. Sills, 56 N.J. 210, 220, 265 A.2d 678, 684 (1970).
58
One need not wait to sue until he loses his job or until his reputation is defamed. To withhold standing to sue until that time arrives would in practical effect immunize from judicial scrutiny all surveillance activities, regardless of their misuse and their deterrent effect. As stated in Flast v. Cohen, 392 U.S. 83, 101, 88 S.Ct. 1942, 1953, 20 L.Ed.2d 947, 'in terms of Article III limitations on federal court jurisdiction, the question of standing is related only to whether the dispute sought to be adjudicated will be presented in an adversary context and in a form historically viewed as capable of judicial resolution.' Or, as we put it in Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 the gist of the standing issue is whether the party seeking relief has 'alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions.'
59
The present controversy is not a remote, imaginary conflict. Respondents were targets of the Army's surveillance. First, the surveillance was not casual but massive and comprehensive. Second, the intelligence reports were regularly and widely circulated and were exchanged with reports of the FBI, state and municipal police departments, and the CIA. Third, the Army's surveillance was not collecting material in public records but staking out teams of agents, infiltrating undercover agents, creating command posts inside meetings, posing as press photographers and newsmen, posing as TV newsmen, posing as students, and shadowing public figures.
60
Finally, we know from the hearings conducted by Senator Ervin that the Army has misused or abused its reporting functions. Thus, Senator Ervin concluded that reports of the Army have been 'taken from the Intelligence Command's highly inaccurate civil disturbance teletype and filed in Army dossiers on persons who have held, or were being considered for, security clearances, thus contaminating what are supposed to be investigative reports with unverified gossip and rumor. This practice directly jeopardized the employment and employment opportunities of persons seeking sensitive positions with the federal government or defense industry.'10
61
Surveillance of civilians is none of the Army's constitutional business and Congress has not undertaken to entrust it with any such function. The fact that since this litigation started the Army's surveillance may have been cut back is not an end of the matter. Whether there has been an actual cutback or whether the announcements are merely a ruse can be determined only after a hearing in the District Court. We are advised by an amicus curiae brief filed by a group of former Army Intelligence Agents that Army surveillance of civilians is rooted in secret programs of long standing:
62
'Army intelligence has been maintaining an unauthorized watch over civilian political activity for nearly 30 years. Nor is this the first time that Army intelligence has, without notice to its civilian superiors, overstepped its mission. From 1917 to 1924, the Corps of Intelligence Police maintained a massive surveillance of civilian political activity which involved the use of hundreds of civilian informants, the infiltration of civilian organizations and the seizure of dissenters and unionists, sometimes without charges. That activity was opposed—then as now—by civilian officials on those occasions when they found out about it, but it continued unabated until postwar disarmament and economies finally eliminated the bureaucracy that conducted it.' Pp. 29—30.
63
This case involves a cancer in our body politic. It is a measure of the disease which afflicts us. Army surveillance, like Army regimentation, is at war with the principles of the First Amendment. Those who already walk submissively will say there is no cause for alarm. But submissiveness is not our heritage. The First Amendment was designed to allow rebellion to remain as our heritage. The Constitution was designed to keep government off the backs of the people. The Bill of Rights was added to keep the precincts of belief and expression, of the press, of political and social activities free from surveillance. The Bill of Rights was designed to keep agents of government and official eavesdroppers away from assemblies of people. The aim was to allow men to be free and independent and to assert their rights against government. There can be no influence more paralyzing of that objective than Army surveillance. When an intelligence officer looks over every noncomformist's shoulder in the library, or walks invisibly by his side in a picket line, or infiltrates his club, the America once extolled as the voice of liberty heard around the world no longer is cast in the image which Jefferson and Madison designed, but more in the Russian image, depicted in Appendix III to this opinion.
64
APPENDIX I TO OPINION OF DOUGLAS J., DISSENTING
65
The narrowly circumscribed domestic role which Congress has by statute authorized the Army to play is clearly an insufficient basis for the wholesale civilian surveillance of which respondents complain. The entire domestic mission of the armed services is delimited by nine statutes.
66
Four define the Army's narrow role as a back-up for civilian authority where the latter has proved insufficient to cope with insurrection:
10 U.S.C. § 331:
67
'Whenever there is an insurrection in any State against its government, the President may, upon the request of its legislature or of its governor if the legislature cannot be convened, call into Federal service such of the militia of the other States, in the number requested by that State, and use such of the armed forces, as he considers necessary to suppress the insurrection.'
10 U.S.C. § 332:
68
'Whenever the President considers that unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States, make it impracticable to enforce the laws of the United States in any State or Territory by the ordinary course of judicial proceedings, he may call into Federal service such of the militia of any State, and use such of the armed forces, as he considers necessary to enforce those laws or to suppress the rebellion.'
10 U.S.C. § 333:
69
'The President, by using the militia or the armed forces, or both, or by any other means, shall take such measures as he considers necessary to suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy, if it—
70
'(1) So hinders the execution of the laws of that State, and of the United States within the State, that any part or class of its people is deprived of a right, privilege, immunity, or protection named in the Constitution and secured by law, and the constituted authorities of that State are unable, fail, or refuse to protect that right, privilege or immunity, or to give that protection; or
71
'(2) opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws.
72
'In any situation covered by clause (1), the State shall be considered to have denied the equal protection of the laws secured by the Constitution.'
10 U.S.C. § 334:
73
'Whenever the President considers it necessary to use the militia or the armed forces under this chapter, he shall, by proclamation, immediately order the insurgents to disperse and retire peaceably to their abodes within a limited time.'
74
Two statutes, passed as a result of Reconstruction Era military abuses, prohibit military interference in civilian elections:
18 U.S.C. § 592:
75
'Whoever, being an officer of the Army or Navy, or other person in the civil, military, or naval service of the United States, orders, brings, keeps, or has under his authority or control any troops or armed men at any place where a general or special election is held, unless such force be necessary to repel armed enemies of the United States, shall be fined not more than $5,000 or imprisoned not more than five years, or both; and be disqualified from holding any office of honor, profit, or trust under the United States.
76
'This section shall not prevent any officer or member of the armed forces of the United States from exercising the right of suffrage in any election district to which he may belong, if otherwise qualified according to the laws of the State in which he offers to vote.'
18 U.S.C. § 593:
77
'Whoever, being an officer or member of the Armed Forces of the United States, prescribes or fixes or attempts to prescribe or fix, whether by proclamation, order or otherwise, the qualifications of voters at any election in any State; or
78
'Whoever, being such officer or member, prevents or attempts to prevent by force, threat, intimidation, advice or otherwise any qualified voter of any State from fully exercising the right of suffrage at any general or special election; or
79
'Whoever, being such officer or member, orders or compels or attempts to compel any election officer in any State to receive a vote from a person not legally qualified to vote; or
80
'Whoever, being such officer or member, imposes or attempts to impose any regulations for conducting any general or special election in a State, different from those prescribed by law; or
81
'Whoever, being such officer or member, interferes in any manner with an election officer's discharge of his duties—
82
'Shall be fined not more than $5,000 or imprisoned not more than five years, or both; and disqualified from holding any office of honor, profit or trust under the United States.
83
'This section shall not prevent any officer or member of the Armed Forces from exercising the right of suffrage in any district to which he may belong, if otherwise qualified according to the laws of the State of such district.'
84
Another Reconstruction Era statute forbids the use of military troops as a posse comitatus:
18 U.S.C. § 1385:
85
'Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined not more than $10,000 or imprisoned not more than two years, or both.'
86
Finally, there are two specialized statutes. It was thought necessary to pass an Act of Congress to give the armed services some limited power to control prostitution near military bases, and an Act of Congress was required to enable a member of the Joint Chiefs of Staff to testify before Congress:
18 U.S.C. § 1384:
87
'Within such reasonable distance of any military or naval camp, station, fort, post, yard, base, cantonment, training or mobilization place at the Secretary of the Army, the Secretary of the Navy, the Secretary of the Air Force, or any two or all of them shall determine to be needful to the efficiency, health, and welfare of the Army, the Navy, or the Air Force, and shall designate and publish in general orders or bulletins, whoever engages in prostitution or aids or abets prostitution or procures or solicits for purposes of prostitution, or keeps or sets up a house of ill fame, brothel, or bawdy house, or receives any person for purposes of lewdness, assignation, or prostitution into any vehicle, conveyance, place, structure, or building, or permits any person to remain for the purposes of lewdness, assignation, or prostitution in any vehicle, conveyance, place, structure, or building or leases or rents or contracts to lease or rent any vehicle, conveyance, place, structure or building, or part thereof, knowing or with good reason to know that it is intended to be used for any of the purposes herein prohibited shall be fined not more than $1,000 or imprisoned not more than one year, or both.
88
'The Secretaries of the Army, Navy, and Air Force and the Federal Security Administrator shall take such steps as they deem necessary to suppress and prevent such violations thereof, and shall accept the cooperation of the authorities of States and their counties, districts, and other political subdivisions in carrying out the purpose of this section.
89
'This section shall not be construed as conferring on the personnel of the Departments of the Army, Navy, or Air Force or the Federal Security Agency any authority to make criminal investigations, searches, seizures, or arrests of civilians charged with violations of this section.'
10 U.S.C. § 141(e):
90
'After first informing the Secretary of Defense, a member of the Joint Chiefs of Staff may make such recommendations to Congress relating to the Department of Defense as he may consider appropriate.'
91
APPENDIX II TO OPINION OF DOUGLAS, J., DISSENTING
92
Walter Lippmann gave the following account of his conversation with Churchill:
93
'The President's bringing Gen. Westmoreland home in order to explain the war reminds me of an instructive afternoon spent during the Second World War. The country and the Congress were divided on the question of whether to strike first against Hitler or first against Japan. Churchill and Roosevelt had agreed on the policy of Hitler first. But there were large and powerful groups in the country, many of them former isolationists in the sense that they were anti-European, who wanted to concentrate American forces on winning the war against Japan. Even the American chiefs of staff were divided on this question of high strategy.
94
'Churchill had come to Washington, accompanied by the British chiefs of staff, to work out with President Roosevelt and the Administration the general plan of the global war. One morning I had a telephone call from Sen. Austin, who was a strong believer in the Churchill-Roosevelt line. He said in effect, 'I know you are seeing the Prime Minister this afternoon and I wish you would ask him to tell his chiefs of staff to come to Congress and testify in favor of our strategical policy.' Quite innocently I said I would do this, and when Churchill received me that afternoon I began by saying that I had a message from Sen. Austin. 'Would the Prime Minister instruct his chiefs of staff to go to the Senate Foreign Relations Committee . . ..' I never finished the message. For the old lion let out a roar demanding to know why I was so ignorant of the British way of doing things that I could dare to suggest that a British general should address a parliamentary body.
95
'As I remember it, what he said was, 'I am the Minister of Defense and I, not the generals, will state the policy of His Majesty's government.'
96
'No one who ever aroused the wrath of Churchill is likely to forget it. I certainly have not forgotten it. I learned an indelible lesson about one of the elementary principles of democratic government. And therefore, I take a very sour view of a field commander being brought home by the President to educate the Congress and the American people.'
97
Our military added political departments to their staffs. A Deputy Chief of Naval Operations, Military Policy Division, was first established in the Department of the Navy by President Truman in 1945. In the Office of Secretary of Defense that was done by President Truman in 1947, the appointee eventually becoming Assistant Secretary for International Security Affairs. A like office was established in 1961 in the Department of the Army by President Kennedy and another for the Air Force in 1957 by President Eisenhower. Thus, when the Pentagon entered a Washington, D.C., conference, its four 'Secretaries of State' faced the real Secretary of State and more frequently than not talked or stared him down. The Pentagon's 'Secretaries of State' usually spoke in unison; they were clear and decisive with no ifs, ands, or buts, and in policy conferences usually carried the day.
98
By 1968 the Pentagon was spending $34 million a year on non-military social and behavioral science research both at home and abroad. One related to 'witchcraft, sorcery, magic, and other psychological phenomena' in the Congo. Another concerned the 'political influence of university students in Latin America.' Other projects related to the skill of Korean women as divers, snake venoms in the Middle East, and the like. Research projects were going on for the Pentagon in 40 countries in sociology, psychology and behavioral sciences.
99
The Pentagon became so powerful that no President would dare crack down on it and try to regulate it.
100
The military approach to world affairs conditioned our thinking and our planning after World War II.
101
We did not realize that to millions of these people there was no difference between a Communist dictatorship and the dictatorship under which they presently lived. We did not realize that in some regions of Asia it was the Communist party that identified itself with the so-called reform programs, the other parties being mere instruments for keeping a ruling class in power. We did not realize that, in the eyes of millions of illiterates, the choice between democracy and communism was not the critical choice it would be for us.
102
We talked about 'saving democracy.' But the real question in Asia, the Middle East, Africa, and Latin America was whether democracy would ever be born.
103
We forgot that democracy in most lands is an empty word. We asked illiterate people living at the subsistence level to furnish staging grounds for a military operation whose outcome, in their eyes, had no relation to their own welfare. Those who rejected our overtures must be communists, we said. Those who did not approve our military plans must be secretly aligning with Russia, we thought.
104
So it was that in underdeveloped areas we became identified not with ideas of freedom, but with bombs, planes, and tanks. We thought less and less in terms of defeating communism with programs of political action, more and more in terms of defeating communism with military might. Our foreign aid mounted; but nearly 70% of it was military aid.
105
Our fears mounted as the cold war increased in intensity. These fears had many manifestations. The communist threat inside the country was magnified and exalted far beyond its realities. Irresponsible talk fanned the flames. Accusations were loosely made. Character assassinations were common. Suspicion took the place of goodwill. We needed to debate with impunity and explore to the edges of problems. We needed to search to the horizon for answers to perplexing problems. We needed confidence in each other. But in the 40's, 50's, and 60's suspicions grew. Innocent acts became telltale marks of disloyalty. The coincidence that an idea paralleled Soviet Russia's policy for a moment of time settled an aura of doubt around a person. The Intervention of the General, Washington Post, Apr. 27, 1967, Sec. A, p. 21, col. 1.
106
APPENDIX III TO OPINION OF DOUGLAS, J., DISSENTING
107
Alexander I. Solzhenitsyn, the noted Soviet author, made the following statement March 30, 1972, concerning surveillance of him and his family (reported in the Washington Post, Apr. 3, 1972):
108
'A kind of forbidden, contaminated zone has been created around my family, and to this day, there are people in Ryazan (where Solzhenitsyn used to live) who were dismissed from their jobs for having visited my house a few years ago. A corresponding member of the Academy of Sciences, T. Timofeyev, who is director of a Moscow institute, became so scared when he found out that a mathematician working under him was my wife that he dismissed her with unseemingly haste, although this was just after she had given birth and contrary to all laws . . .
109
'It happens that an informant (for his new book on the history of prerevolutionary Russia) may meet with me. We work an hour or two and as soon as he leaves my house, he will be closely followed, as if he were a state criminal, and they will investigate his background, and then go on to find out who this man meets, and then, in turn, who that (next) person is meeting.
110
'Of course they cannot do this with everyone. The state security people have their schedule, and their own profound reasoning. On some days, there is no surveillance at all, or only superficial surveillance. On other days, they hang around, for example when Heinrich Boll came to see me (he is a German writer who recently visited Moscow). They will put a car in front of each of the two approaches (to the courtyard of the apartment house where he stays in Moscow) with three men in each car—and they don't work only one shift. Then off they go after my visitors, or they trail people who leave on foot.
111
'And if you consider that they listen around the clock to telephone conversations and conversations in my home, they analyze recording tapes and all correspondence, and then collect and compare all these data in some vast premises—and these people are not underlings—you cannot but be amazed that so many idlers in the prime of life and strength, who could be better occupied with productive work for the benefit of the fatherland, are busy with my friends and me, and keep inventing enemies.'
112
Mr. Justice BRENNAN, with whom Mr. Justice STEWART and Mr. Justice MARSHALL join, dissenting.
113
The Court of Appeals held that a justiciable controversy exists and that respondents have stated a claim upon which relief could be granted. 144 U.S.App.D.C. 72, 83, 444 F.2d 947, 958 (1971). I agree with Judge Wilkey, writing for the Court of Appeals, that this conclusion is compelled for the following reasons stated by him:
114
'(Respondents) contend that the present existence of this system of gathering and distributing information, allegedly far beyond the mission requirements of the Army, constitutes an impermissible burden on (respondents) and other persons similarly situated which exercises a present inhibiting effect on their full expression and utilization of their First Amendment rights of free speech, etc. The baleful effect, if there is one, is thus a present inhibition of lawful behavior and of First Amendment rights.
115
'Under this view of (respondents') allegations, under justiciability standards it is the operation of the system itself which is the breach of the Army's duty toward (respondents) and other civilians. The case is therefore ripe for adjudication. Because the evil alleged in the Army intelligence system is that of overbreadth, i.e., the collection of information not reasonably relevant to the Army's mission to suppress civil disorder, and because there is no indication that a better opportunity will later arise to test the constitutionality of the Army's action, the issue can be considered justiciable at this time.' Id., at 79—81, 444 F.2d, at 954—956 (emphasis in original) (footnotes omitted).
116
'To the extent that the Army's argument against justiciability here includes the claim that (respondents) lack standing to bring this action, we cannot agree. If the Army's system does indeed derogate First Amendment values, the (respondents) are persons who are sufficiently affected to permit their complaint to be heard. The record shows that most if not all of the (respondents) and/or the organizations of which they are members have been the subject of Army surveillance reports and their names have appeared in the Army's records. Since this is precisely the injury of which (respondents) complain, they have standing to seek redress for that alleged injury in court and will provide the necessary adversary interest that is required by the standing doctrine, on the issue of whether the actions complained of do in fact inhibit the exercise of First Amendment rights. Nor should the fact that these particular persons are sufficiently uninhibited to bring this suit be any ground for objecting to their standing.' Id., at 79 n. 17, 444 F.2d, at 954 n. 17.
117
Respondents may or may not be able to prove the case they allege. But I agree with the Court of Appeals that they are entitled to try. I would therefore affirm the remand to the District Court for a trial and determination of the issues specified by the Court of Appeals.
1
The complaint filed in the District Court candidly asserted that its factual allegations were based on a magazine article: 'The information contained in the foregoing paragraphs numbered five through thirteen (of the complaint) was published in the January 1970 issue of the magazine The Washington Monthly . . ..'
2
'Whenever there is an insurrection in any State against its government, the President may, upon the request of its legislature or of its governor if the legislature cannot be convened, call into Federal service such of the militia of the other States, in the number requested by that State, and use such of the armed forces, as he considers necessary to suppress the insurrection.'
The constitutionality of this statute is not at issue here; the specific authorization of such use of federal armed forces, in addition to state militia, appears to have been enacted pursuant to Art. IV, § 4, of the Constitution, which provides that '(t)he United
States . . . shall protect each of (the individual States) . . . on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.'
In describing the requirement of 10 U.S.C. § 331 for the use of federal troops to quell domestic disorders, Attorney General Ramsey Clark made the following statements in a letter sent to all state governors on August 7, 1967:
'There are three basic prerequisites to the use of Federal troops in a state in the event of domestic violence:
'(1) That a situation of serious 'domestic violence' exists within the state. While this conclusion should be supported with a statement of factual details to the extent feasible under the circumstances, there is no prescribed wording.
'(2) That such violence cannot be brought under control by the law enforcement resources available to the governor, including local and State police forces and the National Guard. The judgment required here is that there is a definite need for the assistance of Federal troops, taking into account the remaining time needed to move them into action at the scene of violence.
'(3) That the legislature or the governor requests the President to employ the armed forces to bring the violence under control. The element of request by the governor of a State is essential if the legislature cannot be convened. It may be difficult in the context of urban rioting, such as we have seen this summer, to convene the legislature.
'These three elements should be expressed in a written communication to the President, which of course may be a telegram, to support his issuance of a proclamation under 10 U.S.C. § 334 and commitment of troops to action. In case of extreme emergency, receipt of a written request will not be prerequisite to Presidential action. However, since it takes several hours to alert and move Federal troops, the few minutes needed to write and dispatch a telegram are not likely to cause any delay.
'Upon receiving the request from a governor, the President, under the terms of the statute and the historic practice, must exercise his own judgment as to whether Federal troops will be sent, and as to such questions as timing, size of the force, and federalization of the National Guard.
'Preliminary steps, such as alerting the troops, can be taken by
the Federal government upon oral communications and prior to the governor's determination that the violence cannot be brought under control without the aid of Federal forces. Even such preliminary steps, however, represent a most serious departure from our traditions of local responsibility for law enforcement. They should not be requested until there is a substantial likelihood that the Federal forces will be needed.'
This analysis of Attorney General Clark suggests the importance of the need for information to guide the intelligent use of military forces and to avoid 'overkill.'
3
Translated in terms of personnel, this percentage figure suggests that the total intelligence operation concerned with potential civil disorders hardly merits description as 'massive,' as one of the dissents characterizes it.
4
That principal mission was described in one of the documents filed with the District Court as the conducting of 'investigations to determine whether uniformed members of the Army, civilian employees (of the Army) and contractors' employees should be granted access to classified information.' (App. 76—77.)
5
In the course of the oral argument, the District Judge sought clarification from respondents' counsel as to the nature of the threats perceived by respondents; he asked what exactly it was in the Army's activities that tended to chill respondents and others in
the exercise of their constitutional rights. Counsel responded that it was
'precisely the threat in this case that in some future civil disorder of some kind, the Army is going to come in with its list of troublemakers . . . and go rounding up people and putting them in military prisons somewhere.' (Emphasis added.)
To this the court responded that 'we still sit here with the writ of habeas corpus.' At another point, counsel for respondents took a somewhat different approach in arguing that
'we're not quite sure exactly what they have in mind and that is precisely what causes the chill, the chilling effect.' (Emphasis added.)
6
Indeed, the Court of Appeals noted that it had reached a different conclusion when presented with a virtually identical issue in another of its recently decided cases, Davis v. Ichord, 143 U.S.App.D.C. 183, 442 F.2d 1207 (1970). The plaintiffs in Davis were attacking the constitutionality of the House of Representatives Rule under which the House Committee on Internal Security conducts investigations and maintains files described by the plaintiffs as a 'political blacklist.' The court noted that any chilling effect to which the plaintiffs were subject arose from the mere existence
of the Committee and its files and the mere possibility of the misuse of those files. In affirming the dismissal of the complaint, the court concluded that allegations of such a chilling effect could not be elevated to a justiciable claim merely by alleging as well that the challenged House Rule was overly broad and vague.
In deciding the case presently under review, the Court of Appeals distinguished Davis on the ground that the difference in the source of the chill in the two cases—a House Committee in Davis and the Army in the instant case—was controlling. We cannot agree that the jurisdictional question with which we are here concerned is to be resolved on the basis of the identity of the parties named as defendants in the complaint.
7
Not only have respondents left somewhat unclear the precise connection between the mere existence of the challenged system and their own alleged chill, but they have also cast considerable doubt on whether they themselves are in fact suffering from any such chill. Judge MacKinnon took cogent note of this difficulty in dissenting from the Court of Appeals' judgment, rendered as it was 'on the facts of the case which emerge from the pleadings, affidavits and the admissions made to the trial court.' 144 U.S.App.D.C., at 84, 444 F.2d, at 959. At the oral argument before the District Court, counsel for respondents admitted that his clients
were 'not people, obviously, who are cowed and chilled;' indeed, they were quite willing 'to open themselves up to public investigation and public scrutiny.' But, counsel argued, these respondents must 'represent millions of Americans not nearly as forward (and) courageous' as themselves. It was Judge MacKinnon's view that this concession 'constitutes a basic denial of practically their whole case.' Ibid. Even assuming a justiciable controversy, if respondents themselves are not chilled, but seek only to represent those 'millions' whom they believe are so chilled, respondents clearly lack that 'personal stake in the outcome of the controversy' essential to standing. Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962). As the Court recently observed in Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 166, 92 S.Ct. 1965, 1968, 32 L.Ed.2d 627, a litigant 'has standing to seek redress for injuries done to him, but may not seek redress for injuries done to others.'
1
I have expressed my doubts whether the 'militia' loses its constitutional role by an Act of Congress which incorporates it in the armed services. Drifka v. Brainard, 89 S.Ct. 434, 21 L.Ed.2d 427.
2
See Appendix I to this opinion, infra, p. 29.
3
3 M. Farrand, Records of the Federal Convention 209 (1911).
4
Even some actions of the Armed Services in regulating their own conduct may be properly subjected to judicial scrutiny. Those who are not yet in the Armed Services have the protection of the full panoply of the laws governing admission procedures, see e.g., McKart v. United States, 395 U.S. 185, 89 S.Ct. 1657, 23 L.Ed.2d 194; Oestereich v. Selective Service System Local Board, 393 U.S. 233, 89 S.Ct. 414, 21 L.Ed.2d 402. Those in the service may use habeas corpus to test the jurisdiction of the Armed Services to try or detain them, see, e.g., Parisi v. Davidson, 405 U.S. 34, 92 S.Ct. 815, 31 L.Ed.2d 17; Noyd v. Bond, 395 U.S. 683, 696 n. 8, 89 S.Ct. 1876, 23 L.Ed.2d 631; Reid v. Covert, 354 U.S. 1, 77 S.Ct. 1222, 1 L.Ed.2d 1148; Billings v. Truesdell, 321 U.S. 542, 64 S.Ct. 737, 88 L.Ed. 917. And, those in the Armed Services may seek the protection of civilian, rather than military, courts when charged with crimes not service connected, O'Callahan v. Parker, 395 U.S. 258, 89 S.Ct. 1683, 23 L.Ed.2d 291.
5
The Bill of Rights and the Military, 37 N.Y.U.L.Rev. 181, 182, 193 (1962).
6
The Federalist No. 41.
7
N. 5, supra, at 185.
8
The National Security Act of 1947, amended by § 5 of the Act of Aug. 10, 1949, 63 Stat. 580, provided in § 202(c)(6):
'No provision of this Act shall be so construed as to prevent a Secretary of a military department or a member of the Joint Chiefs of Staff from presenting to the Congress, on his own initiative, after first so informing the Secretary of Defense, any recommendation relating to the Department of Defense that he may deem proper.' See H.R.Conf.Rep.No.1142, 81st Cong., 1st Sess., 18. This provision is now codified as 10 U.S.C. § 141(e).
9
The full account is contained in Appendix II, infra, at 33.
10
Hearings on Federal Data Banks, Computers and The Bill of Rights, before the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary, 92d Cong., 1st Sess. (1971).
| 23
|
408 U.S. 234
92 S.Ct. 2282
33 L.Ed.2d 317
Johnny Daniel BEECHERv.State of ALABAMA.
No. 71—6497.
June 26, 1972.
PER CURIAM.
1
In 1964 the petitioner was tried and convicted in an Alabama state court for first-degree murder. He was sentenced to death. The conviction was based in large part on written confessions that he had signed five days after his arrest. The petitioner objected to the introduction at trial of these confessions. But the trial court and the Alabama Supreme Court held that the confessions were made voluntarily and were properly received into evidence.
2
In 1967 this Court summarily reversed that judgment of the Alabama Supreme Court. Beecher v. Alabama, 389 U.S. 35, 88 S.Ct. 189, 19 L.Ed.2d 35. We said:
3
'The uncontradicted facts of record are these. Tennessee police officers saw the petitioner as he fled into an open field and fired a bullet into his right leg. He fell, and the local Chief of Police pressed a loaded gun to his face while another officer pointed a rifle against the side of his head. The Police Chief asked him whether he had raped and killed a white woman. When he said that he had not, the Chief called him a liar and said, 'If you don't tell the truth I am going to kill you.' The other officer then fired his rifle next to the petitioner's ear, and the petitioner immediately confessed. Later the same day he received an injection to ease the pain in his leg. He signed something the Chief of Police described as 'extradition papers' after the officers told him that 'it would be best . . . to sign the papers before the gang of people came there and killed' him. He was then taken by ambulance from Tennessee to Kilby Prison in Montgomery, Alabama. By June 22, the petitioner's right leg, which was later amputated, had become so swollen and his wound so painful that he required an injection of morphine every four hours. Less than an hour after one of these injections, two Alabama investigators visited him in the prison hospital. The medical assistant in charge told the petitioner to 'cooperate' and, in the petitioner's presence, he asked the investigators to inform him if the petitioner did not 'tell them what they wanted to know.' The medical assistant then left the petitioner alone with the State's investigators. In the course of a 90-minute 'conversation,' the investigators prepared two detailed statements similar to the confession the petitioner had given five days earlier at gunpoint in Tennessee. Still in a 'kind of slumber' from his last morphine injection, feverish, and in intense pain, the petitioner signed the written confessions thus prepared for him.' Id., at 36—37, 88 S.Ct., at 190.
4
We were led to 'the inescapable conclusion that the petitioner's confessions were involuntary.' Id., at 38, 88 S.Ct., at 191. For '(t)he petitioner, already wounded by the police, was ordered at gunpoint to speak his guilt or be killed. From that time until he was directed five days later to tell Alabama investigators 'what they wanted to know,' there was 'no break in the stream of events'. Clewis v. State of Texas, 386 U.S. 707, 710, 87 S.Ct. 1338, 1340, 18 L.Ed.2d 423. For he was then still in pain, under the influence of drugs, and at the complete mercy of the prison hospital authorities.' Ibid. Because the confessions 'were the product of gross coercion,' we held that their use at the petitioner's trial violated the Due Process Clause of the Fourteenth Amendment. Ibid.
5
Only three months after this Court's decision, the petitioner was reindicted and retried for the same crime. Again, a confession was introduced in evidence. Again, it was a confession made by the petitioner shortly after he had been shot and arrested and shortly after he had been given a large does of morphine. Again, the petitioner was convicted and sentenced to death.
6
The confession used at the second trial was not exactly the same as the ones that had been used against the petitioner at his first trial. It was not one of the written confessions made by the petitioner in an Alabama hospital five days after his arrest. Instead, it was an oral confession that the petitioner had made in a Teneessee hospital only one hour after his arrest.
7
One hour after the arrest, in extreme pain from the gunshot that had blown most of the bone out of one leg, the petitioner was brought by police to a Tennessee hospital. There, a doctor gave him two large injections of morphine. The petitioner testified that he morphine 'kinda made me feel like I wanted to love somebody; took the pain away; made me feel relaxed.' From then on, the petitioner said, he could remember nothing. But the doctor testified at trial that he had asked the petitioner 'why he did it (the crime).' According to the doctor, the petitioner then made an oral confession, Although police were in the area guarding the petitioner, the confession was made only to the doctor.
8
The Alabama Supreme Court held that this oral confession was made voluntarily and was admissible in evidence against the petitioner. Beecher v. State, 288 Ala. 1, 256 So.2d 154. We do not agree. We held five years ago that the confession elicited from the petitioner at the scene of his arrest was plainly involuntary.* We also held that his written confessions five days later, while in custody and under the influence of morphine, were part of the 'stream of events' beginning with the arrest and were infected with 'gross coercion.' 389 U.S., at 38, 88 S.Ct., at 191. The oral confession, made only an hour after the arrest and upon which the State now relies, was surely a part of the same 'stream of events.'
9
We hold now—as we held before—that a 'realistic appraisal of the circumstances of this case compels the conclusion that this petitioner's (confession was) the product of gross coercion. Under the Due Process Clause of the Fourteenth Amendment, no conviction tainted by a confession so obtained can stand.' Ibid.
10
Accordingly, the motion for leave to proceed in forma pauperis and the petition for certiorari are granted. The judgment is reversed.
11
Reversed.
*
Although at the second trial the Chief of Police who arrested the petitioner denied having made an explicit threat to kill him if he did not confess at that time, the fact that the petitioner was surrounded by a very angry mob and that police were holding guns on him and even fired one shot by his head is enough to support our original conclusion as to the grossly coercive nature of the police questioning at the scene of the arrest.
| 01
|
408 U.S. 104
92 S.Ct. 2294
33 L.Ed.2d 222
Richard GRAYNED, Appellant,v.CITY OF ROCKFORD.
No. 70—5106.
Argued Jan. 19, 1972.
Decided June 26, 1972.
Syllabus
1. Antipicketing ordinance, virtually identical with one invalidated as violative of equal protection in Police Department of Chicago v. Mosley, 408 U.S. 92, 92 S.Ct. 2286, 33 L.Ed.2d 212, is likewise invalid. P. 107.
2. Antinoise ordinance prohibiting a person while on grounds adjacent to a building in which a school is in session from willfully making a noise or disversion that disturbs or tends to disturb the peace or good order of the school session is not unconstitutionally vague or overbroad. The ordinance is not vague since, with fair warning, it prohibits only actual or imminent, and willful, interference with normal school activity, and is not a broad invitation to discriminatory enforcement. Cox v. Louisiana, 379 U.S. 536, 85 S.Ct. 453, 13 L.Ed.2d 471; Coates v. Cincinnati, 402 U.S. 611, 91 S.Ct. 1686, 29 L.Ed.2d 214, distinguished. The ordinance is not overbroad as unduly interfering with First Amendment rights since expressive activity is prohibited only if it 'materially disrupts classwork.' Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 513, 89 S.Ct. 733, 740, 21 L.Ed.2d 731. Pp. 107—121.
46 Ill.2d 486, 263 N.E.2d 866, affirmed in part and reversed in part.
Sophia H. Hall, Chicago, for appellant Richard Grayned.
William E. Collins, Rockford, Ill., for appellee City of Rockford.
Mr. Justice MARSHALL delivered the opinion of the Court.
1
Appellant Richard Grayned was convicted for his part in a demonstration in front of West Senior High School in Rockford, Illinois. Negro students at the school had first presented their grievances to school administrators. When the principal took no action on crucial complaints, a more public demonstration of protest was planned. On April 25, 1969, approximately 200 people students, their family members, and friends—gathered next to the school grounds. Appellant, whose brother and twin sisters were attending the school, was part of this group. The demonstrators marched around on a sidewalk about 100 feet from the school building, which was set back from the street. Many carried signs which summarized the grievances: 'Black cheerleaders to cheer too'; 'Black history with black teachers'; 'Equal rights, Negro counselors.' Others, without placards, made the 'power to the people' sign with their upraised and clenched fists.
2
In other respects, the evidence at appellant's trial was sharply contradictory. Government witnesses reported that the demonstrators repeatedly cheered, chanted, baited policemen, and made other noise that was audible in the school; that hundreds of students were distracted from their school activities and lined the classroom windows to watch the demonstration; that some demonstrators successfully yelled to their friends to leave the school building and join the demonstration; that uncontrolled latenesses after period changes in the school were far greater than usual, with late students admitting that they had been watching the demonstration; and that, in general, orderly school procedure was disrupted. Defense witnesses claimed that the demonstrators were at all times quiet and orderly; that they did not seek to violate the law, but only to 'make a point'; that the only noise was made by policemen using loudspeakers; that almost no students were noticeable at the schoolhouse windows; and that orderly school procedure was not disrupted.
3
After warning the demonstrators, the police arrested 40 of them, including appellant.1 For participating in the demonstration, Grayned was tried and convicted of violating two Rockford ordinances, hereinafter referred to as the 'antipicketing' ordinance and the 'antinoise' ordinance. A $25 fine was imposed for each violation. Since Grayned challenged the constitutionality of each ordinance, he appealed directly to the Supreme Court of Illinois. Ill.Sup.Ct. Rule 302, Ill.Rev.Stat.1971, c. 110A, § 302. He claimed that the ordinances were invalid on their face, but did not urge that, as applied to him, the ordinances had punished constitutionally protected activity. The Supreme Court of Illinois held that both ordinances were constitutional on their face. 46 Ill.2d 492, 263 N.E.2d 866 (1970). We noted probable jurisdiction, 404 U.S. 820, 92 S.Ct. 119, 30 L.Ed.2d 48 (1971). We conclude that the antipicketing ordinance is unconstitutional, but affirm the court below with respect to the antinoise ordinance.
4
* At the time of appellant's arrest and conviction, Rockford's antipicketing ordinance provided that
5
'A person commits disorderly conduct when he knowingly:
6
'(i) Pickets or demonstrates on a public way within 150 feet of any primary or secondary school building while the school is in session and one-half hour before the school is in session and one-half hour after the school session has been concluded, provided that this subsection does not prohibit the peaceful picketing of any school involved in a labor dispute . . ..' Code of Ordinances, c. 28, § 18.1(i).
7
This ordinance is identical to the Chicago disorderly conduct ordinance we have today considered in Police Department of Chicago v. Mosley, 408 U.S. 92, 92 S.Ct. 2286, 33 L.Ed.2d 212. For the reasons given in Mosley, we agree with dissenting Justice Schaefer below, and hold that § 18.1(i) violates the Equal Protection Clause of the Fourteenth Amendment. Appellant's conviction under this invalid ordinance must be reversed.2
II
8
The antinoise ordinance reads, in pertinent part, as follows:
9
'(N)o person, while on public or private grounds adjacent to any building in which a school or any class thereof is in session, shall willfully make or assist in the making of any noise or diversion which disturbs or tends to disturb the peace or good order of such school session or class thereof. . . .' Code of Ordinances, c. 28, § 19.2(a).
10
Appellant claims that, on its face, this ordinance is both vague and overbroad, and therefore unconstitutional. We conclude, however, that the ordinance suffers from neither of these related infirmities.
A. Vagueness
11
It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined. Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning.3 Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them.4 A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.5 Third, but related, where a vague statute 'abut(s) upon sensitive areas of basic First Amendment freedoms,'6 it 'operates to inhibit the exercise of (those) freedoms.'7 Uncertain meanings inevitably lead citizens to "steer far wider of the unlawful zone' . . . than if the boundaries of the forbidden areas were clearly marked.'8
12
Although the question is close, we conclude that the antinoise ordinance is not impermissibly vague. The court below rejected appellant's arguments 'that proscribed conduct was not sufficiently specified and that police were given too broad a discretion in determining whether conduct was proscribed.' 46 Ill.2d, at 494, 263 N.E.2d, at 867. Although it referred to other, similar statutes it had recently construed and upheld, the court below did not elaborate on the meaning of the antinoise ordinance.9 In this situation, as Mr. Justice Frankfurter put it, we must 'extrapolate its allowable meaning.'10 Here, we are 'relegated, . . . to the words of the ordinance itself,'11 to the interpretations the court below has given to analogous statutes,12 and, perhaps to some degree, to the interpretation of the statute given by those charged with enforcing it.13 'Extrapolation,' of course, is a delicate task, for it is not within our power to construe and narrow state laws.14
13
With that warning, we find no unconstitutional vagueness in the antinoise ordinance. Condemned to the use of words, we can never expect mathematical certainty from our language.15 The words of the Rockford ordinance are marked by 'flexibility and reasonable breadth, rather than meticulous specificity,' Esteban v. Central Missouri State College, 415 F.2d 1077, 1088 (CA8 1969) (Blackmun, J.), cert. denied, 398 U.S. 965, 90 S.Ct. 2169, 26 L.Ed.2d 548 (1970), but we think it is clear what the ordinance as a whole prohibits. Designed, according to its preamble, 'for the protection of Schools,' the ordinance forbids deliberately noisy or diversionary16 activity that disrupts or is about to disrupt normal school activities. It forbids this willful activity at fixed times—when school is in session—and at a sufficiently fixed place—'adjacent' to the school.17 Were we left with just the words of the ordinance, we might be troubled by the imprecision of the phrase 'tends to disturb.'18 However, in Chicago v. Meyer, 44 Ill.2d 1, 4, 253 N.E.2d 400, 402 (1969), and Chicago v. Gregory, 39 Ill.2d 47, 233 N.E.2d 422 (1968), reversed on other grounds, 394 U.S. 111, 89 S.Ct. 946, 22 L.Ed.2d 134 (1969), the Supreme Court of Illinois construed a Chicago ordinance prohibiting, inter alia, a 'diversion tending to disturb the peace,' and held that it permitted conviction only where there was 'imminent threat of violence.' (Emphasis supplied.) See Gregory v. Chicago, 394 U.S. 111, 116—117, 121—122, 89 S.Ct. 946, 947, 951—952 (1969) (Black, J., concurring).19 Since Meyer was specifically cited in the opinion below, and it in turn drew heavily on Gregory, we think it proper to conclude that the Supreme Court of Illinois would interpret the Rockford ordinance to prohibit only actual or imminent interference with the 'peace or good order' of the school.20
14
Although the prohibited quantum of disturbance is not specified in the ordinance, it is apparent from the statute's announced purpose that the measure is whether normal school activity has been or is about to be disrupted. We do not have here a vague, general 'breach of the peace' ordinance, but a statute written specifically for the school context, where the prohibited disturbances are easily measured by their impact on the normal activities of the school. Given this 'particular context,' the ordinance gives 'fair notice to those to whom (it) is directed.'21 Although the Rockford ordinance may not be as precise as the statute we upheld in Cameron v. Johnson, 390 U.S. 611, 88 S.Ct. 1335, 20 L.Ed.2d 182 (1968)—which prohibited picketing 'in such a manner as to obstruct or unreasonably interfere with free ingress or egress to and from' any courthouse—we think that, as in Cameron, the ordinance here clearly 'delineates its reach in words of common understanding.' Id., at 616, 88 S.Ct., at 1338.
15
Cox v. Louisiana, 379 U.S. 536, 85 S.Ct. 453, 13 L.Ed.2d 471 (1965), and Coates v. Cincinnati, 402 U.S. 611, 91 S.Ct. 1686, 29 L.Ed.2d 214 (1971), on which appellant particularly relies, presented completely different situations. In Cox, a general breach of the peace ordinance had been construed by state courts to mean 'to agitate, to arouse from a state of repose, to molest, to interrupt, to hinder, to disquiet.' The Court correctly concluded that, as construed, the ordinance permitted persons to be punished for merely expressing unpopular views.22 In Coates, the ordinance punished the sidewalk assembly of three or more persons who 'conduct themselves in a manner annoying to persons passing by . . ..' We held, in part, that the ordinance was impermissibly vague because enforcement depended on the completely subjective standard of 'annoyance.'
16
In contrast, Rockford's antinoise ordinance does not permit punishment for the expression of an unpopular point of view, and it contains no broad invitation to subjective or discriminatory enforcement. Rockford does not claim the broad power to punish all 'noises' and 'diversions.'23 The vagueness of these terms, by themselves, is dispelled by the ordinance's requirements that (1) the 'noise or diversion' be actually incompatible with normal school activity; (2) there be a demonstrated causality between the disruption that occurs and the 'noise or diversion'; and (3) the acts be 'willfully' done.24 'Undesirables' or their 'annoying' conduct may not be punished. The ordinance does not permit people to 'stand on a public sidewalk . . . only at the whim of any police officer.'25 Rather, there must be demonstrated interference with school activities. As always, enforcement requires the exercise of some degree of police judgment, but, as confined, that degree of judgment here is permissible. The Rockford City Council has made the basic policy choices, and has given fair warning as to what is prohibited. '(T)he ordinance defines boundaries sufficiently distinct' for citizens, policemen, juries, and appellate judges.26 It is not impermissibly vague.
B. Overbreadth
17
A clear and precise enactment may nevertheless be 'overbroad' if in its reach it prohibits constitutionally protected conduct.27 Although appellant does not claim that, as applied to him, the antinoise ordinance has punished protected expressive activity, he claims that the ordinance is overbroad on its face. Because overbroad laws, like vague ones, deter privileged activity, our cases firmly establish appellant's standing to raise an overbreadth challenge.28 The crucial question, then, is whether the ordinance sweeps within its prohibitions what may not be punished under the First and Fourteenth Amendments. Specifically, appellant contends that the Rockford ordinance unduly interferes with First and Fourteenth Amendment rights to picket on a public sidewalk near a school. We disagree.
18
'In considering the right of a municipality to control the use of public streets for the expression of religious (or political) views, we start with the words of Mr. Justice Roberts that 'Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.' Hague v. C.I.Q., 1939, 307 U.S. 496, 515, 59 S.Ct. 954, 964, 83 L.Ed. 1423.' Kunz v. New York, 340 U.S. 290, 293, 71 S.Ct. 312, 314, 95 L.Ed. 280 (1951). See Shuttles-worth v. Birmingham, 394 U.S. 147, 152, 89 S.Ct. 935, 939, 22 L.Ed.2d 162 (1969). The right to use a public place for expressive activity may be restricted only for weighty reasons.
19
Clearly, government has no power to restrict such activity because of its message.29 Our cases make equally clear, however, that reasonable 'time, place and manner' regulations may be necessary to further significant governmental interests, and are permitted.30 For example, two parades cannot march on the same street simultaneously, and government may allow only one. Cox v. New Hampshire, 312 U.S. 569, 576, 61 S.Ct. 762, 765, 85 L.Ed. 1049 (1941). A demonstration or parade on a large street during rush hour might put an intolerable burden on the essential flow of traffic, and for that reason could be prohibited. Cox v. Louisiana, 379 U.S., at 554, 85 S.Ct., at 464. If overamplified loudspeakers assault the citizenry, government may turn them down. Kovacs v. Cooper, 336 U.S. 77, 69 S.Ct. 448, 93 L.Ed. 513 (1949); Saia v. New York, 334 U.S. 558, 562, 68 S.Ct. 1148, 1150, 92 L.Ed. 1574 (1948). Subject to such reasonable regulation, however, peaceful demonstrations in public places are protected by the First Amendment.31 Of course, where demonstrations turn violent, they lose their protected quality as expression under the First Amendment.32
20
The nature of a place, 'the pattern of its normal activities, dictate the kinds of regulations of time, place, and manner that are reasonable.'33 Although a silent vigil may not unduly interfere with a public library, Brown v. Louisiana, 383 U.S. 131, 86 S.Ct. 719, 15 L.Ed.2d 637 (1966), making a speech in the reading room almost certainly would. That same speech should be perfectly appropriate in a park. The crucial question is whether the manner of expression is basically incompatible with the normal activity of a particular place at a particular time. Our cases make clear that in assessing the reasonableness of a regulation, we must weigh heavily the fact that communication is involved;34 the regulation must be narrowly tailored to further the State's legitimate interest.35 Access to the 'streets, sidewalks, parks, and other similar public places . . . for the purpose of exercising (First Amendment rights) cannot constitutionally be denied broadly . . .'36 Free expression 'must not, in the guise of regulation, be abridged or denied.'37
21
In light of these general principles, we do not think that Rockford's ordinance is an unconstitutional regulation of activity around a school. Our touchstone is Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969), in which we considered the question of how to accommodate First Amendment rights with the 'special characteristics of the school environment.' Id., at 506, 89 S.Ct. at 736. Tinker held that the Des Moines School District could not punish students for wearing black armbands to school in protest of the Vietnam war. Recognizing that "wide exposure to . . . robust exchange of ideas" is an 'important part of the educational process' and should be nurtured, id., at 512, 89 S.Ct., at 739, we concluded that free expression could not be barred from the school campus. We made clear that 'undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression,' id., at 508, 89 S.Ct., at 737,38 and that particular expressive activity could not be prohibited because of a 'mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint,' Id., at 509, 89 S.Ct., at 738. But we nowhere suggested that students, teachers, or anyone else has an absolute constitutional right to use all parts of a school building or its immediate environs for his unlimited expressive purposes. Expressive activity could certainly be restricted, but only if the forbidden conduct 'materially disrupts classwork or involves substantial disorder or invasion of the rights of others.' Id., at 513, 89 S.Ct., at 740. The wearing of armbands was protected in Tinker because the students 'neither interrupted school activities nor sought to intrude in the school affairs or the lives of others. They caused discussion outside of the classrooms, but no interference with work and no disorder.' Id., at 514, 89 S.Ct., at 740. Compare Burnside v. Byars, 363 F.2d 744 (CA5 1966), and Butts v. Dallas Ind. School District, 436 F.2d 728 (CA5 1971), with Blackwell v. Issaquena County Board of Education, 363 F.2d 749 (CA5 1966).
22
Just as Tinker made clear that school property may not be declared off limits for expressive activity by students, we think it clear that the public sidewalk adjacent to school grounds may not be declared off limits for expressive activity by members of the public. But in each case, expressive activity may be prohibited if it 'materially disrupts classwork or involves substantial disorder or invasion of the rights of others.' Tinker v. Des Moines School District, 393 U.S., at 513, 89 S.Ct., at 740.39
23
We would be ignoring reality if we did not recognize that the public schools in a community are important institutions, and are often the focus of significant grievances.40 Without interfering with normal school activities, daytime picketing and handbilling on public grounds near a school can effectively publicize those grievances to pedestrians, school visitors, and deliverymen, as well as to teachers, administrators, and students. Some picketing to that end will be quiet and peaceful, and will in no way disturb the normal functioning of the school. For example, it would be highly unusual if the classic expressive gesture of the solitary picket disrupts anything related to the school, at least on a public sidewalk open to pedestrians.41 On the other hand, schools could hardly tolerate boisterous demonstrators who drown out classroom conversation, make studying impossible, block entrances, or incite children to leave the schoolhouse.42
24
Rockford's antinoise ordinance goes no further than Tinker says a municipality may go to prevent interference with its schools. It is narrowly tailored to further Rockford's compelling interest in having an undisrupted school session conducive to the students' learning, and does not unnecessarily interfere with First Amendment rights. Far from having an impermissibly broad prophylactic ordinance,43 Rockford punishes only conduct which disrupts or is about to disrupt normal school activities. That decision is made, as it should be, on an individualized basis, given the particular fact situation. Peaceful picketing which does not interfere with the ordinary functioning of the school is permitted. And the ordinance gives no license to punish anyone because of what he is saying.44
25
We recognize that the ordinance prohibits some picketing that is neither violent nor physically obstructive. Noisy demonstrations that disrupt or are incompatible with normal school activities are obviously within the ordinance's reach. Such expressive conduct may be constitutionally protected at other places or other times, cf. Edwards v. South Carolina, 372 U.S. 229, 83 S.Ct. 680, 9 L.Ed.2d 697 (1963); Cox v. Louisiana, 379 U.S. 536, 85 S.Ct. 453, 13 L.Ed.2d 471 (1965), but next to a school, while classes are in session, it may be prohibited.45 The antinoise ordinance imposes no such restriction on expressive activity before or after the school session, while the student/faculty 'audience' enters and leaves the school.
26
In Cox v. Louisiana, 379 U.S. 559, 85 S.Ct. 476, 13 L.Ed.2d 487 (1965), this Court indicated that, because of the special nature of the place,46 persons could be constitutionally prohibited from picketing 'in or near' a courthouse 'with the intent of interfering with, obstructing, or impeding administration of justice.' Likewise, in Cameron v. Johnson, 390 U.S. 611, 88 S.Ct. 1335, 20 L.Ed.2d 182 (1968), we upheld a statute prohibiting picketing 'in such a manner as to obstruct or unreasonably interfere with free ingress or egress to and from any . . . county . . . courthouses.'47 As in those two cases, Rockford's modest restriction on some peaceful picketing represents a considered and specific legislative judgment that some kinds of expressive activity should be restricted at a particular time and place, here in order to protect the schools.48 Such a reasonable regulation is not inconsistent with the First and Fourteenth Amendments.49 The antinoise ordinance is not invalid on its face.50
27
The judgment is affirmed in part and reversed in part.
28
Affirmed in part and reversed in part.
29
Mr. Justice BLACKMUN joins in the judgment and in Part I of the opinion of the Court. He concurs in the result as to Part II of the opinion.
30
Mr. Justice DOUGLAS, dissenting in part.
31
While I join Part I of the Court's opinion, I would also reverse the appellant's conviction under the antinoise ordinance.
32
The municipal ordinance on which this case turns is c. 28, § 19.2(a) which provides in relevant part:
33
'That no person, while on public or private grounds adjacent to any building in which a school or any class thereof is in session, shall willfully make or assist in the making of any noise or diversion which disturbs or tends to disturb the peace or good order of such school session or class thereof.'
34
Appellant was one of 200 people picketing a school and carrying signs promoting a black cause—'Black cheerleaders to cheer too,' 'Black history with black teachers,' 'We want out rights', and the like. Appellant, however, did not himself carry a picket sign. There was no evidence that he yelled or made any noise whatsoever. Indeed, the evidence reveals that appellant simply marched quietly and on one occasion raised his arm in the 'power to the people' salute.
35
The pickets were mostly students; but they included former students, parents of students, and concerned citizens. They had made proposals to the school board on their demands and were turned down. Hence the picketing. The picketing was mostly by black students who were counseled and advised by a faculty member of the school. The school contained 1,800 students. Those counseling the students advised they must be quiet, walk hand in hand, no whispering, no talking.
36
Twenty-five policemen were stationed nearby. There was noise but most of it was produced by the police who used loudspeakers to explain the local ordinance and to announce that arrests might be made. The picketing did not stop, and some 40 demonstrators, including appellant, were arrested.
37
The picketing lasted 20 to 30 minutes and some students went to the windows of the classrooms to observe it. It is not clear how many there were. The picketing was, however, orderly or, as one officer testified, 'very orderly.' There was no violence. And appellant made no noise whatever.
38
What Mr. Justice Roberts said in Hague v. CIO, 307 U.S. 496, 515—516, 59 S.Ct. 954, 964, 83 L.Ed. 1423, has never been questioned:
39
'Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens. The privilege of a citizen of the United States to use the streets and parks for communication of views on national questions may be regulated in the interest of all; it is not absolute, but relative, and must be exercised in subordination to the general comfort and convenience, and in consonance with peace and good order; but it must not, in the guise of regulation, be abridged or denied.'
40
We held in Cox v. Louisiana, 379 U.S. 536, 544—545, 85 S.Ct. 453, 458—459, 13 L.Ed.2d 471, that a State could not infringe the right of free speech and free assembly by convicting demonstrators under a 'disturbing the peace' ordinance where all that the students in that case did was to protest segregation and discrimination against blacks by peaceably assembling and marching to the courthouse where they sang, prayed, and listened to a speech, but where there was no violence, no rioting, no boisterous conduct.
41
The school where the present picketing occurred was the center of a racial conflict. Most of the pickets were indeed students in the school. The dispute doubtless disturbed the school; and the blaring of the loudspeakers of the police was certainly a 'noise or diversion' in the meaning of the ordinance. But there was no evidence that appellant was noisy or boisterous or rowdy. He walked quietly and in an orderly manner. As I read this record, the disruptive force loosed at this school was an issue dealing with race—an issue that is preeminently one for solution by First Amendment means.* That is all that was done here; and the entire picketing, including appellant's part in it, was done in the best First Amendment tradition.
1
Police officers testified that 'there was no way of picking out any one in particular' while making arrests. Report of Proceedings in Circuit Court, 17th Judicial Circuit, Winnebago County 66. However, apparently only males were arrested. Id., at 65, 135, 147. Since appellant's sole claim in this appeal is that he was convicted under facially unconstitutional ordinances, there is no occasion for us to evaluate either the propriety of these selective arrests or the sufficiency of evidence that appellant himself actually engaged in conduct within the terms of the ordinances. Mr. Justice DOUGLAS, in concluding that appellant's particular behavior was protected by the First Amendment, reaches a question not presented by the parties here or in the court below. See Tr. of Oral Arg. 16—17; Jurisdictional Statement 3; City of Rockford v. Grayned, 46 Ill.2d 492, 494, 263 N.E.2d 866, 867 (1970).
2
In November 1971, the antipicketing ordinance was amended to delete the labor picketing proviso. As Rockford notes, 'This amendment and deletion has, of course, no effect on Appellant's personal situation.' Brief 2. Necessarily, we must consider the facial constitutionality of the ordinance in effect when appellant was arrested and convicted.
3
E.g., Papachristou v. City of Jacksonville, 405 U.S. 156, 162, 92 S.Ct. 839, 843, 31 L.Ed.2d 110 (1972); Cramp v. Board of Public Instruction, 368 U.S. 278, 287, 82 S.Ct. 275, 280, 7 L.Ed.2d 285 (1961); United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 811, 98 L.Ed. 989 (1954); Jordan v. De George, 341 U.S. 223, 230—232, 71 S.Ct. 703, 707—708, 95 L.Ed. 886 (1951); Lanzetta v. New Jersey, 306 U.S. 451, 453, 59 S.Ct. 618, 619, 83 L.Ed. 888 (1939); Connally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322 (1926); United States v. L. Cohen Grocery Co., 255 U.S. 81, 89, 41 S.Ct. 298, 300, 65 L.Ed. 516 (1921); International Harvester Co. v. Kentucky, 234 U.S. 216, 223—224, 34 S.Ct. 853, 855—856, 58 L.Ed. 1284 (1914).
4
E.g., Papachristou v. City of Jacksonville, supra; Coates v. Cincinnati, 402 U.S. 611, 614, 91 S.Ct. 1686, 1688, 29 L.Ed.2d 214 (1971); Gregory v. Chicago, 394 U.S. 111, 120, 89 S.Ct. 946, 951, 22 L.Ed.2d 134 (1969) (Black, J., concurring); Interstate Circuit, Inc. v. Dallas, 390 U.S. 676, 684—685, 88 S.Ct. 1298, 1303—1304, 20 L.Ed.2d 225 (1968); Ashton v. Kentucky, 384 U.S. 195, 200, 86 S.Ct. 1407, 1410, 16 L.Ed.2d 469 (1966); Giaccio v. Pennsylvania, 382 U.S. 399, 86 S.Ct. 518, 15 L.Ed.2d 447 (1966); Shuttlesworth v. Birmingham, 382 U.S. 87, 90—91, 86 S.Ct. 211, 213 214, 15 L.Ed.2d 176 (1965); Kunz v. New York, 340 U.S. 290, 71 S.Ct. 312, 95 L.Ed. 280 (s951); Saia v. New York, 334 U.S. 558, 559—560, 68 S.Ct. 1148, 1149, 92 L.Ed. 1574 (1948); Thornhill v. Alabama, 310 U.S. 88, 97—98, 60 S.Ct. 736, 741—742, 84 L.Ed. 1093 (1940); Herndon v. Lowry, 301 U.S. 242, 261—264, 57 S.Ct. 732, 740 742, 81 L.Ed. 1066 (1937).
5
Where First Amendment interests are affected, a precise statute 'evincing a legislative judgment that certain specific conduct be . . . proscribed,' Edwards v. South Carolina, 372 U.S. 229, 236, 83 S.Ct. 680, 684, 9 L.Ed.2d 697 (1963), assures us that the legislature has focused on the First Amendment interests and determined that other governmental policies compel regulation. See Kalven, The Concept of the Public Forum: Cox v. Louisiana, 1965 Sup.Ct.Rev. 1, 32; Garner v. Louisiana, 368 U.S. 157, 200, 202, 82 S.Ct. 248, 271—272, 7 L.Ed.2d 207 (1961) (Harlan, J., concurring in judgment).
6
Baggett v. Bullitt, 377 U.S. 360, 372, 84 S.Ct. 1316, 1323, 12 L.Ed.2d 377 (1964).
7
Cramp v. Board of Public Instruction, 368 U.S., at 287, 82 S.Ct., at 281.
8
Baggett v. Bullitt, supra, 377 U.S., at 372, 84 S.Ct., at 1323, quoting Speiser v. Randall, 357 U.S. 513, 526, 78 S.Ct. 1332, 1342, 12 L.Ed.2d 1460. See Interstate Circuit v. Dallas, supra, 390 U.S., at 684, 88 S.Ct., at 1303; Ashton v. Kentucky, supra, 384 U.S., at 195, 200—201, 86 S.Ct., at 1407, 1410; Dombrowski v. Pfister, 380 U.S. 479, 486, 85 S.Ct. 1116, 1120, 14 L.Ed.2d 22 (1965); Smith v. California, 361 U.S. 147, 150—152, 80 S.Ct. 215, 217—218, 4 L.Ed.2d 205 (1959); Winters v. New York, 333 U.S. 507, 68 S.Ct. 665, 92 L.Ed. 840 (1948); Stromberg v. California, 283 U.S. 359, 369, 51 S.Ct. 532, 535, 75 L.Ed. 1117 (1931).
9
The trial magistrate simply charged the jury in the words of the ordinance. The complaint and verdict form used slightly different language. See n. 24, infra.
10
Garner v. Louisiana, 368 U.S., at 174, 82 S.Ct., at 257 (concurring in judgment).
11
Coates v. Cincinnati, 402 U.S., at 614, 91 S.Ct., at 1688.
12
E.g., Gooding v. Wilson, 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972).
13
E.g., Lake Carriers Association v. MacMullan, 406 U.S. 498, 506—508, 92 S.Ct. 1749, 1755—1756, 32 L.Ed.2d 257 (1972); Cole v. Richardson, 405 U.S. 676, 92 S.Ct. 1332, 31 L.Ed.2d 593 (1972); Ehlert v. United States, 402 U.S. 99, 105, 107, 91 S.Ct. 1319, 1323, 1324, 28 L.Ed.2d 625 (1971); cf. Poe v. Ullman, 367 U.S. 497, 81 S.Ct. 1752, 6 L.Ed.2d 989 (1961).
14
United States v. 37 Photographs, 402 U.S. 363, 369, 91 S.Ct. 1400, 1404, 28 L.Ed.2d 822 (1971).
15
It will always be true that the fertile legal 'imagination can conjure up hypothetical cases in which the meaning of (disputed) terms will be in nice question.' American Communications Assn. v. Douds, 339 U.S. 382, 412, 70 S.Ct. 674, 691, 94 L.Ed. 925 (1950).
16
'Diversion' is defined by Webster's Third New International Dictionary as 'the act or an instance of diverting from one course or use to another . . .: the act or an instance of diverting (as the mind or attention) from some activity or concern . . .: a turning aside . . .: something that turns the mind from serious concerns or ordinary matters and relaxes or amuses.'
17
Cf. Cox v. Louisiana, 379 U.S. 559, 568—569, 85 S.Ct. 476, 482—483, 13 L.Ed.2d 487 (1965) ('near' the courthouse not impermissibly vague).
18
See Gregory v. Chicago, 394 U.S., at 119—120, 89 S.Ct., at 950—951, 22 L.Ed.2d 134 (Black, J., concurring); Gooding v. Wilson, 405 U.S., at 525—527, 92 S.Ct., at 1107—1108; Craig v. Harney, 331 U.S. 367, 372, 67 S.Ct. 1249, 1253, 91 L.Ed. 1546 (1947); cf. Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942) (statute punishing 'fighting words,' that have a 'direct tendency to cause acts of violence,' upheld); Street v. New York, 394 U.S. 576, 592, 89 S.Ct. 1354, 1365 (1969).
19
Cf. Chicago v. Terminiello, 400 Ill. 23, 79 N.E.2d 39 (1948), reversed on other grounds, 337 U.S. 1, 6, 69 S.Ct. 894, 896, 93 L.Ed. 1131 (1949).
20
Some intermediate appellate courts in Illinois appear to have interpreted the phrase 'tending to' out of the Chicago ordinance entirely, at least in some contexts. Chicago v. Hansen, 337 Ill.App. 663, 86 N.E.2d 415 (1949); Chicago v. Holmes, 339 Ill.App. 146, 88 N.E.2d 744 (1949); Chicago v. Nesbitt, 19 Ill.App.2d 220, 153 N.E. 259 (1958); but cf. Chicago v. Williams, 45 Ill.App.2d 327, 195 N.E.2d 425 (1963).
In its brief, the city of Rockford indicates that its sole concern is with actual disruption. '(A) court and jury (are) charged with the duty of determining whether or not . . . a school has been disrupted and that the defendant's conduct, (no matter what it was), caused or contributed to cause the disruption.' Brief for Appellee 16 (emphasis supplied). This was the theory on which the city tried appellant's case to the jury, Report, supra, n. 1, at 12—13, although the jury was instructed in the words of the ordinance. As already noted, supra, n. 1, no challenge is made here to the Rockford ordinance as applied in this case.
21
American Communications Assn. v. Douds, 339 U.S., at 412, 70 S.Ct., at 691.
22
Cf. Edwards v. South Carolina, 372 U.S. 229, 83 S.Ct. 680, 9 L.Ed.2d 697 (1963); Cantwell v. Connecticut, 310 U.S. 296, 308, 60 S.Ct. 900, 905, 84 L.Ed. 1213 (1940). Similarly, in numerous other cases, we have condemned broadly worded licensing ordinances which grant such standardless discretion to public officials that they are free to censor ideas and enforce their own personal preferences. Shuttlesworth v. Birmingham, 394 U.S. 147, 89 S.Ct. 935, 22 L.Ed.2d 162 (1969); Staub v. City of Baxley, 355 U.S. 313, 78 S.Ct. 277, 2 L.Ed.2d 302 (1958); Saia v. New York, 334 U.S. 558, 68 S.Ct. 1148, 92 L.Ed. 1574 (1948); Schneider v. State, 308 U.S. 147, 163—164, 60 S.Ct. 146, 151—152, 84 L.Ed. 155 (1939); Lovell v. Griffin, 303 U.S. 444, 58 S.Ct. 666, 82 L.Ed. 949 (1938); Hague v. CIO, 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423 (1939).
23
Cf. Cox v. Louisiana, 379 U.S. 536, 546—550, 85 S.Ct. 453, 459—462, 13 L.Ed.2d 471 (1965); Edwards v. South Carolina, 372 U.S., at 234—237, 83 S.Ct., at 682—684.
24
Tracking the complaint, the jury verdict found Grayned guilty of "(w) ilfully causing diversion of good order of public school in session, in that while on school grounds and while school was in session, did wilfully make and assist in the making of a diversion which tended to disturb the peace and good order of the school session and class thereof."
25
Shuttlesworth v. Birmingham, 382 U.S., at 90, 86 S.Ct., at 213.
26
Chicago v. Fort, 46 Ill.2d 12, 16, 262 N.E.2d 473, 476 (1970), a case cited in the opinion below.
27
See Zwickler v. Koota, 389 U.S. 241, 249—250, 88 S.Ct. 391, 396—397, 19 L.Ed.2d 444 (1967), and cases cited.
28
E.g., Gooding v. Wilson, 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972); Coates v. Cincinnati, 402 U.S., at 616, 91 S.Ct., at 1689; Dombrowski v. Pfister, 380 U.S., at 486, 85 S.Ct., at 1120, and cases cited; Kunz v. New York, 340 U.S. 290, 71 S.Ct. 312, 95 L.Ed. 280 (1951).
29
Police Department of Chicago v. Mosley, 408 U.S. 92, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972).
30
Cox v. New Hampshire, 312 U.S. 569, 575—576, 61 S.Ct. 762, 765, 766, 85 L.Ed. 1049 (1941); Kunz v. New York, 340 U.S., at 293—294, 71 S.Ct., at 314—315; Poulos v. New Hampshire, 345 U.S. 395, 398, 73 S.Ct. 760, 762, 97 L.Ed. 1105 (1953); Cox v. Louisiana, 379 U.S., at 554—555, 85 S.Ct., at 464—465; Cox v. Louisiana, 379 U.S. 559, 85 S.Ct. 476, 13 L.Ed.2d 487 (1965); Adderley v. Florida, 385 U.S. 39, 46—48, 87 S.Ct. 242, 246—247, 17 L.Ed.2d 149 (1966); Amalgamated Food Employees v. Logan Valley Plaza, 391 U.S. 308, 320—321, 88 S.Ct. 1601, 1609—1610, 20 L.Ed.2d 603 (1968); Shuttlesworth v. Birmingham, 394 U.S. 147, 89 S.Ct. 935, 22 L.Ed.2d 162 (1969).
31
Police Department of Chicago v. Mosley, 408 U.S., at 95 96, 92 S.Ct., at 2289—2290, and cases cited.
32
See generally T. Emerson, The System of Freedom of Expression 328—345 (1970).
33
Wright, The Constitution on the Campus, 22 Vand.L.Rev. 1027, 1042 (1969). Cf. Cox v. Louisiana, 379 U.S. 559, 85 S.Ct. 476, 13 L.Ed.2d 487 (1965); Adderley v. Florida, 385 U.S. 39, 87 S.Ct. 242, 17 L.Ed.2d 149 (1966); Amalgamated Food Employees v. Logan Valley Plaza, 391 U.S. 308, 88 S.Ct. 1601, 20 L.Ed.2d 603 (1968); Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969).
34
E.g., Schneider v. State, 308 U.S. 147, 60 S.Ct. 146, 84 L.Ed. 155 (1939); Talley v. California, 362 U.S. 60, 80 S.Ct. 536, 4 L.Ed.2d 559 (1960); Saia v. New York, 334 U.S., at 562, 68 S.Ct., at 1150; Cox v. New Hampshire, 312 U.S., at 574, 61 S.Ct., at 765; Hague v. CIO, 307 U.S., at 516, 59 S.Ct., at 964. See generally Kalven, The Concept of the Public Forum: Cox v. Louisiana, 1965 Sup.Ct.Rev. 1.
35
De Jonge v. Oregon, 299 U.S. 353, 364—365, 57 S.Ct. 255, 259—260, 81 L.Ed. 278 (1937); Lovell v. Griffin, 303 U.S., at 451, 58 S.Ct., at 668; Schneider v. State, 308 U.S., at 164, 60 S.Ct., at 152; Cantwell v. Connecticut, 310 U.S., at 307, 60 S.Ct., at 905; Cox v. Louisiana, 379 U.S., at 562—564, 85 S.Ct., at 479—480; Davis v. Francois, 395 F.2d 730 (CA5 1968). Cf. Shelton v. Tucker, 364 U.S. 479, 488, 81 S.Ct. 247, 252, 5 L.Ed.2d 231 (1960); NAACP v. Button, 371 U.S. 415, 438, 83 S.Ct. 328, 340, 9 L.Ed.2d 405 (1963).
36
Amalgamated Food Employees v. Logan Valley Plaza, 391 U.S., at 315, 88 S.Ct., at 1607.
37
Hague v. CIO, 307 U.S., at 516, 59 S.Ct., at 964.
38
Cf. Hague v. CIO, supra, 307 U.S., at 516, 59 S.Ct., at 964.
39
In Tinker we recognized that the principle of that case was not limited to expressive activity within the school building itself. Id., 393 U.S. at 512 n. 6, 513—514, 89 S.Ct., at 739, 740 741. See Esteban v. Central Missouri State College, 415 F.2d 1077 (CA8 1969) (Blackmun, J.), cert. denied, 398 U.S. 965, 90 S.Ct. 2169, 26 L.Ed.2d 548 (1970); Jones v. Board of Regents, 436 F.2d 618 (CA9 1970); Hammond v. South Carolina State College, 272 F.Supp. 947 (S.C.1967) cited in Tinker.
40
Cf. Thornhill v. Alabama, 310 U.s., at 102, 60 S.Ct., at 744. It goes without saying that 'one is not to have the exercise of his liberty of expression in appropriate places abridged on the plea that it may be exercised in some other place.' Schneider v. State, 308 U.S., at 163, 60 S.Ct., at 151.
41
Cf. Jones v. Board of Regents, supra.
42
Cf. Barker v. Hardway, 283 F.Supp. 228 (SD W.Va.), aff'd 399 F.2d 638 (CA4 1968), cert. denied, 394 U.S. 905, 89 S.Ct. 1009, 22 L.Ed.2d 217 (1969) (Fortas, J., concurring).
43
See Jones v. Board of Regents, supra; Hammond v. South Carolina State College, supra.
44
Compare Scoville v. Board of Education, 425 F.2d 10 (CA7), cert. denied, 400 U.S. 826, 91 S.Ct. 51, 27 L.Ed.2d 55 (1970); Dickey v. Alabama State Board of Education, 273 F.Supp. 613 (MD Ala.1967) (cited in Tinker).
45
Different considerations, of course, apply in different circumstances. For example, restrictions appropriate to a single-building high school during class hours would be inappropriate in many open areas on a college campus, just as an assembly that is permitted outside a dormitory would be inappropriate in the middle of a mathematics class.
46
Noting the need 'to assure that the administration of justice at all stages is free from outside control and influence,' we emphasized that '(a) State may protect against the possibility of a conclusion by the public . . . (that a) judge's action was in part a product of intimidation and did not flow only from the fair and orderly working of the judicial process.' 379 U.S., at 562, 565, 85 S.Ct., at 480.
47
Quoting Schneider v. State, 308 U.S., at 161, 60 S.Ct., at 150, we noted that "such activity bears no necessary relationship to the freedom to . . . distribute information or opinion." Id., at 617, 88 S.Ct., at 1339.
48
Cf. Garner v. Louisiana, 368 U.S., at 202—203, 82 S.Ct., at 271—272 (Harlan, J., concurring in judgment).
49
Cf. Adderley v. Florida, 385 U.S. 39, 87 S.Ct. 242, 17 L.Ed.2d 149 (1966). In Adderley, the Court held that demonstrators could be barred from jailhouse grounds not ordinarily open to the public, at least where the demonstration obstructed the jail driveway and interfered with the functioning of the jail. In Tinker we noted that 'a school is not like a hospital or a jail enclosure.' 393 U.S., at 512 n. 6, 89 S.Ct., at 739.
50
It is possible, of course, that there will be unconstitutional applications; but that is not a matter which presently concerns us. See Shuttlesworth v. Birmingham, 382 U.S., at 91, 86 S.Ct., at 213, and n. 1, supra.
*
The majority asserts that 'appellant's sole claim . . . is that he was convicted under facially unconstitutional ordinances' and that there is, therefore, no occasion to consider whether his activities were protected by the First Amendment. Ante, at 106 n. 1. Appellant argues, however, that the ordinance is overly broad in that it punishes constitutionally protected activity. A statute may withstand an overbreadth attack 'only if, as authoritatively construed . . ., it is not susceptible of application to speech . . . that is protected by the First and Fourteenth Amendments.' Gooding v. Wilson, 405 U.S. 518, 520, 92 S.Ct. 1103, 1105, 31 L.Ed.2d 408 (1972). If the ordinance applies to appellant's activities and if appellant's activities are constitutionally protected, then the ordinance is overly broad and, thus, unconstitutional. There is no merit, therefore, to the Court's suggestion that the question whether 'appellant's particular behavior was protected by the First Amendment,' ante, at 106 n. 1, is not presented.
| 23
|
408 U.S. 471
92 S.Ct. 2593
33 L.Ed.2d 484
John J. MORRISSEY and G. Donald Booher, Petitioners,v.Lou B. BREWER, Warden, et al.
No. 71—5103.
Argued April 11, 1972.
Decided June 29, 1972.
Syllabus
Petitioners in these habeas corpus proceedings claimed that their paroles were revoked without a hearing and that they were thereby deprived of due process. The Court of Appeals, in affirming the District Court's denial of relief, reasoned that under controlling authorities parole is only 'a correctional device authorizing service of sentence outside a penitentiary,' and concluded that a parolee, who is still 'in custody,' is not entitled to a full adversary hearing such as would be mandated in a criminal proceeding. Held:
1. Though parole revocation does not call for the full panoply of rights due a defendant in a criminal proceeding, a parolee's liberty involves significant values within the protection of the Due Process Clause of the Fourteenth Amendment, and termination of that liberty requires an informal hearing to give assurance that the finding of a parole violation is based on verified facts to support the revocation. Pp. 480—482.
2. Due process requires a reasonably prompt informal inquiry conducted by an impartial hearing officer near the place of the alleged parole violation or arrest to determine if there is reasonable ground to believe that the arrested parolee has violated a parole condition. The parolee should receive prior notice of the inquiry, its purpose, and the alleged violations. The parolee may present relevant information and (absent security considerations) question adverse informants. The hearing officer shall digest the evidence on probable cause and state the reasons for holding the parolee for the parole board's decision. Pp. 484 487.
3. At the revocation hearing, which must be conducted reasonably soon after the parolee's arrest, minimum due process requirements are: (a) written notice of the claimed violations of parole; (b) disclosure to the parolee of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a 'neutral and detached' hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and (f) a written statement by the factfinders as to the evidence relied on and reasons for revoking parole. Pp. 487—490.
443 F.2d 942, reversed and remanded.
W. Don Brittin, Jr., Des Moines, Iowa, for petitioners.
Larry S. Seuferer, Asst. Atty. Gen. of Iowa, Des Moines, Iowa, for respondent.
Mr. Chief Justice BURGER delivered the opinion of the Court.
1
We granted certiorari in this case to determine whether the Due Process Clause of the Fourteenth Amendment requires that a State afford an individual some opportunity to be heard prior to revoking his parole.
2
Petitioner Morrissey was convicted of false drawing or uttering of checks in 1967 pursuant to his guilty plea, and was sentenced to not more than seven years' confinement. He was paroled from the Iowa State Penitentiary in June 1968. Seven months later, at the direction of his parole officer, he was arrested in his home town as a parole violator and incarcerated in the county jail. One week later, after review of the parole officer's written report, the Iowa Board of Parole revoked Morrissey's parole, and he was returned to the penitentiary located about 100 miles from his home. Petitioner asserts he received no hearing prior to revocation of his parole.
3
The parole officer's report on which the Board of Parole acted shows that petitioner's parole was revoked on the basis of information that he had violated the conditions of parole by buying a car under an assumed name and operating it without permission, giving false statements to police concerning his address and insurance company after a minor accident, obtaining credit under an assumed name, and failing to report his place of residence to his parole officer. The report states that the officer interviewed Morrissey, and that he could not explain why he did not contact his parole officer despite his effort to excuse this on the ground that he had been sick. Further, the report asserts that Morrissey admitted buying the car and obtaining credit under an assumed name, and also admitted being involved in the accident. The parole officer recommended that his parole be revoked because of 'his continual violating of his parole rules.'
4
The situation as to petitioner Booher is much the name. Pursuant to his guilty plea, Booher was convicted of forgery in 1966 and sentenced to a maximum term of 10 years. He was paroled November 14, 1968. In August 1969, at his parole officer's direction, he was arrested in his home town for a violation of his parole and confined in the county jail several miles away. On September 13, 1969, on the basis of a written report by his parole officer, the Iowa Board of Parole revoked Booher's parole and Booher was recommitted to the state penitentiary, located about 250 miles from his home, to complete service of his sentence. Petitioner asserts he received no hearing prior to revocation of his parole.
5
The parole officer's report with respect to Booher recommended that his parole be revoked because he had violated the territorial restrictions of his parole without consent, had obtained a driver's license under an assumed name, operated a motor vehicle without permission, and had violated the employment condition of his parole by failing to keep himself in gailful employment. The report stated that the officer had interviewed Booher and that he had acknowledged to the parole officer that he had left the specified territorial limits and had operated the car and had obtained a license under an assumed name 'knowing that it was wrong.' The report further noted that Booher had stated that he had not found employment because he could not find work that would pay him what he wanted—he stated he would not work for $2.25 to $2.75 per hour—and that he had left the area to get work in another city.
6
After exhausting state remedies, both petitioners filed habeas corpus petitions in the United States District Court for the Southern District of Iowa alleging that they had been denied due process because their paroles had been revoked without a hearing. The State responded by arguing that no hearing was required. The District Court held on the basis of controlling authority that the State's failure to accord a hearing prior to parole revocation did not violate due process. On appeal, the two cases were consolidated.
7
The Court of Appeals, dividing 4 to 3, held that due process does not require a hearing. The majority recognized that the traditional view of parole as a privilege rather than a vested right is no longer dispositive as to whether due process is applicable; however, on a balancing of the competing interests involved, it concluded that no hearing is required. The court reasoned that parole is only 'a correctional device authorizing service of sentence outside the penitentiary', 443 F.2d 942, 947; the parolee is still 'in custody.' Accordingly, the Court of Appeals was of the view that prison officials must have large discretion in making revocation determinations, and that courts should retain their traditional reluctance to interfere with disciplinary matters properly under the control of state prison authorities. The majority expressed the view that 'non-legal, non-adversary considerations' were often the determinative factors in making a parole revocation decision. It expressed concern that if adversary hearings were required for parole revocation, 'with the full panoply of rights accorded in criminal proceedings,' the function of the parole board as 'an administrative body acting in the role of parens patriae would be aborted', id., at 949, and the board would be more reluctant to grant parole in the first instance—an apprehension that would not be without some basis if the choice were between a full-scale adversary proceeding or no hearing at all. Additionally, the majority reasoned that the parolee has no statutory right to remain on parole. Iowa law provides that a parolee may be returned to the institution at any time. Our holding in Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967), was distinguished on the ground that it involved deferred sentencing upon probation revocation, and thus involved a stage of the criminal proceeding, whereas parole revocation was not a stage in the criminal proceeding. The Court of Appeals' decision was consistent with many other decisions on parole revocations.
8
In their brief in this Court, respondents assert for the first time that petitioners were in fact granted hearings after they were returned to the penitentiary. More generally, respondents say that within two months after the Board revokes an individual's parole and orders him returned to the penitentiary, on the basis of the parole officer's written report it grants the individual a hearing before the Board. At that time, the Board goes over 'each of the alleged parole violations with the returnee, and he is given an opportunity to orally present his side of the story to the Board.' If the returnee denies the report, it is the practice of the Board to conduct a further investigation before making a final determination either affirming the initial revocation, modifying it, or reversing it.1 Respondents assert that Morrissey, whose parole was revoked on January 31, 1969, was granted a hearing before the Board on February 12, 1969. Booher's parole was revoked on September 13, 1969, and he was granted a hearing on October 14, 1969. At these hearings, respondents tell us—in the briefs—both Morrissey and Booher admitted the violations alleged in the parole violation reports.
9
Nothing in the record supplied to this Court indicates that respondent claimed, either in the District Court or the Court of Appeals, that petitioners had received hearings promptly after their paroles were revoked, or that in such hearing they admitted the violations; that information comes to us only in the respondents' brief here. Further, even the assertions that respondents make here are not based on any public record but on interviews with two of the members of the parole board. In the interview relied on to show that petitioners admitted their violations, the board member did not assert he could remember that both Morrissey and Booher admitted the parole violations with which they were charged. He stated only that, according to his memory, in the previous several years all but three returnees had admitted commission of the parole infractions agreed and that neither of the petitioners was among the three who denied them.
10
We must therefore treat this case in the posture and on the record respondents elected to rely on in the District Court and the Court of Appeals. If the facts are otherwise, respondents may make a showing in the District Court that petitioners in fact have admitted the violations charged before a neutral officer.
11
* Before reaching the issue of whether due process applies to the parole system, it is important to recall the function of parole in the correctional process.
12
During the past 60 years, the practice of releasing prisoners on parole before the end of their sentences has become an integral part of the penological system. Note, Parole Revocation in the Federal System, 56 Geo.L.J. 705 (1968). Rather than being an ad hoc exercise of clemency, parole is an established variation on imprisonment of convicted criminals. Its purpose is to help individuals reintegrate into society as constructive individuals as soon as they are able, without being confined for the full term of the sentence imposed. It also serves to alleviate the costs to society of keeping an individual in prison.2 The essence of parole is release from prison, before the completion of sentence, on the condition that the prisoner abide by certain rules during the balance of the sentence. Under some systems, parole is granted automatically after the service of a certain portion of a prison term. Under others, parole is granted by the discretionary action of a board, which evaluates an array of information about a prisoner and makes a prediction whether he is ready to reintegrate into society.
13
To accomplish the purpose of parole, those who are allowed to leave prison early are subjected to specified conditions for the duration of their terms. These conditions restrict their activities substantially beyond the ordinary restrictions imposed by law on an individual citizen. Typically, parolees are forbidden to use liquor or to have associations or correspondence with certain categories of undesirable persons. Typically, also they must seek permission from their parole officers before engaging in specified activities, such as changing employment or living quarters, marrying, acquiring or operating a motor vehicle, travling outside the community, and incurring substantial indebtedness. Additionally, parolees must regularly report to the parole officer to whom they are assigned and sometimes they must make periodic written reports of their activities. Arluke, A Summary of Parole Rules—Thirteen Years Later, 15 Crime & Delin. 267, 272—273 (1969).
14
The parole officers are part of the administrative system designed to assist parolees and to offer them guidance. The conditions of parole serve a dual purpose; they prohibit, either absolutely or conditionally, behavior that is deemed dangerous to the restoration of the individual into normal society. And through the requirement of reporting to the parole officer and seeking guidance and permission before doing many things, the officer is provided with information about the parole and an opportunity to advise him. The combination puts the parole officer into the position in which he can try to guide the parolee into constructive development.3
15
The enforcement leverage that supports the parole conditions derives from the authority to return the parolee to prison to serve out the balance of his sentence if he fails to abide by the rules. In practice, not every violation of parole conditions automatically leads to revocation. Typically, a parolee will be counseled to abide by the conditions of parole, and the parole officer ordinarily does not take steps to have parole revoked unless he thinks that the violations are serious and continuing so as to indicate that the parolee is not adjusting properly and cannot be counted on to avoid antisocial activity.4 The broad discretion accorded the parole officer is also inherent in some of the quite vague conditions, such as the typical requirement that the parolee avoid 'undesirable' associations or correspondence. Cf. Arciniega v. Freeman, 404 U.S. 4, 92 S.Ct. 22, 30 L.Ed.2d 126 (1971). Yet revocation of parole is not an unusual phenomenon, affecting only a few parolees. It has been estimated that 35%—45% of all parolees are subjected to revocation and return to prison.5 Sometimes revocation occurs when the parolee is accused of another crime; it is often preferred to a new prosecution because of the procedural ease of recommitting the individual on the basis of a lesser showing by the State.6
16
Implicit in the system's concern with parole violations is the notion that the parolee is entitled to retain his liberty as long as he substantially abides by the conditions of his parole. The first step in a revocation decision thus involves a wholly retrospective factual question: whether the parolee has in fact acted in violation of one or more conditions of his parole. Only if it is determined that the parolee did violate the conditions does the second question arise: should the parolee be recommitted to prison or should other steps be taken to protect society and improve chances of rehabilitation? The first step is relatively simple; the second is more complex. The second question involves the application of expertise by the parole authority in making a prediction as to the ability of the individual to live in society without committing antisocial acts. This part of the decision, too, depends on facts, and therefore it is important for the board to know not only that some violation was committed but also to know accurately how many and how serious the violations were. Yet this second step, deciding what to do about the violation once it is identified, is not purely factual but also predictive and discretionary.
17
If a parolee is returned to prison, he usually receives no credit for the time 'served' on parole.7 Thus, the returnee may face a potential of substantial imprisonment.
II
18
We begin with the proposition that the revocation of parole is not part of a criminal prosecution and thus the full panoply of rights due a defendant in such a proceeding does not apply to parole revocations. Cf. Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967). Parole arises after the end of the criminal prosecution, including imposition of sentence. Supervision is not directly by the court buy by an administrative agency, which is sometimes an arm of the court and sometimes of the executive. Revocation deprives an individual, not of the absolute liberty to which every citizen is entitled, but only of the conditional liberty properly dependent on observance of special parole restrictions.
19
We turn, therefore, to the question whether the requirements of due process in general apply to parole revocations. As Mr. Justice Blackmun has written recently, 'this Court now has rejected the concept that constitutional rights turn upon whether a governmental benefit is characterized as a 'right' or as a 'privilege." Graham v. Richardson, 403 U.S. 365, 374, 91 S.Ct. 1848, 1853, 29 L.Ed.2d 534 (1971). Whether any procedural protections are due depends on the extent to which an individual will be 'condemned to suffer grievous loss.' Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 168, 71 S.Ct. 624, 646, 95 L.Ed. 817 (1951) (Frankfurter, J., concurring), quoted in Goldberg v. Kelly, 397 U.S. 254, 263, 90 S.Ct. 1011, 1018, 25 L.Ed.2d 287 (1970). The question is not merely the 'weight' of the individual's interest, but whether the nature of the interest is one within the contemplation of the 'liberty or property' language of the Fourteenth Amendment. Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972). Once it is determined that due process applies, the question remains what process is due. It has been said so often by this Court and others as not to require citation of authority that due process is flexible and calls for such procedural protections as the particular situation demands. '(C)onsideration of what procedures due process may require under 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 that has been affected by governmental action.' Cafeteria & Restaurant Workers Union v. McElroy, 367 U.S. 886, 895, 81 S.Ct. 1743, 1748, 6 L.Ed.2d 1230 (1961). To say that the concept of due process is flexible does not mean that judges are at large to apply it to any and all relationships. Its flexibility is in its scope once it has been determined that some process is due; it is a recognition that not all situations calling for procedural safeguards call for the same kind of procedure.
20
We turn to an examination of the nature of the interest of the parolee in his continued liberty. The liberty of a parolee enables him to do a wide range of things open to persons who have never been convicted of any crime. The parolee has been released from prison based on an evaluation that he shows reasonable promise of being able to return to society and function as a responsible, self-reliant person. Subject to the conditions of his parole, he can be gainfully employed and is free to be with family and friends and to form the other enduring attachments of normal life. Though the State property subjects him to many restrictions not applicable to other citizens, his condition is very different from that of confinement in a prison.8 He may have been on parole for a number of years and may be living a relatively normal life at the time he is faced with revocation.9 The parolee has relied on at least an implicit promise that parole will be revoked only if he fails to live up to the parole conditions. In many cases, the parolee faces lengthy incarceration if his parole is revoked.
21
We see, therefore, that the liberty of a parolee, although indeterminate, includes many of the core values of unqualified liberty and its termination inflicts a 'grievous loss' on the parolee and often on others. It is hardly useful any longer to try to deal with this problem in terms of whether the parolee's liberty is a 'right' or a 'privilege.' By whatever name, the liberty is valuable and must be seen as within the protection of the Fourteenth Amendment. Its termination calls for some orderly process, however informal.
22
Turning to the question what process is due, we find that the State's interests are several. The State has found the parolee guilty of a crime against the people. That finding justifies imposing extensive restrictions on the individual's liberty. Release of the parolee before the end of his prison sentence is made with the recognition that with many prisoners there is a risk that they will not be able to live in society without committing additional antisocial acts. Given the previous conviction and the proper imposition of conditions, the State has an overwhelming interest in being able to return the individual to imprisonment without the burden of a new adversary criminal trial if in fact he has failed to abide by the conditions of his parole.
23
Yet, the State has no interest in revoking parole without some informal procedural guarantees. Although the parolee is often formally described as being 'in custody,' the argument cannot even be made here that summary treatment is necessary as it may be with respect to controlling a large group of potentially disruptive prisoners in actual custody. Nor are we persuaded by the argument that revocation is so totally a discretionary matter that some form of hearing would be administratively intolerable. A simple factual hearing will not interfere with the exercise of discretion. Serious studies have suggested that fair treatment on parole revocation will not result in fewer grants of parole.10
24
This discretionary aspect of the revocation decision need not be reached unless there is first an appropriate determination that the individual has in fact breached the conditions of parole. The parolee is not the only one who has a stake in his conditional liberty. Society has a stake in whatever may be the chance of restoring him to normal and useful life within the law. Society thus has an interest in not having parole revoked because of erroneous information or because of an erroneous evaluation of the need to revoke parole, given the breach of parole conditions. See People ex rel. Menechino v. Warden, 27 N.Y.2d 376, 379, and n. 2, 318 N.Y.S.2d 449, 450, and n. 2, 267 N.E.2d 238, 239, and n. 2 (1971) (parole board had less than full picture of facts). And society has a further interest in treating the parolee with basic fairness: fair treatment in parole revocations will enhance the chance of rehabilitation by avoiding reactions to arbitrariness.11
25
Given these factors, most States have recognized that there is no interest on the part of the State in revoking parole without any procedural guarantees at all.12 What is needed is an informal hearing structured to assure that the finding of a parole violation will be based on verified facts and that the exercise of discretion will be informed by an accurate knowledge of the parolee's behavior.
III
26
We now turn to the nature of the process that is due, bearing in mind that the interest of both State and parolee will be furthered by an effective but informal hearing. In analyzing what is due, we see two important stages in the typical process of parole revocation.
27
(a) Arrest of Parolee and Preliminary Hearing. The first stage occurs when the parolee is arrested and detained, usually at the direction of his parole officer. The second occurs when parole is formally revoked. There is typically a substantial time lag between the arrest and the eventual determination by the parole board whether parole should be revoked. Additionally, it may be that the parolee is arrested at a place distant from the state institution, to which he may be returned before the final decision is made concerning revocation. Given these factors, due process would seem to require that some minimal inquiry be conducted at or reasonably near the place of the alleged parole violation or arrest and as promptly as convenient after arrest while information is fresh and sources are available. Cf. Hyser v. Reed, 115 U.S.App.D.C. 254, 318 F.2d 225 (1963). Such an inquiry should be seen as in the nature of a 'preliminary hearing' to determine whether there is probable cause or reasonable ground to believe that the arrested parolee has committed acts that would constitute a violation of parole conditions. Cf. Goldberg v. Kelly, 397 U.S., at 267—271, 90 S.Ct. at 1020—1022, 25 L.Ed.2d 287.
28
In our view, due process requires that after the arrest, the determination that reasonable ground exists for revocation of parole should be made by someone not directly involved in the case. It would be unfair to assume that the supervising parole officer does not conduct an interview with the parolee to confront him with the reasons for revocation before he recommends an arrest. It would also be unfair to assume that the parole officer bears hostility against the parolee that destroys his neutrality; realistically the failure of the parolee is in a sense a failure for his supervising officer.13 However, we need make no assumptions one way or the other to conclude that there should be an uninvolved person to make this preliminary evaluation of the basis for believing the conditions of parole have been violated. The officer directly involved in making recommendations cannot always have complete objectivity in evaluating them.14 Goldberg v. Kelly found it unnecessary to impugn the motives of the case-worker to find a need for an independent decisionmaker to examine the initial decision.
29
This independent officer need not be a judicial officer. The granting and revocation of parole are matters traditionally handled by administrative officers. In Goldberg, the Court pointedly did not require that the hearing on termination of benefits be conducted by a judicial officer or even before the traditional 'neutral and detached' officer; it required only that the hearing be conducted by some person other than one initially dealing with the case. It will be sufficient, therefore, in the parole revocation context, if an evaluation of whether reasonable cause exists to believe that conditions of parole have been violated is made by someone such as a parole officer other than the one who has made the report of parole violations or has recommended revocation. A State could certainly choose some other independent decisionmaker to perform this preliminary function.
30
With respect to the preliminary hearing before this officer, the parolee should be given notice that the hearing will take place and that its purpose is to determine whether there is probable cause to believe he has committed a parole violation. The notice should state what parole violations have been alleged. At the hearing the parolee may appear and speak in his own behalf; he may bring letters, documents, or individuals who can give relevant information to the hearing officer. On request of the parolee, person who has given adverse information on which parole revocation is to be based is to be made available for questioning in his presence. However, if the hearing officer determines that an informant would be subjected to risk of harm if his identity were disclosed, he need not be subjected to confrontation and cross-examination.
31
The hearing officer shall have the duty of making a summary, or digest, of what occurs at the hearing in terms of the responses of the parolee and the substance of the documents or evidence given in support of parole revocation and of the parolee's position. Based on the information before him, the officer should determine whether there is probable cause to hold the parolee for the final decision of the parole board on revocation. Such a determination would be sufficient to warrant the parolee's continued detention and return to the state correctional institution pending the final decision. As in Goldberg, 'the decision maker should state the reasons for his determination and indicate the evidence he relied on . . .' but it should be remembered that this is not a final determination calling for 'formal findings of fact and conclusions of law.' 397 U.S., at 271, 90 S.Ct., at 1022. No interest would be served by formalism in this process; informality will not lessen the utility of this inquiry in reducing the risk of error.
32
(b) The Revocation Hearing. There must also be an opportunity for a hearing, if it is desired by the parolee, prior to the final decision on revocation by the parole authority. This hearing must be the basis for more than determining probable cause; it must lead to a final evaluation of any contested relevant facts and consideration of whether the facts as determined warrant revocation. The parolee must have an opportunity to be heard and to show, if he can, that he did not violate the conditions, or, if he did, that circumstances in mitigation suggest that the violation does not warrant revocation. The revocation hearing must be tendered within a reasonable time after the parolee is taken into custody. A lapse of two months, as respondents suggest occurs in some cases, would not appear to be unreasonable.
33
We cannot write a code of procedure; that is the responsibility of each State. Most States have done so by legislation, others by judicial decision usually on due process grounds.15 Our task is limited to deciding the minimum requirements of due process. They include (a) written notice of the claimed violations of parole; (b) disclosure to the parolee of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a 'neutral and detached' hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and (f) a written statement by the factfinders as to the evidence relied on and reasons for revoking parole. We emphasize there is no thought to equate this second stage of parole revocation to a criminal prosecution in any sense. It is a narrow inquiry; the process should be flexible enough to consider evidence including letters, affidavits, and other material that would not be admissible in an adversary criminal trial.
34
We do not reach or decide the question whether the parolee is entitled to the assistance of retained counsel or to appointed counsel if he is indigent.16
35
We have no thought to create an inflexible structure for parole revocation procedures. The few basic requirements set out above, which are applicable to future revocations of parole, should not impose a great burden on any State's parole system. Control over the required proceedings by the hearing officers can assure that delaying tactics and other abuses sometimes present in the traditional adversary trial situation do not occur. Obviously a parolee cannot relitigate issues determined against him in other forums, as in the situation presented when the revocation is based on conviction of another crime.
36
In the peculiar posture of this case, given the absence of an adequate record, we conclude the ends of justice will be best served by remanding the case to the Court of Appeals for its return of the two consolidated cases to the District Court with directions to make findings on the procedures actually followed by the Parole Board in these two revocations. If it is determined that petitioners admitted parole violations to the Parole Board, as respondents contend, and if those violations are found to be reasonable grounds for revoking parole under state standards, that would end the matter. If the procedures followed by the Parole Board are found to meet the standards laid down in this opinion that, too, would dispose of the due process claims for these cases.
37
We reverse and remand to the Court of Appeals for further proceedings consistent with this opinion.
38
Reversed and remanded.
39
Mr. Justice BRENNAN, concurring in the result.
40
I agree that a parole may not be revoked, consistently with the Due Process Clause, unless the parolee is afforded, first, a preliminary hearing at the time of arrest to determine whether there is probable cause to believe that he has violated his parole conditions and, second, a final hearing within a reasonable time to determine whether he has, in fact, violated those conditions and whether his parole should be revoked. For each hearing the parolee is entitled to notice of the violations alleged and the evidence against him, opportunity to be heard in person and to present witnesses and documentary evidence, and the right to confront and corss-examine adverse witnesses, unless it is specifically found that a witness would thereby be exposed to a significant risk of harm. Moreover, in each case the decisionmaker must be impartial, there must be some record of the proceedings, and the decisionmaker's conclusions must be set forth in written form indicating both the evidence and the reasons relied upon. Because the Due Process Clause requires these procedures, I agree that the case must be remanded as the Court orders.
41
The Court, however, states that it does not now decide whether the parolee is also entitled at each hearing to the assistance of retained counsel or of appointed counsel if he is indigent. Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970), nonetheless plainly dictates that he at least 'must be allowed to retain an attorney if he so desires.' Id., at 270, 90 S.Ct., at 1022. As the Court said there, 'Counsel can help delineate the issues, present the factual contentions in an orderly manner, conduct cross-examination, and generally safeguard the interests of' his client. Id., at 270—271, 90 S.Ct., at 1021 1022. The only question open under our precedents is whether counsel must be furnished the parolee if he is indigent.
42
Mr. Justice DOUGLAS, dissenting in part.
43
Each petitioner was sentenced for a term in an Iowa penitentiary for forgery. Somewhat over a year later each was released on parole. About six months later, each was arrested for a parole violation and confined in a local jail. In about a week, the Iowa Board of Parole revoked their paroles and each was returned to the penitentiary. At no time during any of the proceedings which led to the parole revocations were they granted a hearing or the opportunity to know, question, or challenge any of the facts which formed the basis of their alleged parole violations. Nor were they given an opportunity to present evidence on their own behalf or to confront and cross-examine those on whose testimony their paroles were revoked.
44
Each challenged the revocation in the state courts and, obtaining no relief, filed the present petitions in the Federal District Court, which denied relief. Their appeals were consolidated in the Court of Appeals which, sitting en banc, in each case affirmed the District Court by a four-to-three vote, 443 F.2d 942. The cases are here on a petition for a writ of certiorari, 404 U.S. 999, 92 S.Ct. 568, 30 L.Ed.2d 552, which we granted because there is a conflict between the decision below and Hahn v. Burke, 430 F.2d 100, decided by the Court of Appeals for the Seventh Circuit.
45
Iowa has a board of parole1 which determines who shall be paroled. Once paroled, a person is under the supervision of the director of the division of corrections of the Department of Social Services, who, in turn, supervises parole agents. Parole agents do not revoke the parole of any person but only recommend that the board of parole revoke it. The Iowa Act provides that each parolee 'shall be subject, at any time, to be taken into custody and returned to the institution' from which he was paroled.2 Thus, Iowa requires no notice or hearing to put a parolee back in prison, Curtis v. Bennett, 256 Iowa 1164, 131 N.W.2d 1; and it is urged that since parole, like probation, is only a privilege it may be summarily revoked.3 See Escoe v. Zerbst, 295 U.S. 490, 492—493, 55 S.Ct. 818, 819, 79 L.Ed. 1566; Ughbanks v. Armstrong, 208 U.S. 481, 28 S.Ct. 372, 52 L.Ed. 582. But we have long discarded the right-privilege distinction. See, e.g., Graham v. Richardson, 403 U.S. 365, 374, 91 S.Ct. 1848, 1853, 29 L.Ed.2d 534; Bell v. Burson, 402 U.S. 535, 539, 91 S.Ct. 1586, 1589, 29 L.Ed.2d 90; Pickering v. Board of Education, 391 U.S. 563, 568, 88 S.Ct. 1731, 1734, 20 L.Ed.2d 811; cf. Van Alstyne, The Demise of the Right-Privilege Distinction in Constitutional Law, 81 Harv.L.Rev. 1439 (1968).
46
The Court said in United States v. Wilson, 32 U.S. 150, 7 Pet. 150, 161, that a 'pardon is a deed.' The same can be said of a parole, which when conferred gives the parolee a degree of liberty which is often associated with property interests.
47
We held in Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287, that the termination by a State of public assistance payments to a recipient without a prior evidentiary hearing denies him procedural due process in violation of the Fourteenth Amendment. Speaking of the termination of welfare benefits we said:
48
'Their termination involves state action that adjudicates important rights. The constitutional challenge cannot be answered by an argument that public assistance benefits are 'a 'privilege' and not a 'right." Shapiro v. Thompson, 394 U.S. 618, 627 n. 6, 89 S.Ct. 1322, 1327, (22 L.Ed.2d 600) (1969). Relevant constitutional restraints apply as much to the withdrawal of public assistance benefits as to disqualification for unemployment compensation, Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963); or to denial of a tax exemption, Speiser v. Randall, 357 U.S. 513, 78 S.Ct. 1332, 2 L.Ed.2d 1460 (1958); or to discharge from public employment, Slochower v. Board of Higher Education, 350 U.S. 551, 76 S.Ct. 637, 100 L.Ed. 692 (1956). The extent to which procedural due process must be afforded the recipient is influenced by the extent to which he may be 'condemned to suffer grievous loss,' Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 168, 71 S.Ct. 624, 647, 95 L.Ed. 817 (1951) (Frankfurter, J., concurring), and depends upon whether the recipient's interest in avoiding that loss outweighs the governmental interest in summary adjudication. Accordingly, as we said in Cafeteria & Restaurant Workers Union v. McElroy, 367 U.S. 886, 895, 81 S.Ct. 1743, 1748—1749, 6 L.Ed.2d 1230 (1961), 'consideration of what procedures due process may require under 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 that has been affected by governmental action.' See also Hannah v. Larche, 363 U.S. 420, 440, 442, 80 S.Ct. 1502, 1513, 1514, 4 L.Ed.2d 1307 (1960).' 397 U.S., at 262—263, 90 S.Ct., at 1017—1018.
49
Under modern concepts of penology, paroling prisoners is part of the rehabilitative aim of the correctional philosophy. The objective is to return a prisoner to a full family and community life. See generally Note, Parole Revocation in the Federal System, 56 Geo.L.J. 705 (1968); Note, Parole: A Critique of Its Penal Foundations and Conditions, 38 N.Y.U.L.Rev. 702 (1963); Comment, 72 Yale L.J. 368 (1962); and see Baine v. Beckstead, 10 Utah 2d 4, 347 P.2d 554 (1959). The status he enjoys as a parolee is as important a right as those we reviewed in Goldberg v. Kelly. That status is conditioned upon not engaging in certain activities and perhaps in not leaving a certain area or locality. Violations of conditions of parole may be technical, they may be done unknowingly, they may be fleeting and of no consequence.4 See, e.g., Arciniega v. Freeman, 404 U.S. 4, 92 S.Ct. 22, 30 L.Ed.2d 126; Cohen, Due Process, Equal Protection and State Parole Revocation Proceedings, 42 U.Colo.L.Rev. 197, 229 (1970). The parolee should, in the concept of fairness implicit in due process, have a chance to explain. Rather, under Iowa's rule revocation proceeds on the ipse dixit of the parole agent; and on his word alone each of these petitioners has already served three additional years in prison.5 The charges may or may not be true. Words of explanation may be adequate to transform into trivia what looms large in the mind of the parole officer.
50
'(T)here is no place in our system of law for reaching a result of such tremendous consequences without ceremony without hearing, without effective assistance of counsel, without a statement of reasons.' Kent v. United States, 383 U.S. 541, 554, 86 S.Ct. 1045, 1053, 16 L.Ed.2d 84 (1966).
51
Parole,6 while originally conceived as a judicial function, has become largely an administrative matter. The parole boards have broad discretion in formulating and imposing parole conditions. 'Often vague and moralistic, parole conditions may seem oppressive and unfair to the parolee.' R. Dawson, Sentencing 306 (1969). They are drawn 'to cover any contingency that might occur,' id., at 307, and are designed to maximize 'control over the parolee by his parole officer.' Ibid.
52
Parole is commonly revoked on mere suspicion that the parolee may have committed a crime. Id., at 366—367. Such great control over the parolee vests in a parole officer a broad discretion in revoking parole and also in counseling the parolee—referring him for psychiatric treatment or obtaining the use of specialized therapy for narcotic addicts or alcoholics. Id., at 321. Treatment of the parolee, rather than revocation of his parole, is a common course. Id., at 322—323. Counseling may include extending help to a parolee in finding a job. Id., at 324 et seq.
53
A parolee, like a prisoner, is a person entitled to constitutional protection, including procedural due process.7 At the federal level, the construction of regulations of the Federal Parole Board presents federal questions of which we have taken cognizance. See Arciniega v. Freeman, 404 U.S. 4, 92 S.Ct. 22, 30 L.Ed.2d 126. At the state level, the construction of parole statutes and regulations is for the States alone, save as they implicate the Federal Constitution in which event the Supremacy Clause controls.
54
It is only procedural due process, required by the Fourteenth Amendment, that concerns us in the present cases. Procedural due process requires the following.
55
If a violation of a condition of parole is involved, rather than the commission of a new offense, there should not be an arrest of the parolee and his return to the prison or to a local jail.8 Rather, notice of the alleged violation should be given to the parolee and a time set for a hearing.9 The hearing should not be before the parole officer, as he is the one who is making the charge and 'there is inherent danger in combining the functions of judge and advocate.' Jones v. Rivers, 338 F.2d 862, 877 (CA4 1964) (Sobeloff, J., concurring). Moreover, the parolee should be entitled to counsel.10 See Hewett v. North Carolina, 415 F.2d 1316, 1322—1325 (CA4 1969); People ex rel. Combs v. LaVallee, 29 App.Div.2d 128, 286 N.Y.S.2d 600 (1968); Perry v. Williard, 247 Or. 145, 427 P.2d 1020 (1967). As the Supreme Court of Oregon said in Perry v. Williard, 'A hearing in which counsel is absent or is present only on behalf of one side is inherently unsatisfactory if not unfair. Counsel can see that relevant facts are brought out, vague and insubstantial allegations discounted, and irrelevancies eliminated.' Id., at 148, 427 P.2d, at 1022. Cf. Mempa v. Rhay, 389 U.S. 128, 135, 88 S.Ct. 254, 257, 19 L.Ed.2d 336.
56
The hearing required is not a grant of the full panoply of rights applicable to a criminal trial. But confrontation with the informer may, as Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639, illustrates, be necessary for a fair hearing and the ascertainment of the truth. The hearing is to determine the fact of parole violation. The results of the hearing would go to the parole board—or other authorized state agency—for final action, as would cases which involved voluntary admission of violations.
57
The rule of law is important in the stability of society. Arbitrary actions in the revocation of paroles can only impede and impair the rehabilitative aspects of modern penology. 'Notice and opportunity for hearing appropriate to the nature of the case,' Boddie v. Connecticut, 401 U.S. 371, 378, 91 S.Ct. 780, 786, 28 L.Ed.2d 113, are the rudiments of due process which restore faith that our society is run for the many, not the few, and that fair dealing rather than caprice will govern the affairs of men.11
58
I would not prescribe the precise formula for the management of the parole problems. We do not sit as an ombudsman, telling the States the precise procedures they must follow. I would hold that so far as the due process requirements of parole revocation are concerned:12
59
(1) the parole officer—whatever may be his duties under various state statutes—in Iowa appears to be an agent having some of the functions of a prosecutor and of the police; the parole officer is therefore not qualified as a hearing officer;
60
(2) the parolee is entitled to a due process notice and a due process hearing of the alleged parole violations including, for example, the opportunity to be confronted by his accusers and to present evidence and argument on his own behalf; and
61
(3) the parolee is entitled to the freedom granted a parolee until the results of the hearing are known and the parole board—or other authorized state agency—acts.13
62
I would reverse the judgments and remand for further consideration in light of this opinion.
1
The hearing required by due process, as defined herein, must be accorded before the effective decision. See Armstrong v. Manzo, 380 U.S. 545, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965). Petitioners assert here that only one of the 540 revocations ordered most recently by the Iowa Parole Board was reversed after hearing, Petitioners' Reply Brief 7, suggesting that the hearing may not objectively evaluate the revocation decision.
2
See Warren, Probation in the Federal System of Criminal Justice, 19 Fed.Prob. 3 (Sept. 1955); Annual Report, Ohio Adult Parole Authority 1964/65, pp. 13—14; Note, Parole: A Critique of Its Legal Foundations and Conditions, 38 N.Y.U.L.Rev. 702, 705—707 (1963).
3
Note, Observations on the Administration of Parole, 79 Yale L.J. 698, 699—700 (1970).
4
Ibid.
5
President's Commission on Law Enforcement and Administration of Justice, Task Force Report: Corrections 62 (1967). The substantial revocation rate indicates that parole administrators often deliberately err on the side of granting parole in borderline cases.
6
See Morrissey v. Brewer, 443 F.2d 942, at 956—954, n. 5 (CA8 1971) (Lay, J., dissenting); Rose v. Haskins, 388 F.2d 91, 104 (CA6 1968) (Celebrezze, J., dissenting).
7
Arluke, A Summary of Parole Rules—Thirteen Years Later, 15 Crime and Delinquency 267, 271 (1969); Note, Parole Revocation in the Federal System, 56 Geo.L.J. 705, 733 (1968).
8
'It is not sophistic to attach greater importance to a person's justifiable reliance in maintaining his conditional freedom so long as he abides by the conditions of his release, than to his mere anticipation or hope of freedom.' United States ex rel. Bey v. Connecticut Board of Parole, 443 F.2d 1079, 1086 (CA2 1971).
9
See, e.g., Murray v. Page, 429 F.2d 1359 (CA10 1970) (parole revoked after eight years; 15 years remaining on original term).
10
Sklar, Law and Practice in Probation and Parole Revocation Hearings, 55 J.Crim.L.C. & P.S. 175, 194 (1964) (no decrease in Michigan, which grants extensive rights); Rose v. Haskins, 388 F.2d 91, 102 n. 16 (CA6 1968) (Celebrezze, J., dissenting) (cost of imprisonment so much greater than parole system that procedural requirements will not change economic motivation).
11
See President's Commission on Law Enforcement and Administration of Justice, Task Force Report: Corrections 83, 88 (1967).
12
See n. 15, infra. As one state court has written, 'Before such a determination or finding can be made it appears that the principles of fundamental justice and fairness would afford the parolee a reasonable opportunity to explain away the accusation of a parole violation. (The parolee) . . . is entitled to a conditional liberty and possessed of a right which can be forfeited only by reason of a breach of the conditions of the grant.' Chase v. Page, 456 P.2d 590, 594 (Okl.Crim.App.1969).
13
Note, Observations on the Administration of Parole, 79 Yale L.J. 698, 704—706 (1970) (parole officers in Connecticut adopt role model of social worker rather than an adjunct of police, and exhibit a lack of punitive orientation).
14
This is not an issue limited to bad motivation. 'Parole agents are human, and it is possible that friction between the agent and parolee may have influenced the agent's judgment.' 4 Attorney General's Survey on Release Procedures: Parole 246 (1939).
15
Very few States provide no hearing at all in parole revocations. Thirty States provide in their statutes that a parolee shall receive some type of hearing. See Ala.Code, Tit. 42, § 12 (1959); Alaska Stat. § 33.15.220 (1962); Ariz.Rev.Stat.Ann. § 31—417 (1956); Ark.Stat.Ann. § 43—2810 (Supp.1971); Del.Code Ann., Tit. 11, § 4352 (Supp.1970); Fla.Stat.Ann. § 947.23(1) (Supp.1972); Ga.Code Ann. § 77—519 (Supp.1971); Haw.Rev.Stat. § 353—66 (1968); Idaho Code §§ 20—229, 20—229A (Supp.1971); Ill.Ann.Stat., c. 108, §§ 204(e), 207 (Supp.1972); Ind.Ann.Stat. § 13—1611 (Supp.1972), IC 1971, 11—1—1—11; Kan.Stat.Ann. § 22—3721 (1971); Ky.Rev.Stat.Ann § 439.330(1)(e) (1962); La.Rev.Stat.Ann. § 15:574.9 (Supp.1972); Me.Rev.Stat.Ann., Tit. 34, § 1675 (Supp.1970 1971); Md.Ann.Code, Art. 41, § 117 (1971); Mich.Comp.Laws § 791.240a, Mich.Stat.Ann. § 28.2310(1) (Supp.1972); Miss.Code Ann. § 4004—13 (1956); Mo.Ann.Stat. § 549.265 (Supp.1971); Mont.Rev.Codes Ann. §§ 94—9838, 94—9835 (1969); N.H.Rev.Stat.Ann. § 607:46 (1955); N.M.Stat.Ann. § 41—17—28 (1972); N.Y.Correction Law, McKinney's Consol.Laws, c. 43, § 212, subd. 7 (Supp.1971); N.D.Cent.Code § 12—59—15 (Supp.1971); Pa.Stat.Ann., Tit. 61, § 331.21a(b) (1964); Tenn.Code Ann. § 40—3619 (1955); Vernon's Ann.Tex.Code Crim.Proc., Art. 42.12, § 22 (1966); Vt.Stat.Ann., Tit. 28, § 1081(b) (1970); Wash.Rev.Code §§ 9.95.120 through 9.95.126 (Supp.1971); W.Va.Code Ann. § 62—12—19 (1966.) Decisions of state and federal courts have required a number of other States to provide hearings. See Hutchison v. Patterson, 267 F.Supp. 433 (Colo.1967) (approving parole board regulations); United States ex rel. Bey v. Connecticut State Board of Parole, 443 F.2d 1079 (CA2 1971) (requiring counsel to be appointed for revocation hearings); State v. Holmes, 109 N.J.Super. 180, 262 A.2d 725 (1970); Chase v. Page, 456 P.2d 590 (Okl.Crim.App.1969); Bearden v. South Carolina, 443 F.2d 1090 (CA4 1971); Baine v. Beckstead, 10 Utah 2d 4, 347 P.2d 554 (1959); Goolsby v. Gagnon, 322 F.Supp. 460 (ED Wis. 1971). A number of States are affected by no legal requirement to grant any kind of hearing.
16
The Model Penal Code § 305.15(1) (Proposed Official Draft 1962) provides that '(t)he institutional parole staff shall render reasonable aid to the parolee in preparation for the hearing and he shall be permitted to advise with his own legal counsel.'
1
Iowa Code § 247.5 (1971) provides in part:
'The board of parole shall determine which of the inmates of the state penal institutions qualify and thereafter shall be placed upon parole. Once an inmate is placed on parole he shall be under the supervision of the director of the division of corrections of the department of social services. There shall be a sufficient number of parole agents to insure proper supervision of all persons placed on parole. Parole agents shall not revoke the parole of any person but may recommend that the board of parole revoke such parole.'
2
Id., § 247.9 provides in part:
'All paroled prisoners shall remain, while on parole, in the legal custody of the warden or superintendent and under the control of the chief parole officer, and shall be subject, at any time, to be taken into custody and returned to the institution from which they were paroled.'
3
'A fundamental problem with (the right-privilege) theory is that probation is now the most frequent penal disposition just as release on parole is the most frequent form of release from an institution. They bear little resemblance to episodic acts of mercy by a forgiving sovereign. A more accurate view of supervised release is that it is now an integral part of the criminal justice process and shows every sign of increasing popularity. Seen in this light, the question becomes whether legal safeguards should be provided for hundreds of thousands of individuals who daily are processed and regulated by governmental agencies. The system has come to depend on probation and parole as much as do those who are enmeshed in the system. Thus, in dealing with claims raised by offenders, we should make decisions based not on an outworn cliche but on the basis of present-day realities.' F. Cohen, The Legal Challenge to Corrections: Implications for Manpower and Training 32 (Joint Commission on Correctional Manpower and Training 1969).
4
The violations alleged in these cases on which revocation was based are listed by the Court of Appeals, 443 F.2d 942, 943 944, nn. 1 and 2.
For a discussion of the British system that dispenses with precise conditions usually employed here see 120 U.Pa.L.Rev. 282, 311—312 (1971). As to conditions limiting constitutional rights see id., at 313—324, 326—339.
5
As to summary deprivations of individual liberty in Communist nations, see, e.g., Shao-chuan Leng, Justice In Communist China 34 (1967); 1 P. Tang, Communist China Today 271 (2d ed. 1961); J. Hazard, Communists and Their Law 121—126 (1969).
6
'Parole is used after a sentence has been imposed while probation is usually granted in lieu of a prison term.' R. Clegg, Probation and Parole 22 (1964). See Baine v. Beckstead, 10 Utah 2d 4, 9, 347 P.2d 554, 558; People ex rel. Combs v. LaVallee, 29 App.Div.2d 128, 131, 286 N.Y.S.2d 600, 603.
7
See President's Commission on Law Enforcement and Administration of Justice, Task Force Report: Corrections 83, 84 (1967); 120 U.Pa.L.Rev. 282, 348—358 (1971).
8
As Judge Skelly Wright said in Hyser v. Reed, 115 U.S.App.D.C. 254, 291, 318 F.2d 225, 262 (1963) (concurring in part and dissenting in part):
'Where serious violations of parole have been committed, the parolee will have been arrested by local or federal authorities on charges stemming from those violations. Where the violation of parole is not serious, no reason appears why he should be incarcerated before hearing. If, of course, the parolee willfully fails to appear for his hearing, this in itself would justify issuance of the warrant.' Accord, In re Tucker, 5 Cal.3d 171, 199 200, 95 Cal.Rptr. 761, 780, 486 P.2d 657, 676 (1971) (Tobriner, J., concurring and dissenting).
9
As we said in another connection in Greene v. McElroy, 360 U.S. 474, 496—497, 79 S.Ct. 1400, 1413, 3 L.Ed.2d 1377:
'Certain principles have remained relatively immutable in our jurisprudence. One of these is that where governmental action seriously injures an individual, and the reasonableness of the action depends on fact findings, the evidence used to prove the Government's case must be disclosed to the individual so that he has an opportunity to show that it is untrue. While this is important in the case of documentary evidence, it is even more important where the evidence consists 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 requirements of confrontation and cross-examination. They have ancient roots. They find expression in the Sixth Amendment which provides that in all criminal cases the accused shall enjoy the right 'to be confronted with the witnesses against him.' This Court has been zealous to protect these rights from erosion. It has spoken out not only in criminal cases, * * * but also in all types of cases where administrative and regulatory actions were under scrutiny.' (Citations omitted.)
10
American Bar Association Project on Standards for Criminal Justice, Providing Defense Services 43 (Approved Draft 1968); Model Penal Code § 301.4, § 305.15(1) (Proposed Official Draft 1962); R. Dawson, Sentencing (1969). For the experience of Michigan in giving hearings to parolees see id., at 355. In Michigan, it is estimated that only one out of six parole violators retains counsel. One who cannot afford counsel is said to be protected by the hearing members of the board. Id., at 354. The number who ask for public hearings are typically five or six a year, the largest in a single year being 10. Michigan has had this law since 1937. Id., at 355. But the Michigan experience may not be typical, for a parole violator is picked up and returned at once to the institution from which he was paroled. Id., at 352 353.
By way of contrast, parole revocation hearings in California are secretive affairs conducted behind closed doors and with no written record of the proceedings and in which the parolee is denied the assistance of counsel and the opportunity to present witnesses on his behalf. Van Dyke, Parole Revocation Hearings in California: The Right to Counsel, 59 Calif.L.Rev. 1215 (1971). See also Note, 56 Geo.L.J. 705 (1968) (federal parole revocation procedures).
11
The Brief of the American Civil Liberties Union, amicus curiae contains in Appendix A the States that by statute or decision require some form of hearing before parole is revoked and those that do not. All but nine States now hold hearings on revocation of probation and parole, some with trial-type rights including representation by counsel.
12
We except of course the commission of another offense which from the initial step to the end is governed by the normal rules of criminal procedure.
13
The American Correctional Association states in its Manual of Correctional Standards 279 (3d ed. 1966) that:
'To an even greater extent than in the case of imprisonment, probation and parole practice is determined by an administrative discretion that is largely uncontrolled by legal standards, protections, or remedies. Until statutory and case law are more fully developed, it is vitally important within all of the correctional fields that there should be established and maintained reasonable norms and remedies against the sorts of abuses that are likely to develop where men have great power over their fellows and where relationships may become both mechanical and arbitrary.'
And it provides for parole revocation hearings:
'As soon as practicable after causing an alleged violator (to be) taken into custody on the basis of a parole board warrant, the prisoner should be given an opportunity to appear before the board or its representative. The prisoner should be made fully aware of the reasons for the warrant, and given ample opportunity to refute the charges placed against him or to comment as to extenuating circumstances. The hearing should be the basis for consideration of possible reinstatement to parole supervision on the basis of the findings of fact or of reparole where it appears that further incarceration would serve no useful purpose.' Id., at 130.
The American Bar Association states at p. 10 of its brief amicus in the present cases that it is 'in full agreement with the American Correctional Association in this instance. The position that a hearing is to be afforded on parole revocation is consistent with several sets of criminal justice standards formally approved by the Association through its House of Delegates.'
| 34
|
408 U.S. 786
92 S.Ct. 2562
33 L.Ed.2d 706
Lyman A. MOORE, Petitioner,v.State of ILLINOIS.
No. 69—5001.
Argued Jan. 18, 1972.
Decided June 29, 1972.
Rehearing Denied Oct. 10, 1972.
See 93 S.Ct. 87.
Syllabus
Moore, who was convicted of murder and sentenced to death for the shotgun slaying of a bartender at a Lansing, Illinois, tavern, claimed that he was denied a fair trial and due process because the State failed to make pretrial disclosure of several items of evidence helpful to the defense, failed to correct false testimony of one Powell, and succeeded in introducing into evidence a shotgun that was not the murder weapon. The evidence not disclosed consisted of a pretrial statement by one Sanders that Moore was known to him as 'Slick' and that he had first met 'Slick' some six months before the killing, and documents and testimony that established that Moore was not the man known to others in the area as 'Slick.' Powell testified that he observed the killing, and the State did not introduce into evidence a diagram that, Moore claims, illustrates that Powell could not see the shooting. The State Supreme Court rejected the claim that evidence had been suppressed and false evidence had been left uncorrected, and held that the shotgun was properly admitted into evidence as a weapon in Moore's possession when he was arrested and suitable for commission of the crime charged. Moore also attacked the imposition of the death penalty for noncompliance with the standards of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776. Held:
1. The evidentiary items (other than the diagram) on which Moore bases his suppression claim relate to Sanders' misidentification of Moore as 'Slick' and not to the identification, by Sanders and others, of Moore as the person who made incriminating statements in the Ponderosa Tap. These evidentiary items are not material under the standard of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215. The diagram does not support Moore's contention that the State knowingly permitted false testimony to remain uncorrected, in violation of Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217, since the diagram does not show that it was impossible for Powell to see the shooting. Pp. 794—798.
2. Moore's due process claim as to the shotgun was not previously raised and therefore is not properly before this Court, and in any event the introduction of the shotgun does not constitute federally reversible error. Pp. 798—800.
3. The sentence of death may not be imposed on Moore. Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346. P. 800.
42 Ill.2d 73, 246 N.E.2d 299, reversed in part and remanded.
James J. Doherty, Chicago, Ill., for petitioner.
Thomas J. Immel, Springfield, Ill., for respondent.
Elmer Gertz and Willard J. Lassers, Chicago, Ill., for American Civil Liberties Union, Illinois Division, and Illinois Committee for Abolition of Capital Punishment.
Mr. Justice BLACKMUN delivered the opinion of the Court.
1
This state murder case, with the death penalty imposed by a jury, comes here from the Supreme Court of Illinois. The grant of certiorari, 403 U.S. 953, 91 S.Ct. 2280, 29 L.Ed.2d 864 (1971), was limited to three of four questions presented by the petitioner. These concern the nondisclosure to the defense of allegedly exculpatory evidence possessed by the prosecution or the police; the admission into evidence of a shotgun that was not the murder weapon; and the rejection of eight veniremen who had voiced general objections to capital punishment. The first and third issues respectively focus on the application of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968).
2
* Petitioner Lyman A. Moore was convicted in 1964 of the first-degree murder of Bernard Zitek. Moore's appeal to the Supreme Court of Illinois was held in abeyance while he petitioned the trial court for post-conviction relief. After a hearing in January 1967, that petition was denied. Moore's appeal from the denial was consolidated with his appeal from the conviction and sentence. With one justice dissenting and another not participating, the Illinois court affirmed the judgments. 42 Ill.2d 73, 246 N.E.2d 299 (1969).
II
3
The homicide was committed on April 25, 1962. The facts are important:
4
A. The victim, Zitek, operated a bar-restaurant in the village of Lansing, southeast of Chicago. Patricia Hill was a waitress there. Donald O'Brien, Charles A. Mayer, and Henley Powell were customers.
5
Another bar called the Ponderosa Tap was located in Dolton, also southeast of Chicago. It was owned by Robert Fair. William Joyce was the bartender. One of Fair's customers was Virgle Sanders.
6
A Third bar known as Wanda and Del's was in Chicago. Delbert Jones was the operator. William Leon Thompson was a patron.
7
The Westmoreland Country Club was in Wilmette, about 50 miles north of Lansing. The manager there was Herbert Anderson.
8
B. On the evening of April 25 Zitek was tending bar at his place in Lansing. Shortly before 10 p.m. two men, one with a moustache, entered and ordered beer. Zitek admonished the pair several times for using profane language. They continued in their profanity and, shortly, Zitek ejected them. About an hour later a man carrying a shotgun entered. He laid the weapon on the bar and shot and killed Zitek. The gunman ran out, pursued by patrons, and escaped in an automobile.
9
C. At the trial waitress Hill positively identified Moore as one of the two men ejected from the bar and as the one who returned and killed Zitek. She testified that she had a clear and close view from her working area at the bar and that she observed Zitek's ejection of the two men and the shotgun killing an hour later.
10
D. A second in-court identification of Moore as the man who killed Zitek was made by the customer Powell. Powell, who at the time was playing pinochle with others, testified that he observed Moore enter the bar with a shotgun and shoot Zitek; that after the shooting he pursued Moore; and that outside the bar Moore stopped momentarily, turned, and shouted, 'Don't come any further or I'll shoot you, too.'
11
E. Sanders testified that on April 27, two days after the murder, he was in the Ponderosa Tap and that a customer there, who Sanders identified as 'Slick,' remarked to Sanders that it was 'open season on bartenders' and that he had shot one in Lansing. At the trial Sanders identified Moore as the man who was in the Ponderosa Tap on April 27. Moore was with another man who had a moustache. The two asked for a ride to Harvey, Illinois. The owner, Fair, agreed to give them the ride.
12
F. Fair testified that Moore was one of the two men who requested and were given the ride; that during the journey one of them was referred to as 'Barbee'; and that one said 'something like, 'Well, if we hadn't had that trouble with the bartender in Lansing, we'd have been all right."
13
G. The Ponderosa bartender, Joyce, testified that Sanders and Fair were in that tavern on April 27; that Moore was there at the same time; and that he arranged with Fair for Fair to give Moore and his companion a ride.
14
It is thus apparent that there were positive in-court identifications of Moore as the slayer by the waitress Hill and by the customer Powell, and that there were in-court identifications of Moore as having been present at the bar in Dolton two days later by Sanders, by Fair, and by Joyce.
15
H. Six months after the slaying, in the early morning hours of October 31, 1962, a Chicago police officer was shot at from a 1957 Ford automobile. Two men fled the scene. The police 'staked out' the car, and several hours later Moore and a moustached man, later identified as Jerry Barbee, were arrested when they approached and entered the vehicle. The automobile proved to be owned by Barbee. A fully loaded sawed-off 16-gauge shotgun was in the car.1 The shotgun was introduced in evidence at Moore's trial.2 The State conceded that the gun so introduced was not the murder weapon, and that the State's ballistics technician, if called, would testify that the waddings taken from Zitek's body came, in his opinion, from a 12-gauge shotgun shell.
16
I. The defense called manager Anderson of the Westmoreland Country Club as a witness. He testified that Moore had been hired as a waiter there on April 24 (the day before the murder); that the club records indicated there was a special party at the club on the evening of April 25; and that Moore was paid for working until sometime between 10 p.m. and midnight. The club's bartender testified to the same effect. Each of these witnesses nevertheless admitted that he could not remember seeing Moore at the club that night, but said that he would have known if he had been absent for any substantial period of time. The club records also indicated that Moore worked at the club the afternoon of April 27, when, according to the testimony of Sanders, Fair, and Joyce, Moore was at the Ponderosa Tap in Dolton.3
17
J. O'Brien, a customer at Zitek's, testified for the defense that he observed Zitek eject two men the evening of the 25th, and that Moore was not one of them. Although he was in the restaurant at the time of the homicide, he did not see the person who shot Zitek. A police officer testified that in his opinion O'Brien was drunk at the time.
III
18
Prior to the trial, the defense moved for disclosure of all written statements taken by the police from any witness. The State agreed to furnish existing statements of prosecution witnesses. At the post-conviction hearing, Moore argued, and the claim is presented here, that he was denied a fair trial because six items of evidence, unknown to him at the time of the trial, were not produced and, in fact, were suppressed by the State:
19
A. On April 30, 1962, Sanders gave a statement to the police that he had met the man 'Slick' for the first time 'about six months ago' in Wanda and Del's tavern. Testimony at the post-conviction hearing by Lieutenant Turbin of the Lansing Police Department revealed that at the time of trial the police possessed an FBI report that Moore was in Leavenworth Penitentiary from 1957 to March 4, 1962. That report thus proved that Sanders could not have met Moore at Wanda and Del's in November 1961. The defense was not given a copy of the statement made by Sanders. The prosecuting attorney asserted at the post-conviction hearing that he did not recall having seen the statement before or during the trial.
20
B. On the day Sanders gave his statement, that is, on April 30, the police raided Wanda and Del's looking for 'Slick.' 'Slick' was not there, but Jones, the tavern's operator, said that he could identify 'Slick.' After Moore was arrested, Jones was not asked by the police whether Moore was 'Slick.' The defense was not advised of the raid until after the trial. At the post-conviction hearing Jones testified that Moore was not 'Slick.' His testimony, however, was stricken on the ground that it pertained to innocence or guilt and was not admissible upon collateral review.
21
C. After the raid on Wanda and Del's the police secured from their files a picture of James E. 'Slick' Watts and assigned Lieutenant Turbin the task of finding Watts. His search was unsuccessful. Moore asserts that the attempt to find Watts was not made known to the defense until cross-examination of the Lansing police chief at the post-conviction hearing.
22
D. After Moore was arrested on October 31, he was photographed by the police. The photograph was shown to William Leon Thompson, the patron of Wanda and Del's. Thompson testified at the post-conviction hearing that he told Lieutenant Turbin that the picture 'didn't, to the best of my knowledge, resemble the man that I knew' as 'Slick.' He identified a picture of Watts as 'the Slick I know.' Defense counsel testified that through the course of the trial neither the police nor the prosecutor advised them about Thompson and his disclaimer.
23
E. At the start of the trial Sanders observed Moore for the first time since the alleged bragging incident at the Ponderosa Tap. Sanders remarked to the prosecuting attorney and to police officers who accompanied him into the courtroom that the person he knew as 'Slick' was about 30—40 pounds heavier than Moore and did not wear glasses. One of the officers responded, 'Well, you know how the jailhouse beans are.' Moore contends that he and defense counsel were not advised of this remark of Sanders until after the trial had concluded.
24
F. Mayer, one of the card players at Zitek's at the time of the murder, gave the police a written statement. On the back of the statement Officer Koppitz drew a sketch of the seating arrangement at the card table. The diagram shows that the corners of the table pointed north, south, east, and west. Cardplayer Powell was placed on the southwest side. The bar was about 10 feet north of the table. The door was to the southwest. Moore argues that the diagram is exculpatory and contradicts Powell's testimony that he observed the shooting. Defense counsel testified that they were not shown the diagram during the trial.
25
Moore argues, as to the first five items, that the State did not comply with the general request by the defense for all written statements given by prosecution witnesses; that the State failed to produce the pretrial statement of Sanders and the other evidence contradicting Sanders' identification of Moore as 'slick'; and that the evidence not produced was material and would have been helpful to his defense.
26
The Illinois court held that the State had not suppressed material evidence favorable to Moore, that the record shows that the prosecution presented its entire file to defense counsel, and that no further request for disclosure was made. 42 Ill.2d at 80—81, 246 N.E.2d, at 304. Moore submits here the alternative claim that a specific request is not an 'indispensable prerequisite' for the disclosure of exonerating evidence by the State and that the defense could not be expected to make a request for specific evidence that it did not know was in existence.
27
In Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the petitioner and a companion were found guilty by a jury of first-degree murder and were sentenced to death. In his summation to the jury, Brady's counsel conceded that Brady was guilty, but argued that the jury should return its verdict 'without capital punishment.' Prior to the trial, counsel had requested that the prosecution allow him to examine the codefendant's extra- judicial statements. Some of these were produced, but another, in which the codefendant admitted the actual homicide, was withheld and did not come to Brady's notice until after his conviction. In a post-conviction proceeding, the Maryland Court of Appeals held that this denied Brady due process of law, and remanded the case for retrial on the issue of punishment. This Court affirmed. It held 'that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.' 373 U.S., at 87, 83 S.Ct. at 1196—1197.
28
The heart of the holding in Brady is the prosecution's suppression of evidence, in the face of a defense production request, where the evidence is favorable to the accused and is material either to guilt or to punishment. Important, then, are (a) suppression by the prosecution after a request by the defense, (b) the evidence's favorable character for the defense, and (c) the materiality of the evidence. There are the standards by which the prosecution's conduct in Moore's case is to be measured.
29
Moore's counsel asked several prosecution witnesses if they had given statements to the police. Each witness (Hill, Powell, Fair) who had given a statement admitted doing so and the statement was immediately tendered. The same inquiry was not made of witness Sanders. He was the only state witness who was not asked the question. At the post-conviction hearing the inquiry was made. Sanders admitted making a statement to the police and the statement was tendered.
30
The record discloses, as the Illinois court states, 42 Ill.2d, at 80, 246 N.E.2d, at 304, that the prosecutor at the trial submitted his entire file to the defense. The prosecutor, however, has no recollection that Sanders' statement was in the file. The statement, therefore, either was in that file and not noted by the defense or it was not in the possession of the prosecution at the trial.
31
We know of no constitutional requirement that the prosecution make a complete and detailed accounting to the defense of all police investigatory work on a case. Here, the elusive 'Slick' was an early lead the police abandoned when eyewitnesses to the killing and witnesses to Moore's presence at the Ponderosa were found. Unquestionably, as the State now concedes,4 Sanders was in error when he indicated to the police that he met Moore at Wanda and Del's about six months prior to April 30, 1962. Moore's incarceration at Leavenworth until March shows that conclusion to have been an instance of mistaken identity. But the mistake was as to the identification of Moore as 'Slick,' not as to the presence of Moore at the Ponderosa Tap on April 27.5 'Sanders' testimony to the effect that it was Moore he spoke with at the Ponderosa Tap in itself is not significantly, if at all, impeached. Indeed, it is buttressed by the testimony of bartender Joyce and operator Fair, both of whom elaborated the incident by their description of the man and by Moore's request for a ride to Harvey, Illinois, Fair's providing that ride, and Fair's hearing, on that trip, the reference to one of the men as 'Barbee',' and a second reference to trouble with a bartender in Lansing.
32
The other four of the first five items—that Jones told police he could identify 'Slick' and subsequently testified that Moore was not 'Slick'; that the police had a picture of Watts and assigned the lieutenant, unsuccessfully, to find Watts; that Thompson had been shown a picture of Moore and told the police that Moore was not 'Slick'; and that on the day of the trial Sanders remarked that the man he knew as 'Slick' looked heavier than Moore—are in exactly the same category. They all relate to 'Slick,' not Moore, and quite naturally go off on Sanders' initial misidentification of 'Slick' with Moore.
33
None of the five items serves to impeach in any way the positive identification by Hill and by Powell of Moore as Zitek's killer, or the testimony of Fair and Joyce that Moore was at the Ponderosa Tap on April 27, or the testimony of Fair that the moustached Barbee was accompanying Moore at that time, and that one of the two men made the additional and undisputed admission on the ride to Harvey. We conclude, in the light of all the evidence, that Sanders' misidentification of Moore as Slick was not material to the issue of guilt.
34
The remaining claim of suppression relates to the diagram on the back of Mayer's statement to the police.6 Moore contends that the diagram shows that Powell was seated with his back to the entrance to Zitek's and, thus, necessarily contradicts his testimony that he was looking toward the entrance as he sat at the card table, and that the State knowingly permitted false testimony to remain uncorrected, in violation of Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959).
35
In Napue the principal prosecution witness at Napue's murder trial was an accomplice then serving a sentence for the crime. He testified, in response to an inquiry by the prosecutor, that he had received no promise of consideration in return for his testimony. In fact, the prosecutor had promised him consideration, but he did nothing to correct the witness' false testimony. This Court held that the failure of the prosecutor to correct the testimony, which he knew to be false, denied Napue due process of law, and that this was so even though the false testimony went only to the credibility of the witness. See also Miller v. Pate, 386 U.S. 1, 87 S.Ct. 785, 17 L.Ed.2d 690 (1967), and Alcorta v. Texas, 355 U.S. 28, 78 S.Ct. 103, 2 L.Ed.2d 9 (1957).
36
We are not persuaded that the diagram shows that Powell's testimony was false. The officer who drew the diagram testified at the post-conviction hearing that it did not indicate the direction in which Powell was facing or looking at the time of the shooting. Powell testified that his position at the table gave him a view of the bartender; that at the moment he could not bid in the pinochle game and had laid his hand down and was looking toward the door when Moore walked in. There is nothing in the diagram to indicate that Powell was looking in another direction or that it was impossible for him to see the nearby door from his seat at the card table. Furthermore, after the shooting he pursued Moore but stopped when the man warned him that he, too, might be shot.
37
In summary, the background presence of the elusive 'Slick,' while somewhat confusing, is at most an insignificant factor. The attempt to identify Moore as 'Slick' encountered difficulty, but nothing served to destroy the two-witness identification of Moore as Zitek's assailant, the three-witness identification of Moore as present at the Ponderosa Tap, the two-witness identification of Moore as one of the men who requested and obtained a ride from the Ponderosa in Dolton to Harvey, Illinois, and Fair's testimony as to the admission made on that ride.
38
We adhere to the principles of Brady and Napue, but hold that the present record embraces no violation of those principles.
IV
39
The 16-gauge shotgun was admitted into evidence at the trial over the objection of the defense that it was not the murder weapon, that it had no connection with the crime charged, and that it was inadmissible under Illinois law.7 During his closing argument to the jury, the prosecuting attorney stated that the 16-gauge shotgun was not used to kill Zitek,8 but that Moore and his companion, Barbee, were 'the kind of people that use shotguns.'9
40
The Supreme Court of Illinois held that the shotgun was properly admitted into evidence as a weapon in Moore's possession at the time of his arrest, and was a weapon 'suitable for the commission of the crime charged . . . even though there is no showing that it was the actual weapon used.' 42 Ill.2d, at 78, 246 N.E.2d, at 303. Moore claims that the gun's introduction denied him due process.
41
Of course, the issue whether the shotgun was properly admitted into evidence under Illinois law is not subject to review here. The due process claim, however, appears to be raised for the first time before us. There is no claim by Moore, and there is nothing in the record to disclose, that due process was argued in the state courts. We could conclude, therefore, that the issue is not one properly presented for review.
42
In any event, we are unable to conclude that the shotgun's introduction deprived Moore of the due process of law guaranteed him by the Fourteenth Amendment. The 16-gauge shotgun, found in the car, was in the constructive possession of both Moore and Barbee when they were arrested after the shooting incident on October 31. There is substantial other evidence in the record that a shotgun was used to kill Zitek, and that he suffered the wounds one would expect from a shotgun fired at close range. The testimony as to the murder itself, with all the details as to the shotgun wounds, is such that we cannot say that the presentation of the shotgun was so irrelevant or so inflammatory that Moore was denied a fair trial. The case is not federally reversible on this ground.
V
43
Inasmuch as the Court today has ruled that the imposition of the death penalty under statutes such as those of Illinois is violative of the Eighth and Fourteenth Amendments, Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346, it is unnecessary for us to consider the claim of noncompliance with the Witherspoon standards. In Witherspoon, 391 U.S., at 523 in n. 21, 88 S.Ct., at 1777 in n. 21, the Court stated specifically, 'Nor, finally, does today's holding render invalid the conviction, as opposed to the sentence, in this or any other case' (emphasis in original). The sentence of death, however, may not now be imposed.
44
The judgment, insofar as it imposes the death sentence, is reversed, Furman v. Georgia, supra, and the case is remanded for further proceedings.
45
Mr. Justice MARSHALL, with whom Mr. Justice DOUGLAS, Mr. Justice STEWART and Mr. Justice POWELL join, concurring in part and dissenting in part.
46
Petitioner was convicted of murder in the Illinois state courts and sentenced to death. The Supreme Court of Illinois affirmed the conviction and sentence by a divided court. 42 Ill.2d 73, 246 N.E.2d 299 (1969). This Court holds that the imposition of the death sentence violated the principle established today in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346, and that the sentence must be vacated, but the Court upholds the underlying conviction. I agree with the majority that the sentence is invalid and join Part V of the opinion of the Court. I also agree that the introduction of the shotgun into evidence at petitioner's trial did not violate the Fourteenth Amendment.1
47
But, I believe that in failing to disclose to petitioner certain evidence that might well have been of substantial assistance to the defense, the State denied him a fair trial.
48
The opinion of the Court relates at some length the facts relating to the crime with which petitioner was charged, the circumstances of his arrest, the course of the trial, and the developments at the post-conviction hearing. As these facts are complicated and quite confusing, I have not reiterated them here. Rather, I have emphasized those that seem to me to be particularly important and I have added several details that are omitted from the Court's opinion.
49
Two interrelated defenses were raised against the charge of murder—alibi and misidentification. Petitioner's theory of the case was that he was not at the scene when the murder was committed and that those witnesses who testified that they saw him there were confusing him with someone else.
50
Only two witnesses affirmatively asserted at trial that they saw the murder and that they could identify petitioner as the assailant. They were Patricia Hill, a waitress in the victim's bar, and Henley Powell, a customer. Aside from their testimony, the only other evidence introduced against petitioner related to statements that he allegedly made two days after the murder.
51
There is a problem with the eyewitness testimony of Powell that did not become apparent until the post-conviction hearing in the trial court. At trial he testified as follows:
52
'The defendant (indicating) came into the tavern while I was at the table. I first saw him when he walked in the door with a shotgun. I was sitting at the table along the wall. I was facing where the bartender was standing and I also had a view of the man that walked in the door. I was looking to the west.' Abs. 32.
53
But at the post-conviction hearing it was discovered that police officers who had investigated the murder possessed a statement by one Charles Mayer, who had been sitting with Powell at a table in the bar, which contained a diagram indicating that Powell was seated in a direction opposite that indicated in his trial testimony. This diagram was never made available to defense counsel.2
54
Donald O'Brien, who had aso been seated at Powell and Mayer's table, testified at trial and contradicted the testimony of both Powell and Patricia Hill. Although O'Brien admitted that he did not actually see the shooting because his back was to the bar, he was certain that petitioner was not the man who had been ejected from the victim's bar only an hour before the killing. O'Brien's testimony greatly undercut the apparent retaliatory motive that the prosecution attributed to petitioner.3
55
Because of the contradictory testimony of those persons who were present at the scene of the murder, the statements allegedly made by the petitioner after the crime were crucial to the prosecution's case. The key prosecution witness in this regard was Virgle Sanders. He testified that two days after the murder he was in the Ponderosa Tavern, that petitioner (whom he knew as 'Slick') was there also, and that petitioner said '(s)omething about it's season or open season on bartenders or something like that.' Abs. 44. The bartender also testified that he recognized petitioner as being present at the same time as Sanders. And the owner of the tavern stated that he gave petitioner and petitioner's friend a short ride in his automobile, at the end of which the friend mentioned something about 'trouble with the bartender.' Abs. 52.
56
After his trial and conviction petitioner learned the five days after the murder, Sanders gave a statement to the police in which he said that he had met 'Slick' for the first time about six months before he spoke to him in the Ponderosa Tavern. As the Court notes, it would have been impossible for Sanders to have met the petitioner at the time specified, because petitioner was in federal prison at that time. At the post-conviction hearing, Sanders said that he was not positive when he first met the man known as 'Slick,' but that he definitely knew it was before Christmas 1961. Petitioner was not released from federal custody until March 1962. When confronted with this fact, Sanders indicated that it was impossible that petitioner was the man with whom he had spoken in the Ponderosa Tavern. Abs. 296. Sanders' trial identification was further impeached at the post-trial hearing by testimony that on the day of trial he told police officers that petitioner was approximately 30 or 40 pounds lighter than he remembered 'Slick' being. Abs. 294.
57
Sanders' testimony that petitioner and 'Slick' were not one and the same was corroborated at the hearing. The reason that Sanders could remember the first time that he had met 'Slick' was that 'Slick' had been involved in a scuffle with one William Thompson. Thompson testified at the hearing that he remembered the altercation, that he knew 'Slick,' that prior to the trial he had told police officers that petitioner was not 'Slick,' and that he remained certain that petitioner and 'Slick' were different people. Finally, Sanders' testimony was corroborated by Delbert Jones, the owner of the tavern where 'Slick' and Thompson scuffled. Jones testified that he was certain that petitioner was not the man known as 'Slick.'
58
The fact is that Thompson and Jones were both familiar with one James E. Watts, whom they knew as 'Slick,' and who looked very much like the petitioner. The record makes clear that the police suspected Watts as the murderer and assigned a lieutenant to search for him. A raid of Jones' bar was even made in the hope of finding this suspect.
59
Sanders' testimony at the post-conviction hearing indicates that it was Watts who bragged about the murder, not petitioner. It is true that the bartender and the owner of the Ponderosa Tavern testified at trial that it was petitioner who was in the bar with Sanders, but the bartender had never seen 'Slick' before, and the owner was drinking the entire afternoon. Furthermore, the fact remains that petitioner and Watts look very much alike.
60
Petitioner urges that when the State did not reveal to him Sanders' statement about meeting 'Slick' at an earlier time and the corroborative statements of Thompson and Jones, it denied him due process. The Court answers this by saying that the statements were not material. It is evident from the foregoing that the statements were not merely material to the defense, they were absolutely critical. I find myself in complete agreement with Justice Schaeffer's dissent in the Illinois Supreme Court:
61
'The defendant's conviction rests entirely upon identification testimony. The facts developed at the post-conviction hearing seriously impeached, if indeed they did not destroy, Sanders's trial testimony. Had those facts, and the identifications of 'Slick' Watts by Thompson and Jones, been available at the trial, the jury may well have been unwilling to act upon the identifications of Patricia Hill and Henley Powell. Far more is involved in this case, in my opinion, than 'the following up of useless leads and discussions with immaterial witnesses.' Certainly if Sanders's identification was material, the . . . testimony of the other witnesses which destroyed that identification (was) also material. Consequently, I believe that the State's non-disclosure denied the defendant the fundamental fairness guaranteed by the constitution. . . .' 42 Ill.2d, at 88—89, 246 N.E.2d, at 308.4
62
Petitioner also urges that the failure of the prosecution to disclose the information concerning where the eyewitness Powell was sitting when he allegedly saw petitioner is another instance of suppression of evidence in violation of the Fourteenth Amendment. Had this been the prosecution's only error, I would join the Court in finding the evidence to be immaterial. But if this evidence is considered together with other evidence that was suppressed, it must be apparent that the failure of the prosecution to disclose it contributed to the denial of due process.
63
Even if material exculpatory evidence was not made available to petitioner, the State argues that because petitioner did not demand to see the evidence, he cannot now complain about nondisclosure. This argument is disingenuous at best.
64
Prior to trial, petitioner moved for discovery of all statements given to the prosecutor or the police by any witness possessing information relevant to the case. Abs. 5. In explaining why such a broad motion was made, petitioner's counsel stated that, 'We want to circumvent the possibility that a witness gets on the stand and says, 'Yes, I made a written statement,' and then the State's Attorney says, 'But no, we don't have it in our possession,' or they say, 'It's in the possession of Orlando Wilson (Superintendent of Police, Chicago, Ill.), or 'The Chief of Police of Lansing." Abs. 8. In response to the motion, the prosecutor guaranteed defense counsel and the court that he would supply defense counsel with statements made either to the police or to the State's Attorney by witnesses who were called to testify at trial. Ibid. Based on this representation, the motion for discovery was denied. Never was there any implication by the prosecutor that his guarantee was in any way dependent upon petitioner's making repeated and specific requests for such statements after each witness testified at trial. The prosecutor's guarantee certainly covered Sanders' statement. As for the statements of the bartender and owner of the Ponderosa Tavern and the statement and diagram of Charles Mayer, petitioner clearly demanded to see these things before trial. The prosecution took the position that it was bound to reveal only the statements of witnesses who testified. Hence, it is hard to imagine what sort of further demand petitioner might have made. Moreover the very fact that petitioner made his motion for extensive discovery placed the prosecution on notice that the defense wished to see all statements by any witness that might be exculpatory. The motion served 'the valuable office of flagging the importance of the evidence for the defense and thus impos(ing) on the prosecutor a duty to make a careful check of his files.' United States v. Keogh, 391 F.2d 138, 147 (CA2 1968).
65
In my view, both Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959), require that the conviction in this case be reversed. Napue establishes that the Fourteenth Amendment is violated 'when the State, although not soliciting false evidence, allows it to go uncorrected.' Id., at 269, 79 S.Ct., at 1197. And Brady holds that suppression of material evidence requires a new trial 'irrespective of the good faith or bad faith of the prosecution.' Supra, at 87, 83 S.Ct., at 1197. There can be no doubt that there was suppression of evidence by the State and that the evidence that the State relied on was 'false' in the sense that it was incomplete and misleading.
66
Both before and during the trial the prosecutor met with Sanders and went over the statement that he had given the police five days after the murder. Abs. 301, 315. Thus, it is apparent that the prosecutor not only knew of the statement, but was actively using it to prepare his case. There was also testimony at the post-conviction hearing from the prosecution that it had discussed the location where Powell was sitting when he allegedly saw the murder. While the prosecutor could not remember whether or not he actually had Mayer's statement and diagram in his possession, he had some recollection that before trial he was informed of exactly where everyone at Powell's table was sitting. Abs. 323. No attempt was ever made at trial to communicate this information to the defense.
67
Moreover, seated at the prosecutor's table throughout the trial was Police Lieutenant Turbin, who had investigated the case and who was assisting the prosecution. At the post-conviction hearing, he testified that throughout the trial he was not only aware of Sanders' statement and Mayer's diagram, but also that he had them in his file. He made no attempt to communicate his information to the prosecutor or to remind him about the evidence.
68
When the State possesses information that might well exonerate a defendant in a criminal case, it has an affirmative duty to disclose that information. While frivolous information and useless leads can be ignored, if evidence is clearly relevant and helpful to the defense, it must be disclosed.
69
Obviously some burden is placed on the shoulders of the prosecutor when he is required to be responsible for those persons who are directly assisting him in bringing an accused to justice. But this burden is the essence of due process of law. It is the State that tries a man, and it is the State that must insure that the trial is fair. 'A citizen has the right to expect fair dealing from his government, see Vitarelli v. Seaton, 359 U.S. 535, 79 S.Ct. 968, 3 L.Ed.2d 1012, and this entails . . . treating the government as a unit rather than as an amalgam of separate entities.' § & E Contractors, Inc. v. United States, 406 U.S. 1, 10, 92 S.Ct. 1411, 1417, 31 L.Ed.2d 658 (1972). 'The prosecutor's office is an entity and as such it is the spokesman for the Government.' Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 766, 31 L.Ed.2d 104 (1972).5 See also Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 499, 30 L.Ed.2d 427 (1971); Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972).
70
My reading of the case leads me to conclude that the prosecutor knew that evidence existed that might help the defense, that the defense had asked to see it, and that it was never disclosed. It makes no difference whatever whether the evidence that was suppressed was found in the file of a police officer who directly aided the prosecution or in the file of the prosecutor himself. When the prosecutor consciously uses police officers as part of the prosecutorial team, those officers may not conceal evidence that the prosecutor himself would have a duty to disclose. It would be unconscionable to permit a prosecutor to adduce evidence demonstrating guilt without also requiring that he bear the responsibility of producing all known and relevant evidence tending to show innocence.
1
This early morning incident was recounted in an earlier trial of Moore and Barbee for an armed robbery at Harvey, Illinois, on July 27, 1962. People v. Moore, 35 Ill.2d 399, 401 402, 220 N.E.2d 443, 444—445 (1966), cert. denied, 389 U.S. 861, 88 S.Ct. 112, 19 L.Ed.2d 128 (1967).
2
A revolver found at Moore's feet at the time of his arrest and a shoulder holster then on his person were ruled inadmissible.
3
A like alibi defense was submitted at the earlier armed robbery trial of Moore and Barbee. People v. Moore, 35 Ill.2d, at 406, 220 N.E.2d, at 447.
4
Brief for Respondent 4; Tr. of Oral Arg. 28.
5
The dissent observes, post, at 804, 'When confronted with this fact (Moore's imprisonment at Leavenworth), Sanders indicated that it was impossible that petitioner (Moore) was the man with whom he had spoken in the Ponderosa Tavern.' This is a misreading of Sanders' testimony. The question and Sanders' answer were:
'Q. And did you tell me and also later on, did you tell the policeman from the State's Attorney's Office that if you had known that this fellow, Lyman Moore, was in the Federal Penitentiary until March 4, 1962, you would definitely not have identified him as being Slick that you knew?
'A. If he's in jail, it would have been impossible to be the same man.' Abstract of Record 296.
6
Contrary to the assertion by the dissent that the Mayer statement, with its accompanying diagram, was never made available to the defense, post, at 803 and 809, the trial transcript indicates that during the cross-examination of Officer Koppitz a request was made by the defense for all written statements taken by the officer from persons in Zitek's restaurant at the time of the shooting. The court granted the request and the record recites that statements of Mayer and others were furnished to defense counsel.
7
See n. 2.
8
Curiously, the State argues in this Court that it is possible that the 16-gauge shotgun was the murder weapon. Brief for Respondent 20—21.
9
Later in his closing argument the prosecuting attorney referred to the 16-gauge shotgun and stated again that a 12-gauge shotgun killed Zitek. He argued that a shotgun is not 'the most humane type weapon' and that the death penalty is appropriate in a case in which a shotgun is used to murder a person.
1
I find the constitutional question presented by the introduction of this evidence to be much harder than the majority seems to. It was uncontradicted at trial that the weapon introduced against petitioner had no bearing on the crime with which he was charged. It was, in fact, clear that the shotgun admitted into evidence was a 16-gauge gun, whereas the murder weapon was a 12-gauge gun. Despite the fact that the prosecution conceded this in a pretrial bill of particulars, it did everything possible to obfuscate the fact that the weapon admitted into evidence was not the murder weapon. This was highly improper. The record also indicates that the trial judge was confused as to why he thought the weapon should be admitted. At one point he said, 'There was testimony here that this was a shotgun killing. And I can see nothing wrong if they say that this defendant, who will be identified by other people, was apprehended with this gun.' Abstract of Record (Abs.), 65. If the trial judge meant to imply that because the crime was committed with a shotgun, it was sufficient to prove that the petitioner possessed any shotgun, whether or not it was the murder weapon, he surely erred. But it is impossible to tell from the record in this case precisely what was intended, or whether the judge confused the jury when he admitted the weapon. Although this highly prejudicial and irrelevant evidence was introduced, and although the prosecution did its best to lead the jury to believe that there was a relationship between the murder weapon and the shotgun in evidence, the fact that petitioner's counsel explained to the jury that the two weapons were not identical is, on the very closest balance, enough to warrant our finding that the jury was not improperly misled as to the nature of the evidence before it.
2
It is true, as the Court states, that following the shooting Powell followed the assailant into the street, but it is also true that he never got closer than 50 to 60 feet of the murderer. Abs. 32. The strength of his testimony lay in the alleged opportunity he had for close observation of the murderer while the crime was committed.
Footnote 6 of the Court's opinion implies that during the trial the prosecution turned over Mayer's diagram to defense counsel. But there is absolutely no support for this implication in the record. While it is true that the diagram was drawn on the back of the original statement given by Mayer to the police, there is nothing to indicate that it was ever recopied and made a part of any reproductions of Mayer's statement. All indications are that it was not reproduced. At the post-conviction hearing the following testimony was adduced: the police officer who aided the prosecution at trial indicated that he had the original diagram in his file, Abs. 244—249; the two lawyers who had represented petitioner at trial both swore that they were given only Mayer's statement, not his diagram, Abs. 307, 328; and the prosecutor testified that he did not know for sure whether he gave the diagram to defense counsel, but that it was certain that he did not supply the diagram if it was not in his file. Abs. 324. Since the diagram was in the police officer's file, not the prosecutor's, it is clear that it was never made available to defense counsel, even though the prosecutor was aware of its contents. See infra, at 809.
3
The Court asserts that O'Brien may have been drunk. His testimony at trial made it clear beyond doubt that when the victim ejected the man alleged to be the petitioner from the bar, this witness was perfectly sober. Later, especially after the killing, the witness drank heavily and became intoxicated. No one contradicted this at trial.
4
Chief Judge Friendly has noted that when the prosecution fails to disclose evidence whose high value to the defense could not have escaped the prosecutor's attention, 'almost by definition the evidence is highly material.' United States v. Keogh, 391 F.2d 138, 147 (CA2 1968). See also United State ex rel. Meers v. Wilkins, 326 F.2d 135 (CA2 1964).
The materiality of the undisclosed evidence in this case cannot be seriously doubted. The State based its case primarily on the eyewitness identifications of petitioner by a witness and patron in the bar. Testimony of this sort based on in-court identification is often viewed with suspicion by juries. See McGowan, Constitutional Interpretation and Criminal Identification, 12 Wm. & Mary L.Rev. 235, 241—242 (1970). That testimony in this case was subject to serious question: indeed, petitioner premised his defense in large part on a theory of misidentification. Coupled with the contradictory statement made by O'Brien (see supra, at 803), the evidence showing that one of the witnesses may not have had an adequate opportunity to observe and that petitioner may have been confused with another person named 'Slick' would certainly have been material to the defense's presentation of its case.
5
In the recent decision in Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972), holding that use immunity was co-extensive with the Fifth Amendment privilege against self-incrimination, the Court noted that prosecutors may be responsible for actions of police officers enlisted to aid a prosecution.
| 34
|
408 U.S. 564
92 S.Ct. 2701
33 L.Ed.2d 548
The BOARD OF REGENTS OF STATE COLLEGES et al., Petitioners,v.David F. ROTH, etc.
No. 71—162.
Argued Jan. 18, 1972.
Decided June 29, 1972.
Syllabus
Respondent, hired for a fixed term of one academic year to teach at a state university, was informed without explanation that he would not be rehired for the ensuing year. A statute provided that all state university teachers would be employed initially on probation and that only after four years' continuous service would teachers achieve permanent employment 'during efficiency and good behavior,' with procedural protection against separation. University rules gave a nontenured teacher 'dismissed' before the end of the year some opportunity for review of the 'dismissal,' but provided that no reason need be given for nonretention of a nontenured teacher, and no standards were specified for reemployment. Respondent brought this action claiming deprivation of his Fourteenth Amendment rights, alleging infringement of (1) his free speech right because the true reason for his nonretention was his criticism of the university administration, and (2) his procedural due process right because of the university's failure to advise him of the reason for its decision. The District Court granted summary judgment for the respondent on the procedural issue. The Court of Appeals affirmed. Held: The Fourteenth Amendment does not require opportunity for a hearing prior to the nonrenewal of a nontenured state teacher's contract, unless he can show that the nonrenewal deprived him of an interest in 'liberty' or that he had a 'property' interest in continued employment, despite the lack of tenure or a formal contract. Here the nonretention of respondent, absent any charges against him or stigma or disability foreclosing other employment, is not tantamount to a deprivation of 'liberty,' and the terms of respondent's employment accorded him no 'property' interest protected by procedural due process. The courts below therefore erred in granting summary judgment for the respondent on the procedural due process issue. Pp. 569—579.
446 F.2d 806, reversed and remanded.
Charles A. Bleck, Asst. Atty. Gen., Madison, Wis., for petitioners.
Steven H. Steinglass, Milwaukee, Wis., for respondent.
[Amicus Curiae Information from page 565 intentionally omitted]
Mr. Justice STEWART delivered the opinion of the Court.
1
In 1968 the respondent, David Roth, was hired for his first teaching job as assistant professor of political science at Wisconsin State University-Oshkosh. He was hired for a fixed term of one academic year. The notice of his faculty appointment specified that his employment would begin on September 1, 1968, and would end on June 30, 1969.1 The respondent completed that term. But he was informed that he would not be rehired for the next academic year.
2
The respondent had no tenure rights to continued employment. Under Wisconsin statutory law a state university teacher can acquire tenure as a 'permanent' employee only after four years of year-to-year employment. Having acquired tenure, a teacher is entitled to continued employment 'during efficiency and good behavior.' A relatively new teacher without tenure, however, is under Wisconsin law entitled to nothing beyond his one-year appointment.2 There are no statutory or administrative standards defining eligibility for re-employment. State law thus clearly leaves the decision whether to rehire a nontenured teacher for another year to the unfettered discretion of university officials.
3
The procedural protection afforded a Wisconsin State University teacher before he is separated from the University corresponds to his job security. As a matter of statutory law, a tenured teacher cannot be 'discharged except for cause upon written charges' and pursuant to certain procedures.3 A nontenured teacher, similarly, is protected to some extent during his one-year term. Rules promulgated by the Board of Regents provide that a nontenured teacher 'dismissed' before the end of the year may have some opportunity for review of the 'dismissal.' But the Rules provide no real protection for a nontenured teacher who simply is not re-employed for the next year. He must be informed by February 1 'concerning retention or non-retention for the ensuing year.' But 'no reason for non-retention need be given. No review or appeal is provided in such case.'4
4
In conformance with these Rules, the President of Wisconsin State University-Oshkosh informed the respondent before February 1, 1969, that he would not be rehired for the 1969—1970 academic year. He gave the respondent no reason for the decision and no opportunity to challenge it at any sort of hearing.
5
The respondent then brought this action in Federal District Court alleging that the decision not to rehire him for the next year infringed his Fourteenth Amendment rights. He attacked the decision both in substance and procedure. First, he alleged that the true reason for the decision was to punish him for certain statements critical of the University administration, and that it therefore violated his right to freedom of speech.5 Second, he alleged that the failure of University officials to give him notice of any reason for nonretention and an opportunity for a hearing violated his right to procedural due process of law.
6
The District Court granted summary judgment for the respondent on the procedural issue, ordering the University officials to provide him with reasons and a hearing. 310 F.Supp. 972. The Court of Appeals, with one judge dissenting, affirmed this partial summary judgment. 446 F.2d 806. We granted certiorari. 404 U.S. 909, 92 S.Ct. 227, 30 L.Ed.2d 181. The only question presented to us at this stage in the case is whether the respondent had a constitutional right to a statement of reasons and a hearing on the University's decision not to rehire him for another year.6 We hold that he did not.
7
* The requirements of procedural due process apply only to the deprivation of interests encompassed by the Fourteenth Amendment's protection of liberty and property. When protected interests are implicated, the right to some kind of prior hearing is paramount.7 But the range of interests protected by procedural due process is not infinite.'
8
The District Court decided that procedural due process guarantees apply in this case by assessing and balancing the weights of the particular interests involved. It concluded that the respondent's interest in re-employment at Wisconsin State University-Oshkosh outweighed the University's interest in denying him re-employment summarily. 310 F.Supp., at 977—979. Undeniably, the respondent's re-employment prospects were of major concern to him—concern that we surely cannot say was insignificant. And a weighing process has long been a part of any determination of the form of hearing required in particular situations by procedural due process.8 But, to determine whether due process requirements apply in the first place, we must look not to the 'weight' but to the nature of the interest at stake. See Morrissey v. Brewer, 408 U.S. 471, at 481, 92 S.Ct. 2593, at 2600, 33 L.Ed.2d 484. We must look to see if the interest is within the Fourteenth Amendment's protection of liberty and property.
9
'Liberty' and 'property' are broad and majestic terms. They are among the '(g)reat (constitutional) concepts . . . purposely left to gather meaning from experience. . . . (T)hey relate to the whole domain of social and economic fact, 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, 646, 69 S.Ct. 1173, 1195, 93 L.Ed. 1556 (Frankfurter, J., dissenting). For that reason, the Court has fully and finally rejected the wooden distinction between 'rights' and 'privileges' that once seemed to govern the applicability of procedural due process rights.9 The Court has also made clear that the property interests protected by procedural due process extend well beyond actual ownership of real estate, chattels, or money.10 By the same token, the Court has required due process protection for deprivations of liberty beyond the sort of formal constraints imposed by the criminal process.11
10
Yet, while the Court has eschewed rigid or formalistic limitations on the protection of procedural due process, it has at the same time observed certain boundaries. For the words 'liberty' and 'property' in the Due Process Clause of the Fourteenth Amendment must be given some meaning.
II
11
'While this court has not attempted to define with exactness the liberty . . . guaranteed (by the Fourteenth Amendment), the term has received much consideration and some of the included things have been definitely stated. Without doubt, it denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized . . . as essential to the orderly pursuit of happiness by free men.' Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 626, 67 L.Ed. 1042. In a Constitution for a free people, there can be no doubt that the meaning of 'liberty' must be broad indeed. See, e.g., Bolling v. Sharpe, 347 U.S. 497, 499—500, 74 S.Ct. 693, 694, 98 L.Ed. 884; Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551.
12
There might be cases in which a State refused to re-employ a person under such circumstances that interests in liberty would be implicated. But this is not such a case.
13
The State, in declining to rehire the respondent, did not make any charge against him that might seriously damage his standing and associations in his community. It did not base the nonrenewal of his contract on a charge, for example, that he had been guilty of dishonesty, or immorality. Had it done so, this would be a different case. For '(w)here a person's good name, reputation, honor, or integrity is at stake because of what the government is doing to him, notice and an opportunity to be heard are essential.' Wisconsin v. Constantineau, 400 U.S. 433, 437, 91 S.Ct. 507, 510, 27 L.Ed.2d 515; Wieman v. Updegraff, 344 U.S. 183, 191, 73 S.Ct. 215, 219, 97 L.Ed. 216; Joint Anti- Fascist Refugee Committee v. McGrath, 341 U.S. 123, 71 S.Ct. 624, 95 L.Ed. 817; United States v. Lovett, 328 U.S. 303, 316—317, 66 S.Ct. 1073, 1079, 90 L.Ed. 1252; Peters v. Hobby, 349 U.S. 331, 352, 75 S.Ct. 790, 801, 99 L.Ed. 1129 (Douglas, J., concurring). See Cafeteria & Restaurant Workers v. MeElroy, 367 U.S. 886, 898, 81 S.Ct. 1743, 1750, 6 L.Ed.2d 1230. In such a case, due process would accord an opportunity to refute the charge before University officials.12 In the present case, however, there is no suggestion whatever that the respondent's 'good name, reputation, honor, or integrity' is at stake.
14
Similarly, there is no suggestion that the State, in declining to re-employ the respondent, imposed on him a stigma or other disability that foreclosed his freedom to take advantage of other employment opportunities. The State, for example, did not invoke any regulations to bar the respondent from all other public employment in state universities. Had it done so, this, again, would be a different case. For '(t)o be deprived not only of present government employment but of future opportunity for it certainly is no small injury . . ..' Joint Anti-Fascist Refugee Committee v. McGrath, supra, 341 U.S. at 185, 71 S.Ct. at 655 (Jackson, J., concurring). See Truax v. Raich, 239 U.S. 33, 41, 36 S.Ct. 7, 10, 60 L.Ed. 131. The Court has held, for example, that a State, in regulating eligibility for a type of professional employment, cannot foreclose a range of opportunities 'in a manner . . . that contravene(s) . . . Due Process,' Schware v. Board of Bar Examiners, 353 U.S. 232, 238, 77 S.Ct. 752, 756, 1 L.Ed.2d 796, and, specifically, in a manner that denies the right to a full prior hearing. Willner v. Committee on Character, 373 U.S. 96, 103, 83 S.Ct. 1175, 1180, 10 L.Ed.2d 224. See Cafeteria Workers v. McElroy, supra, 367 U.S. at 898, 81 S.Ct. at 1750. In the present case, however, this principle does not come into play.13
15
To be sure, the respondent has alleged that the nonrenewal of his contract was based on his exercise of his right to freedom of speech. But this allegation is not now before us. The District Court stayed proceedings on this issue, and the respondent has yet to prove that the decision not to rehire him was, in fact, based on his free speech activities.14
16
Hence, on the record before us, all that clearly appears is that the respondent was not rehired for one year at one university. It stretches the concept too far to suggest that a person is deprived of 'liberty' when he simply is not rehired in one job but remains as free as before to seek another. Cafeteria Workers v. McElroy, supra, 367 U.S. at 895—896, 81 S.Ct. at 1748 1749, 6 L.Ed.2d 1230.
III
17
The Fourteenth Amendment's procedural protection of property is a safeguard of the security of interests that a person has already acquired in specific benefits. These interests—property interests—may take many forms.
18
Thus, the Court has held that a person receiving welfare benefits under statutory and administrative standards defining eligibility for them has an interest in continued receipt of those benefits that is safeguarded by procedural due process. Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287.15 See Flemming v. Nestor, 363 U.S. 603, 611, 80 S.Ct. 1367, 1373, 4 L.Ed.2d 1435. Similarly, in the area of public employment, the Court has held that a public college professor dismissed from an office held under tenure provisions, Slochower v. Board of Education, 350 U.S. 551, 76 S.Ct. 637, 100 L.Ed. 692, and college professors and staff members dismissed during the terms of their contracts, Wieman v. Updegraff, 344 U.S. 183, 73 S.Ct. 215, 97 L.Ed. 216, have interests in continued employment that are safeguarded by due process. Only last year, the Court held that this principle 'proscribing summary dismissal from public employment without hearing or inquiry required by due process' also applied to a teacher recently hired without tenure or a formal contract, but nonetheless with a clearly implied promise of continued employment. Connell v. Higginbotham, 403 U.S. 207, 208, 91 S.Ct. 1772, 1773, 29 L.Ed.2d 418.
19
Certain attributes of 'property' interests protected by procedural due process emerge from these decisions. To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it. It is a purpose of the ancient institution of property to protect those claims upon which people rely in their daily lives, reliance that must not be arbitrarily undermined. It is a purpose of the constitutional right to a hearing to provide an opportunity for a person to vendicate those claims.
20
Property interests, of course, are not created by the Constitution. Rather they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law—rules or understandings that secure certain benefits and that support claims of entitlement to those benefits. Thus, the welfare recipients in Goldberg v. Kelly, supra, had a claim of entitlement to welfare payments that was grounded in the statute defining eligibility for them. The recipients had not yet shown that they were, in fact, within the statutory terms of eligibility. But we held that they had a right to a hearing at which they might attempt to do so.
21
Just as the welfare recipients' 'property' interest in welfare payments was created and defined by statutory terms, so the respondent's 'property' interest in employment at Wisconsin State University-Oshkosh was created and defined by the terms of his appointment. Those terms secured his interest in employment up to June 30, 1969. But the important fact in this case is that they specifically provided that the respondent's employment was to terminate on June 30. They did not provide for contract renewal absent 'sufficient cause.' Indeed, they made no provision for renewal whatsoever.
22
Thus, the terms of the respondent's appointment secured absolutely no interest in re-employment for the next year. They supported absolutely no possible claim of entitlement to re-employment. Nor, significantly, was there any state statute or University rule or policy that secured his interest in re-employment or that created any legitimate claim to it.16 In these circumstances, the respondent surely had an abstract concern in being rehired, but he did not have a property interest sufficient to require the University authorities to give him a hearing when they declined to renew his contract of employment.
IV
23
Our analysis of the respondent's constitutional rights in this case in no way indicates a view that an opportunity for a hearing or a statement of reasons for nonretention would, or would not, be appropriate or wise in public colleges and universities.17 For it is a written Constitution that we apply. Our role is confined to interpretation of that Constitution.
24
We must conclude that the summary judgment for the respondent should not have been granted, since the respondent has not shown that he was deprived of liberty or property protected by the Fourteenth Amendment. The judgment of the Court of Appeals, accordingly, is reversed and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Reversed and remanded.
25
Mr. Justice POWELL took no part in the decision of this case.
26
Mr. Justice DOUGLAS, dissenting.
27
Respondent Roth, like Sindermann in the companion case, had no tenure under Wisconsin law and, unlike Sindermann, he had had only one year of teaching at Wisconsin State University-Oshkosh where during 1968—1969 he had been Assistant Professor of Political Science and International Studies. Though Roth was rated by the faculty as an excellent teacher, he had publicly criticized the administration for suspending an entire group of 94 black students without determining individual guilt. He also criticized the university's regime as being authoritarian and autocratic. He used his classroom to discuss what was being done about the black episode; and one day, instead of meeting his class, he went to the meeting of the Board of Regents.
28
In this case, as in Sindermann, an action was started in Federal District Court under 42 U.S.C. § 19831 claiming in part that the decision of the school authorities not to rehire was in retaliation for his expression of opinion. The District Court, in partially granting Roth's motion for summary judgment, held that the Fourteenth Amendment required the university to give a hearing to teachers whose contracts were not to be renewed and to give reasons for its action. 310 F.Supp. 972, 983. The Court of Appeals affirmed. 446 F.2d 806.
29
Professor Will Herberg, of Drew University, in writing of 'academic freedom' recently said:
30
'(I)t is sometimes conceived as a basic constitutional right guaranteed and protected under the First Amendment.
31
'But, of course, this is not the case. Whereas a man's right to speak out on this or that may be guaranteed and protected, he can have no imaginable human or constitutional right to remain a member of a university faculty. Clearly, the right to academic freedom is an acquired one, yet an acquired right of such value to society that in the minds of many it has verged upon the constitutional.'
32
Washington Sunday Star, Jan. 23, 1972, B-3, col. 1.
33
There may not be a constitutional right to continued employment if private schools and colleges are involved. But Prof. Herberg's view is not correct when public schools move against faculty members. For the First Amendment, applicable to the States by reason of the Fourteenth Amendment, protects the individual against state action when it comes to freedom of speech and of press and the related freedoms guaranteed by the First Amendment; and the Fourteenth protects 'liberty' and 'property' as stated by the Court in Sindermann.
34
No more direct assault on academic freedom can be imagined than for the school authorities to be allowed to discharge a teacher because of his or her philosophical, political, or ideological beliefs. The same may well be true of private schools, if through the device of financing or other umbilical cords they become instrumentalities of the State. Mr. Justice Frankfurther stated the constitutional theory in Sweezy v. New Hampshire, 354 U.S. 234, 261—262, 77 S.Ct. 1203, 1217, 1 L.Ed.2d 1311 (concurring in result):
35
'Progress in the natural sciences is not remotely confined to findings made in the laboratory. Insights into the mysteries of nature are born of hypothesis and speculation. The more so is this true in the pursuit of understanding in the groping endeavors of what are called the social sciences, the concern of which is man and society. The problems that are the respective preoccupations of anthropology, economics, law, psychology, sociology and related areas of scholarship are merely departmentalized dealing, by way of manageable division of analysis, with interpenetrating aspects of holistic perplexities. For society's good—if understanding be an essential need of society—inquires into these problems, speculations about them, stimulation in others of reflection upon them, must be left as unfettered as possible. Political power must abstain from intrusion into this activity of freedom, pursued in the interest of wise government and the people's well-being, except for reasons that are exigent and obviously compelling.'
36
We repeated that warning in Keyishian v. Board of Regents, 385 U.S. 589, 603, 87 S.Ct. 675, 683, 17 L.Ed.2d 629:
37
'Our Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us and not merely to the teachers concerned. That freedom is therefore a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom.'
38
When a violation of First Amendment rights is alleged, the reasons for dismissal or for nonrenewal of an employment contract must be examined to see if the reasons given are only a cloak for activity or attitudes protected by the Constitution. A statutory analogy is present under the National Labor Relations Act, 29 U.S.C. § 151 et seq. While discharges of employees for 'cause' are permissible (Fibreboard Paper Products Corp. v. NLRB, 379 U.S. 203, 217, 85 S.Ct. 398, 406, 13 L.Ed.2d 233), discharges because of an employee's union activities are banned by § 8(a)(3), 29 U.S.C. § 158(c)(3). So the search is to ascertain whether the stated ground was the real one or only a pretext. See J. P. Stevens & Co. v. NLRB, 380 F.2d 292, 300 (2 Cir.).
39
In the case of teachers whose contracts are not renewed, tenure is not the critical issue. In the Sweezy case, the teacher, whose First Amendment rights we honored, had no tenure but was only a guest lecturer. In the Keyishian case, one of the petitioners (Keyishian himself) had only a 'one-year-term contract' that was not renewed. 385 U.S., at 592, 87 S.Ct., at 678. In Shelton v. Tucker, 364 U.S. 479, 81 S.Ct. 247, 5 L.Ed.2d 231, one of the petitioners was a teacher whose 'contract for the ensuing school year was not renewed' (id., at 483, 81 S.Ct., at 249) and two others who refused to comply were advised that it made 'impossible their re-employment as teachers for the following school year.' Id., at 484, 81 S.Ct., at 250. The oath required in Keyishian and the affidavit listing memberships required in Shelton were both, in our view, in violation of First Amendment rights. Those cases mean that conditioning renewal of a teacher's contract upon surrender of First Amendment rights is beyond the power of a State.
40
There is sometimes a conflict between a claim for First Amendment protection and the need for orderly administration of the school ststem, as we noted in Pickering v. Board of Education, 391 U.S. 563, 569, 88 S.Ct. 1731, 1735, 20 L.Ed.2d 811. That is one reason why summary judgments in this class of cases are seldom appropriate. Another reason is that careful factfinding is often necessary to know whether the given reason for nonrenewal of a teacher's contract is the real reason or a feigned one.
41
It is said that since teaching in a public school is a privilege, the State can grant it or withhold it on conditions. We have, however, rejected that thesis in numerous cases, e.g., Graham v. Richardson, 403 U.S. 365, 374, 91 S.Ct. 1848, 1853, 29 L.Ed.2d 534. See Van Alstyne, The Demise of the Right- Privilege Distinction in Constitutional Law, 81 Harv.L.Rev. 1439 (1968). In Hannegan v. Esquire, Inc., 327 U.S. 146, 156, 66 S.Ct. 456, 461, 90 L.Ed. 586, we said that Congress may not by withdrawal of mailing privileges place limitations on freedom of speech which it could not do constitutionally if done directly. We said in American Communications Ass'n v. Douds, 339 U.S. 382, 402, 70 S.Ct. 674, 685, 94 L.Ed. 925, that freedom of speech was abridged when the only restraint on its exercise was withdrawal of the privilege to invoke the facilities of the National Labor Relations Board. In Wieman v. Updegraff, 344 U.S. 183, 73 S.Ct. 215, 97 L.Ed. 216, we held that an applicant could not be denied the opportunity for public employment because he had exercised his First Amendment rights. And in Speiser v. Randall, 357 U.S. 513, 78 S.Ct. 1332, 2 L.Ed.2d 1460, we held that a denial of a tax exemption unless one gave up his First Amendment rights was an abridgment of Fourteenth Amendment rights.
42
As we held in Speiser v. Randall, supra, when a State proposes to deny a privilege to one who it alleges has engaged in unprotected speech, Due Process requires that the State bear the burden of proving that the speech was not protected. '(T)he 'protection of the individual against arbitrary action' . . . (is) the very essence of due process,' Slochower v. Board of Higher Education, 350 U.S. 551, 559, 76 S.Ct. 637, 641, 100 L.Ed. 692, but where the State is allowed to act secretly behind closed doors and without any notice to those who are affected by its actions, there is no check against the possibility of such 'arbitrary action.'
43
Moreover, where 'important interests' of the citizen are implicated (Bell v. Burson, 402 U.S. 535, 539, 91 S.Ct. 1586, 1589, 29 L.Ed.2d 90) they are not to be denied or taken away without due process. Ibid. Bell v. Burson involved a driver's license. But also included are disqualification for unemployment compensation (Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965), discharge from public employment (Slochower v. Board of Education, supra), denial of tax exemption (Speiser v. Randall, supra), and withdrawal of welfare benefits (Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287). And see Wisconsin v. Constantineau, 400 U.S. 433, 91 S.Ct. 507, 27 L.Ed.2d 515. We should now add that nonrenewal of a teacher's contract, whether or not he has tenure, is an entitlement of the same importance and dignity.
44
Cafeteria & Restaurant Workers v. McElroy, 367 U.S. 886, 81 S.Ct. 1743, 6 L.Ed.2d 1230, is not opposed. It held that a cook employed in a cafeteria in a military installation was not entitled to a hearing prior to the withdrawal of her access to the facility. Her employer was prepared to employ her at another of its restaurants, the withdrawal was not likely to injure her reputation, and her employment opportunities elsewhere were not impaired. The Court held that the very limited individual interest in this one job did not outweigh the Government's authority over an important federal military establishment. Nonrenewal of a teacher's contract is tantamount in effect to a dismissal and the consequences may be enormous. Nonrenewal can be a blemish that turns into a permanent scar and effectively limits any chance the teacher has of being rehired as a teacher, at least in his State.
45
If this nonrenewal implicated the First Amendment, then Roth was deprived of constitutional rights because his employment was conditioned on a surrender of First Amendment rights; and, apart from the First Amendment, he was denied due process when he received no notice and hearing of the adverse action contemplated against him. Without a statement of the reasons for the discharge and an opportunity to rebut those reasons—both of which were refused by petitioners—there is no means short of a lawsuit to safeguard the right not to be discharged for the exercise of First Amendment guarantees.
46
The District Court held, 310 F.Supp., at 979—980:
47
'Substantive constitutional protection for a university professor against non-retention in violation of his First Amendment rights or arbitrary non-retention is useless without procedural safeguards. I hold that minimal procedural due process includes a statement of the reasons why the university intends not to retain the professor, notice of a hearing at which he may respond to the stated reasons, and a hearing if the professor appears at the appointed time and place. At such a hearing the professor must have a reasonable opportunity to submit evidence relevant to the stated reasons. The burden of going forward and the burden of proof rests with the professor. Only if he makes a reasonable showing that the stated reasons are wholly inappropriate as a basis for decision or that they are wholly without basis in fact would the university administration become obliged to show that the stated reasons are not inappropriate or that they have a basis in fact.'
48
It was that procedure that the Court of Appeals approved. 446 F.2d, at 809—810. The Court of Appeals also concluded that though the § 1983 action was pending in court, the court should stay its hand until the academic procedures had been completed.2 As stated by the Court of Appeals in Sindermann v. Perry, 430 F.2d 939 (CA5):
49
'School-constituted review bodies are the most appropriate forums for initially determining issues of this type, both for the convenience of the parties and in order to bring academic expertise to bear in resolving the nice issues of administrative discipline, teacher competence and school policy, which so frequently must be balanced in reaching a proper determination.' Id., at 944—945.
50
That is a permissible course for district courts to take, though it does not relieve them of the final determination whether nonrenewal of the teacher's contract was in retaliation for the exercise of First Amendment rights or a denial of due process.
51
Accordingly I would affirm the judgment of the Court of Appeals.
52
Mr. Justice MARSHALL, dissenting.
53
Respondent was hired as an assistant professor of political science at Wisconsin State University-Oshkosh for the 1968—1969 academic year. During the course of that year he was told that he would not be rehired for the next academic term, but he was never told why. In this case, he asserts that the Due Process Clause of the Fourteenth Amendment to the United States Constitution entitled him to a statement of reasons and a hearing on the University's decision not to rehire him for another year.1 This claim was sustained by the District Court, which granted respondent summary judgment, 310 F.Supp. 972, and by the Court of Appeals which affirmed the judgment of the District Court. 446 F.2d 806. This Court today reverses the judgment of the Court of Appeals and rejects respondent's claim. I dissent.
54
While I agree with Part I of the Court's opinion, setting forth the proper framework for consideration of the issue presented, and also with those portions of Parts II and III of the Court's opinion that assert that a public employee is entitled to procedural due process whenever a State stigmatizes him by denying employment, or injures his future employment prospects severely, or whenever the State deprives him of a property interest. I would go further than the Court does in defining the terms 'liberty' and 'property.'
55
The prior decisions of this Court, discussed at length in the opinion of the Court, establish a principle that is as obvious as it is compelling—i.e., federal and state governments and governmental agencies are restrained by the Constitution from acting arbitrarily with respect employment opportunities that they either offer or control. Hence, it is now firmly established that whether or not a private employer is free to act capriciously or unreasonably with respect to employment practices, at least absent statutory2 or contractual3 controls, a government employer is different. The government may only act fairly and reasonably.
56
This Court has long maintained that 'the right to work for a living in the common occupations of the community is of the very essence of the personal freedom and opportunity that it was the purpose of the (Fourteenth) Amendment to secure.' Truax v. Raich, 239 U.S. 33, 41, 36 S.Ct. 7, 10, 60 L.Ed. 131 (1915) (Hughes, J.). See also Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 626, 67 L.Ed. 1042 (1923). It has also established that the fact that an employee has no contract guaranteeing work for a specific future period does not mean that as the result of action by the government he may be 'discharged at any time, for any reason or for no reason.' Truax v. Raich, supra, 239 U.S., at 38, 36 S.Ct., at 9.
57
In my view, every citizen who applies for a government job is entitled to it unless the government can establish some reason for denying the employment. This is the 'property' right that I believe is protected by the Fourteenth Amendment and that cannot be denied 'without due process of law.' And it is also liberty— liberty to work—which is the 'very essence of the personal freedom and opportunity' secured by the Fourteenth Amendment.
58
This Court has often had occasion to note that the denial of public employment is a serious blow to any citizen. See, e.g., Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 185, 71 S.Ct. 624, 655, 95 L.Ed. 817 (1951) (Jackson, J., concurring); United States v. Lovett, 328 U.S. 303, 316—317, 66 S.Ct. 1073, 1079, 90 L.Ed. 1252 (1946). Thus, when an application for public employment is denied or the contract of a government employee is not renewed, the government must say why, for it is only when the reasons underlying government action are known that citizens feel secure and protected against arbitrary government action.
59
Employment is one of the greatest, if not the greatest, benefits that governments offer in modern-day life. When something as valuable as the opportunity to work is at stake, the government may not reward some citizens and not others without demonstrating that its actions are fair and equitable. And it is procedural due process that is our fundamental guarantee of fairness, our protection against arbitrary, capricious, and unreasonable government action.
Mr. Justice Douglas has written that:
60
'It is not without significance that most of the provisions of the Bill of Rights are procedural. It is procedure that spells much of the difference between rule by law and rule by whim or caprice. Steadfast adherence to strict procedural safeguards is our main assurance that there will be equal justice under law.' Joint Anti-Fascist Refugee Committee v. McGrath, supra, 341 U.S., at 179, 71 S.Ct., at 652 (concurring opinion).
61
And Mr. Justice Frankfurter has said that '(t)he history of American freedom is, in no small measure, the history of procedure.' Malinski v. New York, 324 U.S. 401, 414, 65 S.Ct. 781, 787, 89 L.Ed. 1029 (1945) (separate opinion). With respect to occupations controlled by the government, one lower court has said that '(t)he public has the right to expect its officers . . . to make adjudications on the basis of merit. The first step toward insuring that these expectations are realized is to require adherence to the standards of due process; absolute and uncontrolled discretion invites abuse.' Hornsby v. Allen, 326 F.2d 605, 610 (CA5 1964).
62
We have often noted that procedural due process means many different things in the numerous contexts in which it applies. See, e.g., Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970); Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971). Prior decisions have held that an applicant for admission to practice as an attorney before the United States Board of Tax Appeals may not be rejected without a statement of reasons and a chance for a hearing on disputed issues of fact;4 that a tenured teacher could not be summarily dismissed without notice of the reasons and a hearing;5 that an applicant for admission to a state bar could not be denied the opportunity to practice law without notice of the reasons for the rejection of his application and a hearing;6 and even that a substitute teacher who had been employed only two months could not be dismissed merely because she refused to take a loyalty oath without an inquiry into the specific facts of her case and a hearing on those in dispute.7 I would follow these cases and hold that respondent was denied due process when his contract was not renewed and he was not informed of the reasons and given an opportunity to respond.
63
It may be argued that to provide procedural due process to all public employees or prospective employees would place an intolerable burden on the machinery of government. Cf. Goldberg v. Kelly, supra. The short answer to that argument is that it is not burdensome to give reasons when reasons exist. Whenever an application for employment is denied, an employee is discharged, or a decision not to rehire an employee is made, there should be some reason for the decision. It can scarcely be argued that government would be crippled by a requirement that the reason be communicated to the person most directly affected by the government's action.
64
Where there are numerous applicants for jobs, it is likely that few will choose to demand reasons for not being hired. But, if the demand for reasons is exceptionally great, summary procedures can be devised that would provide fair and adequate information to all persons. As long as the government has a good reason for its actions it need not fear disclosure. It is only where the government acts improperly that procedural due process is truly burdensome. And that is precisely when it is most necessary.
65
It might also be argued that to require a hearing and a statement of reasons is to require a useless act, because a government bent on denying employment to one or more persons will do so regardless of the procedural hurdles that are placed in its path. Perhaps this is so, but a requirement of procedural regularity at least renders arbitrary action more difficult. Moreover, proper procedures will surely eliminate some of the arbitrariness that results, not from malice, but from innocent error. 'Experience teaches . . . that the affording of procedural safeguards, which by their nature serve to illuminate the underlying facts, in itself often operates to prevent erroneous decisions on the merits from occurring.' Silver v. New York Stock Exchange, 373 U.S. 341, 366, 83 S.Ct. 1246, 1262, 10 L.Ed.2d 389 (1963). When the government knows it may have to justify its decisions with sound reasons, its conduct is likely to be more cautious, careful, and correct.
Professor Gellhorn put the argument well:
66
'In my judgment, there is no basic division of interest between the citizenry on the one hand and officialdom on the other. Both should be interested equally in the quest for procedural safeguards. I echo the late Justice Jackson in saying: 'Let it not be overlooked that due process of law is not for the sole benefit of an accused. It is the best insurance for the Government itself against those blunders which leave lasting stains on a system of justice'—blunders which are likely to occur when reasons need not be given and when the reasonableness and indeed legality of judgments need not be subjected to any appraisal other than one's own. . . .' Summary of Colloquy on Administrative Law, 6 J. Soc. Pub. Teachers of Law, 70, 73 (1961).
67
Accordingly, I dissent.
1
The respondent had no contract of employment. Rather, his formal notice of appointment was the equivalent of an employment contract.
The notice of his appointment provided that: 'David F. Roth is hereby appointed to the faculty of the Wisconsin State University Position number 0262. (Location:) Oshkosh as (Rank:) Assistant Professor of (Department:) Political Science this (Date:) first day of (Month:) September (Year:) 1968.' The notice went on to specify that the respondent's 'appointment basis' was for the 'academic year.' And it provided that '(r)egulations governing tenure are in accord with Chapter 37.31, Wisconsin Statutes. The employment of any staff member for an academic year shall not be for a term beyond June 30th of the fiscal year in which the appointment is made.' See n. 2, infra.
2
Wis.Stat. § 37.31(1) (1967), in force at the time, provided in pertinent part that:
'All teachers in any state university shall initially be employed on probation. The employment shall be permanent, during efficiency and good behavior after 4 years of continuous service in the state university system as a teacher.'
3
Wis.Stat. § 37.31(1) further provided that:
'No teacher who has become permanently employed as herein provided shall be discharged except for cause upon written charges. Within 30 days of receiving the written charges, such teacher may appeal the discharge by a written notice to the president of the board of regents of state colleges. The board shall cause the charges to be investigated, hear the case and provide such teacher with a written statement as to their decision.'
4
The Rules, promulgated by the Board of Regents in 1967, provide:
'RULE I—February first is established throughout the State University system as the deadline for written notification of non-tenured faculty concerning retention or non-retention for the ensuing year. The President of each University shall give such notice each year on or before this date.'
'RULE II—During the time a faculty member is on probation, no reason for non-retention need be given. No review or appeal is provided in such case.
'RULE III—'Dismissal' as opposed to 'Non-Retention' means termination of responsibilities during an academic year. When a non-tenure faculty member is dismissed he has no right under Wisconsin Statutes to a review of his case or to appeal. The President may, however, in his discretion, grant a request for a review within the institution, either by a faculty committee or by the President, or both. Any such review would be informal in nature and would be advisory only.
'RULE IV—When a non-tenure faculty member is dismissed he may request a review by or hearing before the Board of Regents. Each such request will be considered separately and the Board will, in its discretion, grant or deny same in each individual case.'
5
While the respondent alleged that he was not rehired because of his exercise of free speech, the petitioners insisted that the non-retention decision was based on other, constitutionally valid grounds. The District Court came to no conclusion whatever regarding the true reason for the University President's decision. 'In the present case,' it stated, 'it appears that a determination as to the actual bases of (the) decision must await amplification of the facts at trial. . . . Summary judgment is inappropriate.' 310 F.Supp. 972, 982.
6
The courts that have had to decide whether a nontenured public employee has a right to a statement of reasons or a hearing upon nonrenewal of his contract have come to varying conclusions. Some have held that neither procedural safeguard is required. E.g., Orr v. Trinter, 444 F.2d 128 (CA6); Jones v. Hopper, 410 F.2d 1323 (CA10); Freeman v. Gould Special School District, 405 F.2d 1153 (CA8). At least one court has held that there is a right to a statement of reasons but not a hearing. Drown v. Portsmouth School District, 435 F.2d 1182 (CA1). And another has held that both requirements depend on whether the employee has an 'expectancy' of continued employment. Ferguson v. Thomas, 430 F.2d 852, 856 (CA5).
7
Before a person is deprived of a protected interest, he must be afforded opportunity for some kind of a hearing, 'except for extraordinary situations where some valid governmental interest is at stake that justifies postponing the hearing until after the event.' Boddie v. Connecticut, 401 U.S. 371, 379, 91 S.Ct. 780, 786, 28 L.Ed.2d 113. 'While '(m)any controversies have raged about . . . the Due Process Clause,' . . . it is fundamental that except in emergency situations (and this is not one) due process requires that when a State seeks to terminate (a protected) interest . . ., it must afford 'notice and opportunity for hearing appropriate to the nature of the case' before the termination becomes effective.' Bell v. Burson, 402 U.S. 535, 542, 91 S.Ct. 1586, 1591, 29 L.Ed.2d 90. For the rare and extraordinary situations in which we have held that deprivation of a protected interest need not be preceded by opportunity for some kind of hearing, see, e.g., Central Union Trust Co. v. Garvan, 254 U.S. 554, 566, 41 S.Ct. 214, 215, 65 L.Ed. 403; Phillips v. Commissioner of Internal Revenue, 283 U.S. 589, 597, 51 S.Ct. 608, 611, 75 L.Ed. 1289; Ewing v. Mytinger & Casselberry, Inc., 339 U.S. 594, 70 S.Ct. 870, 94 L.Ed. 1088.
8
'The formality and procedural requisites for the hearing can vary, depending upon the importance of the interests involved and the nature of the subsequent proceedings.' Boddie v. Connecticut, supra, 401 U.S., at 378, 91 S.Ct., at 786. See, e.g., Goldberg v. Kelly, 397 U.S. 254, 263, 90 S.Ct. 1011, 1018, 25 L.Ed.2d 287; Hannah v. Larche, 363 U.S. 420, 80 S.Ct. 1502, 4 L.Ed.2d 1307. The constitutional requirement of opportunity for some form of hearing before deprivation of a protected interest, of course, does not depend upon such a narrow balancing process. See n. 7, supra.
9
In a leading case decided many years ago, the Court of Appeals for the District of Columbia Circuit held that public employment in general was a 'privilege,' not a 'right,' and that procedural due process guarantees therefore were inapplicable. Bailey v. Richardson, 86 U.S.App.D.C. 248, 182 F.2d 46, aff'd by an equally divided Court, 341 U.S. 918, 71 S.Ct. 669, 95 L.Ed. 1352. The basis of this holding has been thoroughly undermined in the ensuing years. For, as Mr. Justice Blackmun wrote for the Court only last year, 'this Court now has rejected the concept that constitutional rights turn upon whether a governmental benefit is characterized as a 'right' or as a 'privilege." Graham v. Richardson, 403 U.S. 365, 374, 91 S.Ct. 1848, 1853, 29 L.Ed.2d 534. See, e.g., Morrissey v. Brewer, supra, 408 U.S., at 482, 92 S.Ct., at 2600; Bell v. Burson, supra, 402 U.S., at 539, 91 S.Ct., at 1589; Goldberg v. Kelly, supra, 397 U.S., at 262, 90 S.Ct., at 1017; Shapiro v. Thompson, 394 U.S. 618, 627 n. 6, 89 S.Ct. 1322, 1329, 22 L.Ed.2d 600; Pickering v. Board of Education, 391 U.S. 563, 568, 88 S.Ct. 1731, 1734, 20 L.Ed.2d 811; Sherbert v. Verner, 374 U.S. 398, 404, 83 S.Ct. 1790, 1794, 10 L.Ed.2d 965.
10
See, e.g., Connell v. Higginbotham, 403 U.S. 207, 208, 91 S.Ct. 1772, 1773, 29 L.Ed.2d 418; Bell v. Burson, supra; Goldberg v. Kelly, supra.
11
'Although the Court has not assumed to define 'liberty' (in the Fifth Amendment's Due Process Clause) with any great precision, that term is not confined to mere freedom from bodily restraint.' Bolling v. Sharpe, 347 U.S. 497, 499, 74 S.Ct. 693, 694, 98 L.Ed. 884. See, e.g., Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551.
12
The purpose of such notice and hearing is to provide the person an opportunity to clear his name. Once a person has cleared his name at a hearing, his employer, of course, may remain free to deny him future employment for other reasons.
13
The District Court made an assumption 'that non-retention by one university or college creates concrete and practical difficulties for a professor in his subsequent academic career.' 310 F.Supp., at 979. And the Court of Appeals based its affirmance of the summary judgment largely on the premise that 'the substantial adverse effect non-retention is likely to have upon the career interests of an individual professor' amounts to a limitation on future employment opportunities sufficient invoke procedural due process guarantees. 446 F.2d, at 809. But even assuming, arguendo, that such a 'substantial adverse effect' under these circumstances would constitute a state-imposed restriction on liberty, the record contains no support for these assumptions. There is no suggestion of how nonretention might affect the respondent's future employment prospects. Mere proof, for example, that his record of nonretention in one job, taken alone, might make him somewhat less attractive to some other employers would hardly establish the kind of foreclosure of opportunities amounting to a deprivation of 'liberty.' Cf. Schware v. Board of Bar Examiners, 353 U.S. 232, 77 S.Ct. 752, 1 L.Ed.2d 796.
14
See n. 5, supra. The Court of Appeals, nonetheless, argued that opportunity for a hearing and a statement of reasons were required here 'as a prophylactic against non-retention decisions improperly motivated by exercise of protected rights.' 446 F.2d, at 810 (emphasis supplied). While the Court of Appeals recognized the lack of a finding that the respondent's nonretention was based on exercise of the right of free speech, it felt that the respondent's interest in liberty was sufficiently implicated here because the decision not to rehire him was made 'with a background of controversy and unwelcome expressions of opinion.' Ibid.
When a State would directly impinge upon interests in free speech or free press, this Court has on occasion held that opportunity for a fair adversary hearing must precede the action, whether or not the speech or press interest is clearly protected under substantive First Amendment standards. Thus, we have required fair notice and opportunity for an adversary hearing before an injunction is issued against the holding of rallies and public meetings. Carroll v. President and Com'rs of Princess Anne, 393 U.S. 175, 89 S.Ct. 347, 21 L.Ed.2d 325. Similarly, we have indicated the necessity of procedural safeguards before a State makes a large-scale seizure of a person's allegedly obscene books, magazines, and so forth. A Quantity of Books v. Kansas, 378 U.S. 205, 84 S.Ct. 1723, 12 L.Ed.2d 809; Marcus v. Search Warrant, 367 U.S. 717, 81 S.Ct. 1708, 6 L.Ed.2d 1127. See Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649; Bantam Books v. Sullivan, 372 U.S. 58, 83 S.Ct. 631, 9 L.Ed.2d 584. See generally Monaghan, First Amendment 'Due Process', 83 Harv.L.Rev. 518.
In the respondent's case, however, the State has not directly impinged upon interests in free speech or free press in any way comparable to a seizure of books or an injunction against meetings. Whatever may be a teacher's rights of free speech, the interest in holding a teaching job at a state university, simpliciter, is not itself a free speech interest.
15
Goldsmith v. United States Board of Tax Appeals, 270 U.S. 117, 46 S.Ct. 215, 70 L.Ed. 494, is a related case. There, the petitioner was a lawyer who had been refused admission to practice before the Board of Tax Appeals. The Board had 'published rules for admission of persons entitled to practice before it, by which attorneys at law admitted to courts of the United States and the states, and the District of Columbia, as well as certified public accountants duly qualified under the law of any state or the District are made eligible. . . . The rules further provide that the Board may in its discretion deny admission to any applicant, or suspend or disbar any person after admission.' Id., at 119, 46 S.Ct., at 216. The Board denied admission to the petitioner under its discretionary power, without a prior hearing and a statement of the reasons for the denial. Although this Court disposed of the case on other grounds, it stated, in an opinion by Mr. Chief Justice Taft, that the existence of the Board's eligibility rules gave the petitioner an interest and claim to practice before the Board to which procedural due process requirements applied. It said that the Board's discretionary power 'must be construed to mean the exercise of a discretion to be exercised after fair investigation, with such a notice, hearing and opportunity to answer for the applicant as would constitute due process.' Id., at 123, 46 S.Ct., at 217.
16
To be sure, the respondent does suggest that most teachers hired on a year-to-year basis by Wisconsin State University-Oshkosh are, in fact, rehired. But the District Court has not found that there is anything approaching a 'common law' of re-employment, see Perry v. Sindermann, 408 U.S. 593, at 602, 92 S.Ct. 2694, at 2705, 33 L.Ed.2d 570, so strong as to require University officials to give the respondent a statement of reasons and a hearing on their decision not to rehire him.
17
See, e.g., Report of Committee A on Academic Freedom and Tenure, Procedural Standards in the Renewal or Nonrenewal of Faculty Appointments, 56 AAUP Bulletin No. 1, p. 21 (Spring 1970).
1
Section 1983 reads as follows:
'Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.'
2
Such a procedure would not be contrary to the well-settled rule that § 1983 actions do not require exhaustion of other remedies. See, e.g., Wilwording v. Swenson, 404 U.S. 249, 92 S.Ct. 407, 30 L.Ed.2d 419 (1971); Damico v. California, 389 U.S. 416, 88 S.Ct. 526, 19 L.Ed.2d 647 (1967); McNeese v. Board of Education, 373 U.S. 668, 83 S.Ct. 1433, 10 L.Ed.2d 622 (1963); Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961). One of the allegations in the complaint was that respondent was denied any effective state remedy, and the District Court's staying its hand thus furthered rather than thwarted the purposes of § 1983.
1
Respondent has also alleged that the true reason for the decision not to rehire him was to punish him for certain statements critical of the University. As the Court points out, this issue is not before us the present time.
2
See, e.g., Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971); 42 U.S.C. § 2000e.
3
Cf. Note, Procedural 'Due Process' in Union Disciplinary Proceedings, 57 Yale L.J. 1302 (1948).
4
Goldsmith v. United States Board of Tax Appeals, 270 U.S. 117, 46 S.Ct. 215, 70 L.Ed. 494 (1926).
5
Slochower v. Board of Higher Education, 350 U.S. 551, 76 S.Ct. 637, 100 L.Ed. 692 (1956).
6
Willner v. Committee on Character, 373 U.S. 96, 83 S.Ct. 1175, 10 L.Ed.2d 224 (1963).
7
Connell v. Higginbotham, 403 U.S. 207, 91 S.Ct. 1772, 29 L.Ed.2d 418 (1971).
| 34
|
408 U.S. 501
92 S.Ct. 2531.
33 L.Ed.2d 507
UNITED STATES, Appellant,v.Daniel B. BREWSTER.
No. 70—45.
Argued Oct. 18, 1971.
Reargued March 20, 1972.
Decided June 29, 1972.
Syllabus
Appellee, a former United States Senator, was charged with the solicitation and acceptance of bribes in violation of 18 U.S.C. §§ 201(c)(1) and 201(g). The District Court, on appellee's pretrial motion, dismissed the indictment on the ground that the Speech or Debate Clause of the Constitution shielded him 'from any prosecution for alleged bribery to perform a legislative act.' The United States filed a direct appeal to this Court under 18 U.S.C. § 3731 (1964 ed., Supp. V), which appellee contends this Court does not have jurisdiction to entertain because the District Court's action was not 'a decision or judgment setting aside, or dismissing' the indictment but was instead a summary judgment on the merits based on the facts of the case. Held:
1. This Court has jurisdiction under 18 U.S.C. § 3731 (1964 ed., Supp. V) to hear the appeal, since the District Court's order was based upon its determination of the constitutional invalidity of 18 U.S.C. §§ 201(c)(1) and 201(g) on the facts as alleged in the indictment. Pp. 504—507.
2. The prosecution of appellee is not prohibited by the Speech or Debate Clause. Although that provision protects members of Congress from inquiry into legislative acts or the motivation for performance of such acts, United States v. Johnson, 383 U.S. 169, 185, 86 S.Ct. 749, 757, 15 L.Ed.2d 681, it does not protect all conduct relating to the legislative process. Since in this case prosecution of the bribery charges does not protect all conduct relating to the acts or motivation, the District Court erred in holding that the Speech or Debate Clause required dismissal of the indictment. Pp. 507—529.
Reversed and remanded.
Solicitor Gen. Erwin N. Griswold for appellant.
Norman P. Ramsey, Baltimore, Md., for appellee.
Mr. Chief Justice BURGER delivered the opinion of the Court.
1
This direct appeal from the District Court presents the question whether a Member of Congress may be prosecuted under 18 U.S.C. §§ 201(c)(1), 201(g), for accepting a bribe in exchange for a promise relating to an official act. Appellee, a former United States, Senator, was charged in five counts of a 10-count indictment.1 Counts one, three, five, and seven alleged that on four separate occasions, appellee, while he was a Senator and a member of the Senate Committee on Post Office and Civil Service,
2
'directly and indirectly, corruptly asked, solicited, sought, accepted, received and agreed to receive (sums) . . . in return for being influenced in his performance of official acts in respect to his action, vote, and decision on postage rate legislation which might at any time be pending before him in his official capacity . . . in violation of Sections 201(c)(1) and 2, Title 18, United States Code.'2
3
Count nine charged that appellee.
4
'directly and indirectly, asked, demanded, exacted, solicited, sought, accepted, received and agreed to receive (a sum) . . . for and because of official acts performed by him in respect to his action, vote and decision on postage rate legislation which had been pending before him in his official capacity . . . in violation of Sections 201(g) and 2, Title 18, United States Code.'3
5
Before a trial date was set, the appellee moved to dismiss the indictment on the ground of immunity under the Speech or Debate Clause, Art. I, § 6, of the Constitution, which provides:
6
'(F)or any Speech or Debate in either House, they (Senators or Representatives) shall not be questioned in any other Place.'
7
After hearing argument, the District Court ruled from the bench:
8
'Gentlemen, based on the facts of this case, it is admitted by the Government that the five counts of the indictment which charge Senator Brewster relate to the acceptance of bribes in connection with the performance of a legislative function by a Senator of the United States.
9
'It is the opinion of this Court that the immunity under the Speech and (sic) Debate Clause of the Constitution, particularly in view of the interpretation given that Clause by the Supreme Court in Johnson, shields Senator Brewster, constitutionally shields him from any prosecution for alleged bribery to perform a legislative act.
10
'I will, therefore, dismiss the odd counts of the indictment, 1, 3, 5, 7 and 9, as they apply to Senator Brewster.'
11
The United States filed a direct appeal to this Court, pursuant to 18 U.S.C. § 3731 (1964 ed., Supp. V).4 We postponed consideration of jurisdiction until hearing the case on the merits. 401 U.S. 935, 91 S.Ct. 922, 28 L.Ed.2d 214 (1971).
12
* The United States asserts that this Court has jurisdiction under 18 U.S.C. § 3731 (1964 ed., Supp. V) to review the District Court's dismissal of the indictment against appellee. Specifically, the United States urges that the District Court decision was either 'a decision or judgment setting aside, or dismissing (an) indictment . . . or any count thereof, where such decision or judgment is based upon the invalidity or construction of the statute upon which the indictment . . . is founded' or a 'decision or judgment sustaining a motion in bar, when the defendant has not been put in jeopardy.' If the District Court decision is correctly characterized by either of those descriptions, this Court has jurisdiction under the statute to hear the United States' appeal.
13
In United States v. Knox, 396 U.S. 77, 90 S.Ct. 363, 24 L.Ed.2d 275 (1969), we considered a direct appeal by the United States from the dismissal of an indictment that charged the appellee in that case with violating 18 U.S.C. § 1001, a general criminal provision punishing fraudulent statements made to any federal agency. The appellee, Knox, had been accused of willfully understating the number of employees accepting wagers on his behalf when he filed a form that persons engaged in the business of accepting wagers were required by law to file. The District Court dismissed the counts charging violations of § 1001 on the ground that the appellee could not be prosecuted for failure to answer the wagering form correctly since his Fifth Amendment privilege against self-incrimination prevented prosecution for failure to file the form in any respect. We found jurisdiction under § 3731 to hear the appeal in Knox on the theory that the District Court had passed on the validity of the statute on which the indictment rested. 396 U.S., at 79 n. 2, 90 S.Ct., at 364. The District Court in that case held that '§ 1001, as applied to this class of cases, is constitutionally invalid.' Ibid.
14
The counts of the indictment involved in the instant case were based on 18 U.S.C. § 201, a bribery statute. Section 201 applies to 'public officials,' and that term is defined explicitly to include Members of Congress as well as other employees and officers of the United States. Subsections (c)(1) and (g) prohibit the accepting of a bribe in return for being influenced in or performing an official act. The ruling of the District Court here was that 'the Speech (or) Debate Clause of the Constitution, particularly in view of the interpretation given . . . in Johnson, shields Senator Brewster . . . from any prosecution for alleged bribery to perform a legislative act.' Since § 201 applies only to bribery for the performance of official acts, the District Court's ruling is that, as applied to Members of Congress, § 201 is constitutionally invalid.
15
Appellee argues that the action of the District Court was not 'a decision or judgment setting aside, or dismissing' the indictment, but was instead a summary judgment on the merits. Appellee also argues that the District Court did not rule that § 201 could never be constitutionally applied to a Member of Congress, but that 'based on the facts of this case' the statute could not be constitutionally applied. Under United States v. Sisson, 399 U.S. 267, 90 S.Ct. 2117, 26 L.Ed.2d 608 (1970), an appeal does not lie from a decision that rests, not upon the sufficiency of the indictment alone, but upon extraneous facts. If an indictment is dismissed as a result of a stipulated fact or the showing of evidentiary facts outside the indictment, which facts would constitute a defense on the merits at trial, no appeal is available. See United States v. Findley, 439 F.2d 970 (CA1 1971). Appellee claims that the District Court relied on factual matter other than facts alleged in the indictment.
16
An examination of the record, however, discloses that, with the exception of a letter in which the United States briefly outlined the theory of its case against appellee, there were no 'facts' on which the District Court could act other than those recited in the indictment. Appellee contends that the statement 'based on the facts of this case,' used by the District Judge in announcing his decision, shows reliance on the Government's outline of its case. We read the District Judge's reference to 'facts,' in context, as a reference to the facts alleged in the indictment, and his ruling as holding that Members of Congress are totally immune from prosecution for accepting bribes for the performance of official, i.e., legislative, acts by virtue of the Speech or Debate Clause. Under that interpretation of § 201, it cannot be applied to a Member of Congress who accepts bribes that relate in any way to his office. We conclude, therefore, that the District Court was relying only on facts alleged in the indictment and that the dismissal of the indictment was based on a determination that the statute on which the indictment was drawn was invalid under the Speech or Debate Clause. As a consequence, this Court has jurisdiction to hear the appeal.
II
17
The immunities of the Speech or Debate Clause were not written into the Constitution simply for the personal or private benefit of Members of Congress, but to protect the integrity of the legislative process by insuring the independence of individual legislators. The genesis of the Clause at common law is well known. In his opinion for the Court in United States v. Johnson, 383 U.S. 169, 86 S.Ct. 749, 15 L.Ed.2d 681 (1966), Mr. Justice Harlan canvassed the history of the Clause and concluded that it
18
'was the culmination of a long struggle for parliamentary supremacy. Behind these simple phrases lies a history of conflict between the Commons and the Tudor and Stuart monarchs during which successive monarchs utilized the criminal and civil law to suppress and intimidate critical legislators. Since the Glorious Revolution in Britain, and throughout United States history, the privilege has been recognized as an important protection of the independence and integrity of the legislature.' Id., at 178, 86 S.Ct. at 754 (footnote omitted).
19
Although the Speech or Debate Clause's historic roots are in English history, it must be interpreted in light of the American experience, and in the context of the American constitutional scheme of government rather than the English parliamentary system. We should bear in mind that the English system differs from ours in that their Parliament is the supreme authority, not a coordinate branch. Our speech or debate privilege was designed to preserve legislative independence, not supremacy.5 Our task, therefore, is to apply the Clause in such a way as to insure the independence of the legislature without altering the historic balance of the three co-equal branches of Government.
20
It does not undermine the validity of the Framers' concern for the independence of the Legislative Branch to acknowledge that our history does not reflect a catalogue of abuses at the hands of the Executive that gave rise to the privilege in England. There is nothing in our history, for example, comparable to the imprisonment of a Member of Parliament in the Tower without a hearing and, owing to the subservience of some royal judges to the 17th and 18th century English kings, without meaningful recourse to a writ of habeas corpus.6 In fact, on only one previous occasion has this Court ever interpreted the Speech or Debate Clause in the context of a criminal charge against a Member of Congress.
21
(a) In United States v. Johnson, supra, the Court reviewed the conviction of a former Representative on seven counts of violating the federal conflict-of-interest statute, 18 U.S.C. § 281 (1964 ed.), and on one count of conspiracy to defraud the United States, 18 U.S.C. § 371. The Court of Appeals had set aside the conviction on the count for conspiracy to defraud as violating the Speech or Debate Clause. Mr. Justice Harlan, speaking for the Court, 383 U.S., at 183, 86 S.Ct., at 757, cited the oft-quoted passage of Mr. Justice Lush in Ex parte Wason, L.R. 4 Q.B. 573 (1869):
22
'I am clearly of opinion that we ought not to allow it to be doubted for a moment that the motives or intentions of members of either House cannot be inquired into by criminal proceedings with respect to anything they may do or say in the House.' Id., at 577 (emphasis added).
23
In Kilbourn v. Thompson, 103 U.S. 168, 26 L.Ed. 377 (1881), the first case in which this Court interpreted the Speech or Debate Clause, the Court expressed a similar view of the ambit of the American privilege. There the Court said the Clause is to be read broadly to include anything 'generally done in a session of the House by one of its members in relation to the business before it.' Id., at 204. This statement, too, was cited with approval in Johnson, 383 U.S., at 179, 86 S.Ct., at 755. Our conclusion in Johnson was that the privilege protected Members from inquiry into legislative acts or the motivation for actual performance of legislative acts. Id., at 185, 86 S.Ct., at 758.
24
In applying the Speech or Debate Clause, the Court focused on the specific facts of the Johnson prosecution. The conspiracy-to-defraud count alleged an agreement among Representative Johnson and three codefendants to obtain the dismissal of pending indictments against officials of savings and loan institutions. For these services, which included a speech made by Johnson on the House floor, the Government claimed Johnson was paid a bribe. At trial, the Government questioned Johnson extensively, relative to the conspiracy-to-defraud count, concerning the authorship of the speech, the factual basis for certain statements made in the speech, and his motives for giving the speech. The Court held that the use of evidence of a speech to support a count under a broad conspiracy statute was prohibited by the Speech or Debate Clause. The Government was, therefore, precluded from prosecuting the conspiracy count on retrial, insofar as it depended on inquiries into speeches made in the House.
25
It is important to note the very narrow scope of the Court's holding in Johnson:
26
'We hold that a prosecution under a general criminal statute dependent on such inquiries (into the speech or its preparation) necessarily contravenes the Speech or Debate Clause. We emphasize that our holding is limited to prosecutions involving circumstances such as those presented in the case before us.' 383 U.S., at 184—185, 86 S.Ct., at 757.
27
The opinion specifically left open the question of a prosecution which, though possibly entailing some reference to legislative acts, is founded upon a 'narrowly drawn' statute passed by Congress in the exercise of its power to regulate its Members' conduct. Of more relevance to this case, the Court in Johnson emphasized that its decision did not affect a prosecution that, though founded on a criminal statute of general application, 'does not draw in question the legislative acts of the defendant member of Congress or his motives for performing them.' Id., at 185, 86 S.Ct., at 758. The Court did not question the power of the United States to try Johnson on the conflict-of-interest counts, and it authorized a new trial on the conspiracy count, provided that all references to the making of the speech were eliminated.7
28
Three members of the Court would have affirmed Johnson's conviction. Mr. Chief Justice Warren, joined by Mr. Justice Douglas and Mr. Justice Brennan, concurring in part and dissenting in part, stated:
29
'After reading the record, it is my conclusion that the Court of Appeals erred in determining that the evidence concerning the speech infected the jury's judgment on the (conflict-of-interest) counts. The evidence amply supports the prosecution's theory and the jury's verdict on these counts—that the respondent received over $20,000 for attempting to have the Justice Department dismiss an indictment against his (present) co-conspirators, without disclosing his role in the enterprise. This is the classic example of a violation of § 281 by a Member of the Congress. . . . The arguments of government counsel and the court's instructions separating the conspiracy from the substantive counts seem unimpeachable. The speech was a minor part of the prosecution. There was nothing in it to inflame the jury and the respondent pointed with pride to it as evidence of his vigilance in protecting the financial institutions of his State. The record further reveals that the trial participants were well aware that a finding of criminality on one count did not authorize similar conclusions as to other counts, and I believe that this salutary principle was conscientiously followed. Therefore, I would affirm the convictions on the substantive counts.' Id., at 188—189, 86 S.Ct., at 759. (Footnote omitted.)
30
Johnson thus stands as a unanimous holding that a Member of Congress may be prosecuted under a criminal statute provided that the Government's case does not rely on legislative acts or the motivation for legislative acts. A legislative act has consistently been defined as an act generally done in Congress in relation to the business before it. In sum, the Speech or Debate Clause prohibits inquiry only into those things generally said or done in the House or the Senate in the performance of official duties and into the motivation for those acts.
31
It is well known, of course, that Members of the Congress engage in many activities other than the purely legislative activities protected by the Speech or Debate Clause. These include a wide range of legitimate 'errands' performed for constituents, the making of appointments with Government agencies, assistance in securing Government contracts, preparing so-called 'news letters' to constituents, news releases, and speeches delivered outside the Congress. The range of these related activities has grown over the years. They are performed in part because they have come to be expected by constituents, and because they are a means of developing continuing support for future elections. Although these are entirely legitimate activities, they are political in nature rather than legislative, in the sense that term has been used by the Court in prior cases. But it has never been seriously contended that these political matters, however appropriate, have the protection afforded by the Speech or Debate Clause. Careful examination of the decided cases reveals that the Court has regarded the protection as reaching only those things 'generally done in a session of the House by one of its members in relation to the business before it,' Kilbourn v. Thompson, supra, 103 U.S., at 204, or things 'said or done by him, as a representative, in the exercise of the functions of that office,' Coffin v. Coffin, 4 Mass. 1, 27 (1808).
32
(b) Appellee argues, however, that in Johnson we expressed a broader test for the coverage of the Speech or Debate Clause. It is urged that we held that the Clause protected from executive or judicial inquiry all conduct 'related to the due functioning of the legislative process.' It is true that the quoted words appear in the Johnson opinion, but appellee takes them out of context; in context they reflect a quite different meaning from that now urged. Although the indictment against Johnson contained eight counts, only one count was challenged before this Court as in violation of the Speech or Debate Clause. The other seven counts concerned Johnson's attempts to influence staff members of the Justice Department to dismiss pending prosecutions. In explaining why those counts were not before the Court, Mr. Justice Harlan wrote:
33
'No argument is made, nor do we think that it could be successfully contended, that the Speech or Debate Clause reaches conduct, such as was involved in the attempt to influence the Department of Justice, that is in no wise related to the due functioning of the legislative process. It is the application of this broad conspiracy statute to an improperly motivated speech that raises the constitutional problem with which we deal.' 383 U.S., at 172, 86 S.Ct., at 751. (Emphasis added; footnote omitted.)
34
In stating that those things 'in no wise related to the due functioning of the legislative process' were not covered by the privilege, the Court did not in any sense imply as a corollary that everything that 'related' to the office of a Member was shielded by the Clause. Quite the contrary, in Johnson we held, citing Kilbourn v. Thompson, supra, that only acts generally done in the course of the process of enacting legislation were protected.
35
Nor can we give Kilbourn a more expansive interpretation. In citing with approval, 103 U.S., at 203, the language of Chief Justice Parsons of the Supreme Judicial Court of Massachusetts in Coffin v. Coffin, 4 Mass. 1 (1808), the Kilbourn Court gave no thought to enlarging 'legislative acts' to include illicit conduct outside the House. The Coffin language is:
36
'(The Massachusetts legislative privilege) ought not to be construed strictly, but liberally, that the full design of it may be answered. I will not confine it to delivering an opinion, uttering a speech, or haranguing in debate; but will extend it to the giving of a vote, to the making of a written report, and to every other act resulting from the nature, and in the execution, of the office: and I would define the article, as securing to every member exemption from prosecution, for every thing said or done by him, as a representative, in the exercise of the functions of that office; without enquiring whether the exercise was regular according to the rules of the house, or irregular and against their rules. I do not confine the member to his place in the house; and I am satisfied that there are cases, in which he is entitled to this privilege, when not within the walls of the representatives' chamber.' Id., at 27 (emphasis added).
37
It is suggested that in citing these words, which were also quoted with approval in Tenney v. Brandhove, 341 U.S. 367, 373 374, 71 S.Ct. 783, 786—787, 95 L.Ed. 1019 (1951), the Court was interpreting the sweep of the Speech or Debate Clause to be broader than Johnson seemed to indicate or than we today hold. Emphasis is placed on the statement that 'there are cases in which (a Member) is entitled to this privilege, when not within the walls of the representatives' chamber.' But the context of Coffin v. Coffin indicates that in this passage Chief Justice Parsons was referring only to legislative acts, such as committee meetings, which take place outside the physical confines of the legislative chamber. In another passage, the meaning is clarified:
38
'If a member . . . be out of the chamber, sitting in committee, executing the commission of the house, it appears to me that such member is within the reason of the article, and ought to be considered within the privilege. The body of which he is a member, is in session, and he, as a member of that body, is in fact discharging the duties of his office. He ought therefore to be protected from civil or criminal prosecutions for everything said or done by him in the exercise of his functions, as a representative in committee, either in debating, in assenting to, or in draughting a report.'8 4 Mass., at 28.
39
In no case has this Court ever treated the Clause as protecting all conduct relating to the legislative process.9 In every case thus for before this Court, the Speech or Debate Clause has been limited to an act which was clearly a part of the legislative process—the due functioning of the process.10 Appellee's contention for a broader interpretation of the privilege draws essentially on the flavor of the rhetoric and the sweep of the language used by courts, not on the precise words used in any prior case, and surely not on the sense of those cases, fairly read.
40
(c) We would not think it sound or wise, simply out of an abundance of caution to doubly insure legislative independence, to extend the privilege beyond its intended scope, its literal language, and its history, to include all things in any way related to the legislative process. Given such a sweeping reading, we have no doubt that there are few activities in which a legislator engages that he would be unable somehow to 'relate' to the legislative process. Admittedly, the Speech or Debate Clause must be read broadly to effectuate its purpose of protecting the independence of the Legislative Branch, but no more than the statutes we apply, was its purpose to make Members of Congress super-citizens, immune from criminal responsibility. In its narrowest scope, the Clause is a very large, albeit essential, grant of privilege. It has enabled reckless men to slander and even destroy others with impunity, but that was the conscious choice of the Framers.11
41
The history of the privilege is by no means free from grave abuses by legislators. In one instance, abuses reached such a level in England that Parliament was compelled to enact curative legislation.
42
'The practice of granting the privilege of freedom from arrest and molestation to members' servants in time became a serious menace to individual liberty and to public order, and a form of protection by which offenders often tried—and they were often successful—to escape the penalties which their offences deserved and which the ordinary courts would not have hesitated to inflict. Indeed, the sale of 'protections' at one time proved a source of income to unscrupulous members, and these parliamentary 'indulgences' were on several occasions obtainable at a fixed market price.' C. Wittke, The History of English Parliamentary Privilege 39 (1921).
43
The authors of our Constitution were well aware of the history of both the need for the privilege and the abuses that could flow from too sweeping safeguards. In order to preserve other values, they wrote the privilege so that it tolerates and protects behavior on the part of Members not tolerated and protected when done by other citizens, but the shield does not extend beyond what is necessary to preserve the integrity of the legislative process. Moreover, unlike England with no formal, written constitutional limitations on the monarch, we defined limits on the co-ordinate branches, providing other checks to protect against abuses of the kind experienced in that country.
44
It is also suggested that, even if we interpreted the Clause broadly so as to exempt from inquiry all matters having any relationship to the legislative process, misconduct of Members would not necessarily go unpunished because each House is empowered to discipline its Members. Article I, § 5, does indeed empower each House to 'determine the Rules of its Proceedings, punish its Members for disorderly Behavior, and, with the Concurrence of two thirds, expel a Member,' but Congress is illequipped to investigate, try, and punish its Members for a wide range of behavior that is loosely and incidentally related to the legislative process. In this sense, the English analogy on which the dissents place much emphasis, and the reliance on Ex parte Wason, L.R. 4 Q.B. 573 (1869), are inapt. Parliament is itself 'The High Court of Parliament'—the highest court in the land—and its judicial tradition better equips it for judicial tasks.
45
'It is by no means an exaggeration to say that (the judicial characteristics of Parliament) colored and influenced some of the great struggles over (legislative) privilege in and out of Parliament to the very close of the nineteenth century. It is not altogether certain whether they have been entirely forgotten even now. Nowhere has the theory that Parliament is a court—the highest court of the realm, often acting in a judicial capacity and in a judicial manner—persisted longer than in the history of privilege of Parliament.' Wittke, supra, at 14.
46
The very fact of the supremacy of Parliament as England's highest tribunal explains the long tradition precluding trial for official misconduct of a member in any other and lesser tribunal.
47
In Australia and Canada, 'where provision for legislative free speech or debate exists but where the legislature may not claim a tradition as the highest court of the realm, courts have held that the privilege does not bar the criminal prosecution of legislators for bribery.' Note, The Bribed Congressman's Immunity from Prosecution, 75 Yale L.J. 335, 338 (1965) (footnote omitted). Congress has shown little inclination to exert itself in this area.12 Moreover, if Congress did lay aside its normal activities and take on itself the responsibility to police and prosecute the myriad activities of its Members related to but not directly a part of the legislative function, the independence of individual Members might actually be impaired.
48
The process of disciplining a Member in the Congress is not without countervailing risks of abuse since it is not surrounded with the panoply of protective shields that are present in a criminal case. An accused Member is judged by no specifically articulated standards13 and is at the mercy of an almost unbridled discretion of the charging body that functions at once as accuser, prosecutor, judge, and jury from whose decision there is no established right to review. In short, a Member would be compelled to defend in what would be comparable to a criminal prosecution without the safeguards provided by the Constitution. Moreover, it would be somewhat naive to assume that the triers would be wholly objective and free from considerations of party and politics and the passions of the moment.14 Strong arguments can be made that trials conducted in a Congress with an entrenched majority from one political party could result in far greater harassment than a conventional criminal trial with the wide range of procedural protections for the accused, including indictment by grand jury, trial by jury under strict standards of proof with fixed rules of evidence, and extensive appellate review.
49
Finally, the jurisdiction of Congress to punish its Members is not all-embracing. For instance, it is unclear to what extent Congress would have jurisdiction over a case such as this in which the alleged illegal activity occurred outside the chamber, while the appellee was a Member, but was undiscovered or not brought before a grand jury until after he left office.15
50
The sweeping claims of appellee would render Members of Congress virtually immune from a wide range of crimes simply because the acts in question were peripherally related to their holding office. Such claims are inconsistent with the reading this Court has given, not only to the Speech or Debate Clause, but also to the other legislative privileges embodied in Art. I, § 6. The very sentence in which the Speech or Debate Clause appears provides that Members 'shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses. . . .' In Williamson v. United States, 207 U.S. 425, 28 S.Ct. 163, 52 L.Ed. 278 (1908), this Court rejected a claim, made by a Member convicted of subornation of perjury in proceedings for the purchase of public lands, that he could not be arrested, convicted, or imprisoned for any crime that was not treason, felony, or breach of the peace in the modern sense, i.e., disturbing the peace. Mr. Justice Edward Douglass White noted that when the Constitution was written the term 'breach of the peace' did not mean, as it came to mean later, a misdemeanor such as disorderly conduct but had a different 18th century usage, since it derived from breaching the King's peace and thus embraced the whole range of crimes at common law. Quoting Lord Mansfield, he noted with respect to the claim of parliamentary privilege, '(t) he laws of this country allow no place or employment as a sanctuary for crime . . ..' Id., at 439, 28 S.Ct., at 167.
51
The subsequent case of Long v. Ansell, 293 U.S. 76, 55 S.Ct. 21, 79 L.Ed. 208 (1934), held that a Member's immunity from arrest in civil cases did not extend to civil process. Mr. Justice Brandeis wrote for the Court:
52
'Clause 1 (of Art. I, § 6) defines the extent of the immunity. Its language is exact and leaves no room for a construction which would extend the privilege beyond the terms of the grant.' Id., at 82, 55 S.Ct. at 22.
53
We recognize that the privilege against arrest is not identical with the Speech or Debate privilege, but it is closely related in purpose and origin. It can hardly be thought that the Speech or Debate Clause totally protects what the sentence preceding it has plainly left open to prosecution, i.e., all criminal acts.
54
(d) Mr. Justice WHITE suggests that permitting the Executive to initiate the prosecution of a Member of Congress for the specific crime of bribery is subject to serious potential abuse that might endanger the independence of the legislature—for example, a campaign contribution might be twisted by a ruthless prosecutor into a bribery indictment. But, as we have just noted, the Executive is not along in possessing power potentially subject to abuse; such possibilities are inherent in a system of government that delegates to each of the three branches separate and independent powers.16 In The Federalist No. 73, Hamilton expressed concern over the possible hazards that confronted an Executive dependent on Congress for financial support.
55
'The Legislature, with a discretionary power over the salary and emoluments of the Chief Magistrate, could render him as obsequious to their will as they might think proper to make him. They might, in most cases, either reduce him by famine, or tempt him by largesses, to surrender at discretion his judgment to their inclinations.'
56
Yet Hamilton's 'parade of horribles' finds little real support in history. The check-and-balance mechanism, buttressed by unfettered debate in an open society with a free press, has not encouraged abuses of power or tolerated them long when they arose. This may be explained in part because the third branch has intervened with neutral authority. See, e.g., United States v. Lovett, 328 U.S. 303, 66 S.Ct. 1073, 90 L.Ed. 1252 (1946). The system of divided powers was expressly designed to check the abuses England experienced in the 16th to the 18th centuries.
57
Probably of more importance is the public reaction engendered by any attempt of one branch to dominate or harass another. Even traditional political attempts to establish dominance have met with little success owing to contrary popular sentiment. Attempts to 'purge' uncooperative legislators, for example, have not been notably successful. We are not cited to any cases in which the bribery statutes, which have been applicable to Members of Congress for over 100 years,17 have been abused by the Executive Branch. When a powerful Executive sought to make the Judicial Branch more responsive to the combined will of the Executive and Legislative Branches, it was the Congress itself that checked the effort to enlarge the Court. 2 M. Pusey, Charles Evans Hughes 749—765 (1951).
58
We would be closing our eyes to the realities of the American political system if we failed to acknowledge that many non-legislative activities are an established and accepted part of the role of a Member, and are indeed 'related' to the legislative process. But if the Executive may prosecute a Member's attempt, as in Johnson, to influence another branch of the Government in return for a bribe, its power to harass is not greatly enhanced if it can prosecute for a promise relating to a legislative act in return for a bribe. We therefore see no substantial increase in the power of the Executive and Judicial Branches over the Legislative Branch resulting from our holding today. If we underestimate the potential for harassment, the Congress, of course, is free to exempt its Members from the ambit of federal bribery laws, but it has deliberately allowed the instant statute to remain on the books for over a century.
59
We do not discount entirely the possibility that an abuse might occur, but this possibility, which we consider remote, must be balanced against the potential danger flowing from either the absence of a bribery statute applicable to Members of Congress or a holding that the statute violates the Constitution. As we noted at the outset, the purpose of the Speech or Debate Clause is to protect the individual legislator, not simply for his own sake, but to preserve the independence and thereby the integrity of the legislative process. But financial abuses by way of bribes, perhaps even more than Executive power, would gravely undermine legislative integrity and defeat the right of the public to honest representation. Depriving the Executive of the power to investigate and prosecute and the Judiciary of the power to punish bribery of Members of Congress is unlikely to enhance legislative independence. Given the disinclination and limitations of each House to police these matters, it is understandable that both Houses deliberately delegated this function to the courts, as they did with the power to punish persons committing contempts of Congress. 2 U.S.C. § 194.
60
It is beyond doubt that the Speech or Debate Clause protects against inquiry into acts that occur in the regular course of the legislative process and into the motivation for those acts. So expressed, the privilege is broad enough to insure the historic independence of the Legislative Branch, essential to our separation of powers, but narrow enough to guard against the excesses of those who would corrupt the process by corrupting its Members. We turn next to determine whether the subject of this criminal inquiry is within the scope of the provilege.
III
61
An examination of the indictment brought against appellee and the statutes on which it is founded reveals that no inquiry into legislative acts or motivation for legislative acts is necessary for the Government to make out a prima facie case. Four of the five counts charge that appellee 'corruptly asked, solicited, sought, accepted, received and agreed to receive' money 'in return for being influenced . . . in respect to his action, vote, and decision on postage rate legislation which might at any time be pending before him in his official capacity.' This is said to be a violation of 18 U.S.C. § 201(c), which provides that a Member who 'corruptly asks, demands, exacts, solicits, seeks, accepts, receives, or agrees to receive anything of value . . . in return for . . . (1) being influenced in his performance of any official act' is guilty of an offense.
62
The question is whether it is necessary to inquire into how appellee spoke, how he debated, how he voted, or anything he did in the chamber or in committee in order to make out a violation of this statute. The illegal conduct is taking or agreeing to take money for a promise to act in a certain way. There is no need for the Government to show that appellee fulfilled the alleged illegal bargain; acceptance of the bribe is the violation of the statute, not performance of the illegal promise.
63
Taking a bribe is, obviously, no part of the legislative process or function; it is not a legislative act. It is not, by any conceivable interpretation, an act performed as a part of or even incidental to the role of a legislator. It is not an 'act resulting from the nature, and in the execution, of the office.' Nor is it a 'thing said or done by him, as a representative, in the exercise of the functions of that office,' 4 Mass., at 27. Nor is inquiry into a legislative act or the motivation for a legislative act necessary to a prosecution under this statute or this indictment. When a bribe is taken, it does not matter whether the promise for which the bribe was given was for the performance of a legislative act as here or, as in Johnson, for use of a Congressman's influence with the Executive Branch. And an inquiry into the purpose of a bribe 'does not draw in question the legislative acts of the defendant member of Congress or his motives for performing them.' 383 U.S., at 185, 86 S.Ct., at 758.
64
Nor does it matter if the Member defaults on his illegal bargain. To make a prima facie case under this indictment, the Government need not show any act of appellee subsequent to the corrupt promise for payment, for it is taking the bribe, not performance of the illicit compact, that is a criminal act. If, for example, there were undisputed evidence that a Member took a bribe in exchange for an agreement to vote for a given bill and if there were also undisputed evidence that he, in fact, voted against the bill, can it be thought that this alters the nature of the bribery or removes it from the area of wrongdoing the Congress sought to make a crime?
65
Another count of the indictment against appellee alleges that he 'asked, demanded, exacted, solicited, sought, accepted, received and agreed to receive' money 'for and because of official acts performed by him in respect to his action, vote and decision on postage rate legislation which had been pending before him in his official capacity. . . .' This count is founded on 18 U.S.C. § 201(g), which provides that a Member of Congress who 'asks, demands, exacts, solicits, seeks, accepts, receives, or agrees to receive anything of value for himself for or because of any official act performed or to be performed by him' is guilty of an offense. Although the indictment alleges that the bribe was given for an act that was actually performed, it is, once again, unnecessary to inquire into the act or its motivation. To sustain a conviction it is necessary to show that appellee solicited, received, or agreed to receive, money with knowledge that the donor was paying him compensation for an official act. Inquiry into the legislative performance itself is not necessary; evidence of the Member's knowledge of the alleged briber's illicit reasons for paying the money is sufficient to carry the case to the jury.
66
Mr. Justice WHITE rests heavily on the fact that the indictment charges the offense as being in part linked to Brewster's 'action, vote and decision on postage rate legislation.' This is true, of course, but our holding in Johnson precludes any showing of how he acted, voted, or decided. The dissenting position stands on the fragile proposition that it 'would take the Government at its word' with respect to wanting to prove what we all agree are protected acts that cannot be shown in evidence. Perhaps the Government would make a more appealing case if it could do so, but here, as in that case, evidence of acts protected by the Clause is inadmissible. The Government, as we have noted, need not prove any specific act, speech, debate, or decision to establish a violation of the statute under which appellee was indicted. To accept the arguments of the dissent would be to retreat from the Court's position in Johnson that a Member may be convicted if no showing of legislative act is required.
67
Mr. Justice BRENNAN suggests that inquiry into the alleged bribe is inquiry into the motivation for a legislative act, and it is urged that this very inquiry was condemned as impermissible in Johnson. That argument misconstrues the concept of motivation for legislative acts. The Speech or Debate Clause does not prohibit inquiry into illegal conduct simply because it has some nexus to legislative functions. In Johnson, the Court held that, on remand, Johnson could be retried on the conspiracy-to-defraud count, so long as evidence concerning his speech on the House floor was not admitted. The Court's opinion plainly implies that had the Government chosen to retry Johnson on that count, he could not have obtained immunity from prosecution by asserting that the matter being inquired into was related to the motivation for his House speech. See n. 7, supra.
68
The only reasonable reading of the Clause, consistent with its history and purpose, is that it does not prohibit inquiry into activities that are casually or incidentally related to legislative affairs but not a part of the legislative process itself. Under this indictment and these statutes no such proof is needed.
69
We hold that under these statutes and this indictment, prosecution of appellee is not prohibited by the Speech or Debate Clause.18 Accordingly, the judgment of the District Court is reversed and the case is remanded for further proceedings consistent with this opinion.
70
Reversed and remanded.
71
Mr. Justice BRENNAN, with whom Mr. Justice DOUGLAS joins, dissenting.
72
When this case first came before the Court, I had thought it presented a single, well-defined issue—that is, whether the Congress could authorize by a narrowly drawn statute the prosecution of a Senator or Representative for conduct otherwise immune from prosecution under the Speech or Debate Clause of the Constitution. Counts 1, 3, 5, and 7 of the indictment charged Senator Brewster with receiving.$19,000 'in return for being influenced in his performance of official acts in respect to his action, vote, and decision on postage rate legislation which might at any time be pending before him in his official capacity (as a member of the Senate Post Office Committee).' Count 9 charged the Senator with receipt of another $5,000 for acts already performed by him with respect to his 'action, vote and decision' on that legislation. These charges, it seemed to me, fell within the clear prohibition of the Speech or Debate Clause as interpreted by decisions of this Court, particularly United States v. Johnson, 383 U.S. 169, 86 S.Ct. 749, 15 L.Ed.2d 681 (1966). For if the indictment did not call into question the 'speeches or debates' of the Senator, it certainly laid open to scrutiny the motives for his legislative acts; and those motives, I had supposed, were no more subject to executive and judicial inquiry than the acts themselves, unless, of course, the Congress could delegate such inquiry to the other branches.
73
That, apparently, was the Government's view of the case as well. At the hearing before the District Court the prosecutor was asked point blank whether 'the indictment in any wise allege(d) that Brewster did anything not related to his purely legislative functions.' The prosecutor responded:
74
'We are not contending that what is being charged here, that is, the activity by Brewster, was anything other than a legislative act. We are not ducking the question; it is squarely presented. They are legislative acts. We are not going to quibble over that.' App. 28.
75
The Government, in other words, did not challenge the applicability of the Clause to these charges, but argued only that its prohibitions could be avoided, 'waived' as it were, through congressional authorization in the form of a narrowly drawn bribery statute. The District Court accepted the Government's reading of the indictment and held that the Senator could not be prosecuted for this conduct even under the allegedly narrow provisions of 18 U.S.C. § 201:
76
'Gentlemen, based on the facts of this case, it is admitted by the Government that the five counts of the indictment which charge Senator Brewster relate to the acceptance of bribes in connection with the performance of a legislative function by a Senator of the United States.
77
'It is the opinion of this Court that the immunity under the Speech and Debate Clause of the Constitution, particularly in view of the interpretation given that Clause by the Supreme Court in Johnson, shields Senator Brewster, constitutionally shields him from any prosecution for alleged bribery to perform a legislative act.' App. 33.
78
Furthermore, the Government's initial brief in this Court, doubtless reflecting its recognition that Johnson had rejected the analysis adopted by the Court today, did not argue that a prosecution for acceptance of a bribe in return for a promise to vote a certain way falls outside the prohibition of the Speech or Debate Clause. Rather, the Government's brief conceded or at least assumed that such conduct does constitute 'Speech or Debate,' but urged that Congress may enact a statute, such as 18 U.S.C. § 201, providing for judicial trial of the alleged crime.
79
Given these admissions by the Government and the District Court's construction of the indictment, which settled doctrine makes binding on this Court, United States v. Jones, 345 U.S. 377, 378, 73 S.Ct. 759, 760 (1953), the only issue properly before us was whether Congress is empowered to delegate to the Executive and Judicial Branches the trial of a member for conduct otherwise protected by the Clause. Today, however, the Court finds it unnecessary to reach that issue, for it finds that the indictment, though charging receipt of a bribe for legislative acts, entails 'no inquiry into legislative acts or motivation for legislative acts,' ante, at 525, and thus is not covered by the Clause. In doing so the Court permits the Government to recede from its firm admissions, it ignores the District Court's binding construction of the indictment, and—most important—it repudiates principles of legislative freedom developed over the past century in a line of cases culminating in Johnson. Those principles, which are vital to the right of the people to be represented by Congressmen of independence and integrity, deserve more than the hasty burial given them by the Court today. I must therefore dissent.
80
* I would dispel at the outset any notion that Senator Brewster's asserted immunity strains the outer limits of the Clause. The Court writes at length in an effort to show that 'Speech or Debate' does not cover 'all conduct relating to the legislative process.' Ante, at 515. Even assuming the validity of that conclusion, I fail to see its relevance to the instant case. Senator Brewster is not charged with conduct merely 'relating to the legislative process,' but with a crime whose proof calls into question the very motives behind his legislative acts. The indictment, then, lies not at the periphery but at the very center of the protection that this Court has said is provided a Congressman under the Clause.
81
Decisions of this Court dating as far back as 1881 have consistently refused to limit the concept of 'legislative acts' to the 'Speech or Debate' specifically mentioned in Art. I, § 6. In Kilbourn v. Thompson, 103 U.S. 168, 26 L.Ed. 377 (1881), the Court held that:
82
'It would be a narrow view of the constitutional provision to limit it to words spoken in debate. The reason of the rule is as forcible in its application to written reports presented in that body by its committees, to resolutions offered, which, though in writing, must be reproduced in speech, and to the act of voting, whether it is done vocally or by passing between the tellers. In short, to things generally done in a session of the House by one of its members in relation to the business before it.' Id., at 204.
83
In reaching its conclusion, the Court adopted what was said by the Supreme Judicial Court of Massachusetts in Coffin v. Coffin, 4 Mass. 1 (1808), which Kilbourn held to be perhaps 'the most authoritative case in this country on the construction of the provision in regard to freedom of debate in legislative bodies . . ..' 103 U.S., at 204. Chief Justice Parsons, speaking for the Massachusetts court, expressed what Kilbourn and later decisions saw as a properly generous view of the legislative privilege:
84
'These privileges are thus secured, not with the intention of protecting the members against prosecutions for their own benefit, but to support the rights of the people, by enabling their representatives to execute the functions of their office without fear of prosecutions, civil or criminal. I therefore think that the article ought not to be construed strictly, but liberally, that the full design of it may be answered. I will not confine it to delivering an opinion, uttering a speech, or haranguing in debate; but will extend it to the giving of a vote, to the making of a written report, and to every other act resulting from the nature, and in the execution, of the office: and I would define the article, as securing to every member exemption from prosecution, for every thing said or done by him, as a representative, in the exercise of the functions of that office; without enquiring whether the exercise was regular according to the rules of the house, or irregular and against their rules. I do not confine the member to his place in the house; and I am satisfied that there are cases, in which he is entitled to this privilege, when not within the walls of the representatives' chamber.' 4 Mass., at 27.
85
There can be no doubt, therefore, that Senator Brewster's vote on new postal rates constituted legislative activity within the meaning of the Clause. The Senator could not be prosecuted or called to answer for his vote in any judicial or executive proceeding. But the Senator's immunity, I submit, goes beyond the vote itself and precludes all extracongressional scrutiny as to how and why he cast, or would have cast, his vote a certain way. In Tenney v. Brandhove, 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019 (1951), the plaintiff charged that a state legislative hearing was being conducted not for a proper legislative purpose but solely as a means of harassing him. Nevertheless the Court held that no action would lie against the committee members under federal civil rights statutes. Mr. Justice Frankfurter stated:
86
'The claim of an unworthy purpose does not destroy the privilege. Legislators are immune from deterrents to the uninhibited discharge of their legislative duty, not for their private indulgence but for the public good. One must not expect uncommon courage even in legislators. The privilege would be of little value if they could be subjected to the cost and inconvenience and distractions of a trial upon a conclusion of the pleader, or to the hazard of a judgment against them based upon a jury's speculation as to motives. The holding of this Court in Fletcher v. Peck, 6 Cranch 87, 130, 3 L.Ed. 162, that it was not consonant with our scheme of government for a court to inquire into the motives of legislators, has remained unquestioned. . . .
87
'. . . In times of political passion, dishonest or vindictive motives are readily attributed to legislative conduct and as readily believed. Courts are not the place for such controversies. Self-discipline and the voters must be the ultimate reliance for discouraging or correcting such abuses.' Id., at 377—378, 71 S.Ct., at 788—789.
88
Barring congressional power to authorize this prosecution, what has been said thus far would seem sufficient to require affirmance of the order of dismissal, for neither Senator Brewster's vote nor his motives for voting, however dishonorable, may be the subject of a civil or criminal proceeding outside the halls of the Senate. There is nothing complicated about this conclusion. It follows simply and inescapably from prior decisions of this Court, supra, setting forth the most basic elements of legislative immunity. Yet the Court declines to apply those principles to this case, for it somehow finds that the Government can prove its case without referring to the Senator's official acts or motives. According to the Court, the Government can limit its proof on Counts 1, 3, 5, and 7 to evidence concerning Senator Brewster's 'taking or agreeing to take money for a promise to act in a certain way,' and need not show 'that appellee fulfilled the alleged illegal bargain; acceptance of the bribe is the violation of the statute, not performance of the illegal promise.' Ante, at 526. Similarly, the Court finds that Court 9 can be proved merely by showing that the Senator solicited or received money 'with knowledge that the donor was paying him compensation for an official act,' without any inquiry 'into the legislative performance itself.' Ante, at 527. These evidentiary limitations are deemed sufficient to avoid the prohibitions of the Speech or Debate Clause.
89
With all respect, I think that the Court has adopted a wholly artificial view of the charges before us. The indictment alleges, not the mere receipt of money, but the receipt of money in exchange for a Senator's vote and promise to vote in a certain way. Insofar as these charges bear on votes already cast, the Government cannot avoid proving the performance of the bargained-for acts, for it is the acts themselves, together with the motivating bribe, that form the basis of Count 9 of the indictment. Proof of 'knowledge that the donor was paying . . . for an official act' may be enough for conviction under § 201(g). But assuming it is, the Government still must demonstrate that the 'official act' referred to was actually performed, for that is what the indictment charges. Count 9, in other words, calls into question both the performance of official acts by the Senator and his reasons for voting as he did. Either inquiry violates the Speech or Debate Clause.
90
The counts charging only a corrupt promise to vote are equally repugnant to the Clause. The Court may be correct that only receipt of the bribe, and not performance of the bargain, is needed to prove these counts. But proof of an agreement to be 'influenced' in the performance of legislative acts is by definition an inquiry into their motives, whether or not the acts themselves or the circumstances surrounding them are questioned at trial. Furthermore, judicial inquiry into an alleged agreement of this kind carries with it the same dangers to legislative independence that are held to bar accountability for official conduct itself. As our Brother WHITE cogently states, post, at 556:
91
'Bribery is most often carried out by prearrangement; if that part of the transaction may be plucked from its context and made the basis of criminal charges, the Speech or Debate Clause loses its force. It will be small comfort for a Congressman to know that he cannot be prosecuted for his vote, whatever it may be, but he can be prosecuted for an alleged agreement even if he votes contrary to the asserted bargain.' Thus, even if this were an issue of first impression, I would hold that this presecution, being an extracongressional inquiry into legislative acts and motives, is barred by the Speech or Debate Clause.
92
What is especially disturbing about the Court's result, however, is that this is not an issue of first impression, but one that was settled six years ago in United States v. Johnson, 383 U.S. 169, 86 S.Ct. 749, 15 L.Ed.2d 681 (1966). There a former Congressman was charged with violating the federal conflict-of-interest statute, 18 U.S.C. § 281 (1964 ed.), and with conspiring to defraud the United States, 18 U.S.C. § 371, by accepting a bribe in exchange for his agreement to seek dismissal of federal indictments pending against officers of several savings and loan companies. Part of the alleged conspiracy was a speech delivered by Johnson on the Floor of the House, favorable to loan companies generally. The Government relied on that speech at trial and questioned Johnson extensively about its contents, authorship, and his reasons for delivering it. The Court of Appeals set aside the conspiracy conviction, holding that the Speech or Debate Clause barred such a prosecution based on an allegedly corrupt promise to deliver a congressional speech. In appealing that decision the Government made the very same argument that appears to persuade the Court today:
93
'(The rationale of the Clause) is applicable in suits based upon the content of a legislator's speech or action, where immunity is necessary to prevent impediments to the free discharge of his public duties. But it does not justify granting him immunity from prosecution for accepting or agreeing to accept money to make a speech in Congress. The latter case poses no threat which could reasonably cause a Congressman to restrain himself in his official speech, because no speech, as such, is being questioned. It is only the antecedent conduct of accepting or agreeing to accept the bribe which is attacked in such a prosecution. 'Whether the party taking the bribe lives up to his corrupt promise or not is immaterial. The agreement is the essence of the offense; when that is consummated, the offense is complete.' 3 Wharton, Criminal Law and Procedure, § 1383 (Anderson ed. 1957) . . .. Thus, if respondent, after accepting the bribe, had failed to carry out his bargain, he could still be prosecuted for the same offense charged here, but it could not be argued that any speech was being 'questioned' in his prosecution. The fact that respondent fulfilled his bargain and delivered the corrupt speech should not render the entire course of conduct constitutionally protected.' Brief for the United States in United States v. Johnson, No. 25, O.T.1965, pp. 10—11.
94
The Johnson opinion answered this argument in two places. After emphasizing that the prosecution at issue was 'based upon an allegation that a member of Congress abused his position by conspiring to give a particular speech in return for remuneration from private interests,' the Court stated, 383 U.S., at 180, 86 S.Ct., at 755:
95
'However reprehensible such conduct may be, we believe the Speech or Debate Clause extends at least so far as to prevent it from being made the basis of a criminal charge against a member of Congress of conspiracy to defraud the United States by impeding the due discharge of government functions. The essence of such a charge in this context is that the Congressman's conduct was improperly motivated, and . . . that is precisely what the Speech or Debate Clause generally forecloses from executive and judicial inquiry.' (Emphasis supplied.) Again, the Court stated, id., at 182—183, 86 S.Ct., at 756:
96
'The Government argues that the clause was meant to prevent only prosecutions based upon the 'content' of speech, such as libel actions, but not those founded on 'the antecedent unlawful conduct of accepting or agreeing to accept a bribe.' Brief of the United States, at 11. Although historically seditious libel was the most frequent instrument for intimidating legislators, this has never been the sole form of legal proceedings so employed, and the language of the Constitution is framed in the broadest terms.'
97
Finally, any doubt that the Johnson Court rejected the argument put forward by the Government was dispelled by its citation of Ex parte Wason, L.R. 4 Q.B. 573 (1869). In that case a private citizen moved to require a magistrate to prosecute several members of the House of Lords for conspiring to prevent his petition from being heard on the floor. The court denied the motion, holding that 'statements made by members of either House of Parliament in their places in the House . . . could not be made the foundation of civil or criminal proceedings, however injurious they might be to the interest of a third person. And a conspiracy to make such statements would not make the persons guilty of it amenable to the criminal law.' Id., at 576 (Cockburn, C.J.). Mr. Justice Blackburn added, 'I entirely concur in thinking that the information did only charge an agreement to make statements in the House of Lords, and therefore did not charge any indictable offence.' Ibid.
98
Johnson, then, can only be read as holding that a corrupt agreement to perform legislative acts, even if provable without reference to the acts themselves, may not be the subject of a general conspiracy prosecution. In the face of that holding and Johnson's rejection of reasoning identical to its own, the Court finds support in the fact that Johnson 'authorized a new trial on the conspiracy count, provided that all references to the making of the speech were eliminated.' Ante, at 511. But the Court ignores the fact that, with the speech and its motives excluded from consideration, this new trial was for nothing more than a conspiracy to intervene before an Executive Department, e.g., the Justice Department. And such executive intervention has never been considered legislative conduct entitled to the protection of the Speech or Debate Clause. See infra, at 542. The Court cannot camouflage its departure from the holding of Johnson by referring to a collateral ruling having little relevance to the fundamental issues of legislative privilege involved in that case. I would follow Johnson and hold that Senator Brewster's alleged promise, like the Congressman's there, is immune from executive or judicial inquiry.
II
99
The only issue for me, then, is the one left open in Johnson that is, the validity of a 'prosecution which, though possibly entailing inquiry into legislative acts or motivations, is founded (not upon a general conspiracy statute but) upon a narrowly drawn statute passed by Congress in the exercise of its legislative power to regulate the conduct of its members.' 383 U.S., at 185, 86 S.Ct., at 758. Assuming that 18 U.S.C. § 201 is such a 'narrowly drawn statute,' I do not believe that it, any more than a general enactment, can serve as the instrument for holding a Congressman accountable for his legislative acts outside the confines of his own chamber. The Government offers several reasons why such a 'waiver' of legislative immunity should be allowed. None of these, it seems to me, is sufficient to override the public's interest in legislative independence, secured to it by the principles of the Speech or Debate Clause.1
100
As a preliminary matter, the Government does not contend, nor can it, that no forum was provided in which Senator Brewster might have been punished if guilty. Article I, § 5, of the Constitution provides that '(e)ach House may determine the Rules of its Proceedings, punish its Members for disorderly Behavior, and, with the Concurrence of two thirds, expel a Member.' This power has a broad reach, extending 'to all cases where the offence is such as in the judgment of the (House or) senate is inconsistent with the trust and duty of a member.' In re Chapman, 166 U.S. 661, 669—670, 17 S.Ct. 677, 680, 41 L.Ed. 1154 (1897). Chapman, for example, concerned a Senate investigation of charges that Senate members had speculated in stocks of companies interested in a pending tariff bill. Similarly, the House of Representatives in 1873 censured two members for accepting stock to forestall a congressional inquiry into the Credit Mobilier. There are also many instances of imprisonment or expulsion by Parliament of members who accepted bribes.2
101
Though conceding that the Houses of Congress are empowered to punish their members under Art. I, § 5, the Government urges that Congress may also enact a statute, such as 18 U.S.C. § 201, providing for judicial enforcement of that power. In support of this position, the Government relies primarily on the following language from the opinion in Burton v. United States, 202 U.S. 344, 367, 26 S.Ct. 688, 693, 50 L.Ed. 1057 (1906):
102
'While the framers of the Constitution intended that each Department should keep within its appointed sphere of public action, it was never contemplated that the authority of the Senate to admit to a seat in its body one who had been duly elected as a Senator, or its power to expel him after being admitted, should, in any degree, limit or restrict the authority of Congress to enact such statutes, not forbidden by the Constitution, as the public interests required for carrying into effect the powers granted to it.'
103
However, Burton was not a case that involved conduct protected by the Speech or Debate Clause. Senator Burton was prosecuted for accepting money to influence the Post Office Department in a mail fraud case in violation of Rev.Stat. § 1872, 13 Stat. 123. That was nonlegislative conduct, and as we said in Johnson, supra, 383 U.S. at 172, 86 S.Ct. at 751, ((n)o argument is made, nor do we think that it could be successfully contended, that the Speech or Debate Clause reaches conduct, such as was involved in the attempt to influence the Department of Justice, that is in no wise related to the due functioning of the legislative process.' Such a prosecution, as the quoted excerpt from Burton specifically said, is 'not forbidden by the Constitution,' but that holding has little relevance to a case, such as this one, involving legislative acts and motives.
104
The Government, however, cites additional considerations to support the authority of Congress to provide for judicial trials of corrupt Members; the press of congressional business, the possibility of politically motivated judgments by fellow Members, and the procedural safeguards of a judicial trial are all cited as reasons why Congress should be allowed to transfer the trial of a corrupt Member from the Houses of Congress to the courts. Once again, these are arguments urged and found unpersuasive in Johnson. I find them no more persuasive now. I may assume as a general matter that the 'Legislative Branch is not so well suited as politically independent judges and juries to the task of ruling upon the blameworthiness of, and levying appropriate punishment upon, specific persons.' United States v. Brown, 381 U.S. 437, 445, 85 S.Ct. 1707, 1713, 14 L.Ed.2d 484 (1965). Yet it does not necessarily follow that prosecutors, judges, and juries are better equipped than legislators to make the kinds of political judgments required here. Senators and Congressmen are never entirely free of political pressures, whether from their own constituents or from special-interest lobbies. Submission to these pressures, in the hope of political and financial support, or the fear of its withdrawal, is not uncommon, nor is it necessarily unethical.3 The line between legitimate influence and outright bribe may be more a matter of emphasis than objective fact, and in the end may turn on the trier's view of what was proper in the context of the everyday realities and necessities of political office. Whatever the special competence of the judicial process in other areas, members of Congress themselves are likely to be in the better position to judge the issue of bribery relating to legislative acts. The observation of Mr. Justice Frankfurter bears repeating here: 'Courts are not the place for such controversies. Self-discipline and the voters must be the ultimate reliance for discouraging or correcting such abuses.' Tenney v. Brandhove, 341 U.S., at 378, 71 S.Ct., at 789.
105
Nor is the Member at the mercy of his colleagues, free to adjust as they wish his rights to due process and free expression. It is doubtful, for example, that the Congress could punish a Member for the mere expression of unpopular views otherwise protected by the First Amendment. See Bond v. Floyd, 385 U.S. 116, 87 S.Ct. 339, 17 L.Ed.2d 235 (1966). And judicial review of the legislative inquiry is not completely foreclosed; the power of the House and Senate to discipline the conduct of Members is not exempt from the 'restraints imposed by or found in the implications of the Constitution.' Barry v. United States ex rel. Cunningham, 279 U.S. 597, 614, 49 S.Ct. 452, 455, 73 L.Ed. 867 (1929), quoted in Powell v. McCormack, 395 U.S. 486, 519 n. 40, 89 S.Ct. 1944, 1963, 23 L.Ed.2d 491 (1969).
106
Finally, the Government relies on the history of the Clause to support a congressional power of delegation. While agreeing that the Speech or Debate Clause was a 'culmination of a long struggle for parliamentary supremacy' and a reaction against the Crown's use of 'criminal and civil law to suppress and intimidate critical legislators,' Johnson, supra, 383 U.S. at 178, 86 S.Ct. at 754, the Government urges that this is not the whole story. It points out that while a large part of British history was taken up with Parliament's struggles to free itself from royal domination, the balance of power was not always ranged against it. Once Parliament succeeded in asserting rightful dominion over its members and the conduct of its business, Parliament sought to extend its reach into areas and for purposes that can only be labeled an abuse of legislative power. Aware of these abuses, the Framers, the Government submits, did not mean Congress to have exlusive power, but one which, by congressional delegation, might be shared with the Executive and Judicial Branches.
107
That the Parliamentary privilege was indeed abused is historical fact. By the close of the 17th century, Parliament had succeeded in obtaining rights of free speech and debate as well as the power to punish offenses of its members contravening the good order and integrity of its processes. In 1694, five years after incorporation of the Sppech or Debate Clause in the English Bill of Rights, Lord Falkland was found guilty in Commons of accepting a bribe of 2,000 pounds from the Crown, and was imprisoned during the pleasure of the House. The Speaker of the House of Commons, Sir John Trevor, was censured for bribery the following year.4
108
But Parliament was not content with mere control over its members' conduct. Independence brought an assertion of absolute power over the definition and reach of institutional privileges. '(T)he House of Commons and the House of Lords claimed absolute and plenary authority over their privileges. This was an independent body of law, described by Coke as lex parliamenti. Only Parliament could declare what those privileges were or what new privileges were occasioned, and only Parliament could judge what conduct constituted a breach of privilege.' Watkins v. United States, 354 U.S. 178, 188, 77 S.Ct. 1173, 1179, 1 L.Ed.2d 1273 (1957). Thus, having established the basic privilege of its members to be free from civil arrest or punishment, the House extended the privilege to its members' servants, and punished trespass on the estates of its members, or theft of their or their servants' goods. The House went so far as to declare its members' servants to be outside the reach of the common-law courts during the time that Parliament was sitting. This led to the sale of 'protections' providing that named persons were servants of a particular member and should be free from arrest, imprisonment, and molestation during the term of Parliament.5 These abuses in turn were brought to America. By 1662, for example, the Virginia House of Burgesses had succeeded in exempting not only its members, but their servants as well, from arrest and molestation.6
109
The Government is correct in pointing out that the Framers, aware of these abuses, were determined to guard against them. Madison stated that the 'legislative department is every where extending the sphere of its activity, and drawing all power into its impetuous vortex.'7 And Jefferson looked on the 'tyranny of the legislatures' as 'the most formidable dread at present, and will be for long years.'8 Therefore the Framers refused to adopt the lex parliamenti, which would have allowed Congressmen and their servants to enjoy numerous immunities from ordinary legal restraints. But it does not follow that the Framers went further and authorized Congress to transfer discipline of bribe takers to the Judicial Branch. The Government refers us to nothing in the Convention debates or in writings of the Framers that even remotely supports the argument. Indeed there is much in the history of the Clause to point the other way, toward a personalized legislative privilege not subject to defeasance even by a specific congressional delegation to the courts.
110
The Johnson opinion details the history. The Clause was formulated by the Convention's Committee on Style, which phrased it by revising Article V of the Articles of Confederation which had provided: 'Freedom of speech and debate in Congress shall not be impeached or questioned in any court, or place out of Congress.' (Emphasis supplied.) This wording derived in turn from the provision of the English Bill of Rights of 1689 that 'Freedom of Speech, and Debates or Proceedings in Parliament, ought not to be impeached or questioned in any Court or Place out of Parliament.' (Emphasis supplied.) The same wording, or variations of it, appeared in state constitutions. Article VIII of the Maryland Declaration of Rights (1776) declared that legislative freedom 'ought not to be impeached in any other court or judicature.' The Massachusetts Bill of Rights (Art. XXI, 1780) provided that the 'freedom of deliberation, speech, and debate, in either house of the legislature, is so essential to the rights of the people, that it cannot be the foundation of any accusation or prosecution, action or complaint, in any other court or place whatsoever.' The New Hampshire Constitution (Art. XXX, 1784) contained a provision virtually identical to Massachusetts'. In short '(f)reedom of speech and action in the legislature was taken as a matter of course by those who severed the Colonies from the Crown and founded our Nation.' Tenney v. Brandhove, 341 U.S., at 372, 71 S.Ct., at 786.
111
Despite his fear of 'legislative excess,' Tenney v. Brandhove, supra, at 375, 71 S.Ct., at 787, Jefferson, when confronted with criticism of certain Congressmen by the Richmond, Virginia, grand jury, said:
112
'(T)hat in order to give to the will of the people the influence it ought to have, and the information which may enable them to exercise it usefully, it was a part of the common law, adopted as the law of this land, that their representatives, in the discharge of their functions, should be free from the cognizance or coercion of the coordinate branches, Judiciary and Executive.' 8 The Works of Thomas Jefferson 322 (Ford ed. 1904).
113
Jefferson's point of view was shared by his contemporaries9 and found judicial expression as early as 1808, in the Coffin opinion, supra. It was there stated:
114
'In considering this article, it appears to me that the privilege secured by it is not so much the privilege of the house as an organized body, as of each individual member composing it, who is entitled to this privilege, even against the declared will of the house. For he does not hold this privilege at the pleasure of the house; but derives it from the will of the people, expressed in the constitution, which is paramount to the will of either or both branches of the legislature. In this respect the privilege here secured resembles other privileges attached to each member by another part of the constitution, by which he is exempted from arrests on mesne (or original) process, during his going to, returning from, or attending the general court. Of these privileges, thus secured to each member, he cannot be deprived, by a resolve of the house, or by an act of the legislature.' 4 Mass., at 27. (Emphasis supplied.)
115
In short, if the Framers contemplated judicial inquiry into legislative acts, even on the specific authorization of Congress, that intent is not reflected in the language of the Speech or Debate Clause or contemporary understanding of legislative privilege. History certainly shows that the Framers feared unbridled legislative power. That fact, however, yields no basis for an interpretation that in Art. I, §§ 1 and 8, the Framers authorized Congress to ignore the prohibition against inquiry in 'any other place' and enact a statute either of general application or specifically providing for a trial in the courts of a member who takes a bribe for conduct related to legislative acts.10
III
116
I yield nothing to the Court in conviction that this reprehensible and outrageous conduct, if committed by the Senator, should not have gone unpunished. But whether a court or only the Senate might undertake the task is a constitutional issue of portentous significance, which must of course be resolved uninfluenced by the magnitude of the perfidy alleged. It is no answer that Congress assigned the task to the judiciary in enacting 18 U.S.C. § 201. Our duty is to Nation and Constitution, not Congress. We are guilty of a grave disservice to both Nation and Constitution when we permit Congress to shirk its responsibility in favor of the courts. The Framers' judgment was that the American people could have a Congress of independence and integrity only if alleged misbehavior in the performance of legislative functions was accountable solely to a Member's own House and never to the executive or judiciary. The passing years have amply justified the wisdom of that judgment. It is the Court's duty to enforce the letter of the Speech or Debate Clause in that spirit. We did so in deciding Johnson. In turning its back on that decision today, the Court arrogates to the judiciary an authority committed by the Constitution, in Senator Brewster's case, exclusively to the Senate of the United States. Yet the Court provides no principled justification, and I can think of none, for its denial that United States v. Johnson compels affirmance of the District Court. That decision is only six years old and bears the indelible imprint of the distinguished constitutional scholar who wrote the opinion for the Court. Johnson surely merited a longer life.
117
Mr. Justice WHITE, with whom Mr. Justice DOUGLAS and Mr. Justice BRENNAN join, dissenting.
118
The question presented by this case is not whether bribery or other offensive conduct on the part of Members of Congress must or should go unpunished. No one suggests that the Speech or Debate Clause insulates Senators and Congressmen from accountability for their misdeeds. Indeed, the Clause itself is but one of several constitutional provisions that make clear that Congress has broad powers to try and phnish its Members:
119
'(T)he Constitution expressly empowers each House to punish its own members for disorderly behavior. We see no reason to doubt that this punishment may in a proper case be imprisonment, and that it may be for refusal to obey some rule on that subject made by the House for the preservation of order.
120
'So, also, the penalty which each House is authorized to inflict in order to compel the attendance of absent members may be imprisonment, and this may be for a violation of some order or standing rule on that subject.
121
'Each House is by the Constitution made the judge of the election and qualification of its members. In deciding on these it has an undoubted right to examine witnesses and inspect papers, subject to the usual rights of witnesses in such cases; and it may be that a witness would be subject to like punishment at the hands of the body engaged in trying a contested election, for refusing to testify, that he would if the case were pending before a court of judicature.
122
'The House of Representatives has the sole right to impeach officers of the government, and the Senate to try them. Where the question of such impeachment is before either body acting in its appropriate sphere on that subject, we see no reason to doubt the right to compel the attendance of witnesses and their answer to proper questions, in the same manner and by the use of the same means that courts of justice can in like cases.' Kilbourn v. Thompson, 103 U.S. 168, 189—190, 26 L.Ed. 377 (1881).
123
The sole issue here is in what forum the accounting must take place—whether the prosecution that the Government proposes is consistent with the command that 'for any Speech or Debate in either House, they (Members of Congress) shall not be questioned in any other Place.' U.S. Const., Art. I, § 6, cl. 1.
124
The majority disposes of this issue by distinguishing between promise and performance. Even if a Senator or Congressman may not be prosecuted for a corrupt legislative act, the Speech or Debate Clause does not prohibit prosecution for a corrupt promise to perform that act. If a Member of Congress promises to vote for or against a bill in return for money, casts his vote in accordance with the promise and accepts payment, the majority's view is that even though he may not be prosecuted for voting as he did, although the vote was corrupt, the executive may prosecute and the judiciary may try him for the corrupt agreement or for taking the money either under a narrowly drawn statute or one of general application. This distinction between a promise and an act will not withstand scrutiny in terms of the values that the Speech or Debate Clause was designed to secure.
125
The majority agrees that in order to assure the independence and integrity of the legislature and to reinforce the separation of powers so deliberately established by the Founders, the Speech or Debate Clause prevents a legislative act from being the basis of criminal or civil liability. Concededly, a Member of Congress may not be prosecuted or sued for making a speech or voting in committee or on the floor, whether he was paid to do so or not. The majority also appears to embrace the holding in United States v. Johnson, 383 U.S. 169, 86 S.Ct. 749, 15 L.Ed.2d 681 (1966), that a Member of Congress could not be convicted of a conspiracy to defraud the Government where the purposes or motives underlying his conduct as a legislator are called into question. If one follows the mode of the majority's present analysis, the prosecution in Johnson was not for speaking, voting, or performing any other legislative act in a particular manner; the criminal act charged was a conspiracy to defraud the United States anterior to any legislative performance. To prove the crime, however, the prosecution introduced evidence that money was paid to make a speech, among other things, and that the speech was made. This, the Court held, violated the Speech or Debate Clause, because it called into question the motives and purposes underlying Congressman Johnson's performance of his legislative duties.
126
The same infirmity inheres in the present indictment, which was founded upon two separate statutes. Title 18 U.S.C. § 201(g) requires proof of a defendant's receipt, or an agreement or attempt to receive, anything of value 'for or because of any official act performed or to be performed by him . . ..' Of course, not all, or even many, official acts would be legislative acts protected by the Speech or Debate Clause; but whatever the act, the Government must identify it to prove its case. Here we are left in no doubt whatsoever, for the official acts expressly charged in the indictment were in respect to 'his action, vote and decision on postage rate legislation.' Similarly, there is no basis for arguing that the indictment did not contemplate proof of performance of the act, for the indictment in so many words charged the arrangement was 'for and because of official acts performed by him in respect to his action vote and decision on postage rate legislation which had been pending before him in his official capacity.' (Emphasis added.) It is this indictment, not some other charge, that was challenged and dismissed by the District Court. Like that court, I would take the Government at its word: it alleged and intended to prove facts that questioned and impugned the motives and purposes underlying specified legislative acts of the Senator and intended to use these facts as a basis for the conviction of the Senator himself. Thus, taking the charge at face value, the indictment represents an attempt to prosecute and convict a Member of Congress not only for taking money but also for performing a legislative act. Moreover, whatever the proof might be, the indictment on its face charged a corrupt undertaking with respect to the performance of legislative conduct that had already occurred and so, without more, 'questioned in (some) other Place' the speech and debate of a Member of Congress. Such a charge is precisely the kind that the Senator should not have been called upon to answer if the Speech or Debate Clause is to fulfill its stated purpose.
127
Insofar as it charged crimes under 18 U.S.C. § 201(c)(1), the indictment fares little better. That section requires proof of a corrupt arrangement for the receipt of money and also proof that the arrangement was in return for the defendant 'being influenced in his performance of any official act . . ..' Whatever the official act may prove to be, the Government cannot prove its case without calling into question the motives of the Member in performing that act, for it must prove that the Member undertook for money to be influenced in that performance. Clearly, if the Government sought to prove its case against a Member of Congress by evidence of a legislative act, conviction could not survive in the face of the holding in Johnson. But even if an offense under the statute could be established merely by proof of an undertaking to cast a vote, which is not alleged in the indictment or shown at trial to have taken place one way or the other, the motives of the legislator in performing his duties with respect to the subject matter of the undertaking would nevertheless inevitably be implicated. In charging the offense under § 201(c) (1), the indictment alleged a corrupt arrangement made 'in return for being influenced in his performance of official acts in respect to his action, vote, and decision on postage legislation which might at any time be pending before him in his official capacity.' Again, I would take the Government at its word: it charged and intended to prove facts that could not fail to implicate Senator Brewster's performance of his legislative duties.*
128
The use of criminal charges 'against critical or disfavored legislators by the executive in a judicial forum was the chief fear prompting the long struggle for parliamentary privilege,' United States v. Johnson, 383 U.S., at 182, 86 S.Ct., at 756, 15 L.Ed.2d 681 (1966), and in applying the privilege 'we look particularly to the prophylactic purposes of the clause.' Ibid. Let us suppose that the Executive Branch is informed that private interests are paying a Member of Congress to oppose administration-sponsored legislation. The Congressman is chairman of a key committee where a vote is pending. A representative from the Executive Branch informs the Congressman of the allegations against him, hopes the charges are not true, and expresses confidence that the committee will report the bill and that the Member will support it on the floor. The pressure on the Congressmen, corrupt or not, is undeniable. He will clearly fare better in any future criminal prosecution if he answers the charge of corruption with evidence that he voted contrary to the alleged bargain. Even more compelling is the likelihood that he will not be prosecuted at all if he follows the administration's suggestion and supports the bill. Putting aside the potential for abuse in ill-conceived, mistaken, or false accusations, the Speech or Debate Clause was designed to prevent just such an exercise of executive power. It is no answer to maintain that the potential for abuse does not inhere in a prosecution for a completed bribery transaction where the legislative act has already occurred. A corrupt vote may not be made the object of a criminal prosecution because otherwise the Executive would be armed with power to control the vote in question, if forewarned, or in any event to control other legislative conduct.
129
All of this comes to naught if the executive may prosecute for a promise to vote though not for the vote itself. The same hazards to legislative independence inhere in the two prosecutions. Bribery is most often carried out by prearrangement; if that part of the transaction may be plucked from its context and made the basis of criminal charges, the Speech or Debate Clause loses its force. It will be small comfort for a Congressman to know that he cannot be prosecuted for his vote, whatever it may be, but he can be prosecuted for an alleged agreement even if he votes contrary to the asserted bargain.
130
The realities of the American political system, of which the majority fails to take account, render particularly illusory a Speech or Debate Clause distinction between a promise to perform a legislative act and the act itself. Ours is a representative government. Candidates for office engage in heated contests and the victor is he who receives the greatest number of votes from his constituents. These campaigns are run on platforms that include statements of intention and undertakings to promote certain policies. These promises are geared, at least in part, to the interests of the Congressman's constituency. Members of Congress may be legally free from dictation by the voters, but there is a residual conviction that they should have due regard for the interests of their States or districts, if only because on election day a Member is answerable for his conduct.
131
Serving constituents is a crucial part of a legislator's ongoing duties. Congressmen receive a constant stream of complaints and requests for help or service. Judged by the volume and content of a Congressman's mail, the right to petition is neither theoretical nor ignored. It has never been thought unethical for a Member of Congress whose performance on the job may determine the success of his next campaign not only to listen to the petitions of interest groups in his State or district, which may come from every conceivable group of people, but also to support or oppose legislation serving or threatening those interests.
132
Against this background a second fact of American political life assumes considerable importance for the purposes of this case. Congressional campaigns are most often financed with contributions from those interested in supporting particular Congressmen and their policies. A legislator must maintain a working relationship with his constituents not only to garner votes to maintain his office but to generate financial support for his campaigns. He must also keep in mind the potential effect of his conduct upon those from whom he has received financial support in the past and those whose help he expects or hopes to have in the next campaign. An expectation or hope of future assistance can arise because constituents have indicated that support will be forthcoming if the Member of Congress champions their point of view. Financial support may also arrive later from those who approve of a Congressman's conduct and have an expectation it will continue. Thus, mutuality of support between legislator and constituent is inevitable. Constituent contributions to a Congressman and his support of constituent interests will repeatedly coincide in time or closely follow one another. It will be the rare Congressman who never accepts campaign contributions from persons or interests whose view he has supported or will support, by speech making, voting, or bargaining with fellow legislators.
133
All of this, or most of it, may be wholly within the law and consistent with contemporary standards of political ethics. Nevertheless, the opportunities for an Executive, in whose sole discretion the decision to prosecute rests under the statute before us, to claim that legislative conduct has been sold are obvious and undeniable. These opportunities, inherent in the political process as it now exists, create an enormous potential for executive control of legislative behavior by threats or suggestions of criminal prosecution—precisely the evil that the Speech or Debate Clause was designed to prevent.
134
Neither the majority opinion nor the statute under which Brewster is charged distinguishes between campaign contributions and payments designed for or put to personal use. To arm the Executive with the power to prosecute for taking political contributions in return for an agreement to introduce or support particular legislation or policies is to vest enormous leverage in the Executive and the courts. Members of Congress may find themselves in the dilemma of being forced to conduct themselves contrary to the interests of those who provide financial support or declining that support. They may also feel constrained to listen less often to the entreaties and demands of potential contributors. The threat of prosecution for supposed missteps that are difficult to define and fall close to the line of what ordinarily is considered permissible, even necessary, conduct scarcely ensures that legislative independence that is the root of the Speech or Debate Clause.
135
Even if the statute and this indictment were deemed limited to payments clearly destined for, or actually put to, personal use in exchange for a promise to perform a legislative act, the Speech or Debate Clause would still be offended. The potential for executive harassment is not diminished merely because the conduct made criminal is more clearly defined. A Member of Congress becomes vulnerable to abuse each time he makes a promise to a constituent on a matter over which he has some degree of legislative power, and the possibility of harassment can inhibit his exercise of power as well as his relations with constituents. In addition, such a prosecution presents the difficulty of defining when money obtained by a legislator is destined for or has been put to personal use. For the legislator who uses both personal funds and campaign contributions to maintain himself in office, the choice of which to draw upon may have more to do with bookkeeping than bribery; yet any interchange of funds would certainly render his conduct suspect. Even those Members of Congress who keep separate accounts for campaign contributions but retain unrestricted drawing rights would remain open to a charge that the money was in fact for personal use. In both cases, the possibility of a bribery prosecution presents the problem of determining exactly those purposes for which campaign contributions can legitimately be used. The difficulty of drawing workable lines enhances the prospects for executive control and correspondingly diminishes congressional freedom of action.
136
The majority does not deny the potential for executive control that inheres in sanctioning this prosecution. Instead, it purports to define the problem away by asserting that the Speech or Debate Clause reaches only prosecutions for legislative conduct and that a promise to vote for a bill, as distinguished from the vote itself, does not amount to a legislative act. The implication is that a prosecution based upon a corrupt promise no more offends the Speech or Debate Clause than the prosecution of a Congressman for assault, robbery, or murder. The power to prosecute may treaten legislative independence but the Constitution does not for that reason forbid it. I find this unpersuasive.
137
The fact that the Executive may prosecute Members of Congress for ordinary criminal conduct, which surely he can despite the potential for influencing legislative conduct, cannot itself demonstrate that prosecutions for corrupt promises to perform legislative acts would be equally constitutional. The argument proves too much, for it would as surely authorize prosecutions for the legislative act itself. Moreover, there is a fundamental difference in terms of potential abuse between prosecutions for ordinary crime and those based upon a promise to perform a legislative act. Even the most vocal detractor of Congress could not accurately maintain that the Executive would often have credible basis for accusing a member of Congress of murder, theft, rape, or other such crimes. But the prospects for asserting an arguably valid claim are far wider in scope for an Executive prone to fish in legislative waters and to search for correlations between legislative performance and financial support. The possibilities are indeed endless, as is the potential for abuse.
138
The majority ignores another vital difference between executive authority to prosecute for ordinary crime and the power to challenge undertakings or conspiracies to corrupt the legislative process. In a prosecution for drunken driving or assault, the manner in which a Congressman performed his legislative tasks is quite irrelevant to either prosecution of defense. In the trial of a Congressman for making a corrupt promise to vote, on the other hand, proof that his vote was in fact contrary to the terms of the alleged bargain will make a strong defense. See United States v. Johnson, 383 U.S., at 176—177, 86 S.Ct., at 753—754, 15 L.Ed.2d 681. A Congressman who knows he is under investigation for a corrupt undertaking will be well advised to conduct his affairs in a manner wholly at odds with the theory of the charge which may be lodged against him. As a practical matter, to prosecute a Congressman for agreeing to accept money in exchange for a promise to perform a legislative act inherently implicates legislative conduct. And to divine a distinction between promise and performance is wholly at odds with protecting that legislative independence that is the heart of the Speech or Debate Clause.
139
Congress itself clearly did not make the distinction that the majority finds dispositive. The statute before us is a comprehensive effort to sanitize the legislative environment. It expressly permits prosecutions of members of Congress for voting or promising to vote in exchange for money. The statute does not concern itself with murder or other undertakings unrelated to the legislative process. Congress no doubt believed it consistent with the Speech or Debate Clause to authorize executive prosecutions for corrupt voting. Equally obvious is the fact that Congress drew no distinction in legislative terms between prosecutions based upon voting and those based upon motivations underlying legislative conduct.
140
The arguments that the majority now embraces were the very contentions that the Government made in United States v. Johnson, supra. In rejecting those arguments on the facts of that case where legislative conduct as well as a prior conspiracy formed a major part of the Government's proof, the Court referred with approval to Ex parte Wason, L.R. 4 Q.B. 573 (1869), in which the question was whether members of the House of Lords could be prosecuted for a conspiracy to prevent presentation of a petition on the floor of Lords. Johnson, supra, at 183, 86 S.Ct., at 757, sets out the reaction of the English court:
141
'The court denied the motion, stating that statements made in the House 'could not be made the foundation of civil or criminal proceedings . . .. And a conspiracy to make such statements would not make the person guilty of it amenable to the criminal law.' Id., at 576. (Cockburn, C.J.) Mr. Justice Lush added, 'I am clearly of opinion that we ought not to allow it to be doubted for a moment that the motives or intentions of members of either House cannot be inquired into by criminal proceedings with respect to anything they may do or say in the House.' Id., at 577.'
142
The Wason court clearly refused to distinguish between promise and performance; the legislative privilege applied to both. Mr. Justice Harlan, writing for the Court in Johnson, took no issue with this position. Indeed, he indicated that the Speech or Debate Clause barred any prosecution under a general statute where there is drawn in question 'the legislative acts of . . . the member of Congress or his motives for performing them.' 383 U.S., at 185, 86 S.Ct. at 758 (emphasis added). I find it difficult to believe that under the statute there involved the Johnson Court would have permitted a prosecution based upon a promise to perform a legislative act.
143
Because it gives a begrudging interpretation to the clause, the majority finds it can avoid dealing with the position upon which the Government placed principal reliance in its brief in this Court. Johnson put aside the question whether an otherwise impermissible prosecution conducted pursuant to a statute such as we now have before us—a statute specifically including congressional conduct and purporting to be an exercise of congressional power to discipline its Members—would be consistent with the Speech or Debate Clause. As must be apparent from what so far has been said, I am convinced that such a statute contravenes the letter and purpose of the Clause. True, Congress itself has defined the crime and specifically delegated to the Executive the discretion to prosecute and to the courts the power to try. Nonetheless, I fail to understand how a majority of Congress can bind an objecting Congressman to a course so clearly at odds with the constitutional command that legislative conduct shall be subject to question in no place other than the Senate or the House of Representatives. The Speech or Debate Clause is an allocation of power. It authorizes Congress to call offending members to account in their appropriate Houses. A statute that represents an abdication of that power is in my view impermissible.
144
I return to the beginning. The Speech or Debate Clause does not immunize corrupt Congressmen. It reserves the power to discipline in the Houses of Congress. I would insist that those Houses develop their own institutions and procedures for dealing with those in their midst who would prostitute the legislative process.
1
The remaining five counts charged the alleged bribers with offering and giving bribes in violation of 18 U.S.C. § 201(b).
2
Title 18 U.S.C. § 201(c) provides: 'Whoever, being a public official or person selected to be a public official, directly or indirectly, corruptly asks, demands, exacts, solicits, seeks, accepts, receives, or agrees to receive anything of value for himself or for any other person or entity, in return for:
'(1) being influenced in his performance of any official act . . . (shall be guilty of an offense).'
Title 18 U.S.C. § 201(a) defines 'public official' to include 'Member of Congress.' The same subsection provides: "official act' means any decision or action on any question, matter, cause, suit, proceeding or controversy, which may at any time be pending, or which may by law be brought before any public official, in his official capacity, or in his place of trust or profit.' Title 18 U.S.C. § 2 is the aiding or abetting statute.
3
Title 18 U.S.C. § 201(g) provides: 'Whoever, being a public official, former public official, or person selected to be a public official, otherwise than as provided by law for the proper discharge of official duty, directly or indirectly asks, demands, exacts, solicits, seeks, accepts, receives, or agrees to receive anything of value for himself for or because of any official act performed or to be performed by him . . . (shall be guilty of an offense.)'
4
Title 18 U.S.C. § 3731 (Supp. V, 1970) provided in relevant part:
'An appeal may be taken by and on behalf of the United States from the district courts direct to the Supreme Court of the United States in all criminal cases in the following instances:
'From a decision or judgment setting aside, or dismissing any indictment or information, or any count thereof, where such decision or judgment is based upon the invalidity or construction of the statute upon which the indictment or information is founded.
'From the decision or judgment sustaining a motion in bar, when the defendant has not been put in jeopardy.'
The statute has since been amended to eliminate the direct appeal provision on which the United States relies. 18 U.S.C. § 3731. This appeal, however, was perfected under the old statute.
5
Cella, The Doctrine of Legislative Privilege of Freedom of Speech and Debate: Its Past, Present and Future as a Bar to Criminal Prosecutions in the Courts, 2 Suffolk L.Rev. 1, 15 (1968); Note, The Bribed Congressman's Immunity from Prosecution, 75 Yale L.J. 335, 337—338 (1965).
6
See C. Wittke, The History of English Parliamentary Privilege 23—32 (1921).
7
On remand, the District Court dismissed the conspiracy count without objection from the Government. Johnson was then found guilty on the remaining counts, and his conviction was affirmed. United States v. Johnson, 419 F.2d 56 (CA4 1969), cert. denied, 397 U.S. 1010, 90 S.Ct. 1235, 25 L.Ed.2d 423 (1970).
8
It is especially important to note that in Coffin v. Coffin, the court concluded that the defendant was not executing the duties of his office when he allegedly defamed the plaintiff and was hence not entitled to the claim of privilege.
9
The 'concession' Mr. Justice BRENNAN seeks to attribute to the Government lawyer who argued the case in the District Court reveals no more than the failure of the arguments in that court to focus on the distinction between true legislative acts and the myriad related political functions of a Member of Congress. The 'concession' came in response to a question clearly revealing that the District Court treated as protected all acts 'related' to the office rather than limiting the protection to what is 'said or done by him, as a representative, in the exercise of the functions of that office.'
10
See Kilbourn v. Thompson, 103 U.S. 168, 26 L.Ed. 377 (1881) (voting for a resolution); Tenney v. Brandhove, 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019 (1951) (harassment of witness by state legislator during a legislative hearing; not a Speech or Debate Clause case); United States v. Johnson, 383 U.S. 169, 86 S.Ct. 749, 15 L.Ed.2d 681 (1966) (making a speech on House floor); Dombrowski v. Eastland, 387 U.S. 82, 87 S.Ct. 1425, 18 L.Ed.2d 577 (1967) (subpoenaing records for committee hearing); Powell v. McCormark, 395 U.S. 486, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969), (voting for a resolution).
In Coffin v. Coffin, 4 Mass. 1 (1808), the state equivalent of the Speech or Debate Clause was held to be inapplicable to a legislator who was acting outside of his official duties.
11
'To this construction of the article it is objected, that a private citizen may have his character basely defamed, without any pecuniary recompense or satisfaction. The truth of the objection is admitted. . . . The injury to the reputation of a private citizen is of less importance to the commonwealth, than the free and unreserved exercise of the duties of a representative, unawed by the fear of legal prosecutions.' Coffin v. Coffin, 4 Mass., at 28.
See Cochran v. Couzens, 59 App.D.C. 374, 42 F.2d 783, cert. denied, 282 U.S. 874, 51 S.Ct. 79, 75 L.Ed. 772 (1930) (defamatory words uttered on Senate floor could not be basis of slander action).
12
See Thomas, Freedom of Debate: Protector of the People or Haven for the Criminal?, 3 The Harvard Rev. 74, 80—81 (No. 3, 1965); Note, The Bribed Congressman's Immunity from Prosecution, 75 Yale L.J. 335, 349 n. 84 (1965); Oppenheim, Congressional Free Speech, 8 Loyola L.Rev. 1, 27—28 (1955—1956).
13
See, e.g., In re Chapman, 166 U.S. 661, 669—670, 17 S.Ct. 677, 680, 41 L.Ed. 1154 (1897):
'The right to expel extends to all cases where the offence is such as in the judgment of the Senate is inconsistent with the trust and duty of a member.'
14
See the account of the impeachment of President Andrew Johnson in J. Kennedy, Profiles in Courage 126—151 (1955). See also the account of the impeachment of Mr. Justice Samuel Chase in 3 A. Beveridge, The Life of John Marshall 169—220 (1919).
15
'. . . English Parliaments have historically reserved to themselves and still retain the sole and exclusive right to punish their members for the acceptance of a bribe in the discharge of their office. No member of Parliament may be tried for such an offense in any court of the land.' Cella, supra, n. 5, at 15—16. That this is obviously not the case in this country is implicit in the remand of Representative Johnson to be retried on bribery charges.
16
The potential for harassment by an unscrupulous member of the Executive Branch may exist, but this country has no tradition of absolute congressional immunity from criminal prosecution. See United States v. Quinn, 141 F.Supp. 622 (S.D.N.Y.1956) (motion for acquittal granted because the defendant Member of Congress was unaware of receipt of fees by his law firm); Burton v. United States, 202 U.S. 344, 26 S.Ct. 688, 50 L.Ed. 1057 (1906) (Senator convicted for accepting compensation to intervene before Post Office Department); United States v. Dietrich, 126 F. 671 (C.C.Neb.1904) (Senator-elect's accepting payment to procure office for another not covered by statute); May v. United States, 84 U.S.App.D.C. 233, 175 F.2d 994, cert. denied, 338 U.S. 830, 70 S.Ct. 58, 94 L.Ed. 505 (1949) (Congressman convicted of receiving compensation for services before an agency); United States v. Bramblett, 348 U.S. 503, 75 S.Ct. 504, 99 L.Ed. 594 (1955) (Congressman convicted of defrauding government agency). Bramblett concerned a Congressman's misuse of office funds via a 'kick-back' scheme, which is surely 'related' to the legislative office.
A strategically timed indictment could indeed cause serious harm to a Congressman. Representative Johnson, for example, was indicted while campaigning for re-election, and arguably his indictment contributed to his defeat. On the other hand, there is the classic case of Mayor Curley who was re-elected while under indictment. See N.Y. Times, Nov. 8, 1945, p. 12, col. 5; 4 New Catholic Encyclopedia 541 (1967). Moreover, we should not overlook the barriers a prosecutor, attempting to bring such a case, must face. First, he must persuade a grand jury to indict, and we are not prepared to assume that grand juries will act against a Member without solid evidence. Thereafter, he must convince a petit jury beyond a reasonable doubt, with the presumption of innocence favoring the accused. A prosecutor who fails to clear one of these hurdles faces serious practical consequences when the defendant is a Congressman. The Legislative Branch is not without weapons of its own and would no doubt use them if it thought the Executive were unjustly harassing one of its members. Perhaps more important is the omnipresence of the news media whose traditional function and competitive inclination afford no immunities to reckless or irresponsible official misconduct.
17
The first bribery statute applicable to Congressmen was enacted in 1853. Act of Feb. 26, 1853, c. 81, § 6, 10 Stat. 171.
18
In reversing the District Court's ruling that a Member of Congress may not be constitutionally tried for a violation of the federal bribery statutes, we express no views on the question left open in Johnson as to the constitutionality of an inquiry that probes into legislative acts or the motivation for legislative acts if Congress specifically authorizes such in a narrowly drawn statute. Should such an inquiry be made and should a conviction be sustained, then we would face the question whether inquiry into legislative acts and motivation is permissible under such a narrowly drawn statute.
1
Although the Court does not reach this issue, it adopts many of the Government's arguments to show that the Speech or Debate Clause is or should be wholly inapplicable to this case. My disagreement with these contentions applies equally to their use by the Court in support of its position.
2
See n. 4, infra, and accompanying text.
3
Cf. Conflict of Interest and Federal Service, Association of the Bar of the City of New York 14—15 (1960):
'The congressman's representative status lies at the heart of the matter. As a representative, he is often supposed to represent a particular economic group, and in many instances his own economic self-interest is closely tied to that group. That is precisely why it selected him. It is common to talk of the Farm Bloc, or the Silver Senators. We would think odd a fishing state congressman who was not mindful of the interests of the fishing industry—though he may be in the fishing business himself, and though his campaign funds come in part from this source. This kind of representation is considered inevitable and, indeed, generally applauded. Sterile application of an abstract rule against acting in situations involving self-interest would prevent the farmer senator from voting on farm legislation or the Negro congressman from speaking on civil rights bills. At some point a purist attitude toward the evils of conflicts of interest in Congress runs afoul of the basic premises of American representative government.'
4
R. Luce, Legislative Assemblies 401—402 (1924). Another notable instance was that of Robert Walpole, who in 1711 was expelled and imprisoned by the House on charges of corruption. T. Taswell-Langmead's, English Constitutional History 583—584 (11th ed., T. Plucknett, 1960).
5
C. Wittke, The History of English Parliamentary Privilege 39—47 (1921); Taswell-Langmead, supra, at 580. The abuse of the privilege lay as much in its arbitrary contraction as extension. In 1763 the House of Commons reacted angrily to a tract written by one of its own members, John Wilkes, and withdrew the privilege from him in order to permit his prosecution for seditious libel. The House also expelled Wilkes, and he fled to France as an outlaw. Upon his return to England in 1768, he was re-elected to Parliament, again expelled, tried for seditious libel, and sentenced to 22 months' imprisonment. The House refused to seat him on three further occasions, and it was not until 1782 that the resolutions expelling Wilkes and declaring him incapable of re-election were expunged from the records of the House. Tasswell-Langmead, supra, at 584—585; Powell v. McCormack, 395 U.S. 486, 527—528, 89 S.Ct. 1944, 1967—1968, 23 L.Ed.2d 491 (1969).
6
M. Clarke, Parliamentary Privilege in the American Colonies 99 (1943).
7
The Federalist No. 48.
8
Tenney v. Brandhove, 341 U.S. 367, 375 n. 4, 71 S.Ct. 783, 787, 95 L.Ed. 1019 (1951).
9
James Wilson, a member of the Convention committee responsible for the Clause, stated: 'In order to enable and encourage a representative of the publick to discharge his publick trust with firmness and success, it is indispensably necessary, that he should enjoy the fullest liberty of speech, and that he should be protected from the resentment of every one, however powerful, to whom the exercise of that liberty may occasion offence.' 1 The Works of James Wilson 421 (R. McCloskey ed. 1967).
10
While it is true that Congress has made the acceptance of a bribe a crime ever since 1853, it should be noted that the earliest federal bribery statute, passed by Congress in 1790, applied only to judges who took bribes in exchange for an 'opinion, judgment or decree.' Act of April 30, 1790, 1 Stat. 112, 117. It also appears that the common law did not recognize the charge of bribe-taking by a legislator. Blackstone, for example, defined bribery as 'when a judge, or other person concerned in the administration of justice, takes any undue reward to influence his behaviour in his office.' 4 W. Blackstone, Commentaries *139. Coke also regarded bribery as a crime committed by judges. Coke, Third Institute c. 68, 1—2.
*
In Gravel v. United States, 408 U.S. 606, 92 S.Ct. 2614, 33 L.Ed.2d 583, it is held that the Speech or Debate Clause does not immunize criminal acts performed in preparation for or execution of a legislative act. But the unprotected acts referred to there were criminal in themselves, provable without reference to a legislative act and without putting the defendant Member to the task of defending the integrity of his legislative performance. Here, as stated, the crime charged necessarily implicates the Member's legislative duties.
| 78
|
408 U.S. 753
92 S.Ct. 2576
33 L.Ed.2d 683
Richard G. KLEINDIENST, Attorney General of the United States, et al., Appellants,v.Ernest MANDEL et al.
No. 71—16.
Argued April 18, 1972.
Decided June 29, 1972.
Syllabus
This action was brought to compel the Attorney General to grant a temporary nonimmigrant visa to a Belgian journalist and Marxian theoretician whom the American plaintiff-appellees had invited to participate in academic conferences and discussions in this country. The alien had been found ineligible for admission under §§ 212(a)(28)(D) and (G)(v) of the Immigration and Nationality Act of 1952, barring those who advocate or publish 'the economic, international, and governmental doctrines of world communism.' The Attorney General had declined to waive ineligibility as he has the power to do under § 212(d) of the Act, basing his decision on unscheduled activities engaged in by the alien on a previous visit to the United States when a waiver was granted. A three-judge District Court, although holding that the alien had no personal entry right, concluded that citizens of this country had a First Amendment right to have him enter and to hear him, and enjoined enforcement of § 212 as to this alien. Held: In the exercise of Congress' plenary power to exclude aliens or prescribe the conditions for their entry into this country, Congress in § 212(a)(28) of the Act has delegated conditional exercise of this power to the Executive Branch. When, as in this case, the Attorney General decides for a legitimate and bona fide reason not to waive the statutory exclusion of an alien, courts will not look behind his decision or weigh it against the First Amendment interests of those who would personally communicate with the alien. Pp. 761—770.
325 F.Supp. 620, reversed.
Daniel M. Friedman, Washington, D.C., for appellants.
Leonard B. Boudin, New York City, for appellees.
Mr. Justice BLACKMUN delivered the opinion of the Court.
1
The appellees have framed the issue here as follows:
2
'Does appellants' action in refusing to allow an alien scholar to enter the country to attend academic meetings violate the First Amendment rights of American scholars and students who had invited him?'1
3
Expressed in statutory terms, the question is whether §§ 212(a)(28)(D) and (G) (v) and § 212(d)(3)(A) of the Immigration and Nationality Act of 1952, 66 Stat. 182, 8 U.S.C. §§ 1182(a)(28)(D) and (G)(v) and § 1182(d)(3)(A), providing that certain aliens 'shall be ineligible to receive visas and shall be excluded from admission into the United States' unless the Attorney General, in his discretion, upon recommendation by the Secretary of State or a consular officer, waives inadmissibility and approves temporary admission, are unconstitutional as applied here in that they deprive American citizens of freedom of speech guaranteed by the First Amendment.
4
The challenged provisions of the statute are:
5
'Section 212(a). Except as otherwise provided in this Act, the following classes of aliens shall be ineligible to receive visas and shall be excluded from admission into the United States:
6
'(28) Aliens who are, or at any time have been, members of any of the following classes:
7
'(D) Aliens not within any of the other provisions of this paragraph who advocate the economic, international, and governmental doctrines of world communism or the establishment in the United States of a totalitarian dictatorship . . ..
8
'(G) Aliens who write or publish . . . (v) the economic, international, and governmental doctrines of world communism or the establishment in the United States of a totalitarian dictatorship; . . .
9
'(d)
10
'(3) Except as provided in this subsection, an alien (A) who is applying for a nonimmigrant visa and is known or believed by the consular officer to be ineligible for such visa under one or more of the paragraphs enumerated in subsection (a) . . . may, after approval by the Attorney General of a recommendation by the Secretary of State or by the consular officer that the alien be admitted temporarily despite his inadmissibility, be granted such a visa and may be admitted into the United States temporarily as a nonimmigrant in the discretion of the Attorney General . . ..'
11
Section 212(d)(6) provides that the Attorney General 'shall make a detailed report to the Congress in any case in which he exercises his authority under paragraph (3) of this subsection on behalf of any alien excludable under paragraphs (9), (10), and (28) . . ..'
12
* Ernest E. Mandel resides in Brussels, Belgium, and is a Belgian citizen. He is a professional journalist and is editor-in-chief of the Belgian Left Socialist weekly La Gauche. He is author of a two-volume work entitled Marxist Economic Theory published in 1969. He asserted in his visa applications that he is not a member of the Communist Party. He has described himself, however, as 'a revolutionary Marxist.'2 He does not dispute, see 325 F.Supp. 620, 624, that he advocates the economic, governmental, and international doctrines of world communism.3
13
Mandel was admitted to the United States temporarily in 1962 and again in 1968. On the first visit he came as a working journalist. On the second he accepted invitations to speak at a number of universities and colleges. On each occasion, although apparently he was not then aware of it, his admission followed a finding of ineligibility under § 212(a)(28), and the Attorney General's exercise of discretion to admit him temporarily, on recommendation of the Secretary of State, as § 212(d)(3)(A) permits.
14
On September 8, 1969, Mandel applied to the American Consul in Brussels for a nonimmigrant visa to enter the United States in October for a six-day period, during which he would participate in a conference onTechnology and the Third World at Stanford University.4 He had been invited to Standford by the Graduate Student Association there. The invitation stated that John Kenneth Galbraith would present the key note address and that Mandel would be expected to participate in an ensuing panel discussion and to give a major address the following day. The University, through the office of its president, 'heartily endorse(d)' the invitation. When Mandel's intended visit became known, additional invitations for lectures and conference participations came to him from members of the faculties at Princeton, Amherst, Columbia, and Vassar, from groups in Cambridge, Massachusetts, and New York City, and from others. One conference, to be in New York City, was sponsored jointly by the Bertrand Russell Peace Foundation and the Socialist Scholars Conference; Mandel's assigned subject there was 'Revolutionary Strategy in Imperialist Countries.' Mandel then filed a second visa application proposing a more extensive itinerary and a stay of greater duration.
15
In October 23 the Consul at Brussels informed Mandel orally that his application of September 8 had been refused. This was confirmed in writing on October 30. The Consul's letter advised him of the finding of inadmissibility under § 212(a)(28) in 1962, the waivers in that year and in 1968, and the current denial of a waiver. It said, however, that another request for waiver was being forwarded to Washington in connection with Mandel's second application for a visa. The Department of State, by a letter dated November 6 from its Bureau of Security and Consular Affairs to Mandel's New York attorney, asserted that the earlier waivers had been granted on condition that Mandel conform to his itinerary and limit his activities to the stated purposes of his trip, but that on his 1968 visit he had engaged in activities beyond the stated purposes.5 For this reason, it was said, a waiver 'was not sought in connection with his September visa application.' The Department went on to say, however, that it had now learned that Mandel might not have been aware in 1968 of the conditions and limitations attached to his visa issuance, and that, in view of this and upon his assurances that he would conform to his stated itinerary and purposes, the Department was reconsidering his case. On December 1 the Consul at Brussels informed Mandel that his visa had been refused.
16
The Department of State in fact had recommended to the Attorney General that Mandel's ineligibility be waived with respect to his October visa application. The Immigration and Naturalization Service, however, acting on behalf of the Attorney General, see 28 U.S.C. § 510, in a letter dated February 13, 1970, to New York counsel stated that it had determined that Mandel's 1968 activities while in the United States 'went far beyond the stated purposes of his trip, on the basis of which his admission had been authorized and represented a flagrant abuse of the opportunities afforded him to express his views in this country.' The letter concluded that favorable exercise of discretion, provided for under the Act, was not warranted and that Mandel's temporary admission was not authorized.
17
Mandel's address to the New York meeting was then delivered by transatlantic telephone.
18
In March Mandel and six of the other appellees instituted the present action against the Attorney General and the Secretary of State. The two remaining appellees soon came into the lawsuit by an amendment to the complaint. All the appellees who joined Mandel in this action are United States citizens and are university professors in various fields of the social sciences. They are persons who invited Mandel to speak at universities and other forums in the United States or who expected to participate in colloquia with him so that, as the complaint alleged, 'they may hear his views and engage him in a free and open academic exchange.'
19
Plaintiff-appellees claim that the statutes are unconstitutional on their face and as applied in that they deprive the American plaintiffs of their First and Fifth Amendment rights. Specifically, these plaintiffs claim that the statutes prevent them from hearing and meeting with Mandel in person for discussions, in contravention of the First Amendment; that § 212(a)(28) denies them equal protection by permitting entry of 'rightists' but not 'leftists' and that the same section deprives them of procedural due process; that § 212(d)(3)(A) is an unconstitutional delegation of congressional power to the Attorney General because of its broad terms, lack of standards, and lack of prescribed procedures; and that application of the statutes to Mandel was 'arbitrary and capricious' because there was no basis in fact for concluding that he was ineligible, and no rational reason or basis in fact for denying him a waiver once he was determined ineligible. Declaratory and injunctive relief was sought.
20
A three-judge district court was duly convened. The case was tried on the pleadings and affidavits with exhibits. Two judges held that, although Mandel had no personal right to enter the United States, citizens of this country have a First Amendment right to have him enter and to hear him explain and seek to defend his views. The court then entered a declaratory judgment that § 212(a) (28) and § 212(d)(3)(A) were invalid and void insofar as they had been or might be invoked by the defendants to find Mandel ineligible for admission. The defendants were enjoined from implementing and enforcing those statutes so as to deny Mandel admission as a nonimmigrant visitor. 325 F.Supp. 620 (E.D.N.Y.1971). Judge Bartels dissented. Id., at 637. Probable jurisdiction was noted. 404 U.S. 1013, 92 S.Ct. 670, 30 L.Ed.2d 660 (1972).
II
21
Until 1875 alien migration to the United States was unrestricted. The Act of March 3, 1875, 18 Stat. 477, barred convicts and prostitutes. Seven years later Congress passed the first general immigration statute. Act of Aug. 3, 1882, 22 Stat. 214. Other legislation followed. A general revision of the immigration laws was effected by the Act of Mar. 3, 1903, 32 Stat. 1213. Section 2 of that Act made ineligible for admission 'anarchists, or persons who believe in or advocate the overthrow by force or violence of the Government of the United States or of all government or of all forms of law.' By the Act of Oct. 16, 1918, 40 Stat. 1012, Congress expanded the provisions for the exclusion of subversive aliens. Title II of the Alien Registration Act of 1940, 54 Stat. 671, amended the 1918 Act to bar aliens who, at any time, had advocated or were members of or affiliated with organizations that advocated violent overthrow of the United States Government.
22
In the years that followed, after extensive investigation and numerous reports by congressional committees, see Communist Party v. Subversive Activities Control Board, 367 U.S. 1, 94 n. 37, 81 S.Ct. 1357, 1409 n. 37, 6 L.Ed.2d 625 (1961), Congress passed the Internal Security Act of 1950, 64 Stat. 987. This Act dispensed with the requirement of the 1940 Act of a finding in each case, with respect to members of the Communist Party, that the party did in fact advocate violent overthrow of the Government. These provisions were carried forward into the Immigration and Nationality Act of 1952.
23
We thus have almost continuous attention on the part of Congress since 1875 to the problems of immigration and of excludability of certain defined classes of aliens. The pattern generally has been one of increasing control with particular attention, for almost 70 years now, first to anarchists and then to those with communist affiliation or views.
III
24
It is clear that Mandel personally, as an unadmitted and nonresident alien, had no constitutional right of entry to this country as a nonimmigrant or otherwise. United States ex rel. Turner v. Williams, 194 U.S. 279, 292, 24 S.Ct. 719, 723, 48 L.Ed. 979 (1904); United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 542, 70 S.Ct. 309, 312, 94 L.Ed. 317 (1950); Galvan v. Press, 347 U.S. 522, 530—532, 74 S.Ct. 737, 742—743, 98 L.Ed. 911 (1954); see Harisiades v. Shaughnessy, 342 U.S. 580, 592, 72 S.Ct. 512, 520, 96 L.Ed. 586 (1952).
25
The appellees concede this. Brief for Appellees 33; Tr. of Oral Arg. 28. Indeed, the American appellees assert that 'they sue to enforce their rights, individually and as members of the American public, and assert none on the part of the invited alien.' Brief for Appellees at 14. 'Dr. Mandel is in a sense made a plaintiff because he is symbolic of the problem,' Tr. of Oral Arg. 22.
26
The case, therefore, comes down to the narrow issue whether the First Amendment confers upon the appellee professors, because they wish to hear, speak, and debate with Mandel in person, the ability to determine that Mandel should be permitted to enter the country or, in other words, to compel the Attorney General to allow Mandel's admission.
IV
27
In a variety of contexts this Court has referred to a First Amendment right to 'receive information and ideas':
28
'It is now well established that the Constitution protects the right to receive information and ideas. 'This freedom (of speech and press) . . . necessarily protects the right to receive . . ..' Martin v. City of Struthers, 319 U.S. 141, 143, 63 S.Ct. 862, 863, 87 L.Ed. 1313 (1943) . . ..' Stanley v. Georgia, 394 U.S. 557, 564, 89 S.Ct. 1243, 1247, 22 L.Ed.2d 542 (1969).
29
This was one basis for the decision in Thomas v. Collins, 323 U.S. 516, 65 S.Ct. 315, 89 L.Ed. 430 (1945). The Court there held that a labor organizer's right to speak and the rights of workers 'to hear what he had to say,' id., at 534, 65 S.Ct. at 324, were both abridged by a state law requiring organizers to register before soliciting union membership. In a very different situation, Mr. Justice White, speaking for a unanimous Court upholding the FCC's 'fairness doctrine' in Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 386—390, 89 S.Ct. 1794, 1804—1807, 23 L.Ed.2d 371 (1969), said:
30
'It is the purpose of the First Amendment to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail . . .. It is the right of the public to receive suitable access to social, political, esthetic, moral, and other ideas and experiences which is crucial here. That right may not constitutionally be abridged either by Congress or by the FCC.' Id., at 390, 89 S.Ct., at 1806.
31
And in Lamont v. Postmaster General, 381 U.S. 301, 85 S.Ct. 1493, 14 L.Ed.2d 398 (1965), the Court held that a statute permitting the Government to hold 'communist political propaganda' arriving in the mails from abroad unless the addressee affirmatively requested in writing that it be delivered to him placed an unjustifiable burden on the addressee's First Amendment right. This Court has recognized that this right is 'nowhere more vital' than in our schools and universities. Shelton v. Tucker, 364 U.S. 479, 487, 81 S.Ct. 247, 251, 5 L.Ed.2d 231 (1960); Sweezy v. New Hampshire, 354 U.S. 234, 250, 77 S.Ct. 1203, 1211, 1 L.Ed.2d 1311 (1957) (plurality opinion); Keyishian v. Board of Regents, 385 U.S. 589, 603, 87 S.Ct. 675, 683, 17 L.Ed.2d 629 (1967). See Epperson v. Arkansas, 393 U.S. 97, 89 S.Ct. 266, 21 L.Ed.2d 228 (1968).
32
In the present case, the District Court majority held:
33
'The concern of the First Amendment is not with a non-resident alien's individual and personal interest in entering and being heard, but with the rights of the citizens of the country to have the alien enter and to hear him explain and seek to defend his views; that, as Garrison (v. Louisiana, 379 U.S. 64, 85 S.Ct. 209, 13 L.Ed.2d 125 (1964)) and Red Lion observe, is of the essence of self-government.' 325 F.Supp., at 631.
34
The Government disputes this conclusion on two grounds. First, it argues that exclusion of Mandel involves no restriction on First Amendment rights at all since what is restricted is 'only action—the action of the alien in coming into this country.' Brief for Appellants 29. Principal reliance is placed on Zemel v. Rusk, 381 U.S. 1, 85 S.Ct. 1271, 14 L.Ed.2d 179 (1965), where the Government's refusal to validate an American passport for travel to Cuba was upheld. The rights asserted there were those of the passport applicant himself. The Court held that his right to travel and his asserted ancillary right to inform himself about Cuba did not outweigh substantial 'foreign policy considerations affecting all citizens' that, with the backdrop of the Cuban missile crisis, were characterized as the 'weightiest considerations of national security.' Id., at 13, 16, 85 S.Ct., at 1279. The rights asserted here, in some contrast, are those of American academics who have invited Mandel to participate with them in colloquia debates, and discussion in the United States. In light of the Court's previous decisions concerning the 'right to receive information,' we cannot realistically say that the problem facing us disappears entirely or is nonexistent because the mode of regulation bears directly on physical movement. In Thomas the registration requirement on its face concerned only action. In Lamont, too, the face of the regulation dealt only with the Government's undisputed power to control physical entry of mail into the country. See United States v. Robel, 389 U.S. 258, 263, 88 S.Ct. 419, 423, 19 L.Ed.2d 508 (1967).
35
The Government also suggests that the First Amendment is inapplicable because appellees have free access to Mandel's ideas through his books and speeches, and because 'technological developments,' such as tapes or telephone hook-ups, readily supplant his physical presence. This argument overlooks what may be particular qualities inherent in sustained, face-to-face debate, discussion and questioning. While alternative means of access to Mandel's ideas might be a relevant factor were we called upon to balance First Amendment rights against governmental regulatory interests—a balance we find unnecessary here in light of the discussion that follows in Part V—we are loath to hold on this record that existence of other alternatives extinguishes altogether any constitutional interest on the part of the appellees in this particular form of access.
V
36
Recognition that First Amendment rights are implicated, however, is not dispositive of our inquiry here. In accord with ancient principles of the international law of nation-states, the Court in The Chinese Exclusion Case, 130 U.S. 581, 609, 9 S.Ct. 623, 631, 32 L.Ed. 1068 (1889), and in Fong Yue Ting v. United States, 149 U.S. 698, 13 S.Ct. 1016, 37 L.Ed. 905 (1893), held broadly, as the Government describes, it, Brief for appellants 20, that the power to exclude aliens is 'inherent in sovereignty, necessary for maintaining normal international relations and defending the country against foreign encroachments and dangers—a power to be exercised exclusively by the political branches of government . . ..' Since that time, the Court's general reaffirmations of this principle have been legion.6 The Court without exception has sustained Congress' 'plenary power to make rules for the admission of aliens and to exclude those who possess those characteristics which Congress has forbidden.' Boutilier v. Immigration and Naturalization Service, 387 U.S. 118, 123, 87 S.Ct. 1563, 1567, 18 L.Ed.2d 661 (1967). '(O) ver no conceivable subject is the legislative power of Congress more complete than it is over' the admission of aliens. Oceanic Navigation Co. v. Stranahan, 214 U.S. 320, 339, 29 S.Ct. 671, 676, 53 L.Ed. 1013 (1909). In Lem Moon Sing v. United States, 158 U.S. 538, 547, 15 S.Ct. 967, 970, 39 L.Ed. 1082 (1895), the first Mr. Justice Harlan said:
37
'The power of congress to exclude aliens altogether from the United States, or to prescribe the terms and conditions upon which they may come to this country, and to have its declared policy in that regard enforced exclusively through executive officers, without judicial intervention, is settled by our previous adjudications.'
38
Mr. Justice Frankfurter ably articulated this history in Galvan v. Press, 347 U.S. 522, 74 S.Ct. 737, 98 L.Ed. 911 (1954), a deportation case, and we can do no better. After suggesting, at 530, 74 S.Ct., at 742, that 'much could be said for the view' that due process places some limitations on congressional power in this area 'were we writing on a clean slate,' he continued:
39
'But the slate is not clean. As to the extent of the power of Congress under review, there is not merely a page of history, . . . but a whole volume. Policies pertaining to the entry of aliens and their right to remain here are peculiarly concerned with the political conduct of government. In the enforcement of these policies, the Executive Branch of the Government must respect the procedural safeguards of due process. . . . But that the formulation of these policies is entrusted exclusively to Congress has become about as firmly embedded in the legislative and judicial tissues of our body politic as any aspect of our government. . . .
40
'We are not prepared to deem ourselves wiser or more sensitive to human rights than our predecessors, especially those who have been most zealous in protecting civil liberties under the Constitution, and must therefore under our constitutional system recognize congressional power in dealing with aliens . . ..' Id., at 531—532, 74 S.Ct., at 743.
41
We are not inclined in the present context to reconsider this line of cases. Indeed, the appellees, in contrast to the amicus, do not ask that we do so. The appellees recognize the force of these many precedents. In seeking to sustain the decision below, they concede that Congress could enact a blanket prohibition against entry of all aliens falling into the class defined by §§ 212(a)(28)(D) and (G)(v), and that First Amendment rights could not override that decision. Brief for Appellees 16. But they contend that by providing a waiver procedure, Congress clearly intended that persons ineligible under the broad provision of the section would be temporarily admitted when appropriate 'for humane reasons and for reasons of public interest.' S.Rep.No. 1137, 82d Cong., 2d Sess., 12 (1952). They argue that the Executive's implementation of this congressional mandate through decision whether to grant a waiver in each individual case must be limited by the First Amendment rights of persons like appellees. Specifically, their position is that the First Amendment rights must prevail, at least where the Government advances no justification for failing to grant a waiver. They point to the fact that waivers have been granted in the vast majority of cases.7
42
Appellees' First Amendment argument would prove too much. In almost every instance of an alien excludable under § 212(a)(28), there are probably those who would wish to meet and speak with him. The ideas of most such aliens might not be so influential as those of Mandel, nor his American audience so numerous, nor the planned discussion forums so impressive. But the First Amendment does not protect only the articulate, the well known, and the popular. Were we to endorse the proposition that governmental power to withhold a waiver must yield whenever a bona fide claim is made that American citizens wish to meet and talk with an alien excludable under § 212(a)(28), one of two unsatisfactory results would necessarily ensue. Either every claim would prevail, in which case the plenary discretionary authority Congress granted the Executive becomes a nullity, or courts in each case would be required to weigh the strength of the audience's interest against that of the Government in refusing a waiver to the particular alien applicant, according to some as yet undetermined standard. The dangers and the undesirability of making that determination on the basis of factors such as the size of the audience or the probity of the speaker's ideas are obvious. Indeed, it is for precisely this reason that the waiver decision has, properly, been placed in the hands of the Executive.
43
Appellees seek to soften the impact of this analysis by arguing, as has been noted, that the First Amendment claim should prevail, at least where no justification is advanced for denial of a waiver. Brief for Appellees 26. The Government would have us reach this question, urging a broad decision that Congress has delegated the waiver decision to the Executive in its sole and unfettered discretion, and any reason or no reason may be given. See Jay v. Boyd, 351 U.S. 345, 357—358, 76 S.Ct. 919, 926—927, 100 L.Ed. 1242 (1956); Hintopoulos v. Shaughnessy, 353 U.S. 72, 77, 77 S.Ct. 618, 621, 1 L.Ed.2d 652 (1957); Kimm v. Rosenberg, 363 U.S. 405, 408, 80 S.Ct. 1139, 1141, 4 L.Ed.2d 1299 (1960). This record, however, does not require that we do so, for the Attorney General did inform Mandel's counsel of the reason for refusing him a waiver. And that reason was facially legitimate and bona fide.
44
The Government has chosen not to rely on the letter to counsel either in the District Court or here. The fact remains, however, that the official empowered to make the decision stated that he denied a waiver because he concluded that previous abuses by Mandel made it inappropriate to grant a waiver again. With this, we think the Attorney General validly exercised the plenary power that Congress delegated to the Executive by §§ 212(a)(28) and (d)(3).
45
In summary, plenary congressional power to make policies and rules for exclusion of aliens has long been firmly established. In the case of an alien excludable under § 212(a)(28), Congress has delegated conditional exercise of this power to the Executive. We hold that when the Executive exercises this power negatively on the basis of a facially legitimate and bona fide reason, the courts will neither look behind the exercise of that discretion, nor test it by balancing its justification against the First Amendment interests of those who seek personal communication with the applicant. What First Amendment or other grounds may be available for attacking exercise of discretion for which no justification whatsoever is advanced is a question we neither address or decide in this case.
46
Reversed.
47
Mr. Justice DOUGLAS, dissenting.
48
Under The Chinese Exclusion Case, 130 U.S. 581, 9 S.Ct. 623, 32 L.Ed. 1068, rendered in 1889, there could be no doubt but that Congress would have the power to exclude any class of aliens from these shores. The accent at the time was on race. Mr. Justice Field, writing for the Court, said: 'If, therefore, the government of the United States, through its legislative department, considers the presence of foreigners of a different race in this country, who will not assimilate with us, to be dangerous to its peace and security, their exclusion is not to be stayed because at the time there are no actual hostilities with the nation of which the foreigners are subjects.' Id., at 606, 9 S.Ct., at 630.
49
An ideological test, not a racial one, is used here. But neither, in my view, is permissible, as I have indicated on other occasions.1 Yet a narrower question is raised here. Under the present Act aliens who advocate or teach 'the economic, international, and governmental doctrines of world communism' are ineligible to receive visas '(e)xcept as otherwise provided in this Act.'2 The 'except' provision is contained in another part of the same section3 and states that an inadmissible alien 'may, after approval by the Attorney General of a recommendation by the Secretary of State or by the consular officer' be admitted 'temporarily despite his inadmissibility.'
50
Dr. Ernest Mandel, who is described as 'an orthodox Marxist of the Trotskyist school,' has been admitted to this country twice before—once as a working journalist in 1962 and once as a lecturer in 1968. The present case involves his third application, made in 1969, to attend a conference at Stanford University on Technology and the Third World. He was also invited to attend other conferences, one at MIT, and to address several universities, Princeton, Amherst, the New School, Columbia, and Vassar. This time the Department of Justice refused to grant a waiver recommended by the State Department; and it claims that it need not state its reasons, that the power of the Attorney General is unfettered.
51
Dr. Mandel is not the sole complainant. Joining him are the other appellees who represent the various audiences which Dr. Mandel would be meeting were a visa to issue. While Dr. Mandel, an alien who seeks admission, has no First Amendment rights while outside the NationThe other appellees are on a different footing. The First Amendment involves not only the right to speak and publish but also the right to hear, to learn, to know. Martin v. City of Struthers, 319 U.S. 141, 143, 63 S.Ct. 862, 863, 87 L.Ed. 1313; Stanley v. Georgia, 394 U.S. 557, 564, 89 S.Ct. 1243, 1247, 22 L.Ed.2d 542.
52
Can the Attorney General under the broad discretion entrusted in him decide that one who maintains that the earth is round can be excluded?
53
that no one who believes in the Darwinian theory shall be admitted?
54
that those who promote a Rule of Law to settle international differences rather than a Rule of Force may be barred?
55
that a genetic biologist who lectures on the way to create life by one sex alone is beyond the pale?
56
that an exponent of plate tectonics can be barred?
57
that one should be excluded who taught that Jesus when he arose from the Sepulcher, went east (not up) and became a teacher at Hemis Monastery in the Himalayas?
58
I put the issue that bluntly because national security is not involved. Nor is the infiltration of saboteurs. The Attorney General stands astride out international terminals that bring people here to bar those whose ideas are not acceptable to him. Even assuming, arguendo, that those on the outside seeking admission have no standing to complain, those who hope to benefit from the traveler's lectures do.
59
Thought control is not within the competence of any branch of government. Those who live here may need exposure to the ideas of people of many faiths and many creeds to further their education. We should construe the Act generously by that First Amendment standard, saying that once the State Department has concluded that our foreign relations permit or require the admission of a foreign traveler, the Attorney General is left only problems of national security, importation of heroin, or other like matters within his competence.
60
We should assume that where propagation of ideas is permissible as being within our constitutional framework, the Congress did not undertake to make the Attorney General a censor. For as stated by Justice Jackson in Thomas v. Collins, 323 U.S. 516, 545, 65 S.Ct. 315, 329, 89 L.Ed. 430 (concurring), '(t) he very purpose of the First Amendment is to foreclose public authority from assuming a guardianship of the public mind through regulating the press, speech, and religion. In this field every person must be his own watchman for truth, because the forefathers did not trust any government to separate the true from the false for us.'
61
In Brandenburg v. Ohio, 395 U.S. 444, 89 S.Ct. 1827, 23 L.Ed.2d 430 (which overruled Whitney v. California, 274 U.S. 357, 47 S.Ct. 641, 71 L.Ed. 1095), we held that the First Amendment does not permit a State 'to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.' Id., at 447, 89 S.Ct., at 1829. That case involved propagation of the views of the Ku Klux Klan. The present case involves teaching the communist creed.4 But, as we held in Noto v. United States, 367 U.S. 290, 297—298, 81 S.Ct. 1517, 1521:
62
'(T)he mere abstract teaching of Communist theory, including the teaching of the moral propriety or even moral necessity for a resort to force and violence, is not the same as preparing a group for violent action and steeling it to such action.'
63
As a matter of statutory construction, I conclude that Congress never undertook to entrust the Attorney General with the discretion to pick and choose among the ideological offerings which alien lecturers tender from our platforms, allowing those palatable to him and disallowing others.5 The discretion entrusted to him concerns matters commonly within the competence of the Department of Justice—national security, importation of drugs, and the like.
64
I would affirm the judgment of the three-judge District Court.
65
Mr. Justice MARSHALL, with whom Mr. Justice BRENNAN joins, dissenting.
66
Dr. Ernest Mandel, a citizen of Belgium, is an internationally famous Marxist scholar and journalist. He was invited to our country by a group of American scholars who wished to meet him for discussion and debate. With firm plans for conferences, colloquia and lectures, the American hosts were stunned to learn that Mandel had been refused permission to enter our country. American consular officials had found Mandel 'ineligible' to receive a visa under §§ 212(a)(28)(D) and (G)(v) of the Immigration and Nationality Act of 1952, 66 Stat. 185, which bars even temporary visits to the United States by aliens who 'advocate the economic, international, and governmental doctrines of world communism' or 'who write or publish . . . any written or printed matter, . . . advocating or teaching' such doctrines. Under § 212(d)(3), the Attorney General refused to waive inadmissibility.
67
I, too, am stunned to learn that a country with our proud heritage has refused Dr. Mandel temporary admission. I am convinced that Americans cannot be denied the opportunity to hear Dr. Mandel's views in person because their Government disapproves of his ideas. Therefore, I dissent from today's decision and would affirm the judgment of the court below.
68
* As the majority correctly demonstrates, in a variety of contexts this Court has held that the First Amendment protects the right to receive information and ideas, the freedom to hear as well as the freedom to speak. The reason for this is that the First Amendment protects a process, in Justice Brandeis' words, 'reason as applied through public discussion,' Whitney v. California, 274 U.S. 357, 375, 47 S.Ct. 641, 648, 71 L.Ed. 1095 (1927) (concurring opinion); and the right to speak and hear including the right to inform others and to be informed about public issues—are inextricably part of that process. The freedom to speak and the freedom to hear are inseparable; they are two sides of the same coin. But the coin itself is the process of thought and discussion. The activity of speakers becoming listeners and listeners becoming speakers in the vital interchange of thought is the 'means indispensable to the discovery and spread of political truth.' Ibid.; see Terminiello v. Chicago, 337 U.S. 1, 4, 69 S.Ct. 894, 895, 93 L.Ed. 1131 (1949). Its protection is 'a fundamental principle of the American government.' Whitney v. California, supra, 274 U.S., at 375, 47 S.Ct., at 648. The First Amendment means that Government has no power to thwart the process of free discussion, to 'abridge' the freedoms necessary to make that process work. See Lamont v. Postmaster General, 381 U.S. 301, 308, 85 S.Ct. 1493, 1497, 14 L.Ed.2d 398 (1965) (Brennan, J., concurring, with whom Goldberg, and Harlan, JJ., joined).
69
There can be no doubt that by denying the American appellees access to Dr. Mandel, the Government has directly prevented the free interchange of ideas guaranteed by the First Amendment.1 It has, of course, interfered with appellees' personal rights both to hear Mandel's views and to develop and articulate their own views through interaction with Mandel. But as the court below recognized, apart from appellees' interests, there is also a 'general public interest in the prevention of any stifling of political utterance.' 325 F.Supp. 620, 632 (1971). And the Government has interfered with this as well.2
II
70
What is the justification for this extraordinary governmental interference with the liberty of American citizens? And by what reasoning does the Court uphold Mandel's exclusion? It is established constitutional doctrine, after all, that government may restrict First Amendment rights only if the restriction is necessary to further a compelling governmental interest, E.g., Lamont v. Postmaster General, supra, 381 U.S., at 308, 85 S.Ct., at 1497; NAACP v. Button, 371 U.S. 415, 438, 83 S.Ct. 328, 340, 9 L.Ed.2d 405 (1963); Gibson v. Florida Legislative Investigation Committee, 372 U.S. 539, 546, 83 S.Ct. 889, 893, 9 L.Ed.2d 929 (1963); Shelton v. Tucker, 364 U.S. 479, 81 S.Ct. 247, 5 L.Ed.2d 231 (1960).
71
A. Today's majority apparently holds that Mandel may be excluded and Americans' First Amendment rights restricted because the Attorney General has given a 'facially legitimate and bona fide reason' for refusing to waive Mandel's visa ineligibility. I do not understand the source of this unusual standard. Merely 'legitimate' governmental interests cannot override constitutional rights. Moreover, the majority demands only 'facial' legitimacy and good faith, by which it means that this Court will never 'look behind' any reason the Attorney General gives. No citation is given for this kind of unprecedented deference to the Executive, nor can I imagine (nor am I told) the slightest justification for such a rule.3
72
Even the briefest peek behind the Attorney Generalhs reason for refusing a waiver in this case would reveal that it is a sham. The Attorney General informed appellees' counsel that the waiver was refused because Mandel's activities on a previous American visit 'went far beyond the stated purposes of his trip . . . and represented a flagrant abuse of the opportunities afforded him to express his views in this country.' App. 68. But, as the Department of State had already conceded to appellees' counsel, Dr. Mandel 'was apparently not informed that (his previous) visa was issued only after obtaining a waiver of ineligibility and therefore (Mandel) may not have been aware of the conditions and limitations attached to the (previous) visa issuance.' App. 22. There is no basis in the present record for concluding that Mandel's behavior on his previous visit was a 'flagrant abuse'—or even willful or knowing departure—from visa restrictions. For good reason, the Government in this litigation has never relied on the Attorney General's reason to justify Mandel's exclusion. In these circumstances, the Attorney General's reason cannot possibly support a decision for the Government in this case. But without even remanding for a factual hearing to see if there is any support for the Attorney General's determination, the majority declares that his reason is sufficient to override appellees' First Amendment interests.
73
B. Even if the Attorney General had given a compelling reason for declining to grant a waiver under § 212(d)(3)(A), this would not, for me, end the case. As I understand the statutory scheme, Mandel is 'ineligible' for a visa, and therefore inadmissible, solely because, within the terms of § 212(a)(28), he has advocated communist doctrine and has published writings advocating that doctrine. The waiver question under § 212(d)(3)(A) is totally secondary and dependent, since it is triggered here only by a determination of (a)(28) ineligibility. The Attorney General's refusal to grant a waiver does not itself generate a new statutory basis for exclusion; he has no roving power to set new ad hoc standards for visa ineligibility. Rather, the Attorney General's refusal to waive ineligibility simply has the same effect as if no waiver provision existed; inadmissibility still rests on the (a)(28) determination. Thus, whether or not the Attorney General had a good reason for refusing a waiver, this Court, I think, must still face the question it tries to avoid: under our Constitution, may Mandel be declared ineligible under (a) (28)?
74
C. Accordingly, I turn to consider the constitutionality of the sole justification given by the Government here and below for excluding Mandel—that he 'advocates' and 'publish(es) . . . printed matter . . . advocating . . . doctrines of world communism' within the terms of § 212(a)(28).
75
Still adhering to standard First Amendment doctrine, I do not see how (a)(28) can possibly represent a compelling governmental interest that overrides appellees' interests in hearing Mandel.4 Unlike (a)(27) or (a)(29), (a) (28) does not claim to exclude aliens who are likely to engage in subversive activity or who represent an active and present threat to the 'welfare, safety, or security of the United States.' Rather, (a)(28) excludes aliens solely because they have advocated communist doctrine. Our cases make clear, however, that government has no legitimate interest in stopping the flow of ideas. It has no power to restrict the mere advocacy of communist doctrine, divorced from incitement to imminent lawless action. Noto v. United States, 367 U.S. 290, 297—298, 81 S.Ct. 1517, 1520—1521, 6 L.Ed.2d 836 (1961); Brandenburg v. Ohio, 395 U.S. 444, 447—449, 89 S.Ct. 1827, 1829—1831, 23 L.Ed.2d 430 (1969). For those who are not sure that they have attained the final and absolute truth, all ideas, even those forcefully urged, are a contribution to the ongoing political dialogue. The First Amendment represents the view of the Framers that 'the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones'—'more speech.' Whitney v. California, 274 U.S., at 375, 377, 47 S.Ct., at 648, 649, 71 L.Ed. 1095 (Brandeis, J., concurring). If Americans want to hear about Marxist doctrine, even from advocates, government cannot intervene simply because it does not approve of the ideas. It certainly may not selectively pick and choose which ideas it will let into the country. But, as the court below put it, § 212(a)(28) is nothing more than 'a means of restraining the entry of disfavored political doctrine,' 325 F.Supp., at 626 (1971), and such an enactment cannot justify the abridgment of appellees' First Amendment rights.
76
In saying these things, I am merely repeating established First Amendment law. Indeed, this Court has already applied that law in a case concerning the entry of communist doctrine from foreign lands. In Lamont v. Postmaster General, 381 U.S. 301, 85 S.Ct. 1493, 14 L.Ed.2d 398 (1965), this Court held that the right of an American addressee to receive communist political propaganda from abroad could not be fettered by requiring the addressee to request in writing its delivery from the Post Office. See id., at 308, 85 S.Ct., at 1497 (Brennan, J., concurring). The burden imposed on the right to receive information in our case is far greater than in Lamont, with far less justification. In Lamont, the challenged law merely regulated the flow of mail, and required the Postmaster General to forward detained mail immediately upon request by the addressee. By contrast, through § 212(a)(28), the Government claims absolute power to bar Mandel permanently from academic meetings in this country. Moreover, in Lamont, the Government argued that its interest was not to censor content but rather to protect Americans from receiving unwanted mail. Here, Mandel's exclusion is not incident to a legitimate regulatory objective, but is based directly on the subject matter of his beliefs.
77
D. The heart of Appellants' position in this case, and the basis for their distinguishing Lamont, is that the Government's power is distinctively broad and unreviewable because '(t)he regulation in question is directed at the admission of aliens.' Brief for Appellants 33. Thus, in the appellants' view, this case is no different from a long line of cases holding that the power to exclude aliens is left exclusively to the 'political' branches of Government, Congress, and the Executive.
78
These cases are not the strongest precedents in the United States Reports, and the majority's baroque approach reveals its reluctance to rely on them completely. They include such milestones as The Chinese Exclusion Case, 130 U.S. 581, 9 S.Ct. 623, 32 L.Ed. 1068 (1889), and Fong Yue Ting v. United States, 149 U.S. 698, 13 S.Ct. 1016, 37 L.Ed. 905 (1893), in which this Court upheld the Government's power to exclude and expel Chinese aliens from our midst.
79
But none of these old cases must be 'reconsidered' or overruled to strike down Dr. Mandel's exclusion, for none of them was concerned with the rights of American citizens. All of them involved only rights of the excluded aliens themselves. At least when the rights of Americans are involved, there is no basis for concluding that the power to exclude aliens is absolute. 'When Congress' exercise of one of its enumerated powers clashes with those individual liberties protected by the Bill of Rights, it is our 'delicate and difficult task' to determine whether the resulting restriction on freedom can be tolerated.' United States v. Robel, 389 U.S. 258, 264, 88 S.Ct. 419, 424, 19 L.Ed.2d 508 (1967). As Robel and many other cases5 show, all governmental power—even the war power, the power to maintain national security, or the power to conduct foreign affairs—is limited by the Bill of Rights. When individual freedoms of Americans are at stake, we do not blindly defer to broad claims of the Legislative Branch or Executive Branch, but rather we consider those claims in light of the individual freedoms. This should be our approach in the present case, even though the Government urges that the question of admitting aliens may involve foreign relations and national defense policies.
80
The majority recognizes that the right of American citizens to hear Mandel is 'implicated' in our case. There were no rights of Americans involved in any of the old alien exclusion cases, and therefore their broad counsel about deference to the political branches is inapplicable. Surely a Court that can distinguish between pre-indictment and post-indictment lineups, Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972), can distinguish between our case and cases which involve only the rights of aliens.
81
I do not mean to suggest that simply because some Americans wish to hear an alien speak, they can automatically compel even his temporary admission to our country. Government may prohibit aliens from even temporary admission if exclusion is necessary to protect a compelling governmental interest.6 Actual threats to the national security, public health needs, and genuine reuirements of law enforcement are the most apparent interests that would surely be compelling.7 But in Dr. Mandel's case, the Government has, and claims, no such compelling interest. Mandel's visit was to be temporary.8 His 'ineligibility' for a visa was based solely on § 212(a)(28). The only governmental interest embodied in that section is the Government's desire to keep certain ideas out of circulation in this country. This is hardly a compelling governmental interest. Section (a)(28) may not be the bsis for excluding an alien when Americans wish to hear him. Without any claim that Mandel 'live' is an actual threat to this country, there is no difference between excluding Mandel because of his ideas and keeping his books out because of their ideas. Neither is permitted. Lamont v. Postmaster General, supra.
III
82
Dr. Mandel has written about his exclusion, concluding that '(i)t demonstrates a lack of confidence' on the part of our Government 'in the capacity of its supports to combat Marxism on the battleground of ideas.' He observes that he 'would not be carrying any high explosives, if I had come, but only, as I did before, my revolutionary views which are well known to the public.' And he wryly notes that '(i)n the nineteenth century the British ruling class, which was sure of itself, permitting Karl Marx to live as an exile in England for almost forty years.' App. 54.
83
It is undisputed that Dr. Mandel's brief trip would involve nothing but a series of scholarly conferences and lectures. The progress of knowledge is an international venture. As Mandel's invitation demonstrates, individuals of differing world views have learned the ways of cooperation where governments have thus far failed. Nothing is served—least of all our standing in the international community—by Mandel's exclusion. In blocking his admission, the Government has departed from the basic traditions of our country, its fearless acceptance of free discussion. By now deferring to the Executive, this Court departs from its own best role as the guardian of individual liberty in the face of governmental overreaching. Principles of judicial restraint designed to allow the political branches to protect national security have no place in this case. Dr. Mandel should be permitted to make this brief visit.
84
I dissent.
1
Brief for Appellees 1.
2
E. Mandel, Revolutionary Strategy in the Imperialist Countries (1969), reprinted in App. 54—66.
3
Appellees, while suggesting that § 101(a)(40), defining 'world communism,' and § 212(a)(28)(D) are unacceptably vague, 'do not contest the fact that appellants can and do conclude that Dr. Mandel's Marxist economic philosophy falls within the scope of these vague provisions.' Brief for Appellees 10 n. 8.
4
Entry presumably was claimed as a non-immigrant alien under § 101(a)(15) (H) of the Act, 8 U.S.C. § 1101(a)(15)(H), namely 'an alien having a residence in a foreign country which he has no intention of abandoning (i) who is of distinguished merit and ability and who is coming temporarily to the United States to perform services of an exceptional nature requiring such merit and ability . . ..'
5
Mr. Justice DOUGLAS in his dissent, post, at 773 n. 4, states that Mandel's noncompliance with the conditions imposed for his 1968 visit 'appear merely to have been his speaking at more universities than his visa application indicated.' The letter dated November 6, 1969, from the Bureau of Security and Consular Affairs of the Department of State to Mandel's New York counsel observed, 'On his 1968 visit, Mr. Mandel engaged in activities beyond the stated purposes of his trip. For this reason, a waiver of ineligibility was not sought in connection with his September visa application.'
Counsel's affidavit in support of appellees' motion for the convening of a three-judge court and for the issuance of a preliminary injunction stated:
'Mr. Mandel further assured the Consul by letter on November 10, 1969 that he would not appear at any assembly in the United States at which money was solicited for any political cause. This was apparently in response to a charge that he had been present at such a solicitation during his 1968 tour. (See also Exhibit L.)
'Of course, just as Mr. Mandel had no prior notice that he was required to adhere to a stated itinerary in 1968, so Mr. Mandel was not aware that he was forbidden from appearing where contributions (were) solicited for political causes. I have been advised by Mr. George Novack, an American citizen, who coordinated Mr. Mandel's 1968 tour, that in fact the event in question was a cocktail reception held at the Gotham Art Theatre in New York City on October 19, 1968. Mr. Mandel addressed the gathering on the events in France during May and June. Later that evening posters by French students were auctioned. The money was sent to aid the legal defense of students who had taken part in the spring demonstrations. Mr. Mandel did not participate in the fund raising. (See Ex.L, Oct. 30, 1969 letter.)'
The asserted noncompliance by Mandel is therefore broader than mere acceptance of more speaking engagements than his visa application indicated.
6
See, for example, Nishimura Ekiu v. United States, 142 U.S. 651, 659, 12 S.Ct. 336, 338, 35 L.Ed. 1146 (1892); Fok Yung Yo v. United States, 185 U.S. 296, 302, 22 S.Ct. 686, 688, 46 L.Ed. 917 (1902); United States ex rel. Turner v. Williams, 194 U.S. 279, 294, 24 S.Ct. 719, 724, 48 L.Ed. 979 (1904); Keller v. United States, 213 U.S. 138, 143—144, 29 S.Ct. 470, 471—472, 53 L.Ed. 737 (1909); Mahler v. Eby, 264 U.S. 32, 40, 44 S.Ct. 283, 286, 68 L.Ed. 549 (1924); Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 210, 73 S.Ct. 625, 628, 97 L.Ed. 956 (1953); cf. Graham v. Richardson, 403 U.S. 365, 377, 91 S.Ct. 1848, 1854, 29 L.Ed.2d 534 (1971).
7
The Government's brief states:
'The Immigration and Naturalization Service reports the following with respect to applications to the Attorney General for waiver of an alien's ineligibility for admission under Section 212(a)(28):
Brief for Appellants 18 n. 24. These cases, however, are only those that, as § 212(d)(3)(A) provides, come to the Attorney General with a positive recommendation from the Secretary of State or the consular officer. The figures do not include those cases where these officials had refrained from making a positive recommendation.
Total Number of Number Number
Applications for of of
Waiver of Waivers Waivers
"Year Section 212(a)(28) Granted Denied
1971 6210 6196 14
1970 6193 6189 4
1969 4993 4984 9
1968 4184 4176 8
1967 3860 3852 8"
1
See Harisiades v. Shaughnessy, 342 U.S. 580, 598, 72 S.Ct. 512, 523, 96 L.Ed. 586 (dissenting opinion); Galvan v. Press, 347 U.S. 522, 533, 74 S.Ct. 737, 744, 98 L.Ed. 911 (dissenting opinion).
2
§ 212(a)(28)(G)(v) of the Immigration and Nationality Act of 1952, 66 Stat. 185, 8 U.S.C. § 1182(a)(28)(G)(v).
3
§ 212(d)(3)(A), 8 U.S.C. § 1182(d)(3)(A).
4
The Court recognizes the legitimacy of appellees' First Amendment claim, ante, at 762—765. It argues, however, that inasmuch as the Attorney General gave a 'facially legitimate and bona fide' reason to refuse Dr. Mandel a waiver of ineligibility, the Court should not 'look behind the exercise of that discretion, nor test it by balancing its justification against (appellees') First Amendment interests . . ..' First, so far as the record reveals, there is absolutely no support for the Attorney General's claim that Dr. Mandel consciously abused his visa privileges in 1968. Indeed, the State Department itself concedes that he 'was apparently not informed (in 1962 and 1968) that a visa was issued only after obtaining a waiver of ineligibility and therefore may not have been aware of the conditions and limitations attached to the visa issuance.' (Emphasis supplied.) App. 22. Second, the activities which the Attorney General labeled 'flagrant abuses' of Dr. Mandel's opportunity to speak in the United States appear merely to have been his speaking at more universities than his visa application indicated. Indeed, he spoke at more than 30 universities in the United States and Canada, including Harvard, The University of California at Berkeley, Swarthmore, Notre Dame, Antioch, Michigan, three appearances at Columbia, two at the University of Pennsylvania, and the keynote address at the 1968 Socialist Scholars Conference held at Rutgers. App. 25. It would be difficult to invent a more trivial reason for denying the academic community the chance to exchange views with an internationally respected scholar.
5
As indicated in S.Rep.No. 1137, 82d Cong., 2d Sess., 12, the discretion vested in the Attorney General was to be exercised 'for emergent reasons or for reasons deemed strictly in the public interest.' Ideological controls are not congenial to our First Amendment traditions and therefore should not be inferred.
1
Twenty years ago, the Bulletin of the Atomic Scientists devoted an entire issue to the problem of American visa policy and its effect on the interchange of ideas between American scholars and scientists and their foreign counterparts. The general conclusion of the editors—supported by printed statements of such men as Albert Einstein, Hans Bethe, Harold Urey, Arthur Compton, Michael Polanyi, and Raymond Aron—was that American visa policy was hurting the continuing advance of American science and learning, and harmful to our prestige abroad. Vol. 8, No. 7, Oct. 1952, pp. 210—217 (statement of Special Editor Edward Shils). The detrimental effect of American visa policy on the free exchange of ideas continues to be reported. See Comment, Opening the Floodgates to Dissident Aliens, 6 Harv.Civ.Rights—Civ.Lib.L.Rev. 141, 143—149 (1970); 11 Bulletin of the Atomic Scientists, Dec. 1955, pp. 367—373.
2
The availability to appellees of Mandel's books and taped lectures is no substitute for live, face-to-face discussion and debate, just as the availability to us of briefs and exhibits does not supplant the essential place of oral argument in this Court's work. Lengthy citations for this proposition, which the majority apparently concedes, are unnecessary. I simply note that in a letter to Henrik Lorenz, accepting an invitation to lecture at the University of Leiden and to discuss 'the radiation problem,' Albert Einstein observed that '(i)n these unfinished things, people understand one another with difficulty unless talking face to face.' Quoted in Developments in the Law—The National Security Interest and Civil Liberties, 85 Harv.L.Rev. 1130, 1154 (1972).
3
As Judge Frankel has taught us, even the limited requirement of facially sufficient reasons for governmental action may be significant in some contexts; but it can hardly insulate the government from subsequent challenges to the actual good faith and sufficiency of the reasons. Frankel, Bench Warrants Upon the Prosecutor's Demand: A View From the Bench, 71 Col.L.Rev. 403, 414 (1971).
4
The majority suggests that appellees concede that Congress could enact a blanket prohibition against entry of all aliens falling into the class defined by §§ 212(a)(28)(D) and (G)(v) and that First Amendment rights could not override that decision.' This was certainly not the view of the court below, whose judgment the appellants alone have challenged here and appellees have moved to affirm. It is true that appellees have argued to this Court a ground of decision alternative to that argued and adopted below; but they have hardly conceded the incorrectness of what they successfully argued below. They have simply noted, at 16—17 of their brief, that even if this Court rejects the broad decision below, there would nevertheless be a separate and narrower basis for affirmance. See Tr. of Oral Arg. 24, 25—26, 41—42.
5
In United States v. Robel, 389 U.S. 258, 88 S.Ct. 419, 19 L.Ed.2d 508 (1967), this Court struck down a statute making it a criminal offense for any employee of a 'defense facility' to remain a member of the Communist Party, in spite of Government claims that the enactment came within the 'war power.' In Aptheker v. Secretary of State, 378 U.S. 500, 84 S.Ct. 1659, 12 L.Ed.2d 992 (1964), the Government unsuccessfully sought to defend the denial of passports to American members of the Communist Party, in spite of claimed threats to the national security. In Zemel v. Rusk, 381 U.S. 1, 85 S.Ct. 1271, 14 L.Ed.2d 179 (1965), the passport restriction on travel to Cuba was upheld because individual constitutional rights were overridden by the 'weightiest considerations of national security'; but the Court rejected any assumption 'that simply because a statute deals with foreign relations, it can grant the Executive totally unrestricted freedom of choice.' Id., at 16, 17, 85 S.Ct., at 1281. In Schneider v. Rusk, 377 U.S. 163, 84 S.Ct. 1187, 12 12 L.Ed.2d 218 (1964), the Government unsuccessfully attempted to justify a statutory inequality between naturalized and native-born citizens under the foreign relations power. And in Lamont v. Postmaster General, 381 U.S. 301, 85 S.Ct. 1493, 14 L.Ed.2d 398 (1965), itself, as Mr. Justice Brennan noted, the Government urged that the statute was 'justified by the object of avoiding the subsidization of propaganda of foreign governments which bar American propaganda'; Mr. Justice Brennan answered that the Government must act 'by means and on terms which do not endanger First Amendment rights.' Id., 381 U.S., at 310, 85 S.Ct., at 1498.
6
I agree with the majority that courts should not inquire into such things as the 'probity of the speaker's ideas.' Neither should the Executive, however. Where Americans wish to hear an alien, and their claim is not a demonstrated sham, the crucial question is whether the Government's interest in excluding the alien is compelling.
7
It goes without saying, of course, that, once he has been admitted, any alien (like any citizen) can be punished if he incites lawless acts or commits other crimes.
8
Such 'nonimmigrants' are not covered by quotas. C. Gordon & H. Rosenfield, Immigration Law and Procedure § 2.6 (1971).
| 23
|
408 U.S. 593
92 S.Ct. 2694
33 L.Ed.2d 570
Charles R. PERRY et al., Petitioners,v.Robert P. SINDERMANN, etc.
No. 70—36.
Argued Jan. 18, 1972.
Decided June 29, 1972.
Syllabus
Respondent was employed in a state college system for 10 years, the last four as a junior college professor under a series of one-year written contracts. The Regents declined to renew his employment for the next year, without giving him an explanation or prior hearing. Respondent then brought this action in the District Court, alleging that the decision not to rehire him was based on respondent's public criticism of the college administration and thus infringed his free speech right, and that the Regents' failure to afford him a hearing violated his procedural due process right. The District Court granted summary judgment for petitioners, concluding that respondent's contract had terminated and the junior college had not adopted the tenure system. The Court of Appeals reversed on the grounds that, despite lack of tenure, nonrenewal of respondent's contract would violate the Fourteenth Amendment if it was in fact based on his protected free speech, and that if respondent could show that he had an 'expectancy' of re-employment, the failure to allow him an opportunity for a hearing would violate the procedural due process guarantee. Held:
1. Lack of a contractual or tenure right to re-employment, taken alone, did not defeat respondent's claim that the nonrenewal of his contract violated his free speech right under the First and Fourteenth Amendments. The District Court therefore erred in foreclosing determination of the contested issue whether the decision not to renew was based on respondent's exercise of his right of free speech. Pp. 569—598.
2. Though a subjective 'expectancy' of tenure is not protected by procedural due process, respondent's allegation that the college had a de facto tenure policy, arising from rules and understandings officially promulgated and fostered, entitled him to an opportunity of proving the legitimacy of his claim to job tenure. Such proof would obligate the college to afford him a requested hearing where he could be informed of the grounds for his nonretention and challenge their sufficiency. Pp. 599—603.
430 F.2d 939, affirmed.
W. O. Shafer, Odessa, Tex., for petitioners.
Michael H. Gottesman, Washington, D.C., for respondent.
Mr. Justice STEWART delivered the opinion of the Court.
1
From 1959 to 1969 the respondent, Robert Sindermann, was a teacher in the state college system of the State of Texas. After teaching for two years at the University of Texas and for four years at San Antonio Junior College, he became a professor of Government and Social Science at Odessa Junior College in 1965. He was employed at the college for four successive years, under a series of one-year contracts. He was successful enough to be appointed, for a time, the cochairman of his department.
2
During the 1968—1969 academic year, however, controversy arose between the respondent and the college administration. The respondent was elected president of the Texas Junior College Teachers Association. In this capacity, he left his teaching duties on several occasions to testify before committees of the Texas Legislature, and he became involved in public disagreements with the policies of the college's Board of Regents. In particular, he aligned himself with a group advocating the elevation of the college to four-year status—a change opposed by the Regents. And, on one occasion, a newspaper advertisement appeared over his name that was highly critical of the Regents.
3
Finally, in May 1969, the respondent's one-year employment contract terminated and the Board of Regents voted not to offer him a new contract for the next academic year. The Regents issued a press release setting forth allegations of the respondent's insubordination.1 But they provided him no official statement of the reasons for the nonrenewal of his contract. And they allowed him no opportunity for a hearing to challenge the basis of the nonrenewal.
4
The respondent then brought this action in Federal District Court. He alleged primarily that the Regents' decision not to rehire him was based on his public criticism of the policies of the college administration and thus infringed his right to freedom of speech. He also alleged that their failure to provide him an opportunity for a hearing violated the Fourteenth Amendment's guarantee of procedural due process. The petitioners—members of the Board of Regents and the president of the college—denied that their decision was made in retaliation for the respondent's public criticism and argued that they had no obligation to provide a hearing.2 On the basis of these bare pleadings and three brief affidavits filed by the respondent,3 the District Court granted summary judgment for the petitioners. It concluded that the respondent had 'no cause of action against the (petitioners) since his contract of employment terminated May 31, 1969, and Odessa Junior College has not adopted the tenure system.'4
5
The Court of Appeals reversed the judgment of the District Court. 430 F.2d 939. First, it held that, despite the respondent's lack of tenure, the nonrenewal of his contract would violate the Fourteenth Amendment if it in fact was based on his protected free speech. Since the actual reason for the Regents' decision was 'in total dispute' in the pleadings, the court remanded the case for a full hearing on this contested issue of fact. Id. at 942—943. Second, the Court of Appeals held that, despite the respondent's lack of tenure, the failure to allow him an opportunity for a hearing would violate the constitutional guarantee of procedural due process if the respondent could show that he had an 'expectancy' of re-employment. It, therefore, ordered that this issue of fact also be aired upon remand. Id. at 943—944. We granted a writ of certiorari, 403 U.S. 917, 91 S.Ct. 2226, 29 L.Ed.2d 694, and we have considered this case along with Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548.
6
* The first question presented is whether the respondent's lack of a contractual or tenure right to re-employment, taken alone, defeats his claim that the nonrenewal of his contract violated the First and Fourteenth Amendments. We hold that it does not.
7
For at least a quarter-century, this Court has made clear that even though a person has no 'right' to a valuable governmental benefit and even though the government may deny him the benefit for any number of reasons, there are some reasons upon which the government may not rely. It may not deny a benefit to a person on a basis that infringes his constitutionally protected interests—especially, his interest in freedom of speech. For if the government could deny a benefit to a person because of his constitutionally protected speech or associations, his exercise of those freedoms would in effect be penalized and inhibited. This would allow the government to 'produce a result which (it) could not command directly.' Speiser v. Randall, 357 U.S. 513, 526, 78 S.Ct. 1332, 1342, 2 L.Ed.2d 1460. Such interference with constitutional rights is impermissible.
8
We have applied this general principle to denials of tax exemptions, Speiser v. Randall, supra, unemployment benefits, Sherbert v. Verner, 374 U.S. 398, 404—405, 83 S.Ct. 1790, 1794 1795, 10 L.Ed.2d 965, and welfare payments, Shapiro v. Thompson, 394 U.S. 618, 627, n. 6, 89 S.Ct. 1322, 1327 n. 6, 22 L.Ed.2d 600; Graham v. Richardson, 403 U.S. 365, 374, 91 S.Ct. 1848, 1853, 29 L.Ed.2d 534. But, most often, we have applied the principle to denials of public employment. United Public Workers v. Mitchell, 330 U.S. 75, 100, 67 S.Ct. 556, 569, 91 L.Ed. 754; Wieman v. Updegraff, 344 U.S. 183, 192, 73 S.Ct. 215, 219, 97 L.Ed. 216; Shelton v. Tucker, 364 U.S. 479, 485—486, 81 S.Ct. 247, 250—251, 5 L.Ed.2d 231; Torcaso v. Watkins, 367 U.S. 488, 495—496, 81 S.Ct. 1680, 1683—1684, 6 L.Ed.2d 982; Cafeteria & Restaurant Workers v. McElroy, 367 U.S. 886, 894, 81 S.Ct. 1743, 1748, 6 L.Ed.2d 1230; Cramp v. Board of Public Instruction, 368 U.S. 278, 288, 82 S.Ct. 275, 281, 7 L.Ed.2d 285; Baggett v. Bullitt, 377 U.S. 360, 84 S.Ct. 1316, 12 L.Ed.2d 377; Elfbrandt v. Russell, 384 U.S. 11, 17, 86 S.Ct. 1238, 1241, 16 L.Ed.2d 321; Keyishian v. Board of Regents, 385 U.S. 589, 605—606, 87 S.Ct. 675, 684—685, 17 L.Ed.2d 629; Whitehill v. Elkins, 389 U.S. 54, 88 S.Ct. 184, 19 L.Ed.2d 228; United States v. Robel, 389 U.S. 258, 88 S.Ct. 419, 19 L.Ed.2d 508; Pickering v. Board of Education, 391 U.S. 563, 568, 88 S.Ct. 1731, 1734, 20 L.Ed.2d 811. We have applied the principle regardless of the public employee's contractual or other claim to a job. Compare Pickering v. Board of Education, supra, with Shelton v. Tucker, supra.
9
Thus, the respondent's lack of a contractual or tenure 'right' to re-employment for the 1969—1970 academic year is immaterial to his free speech claim. Indeed, twice before, this Court has specifically held that the nonrenewal of a nontenured public school teacher's one-year contract may not be predicated on his exercise of First and Fourteenth Amendment rights. Shelton v. Tucker, supra; Keyishian v. Board of Regents, supra. We reaffirm those holdings here.
10
In this case, of course, the respondent has yet to show that the decision not to renew his contract was, in fact, made in retaliation for his exercise of the constitutional right of free speech. The District Court foreclosed any opportunity to make this showing when it granted summary judgment. Hence, we cannot now hold that the Board of Regents' action was invalid.
11
But we agree with the Court of Appeals that there is a genuine dispute as to 'whether the college refused to renew the teaching contract on an impermissible basis—as a reprisal for the exercise of constitutionally protected rights.' 430 F.2d, at 943. The respondent has alleged that his nonretention was based on his testimony before legislative committees and his other public statements critical of the Regents' policies. And he has alleged that this public criticism was within the First and Fourteenth Amendments' protection of freedom of speech. Plainly, these allegations present a bona fide constitutional claim. For this Court has held that a teacher's public criticism of his superiors on matters of public concern may be constitutionally protected and may, therefore, be an impermissible basis for termination of his employment. Pickering v. Board of Education, supra.
12
For this reason we hold that the grant of summary judgment against the respondent, without full exploration of this issue, was improper.
II
13
The respondent's lack of formal contractual or tenure security in continued employment at Odessa Junior College, though irrelevant to his free speech claim, is highly relevant to his procedural due process claim. But it may not be entirely dispositive.
14
We have held today in Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, that the Constitution does not require opportunity for a hearing before the nonrenewal of a nontenured teacher's contract, unless he can show that the decision not to rehire him somehow deprived him of an interest in 'liberty' or that he had a 'property' interest in continued employment, despite the lack of tenure or a formal contract. In Roth the teacher had not made a showing on either point to justify summary judgment in his favor.
15
Similarly, the respondent here has yet to show that he has been deprived of an interest that could invoke procedural due process protection. As in Roth, the mere showing that he was not rehired in one particular job, without more, did not amount to a showing of a loss of liberty.5 Nor did it amount to a showing of a loss of property.
16
But the respondent's allegations—which we must construe most favorably to the respondent at this stage of the litigation—do raise a genuine issue as to his interest in continued employment at Odessa Junior College. He alleged that this interest, though not secured by a formal contractual tenure provision, was secured by a no less binding understanding fostered by the college administration. In particular, the respondent alleged that the college had a de facto tenure program, and that he had tenure under that program. He claimed that he and others legitimately relied upon an unusual provision that had been in the college's official Faculty Guide for many years:
17
'Teacher Tenure: Odessa College has no tenure system. The Administration of the College wishes the faculty member to feel that he has permanent tenure as long as his teaching services are satisfactory and as long as he displays a cooperative attitude toward his co-workers and his superiors, and as long as he is happy in his work.'
18
Moreover, the respondent claimed legitimate reliance upon guidelines promulgated by the Coordinating Board of the Texas College and University System that provided that a person, like himself, who had been employed as a teacher in the state college and university system for seven years or more has some form of job tenure.6 Thus, the respondent offered to prove that a teacher with his long period of service at this particular State College had no less a 'property' interest in continued employment than a formally tenured teacher at other colleges, and had no less a procedural due process right to a statement of reasons and a hearing before college officials upon their decision not to retain him.
19
We have made clear in Roth, supra, at 577, 92 S.Ct., at 2709, that 'property' interests subject to procedural due process protection are not limited by a few rigid, technical forms. Rather, 'property' denotes a broad range of interests that are secured by 'existing rules or understandings.' Id., at 577, 92 S.Ct., at 2709. A person's interest in a benefit is a 'property' interest for due process purposes if there are such rules or mutually explicit understandings that support his claim of entitlement to the benefit and that he may invoke at a hearing. Ibid.
20
A written contract with an explicit tenure provision clearly is evidence of a formal understanding that supports a teacher's claim of entitlement to continued employment unless sufficient 'cause' is shown. Yet absence of such an explicit contractual provision may not always foreclose the possibility that a teacher has a 'property' interest in reemployment. For example, the law of contracts in most, if not all, jurisdictions long has employed a process by which agreements, though not formalized in writing, may be 'implied.' 3 A. Corbin on Contracts §§ 561—572A (1960). Explicit contractual provisions may be supplemented by other agreements implied from 'the promisor's words and conduct in the light of the surrounding circumstances.' Id., at § 562. And, '(t)he meaning of (the promisor's) words and acts is found by relating them to the usage of the past.' Ibid.
21
A teacher, like the respondent, who has held his position for a number of years, might be able to show from the circumstances of this service—and from other relevant facts—that he has a legitimate claim of entitlement to job tenure. Just as this Court has found there to be a 'common law of a particular industry or of a particular plant' that may supplement a collective-bargaining agreement, United Steelworkers v. Warrior & Gulf Nav. Co., 363 U.S. 574, 579, 80 S.Ct. 1347, 1351, 4 L.Ed.2d 1409, so there may be an unwritten 'common law' in a particular university that certain employees shall have the equivalent of tenure. This is particularly likely in a college or university, like Odessa Junior College, that has no explicit tenure system even for senior members of its faculty, but that nonetheless may have created such a system in practice. See C. Byse & L. Joughin, Tenure in American Higher Education 17—28 (1959).7
22
In this case, the respondent has alleged the existence of rules and understandings, promulgated and fostered by state officials, that may justify his legitimate claim of entitlement to continued employment absent 'sufficient cause.' We disagree with the Court of Appeals insofar as it held that a mere subjective 'expectancy' is protected by procedural due process, but we agree that the respondent must be given an opportunity to prove the legitimacy of his claim of such entitlement in light of 'the policies and practices of the institution.' 430 F.2d, at 943. Proof of such a property interest would not, of course, entitle him to reinstatement. But such proof would obligate college officials to grant a hearing at his request, where he could be informed of the grounds for his nonretention and challenge their sufficiency.
23
Therefore, while we do not wholly agree with the opinion of the Court of Appeals, its judgment remanding this case to the District Court is affirmed.
24
Affirmed.
25
Mr. Justice POWELL took no part in the decision of this case.
26
Mr. Chief Justice BURGER, concurring.
27
I concur in the Court's judgments and opinions in Perry and Sindermann but there is one central point in both decisions that I would like to underscore since it may have been obscured in the comprehensive discussion of the cases. That point is that the relationship between a state institution and one of its teachers is essentially a matter of state concern and state law. The Court holds today only that a state-employed teacher who has a right to re-employment under state law, arising from either an express or implied contract, has, in turn, a right guaranteed by the Fourteenth Amendment to some form of prior administrative or academic hearing on the cause for nonrenewal of his contract. Thus, whether a particular teacher in a particular context has any right to such administrative hearing hinges on a question of state law. The Court's opinion makes this point very sharply:
28
'Property iterests . . . are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law . . ..' Board of Regents v. Roth, 408 U.S. 564, at 577, 92 S.Ct. 2701, at 2709, 33 L.Ed.2d 548.
29
Because the availability of the Fourteenth Amendment right to a prior administrative hearing turns in each case on a question of state law, the issue of abstention will arise in future cases contesting whether a particular teacher is entitled to a hearing prior to nonrenewal of his contract. If relevant state contract law is unclear, a federal court should, in my view, abstain from deciding whether he is constitutionally entitled to a prior hearing, and the teacher should be left to resort to state courts on the questions arising under state law.
30
Mr. Justice BRENNAN, with whom Mr. Justice DOUGLAS joins, dissenting in No. 71—162 and dissenting in part in No. 70—36.
31
Although I agree with Part I of the Court's opinion in No. 70 36, I also agree with my Brother MARSHALL that 'respondent(s) (were) denied due process when (their) contract(s) (were) not renewed and (they were) not informed of the reasons and given an opportunity to respond.' 408 U., 564, at 590, 92 S.Ct. 2701, at 2716, 33 L.Ed.2d 548. Since respondents were entitled to summary judgment on that issue, I would affirm the judgment of the Court of Appeals in No. 71—162, and, to the extent indicated by my Brother MARSHALL, I would modify the judgment of the Court of Appeals in No. 70—36.
32
Mr. Justice MARSHALL, dissenting in part.
33
Respondent was a teacher in the state college system of the State of Texas for a decade before the Board of Regents of Odessa Junior College decided not to renew his contract. He brought this suit in Federal District Court claiming that the decision not to rehire him was in retaliation for his public criticism of the policies of the college administration in violation of the First Amendment, and that because the decision was made without giving him a statement of reasons and a hearing, it denied him the due process of law guaranteed by the Fourteenth Amendment. The District Court granted summary judgment for petitioners, but the Court of Appeals reversed and remanded the case for further proceedings. This Court affirms the judgment of the Court of Appeals.
34
I agree with Part I of the Court's opinion holding that respondent has presented a bona fide First Amendment claim that should be considered fully by the District Court. But, for the reasons stated in my dissenting opinion in Board of Regents v. Roth, 408 U.S. 564, at 587, 92 S.Ct. 2701, at 2714, 33 L.Ed.2d 548, I would modify the judgment of the Court of Appeals to direct the District Court to enter summary judgment for respondent entitling him to a statement of reasons why his contract was not renewed and a hearing on disputed issues of fact.
1
The press release stated, for example, that the respondent had defied his superiors by attending legislative committee meetings when college officials had specifically refused to permit him to leave his classes for that purpose.
2
The petitioners claimed, in their motion for summary judgment, that the decision not to retain the respondent was really based on his insubordinate conduct. See n. 1, supra.
3
The petitioners, for whom summary judgment was granted, submitted no affidavits whatever. The respondent's affidavits were very short and essentially repeated the general allegations of his complaint.
4
The findings and conclusions of the District Court—only several lines long—are not officially reported.
5
The Court of Appeals suggested that the respondent might have a due process right to some kind of hearing simply if he asserts to college officials that their decision was based on his constitutionally protected conduct. 430 F.2d, at 944. We have rejected this approach in Board of Regents v. Roth, supra, 408 U.S., at 575, n. 14, 92 S.Ct., at 2708 n. 14.
6
The relevant portion of the guildelines, adopted as 'Policy Paper 1' by the Coordinating Board on October 16, 1967, reads:
'A. Tenure
'Tenure means assurance to an experienced faculty member that he may expect to continue in his academic position unless adequate cause for dismissal is demonstrated in a fair hearing, following established procedures of due process.
'A specific system of faculty tenure undergirds the integrity of each academic institution. In the Texas public colleges and universities, this tenure system should have these components:
'(1) Beginning with appointment to the rank of full-time instructor or a higher rank, the probationary period for a faculty member shall not exceed seven years, including within this period appropriate full-time service in all institutions of higher education. This is subject to the provision that when, after a term of probationary service of more than three years in one or more institutions, a faculty member is employed by another institution, it may be agreed in writing that his new appointment is for a probationary period of not more than four years (even though thereby the person's total probationary period in the academic profession is extended beyond the normal maximum of seven years).
'(3) Adequate cause for dismissal for a faculty member with tenure may be established by demonstrating professional incompetence, moral turpitude, or gross neglect of professional responsibilities.' The respondent alleges that, because he has been employed as a 'full-time instructor' or professor within the Texas College and University System for 10 years, he should have 'tenure' under these provisions.
7
We do not now hold that the respondent has any such legitimate claim of entitlement to job tenure. For '(p)roperty interests . . . are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law . . ..' Board of Regents v. Roth, supra, 408 U.S., at 577, 92 S.Ct., at 2709. If it is the law of Texas that a teacher in the respondent's position has no contractual or other claim to job tenure, the respondent's claim would be defeated.
| 34
|
408 U.S. 665
92 S.Ct. 2646
33 L.Ed.2d 626
Paul M. BRANZBURG, Petitioner,v.John P. HAYES, Judge, etc., et al. In the Matter of Paul PAPPAS, Petitioner. UNITED STATES, Petitioner, v. Earl CALDWELL.
Nos. 70—85, 70—94, 70—57.
Argued Feb. 22, 23, 1972.
Decided June 29, 1972.
Syllabus
The First Amendment does not relieve a newspaper reporter of the obligation that all citizens have to respond to a grand jury subpoena and answer questions relevant to a criminal investigation, and therefore the Amendment does not afford him a constitutional testimonial privilege for an agreement he makes to conceal facts relevant to a grand jury's investigation of a crime or to conceal the criminal conduct of his source or evidence thereof. Pp. 679—709.
No. 70—85, 461 S.W.2d 345, and Kentucky Court of Appeals judgment in unreported case of Branzburg v. Meigs; and No. 70—94, 358 Mass. 604, 266 N.E.2d 297, affirmed; No. 70—57, 434 F.2d 1081, reversed.
On Writ of Certiorari to the Court of Appeals of Kentucky.
On Writ of Certiorari to the Supreme Judicial Court of Massachusetts.
On Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit.
Edgar A. Zingman, Louisville, Ky., for petitioner Paul M. Branzburg in No. 70—85; Robert C. Ewald, Louisville, Ky., on the briefs.
E. Barrett Prettyman, Jr., Washington, D.C., for petitioner, the Commonwealth of Mass. in No. 70—94; William H. Carey, New Bedford, Mass., on the briefs.
Solicitor Gen., Erwin Griswold for the United States in No. 70—57; David A. Wilson, Jr., Peterson, Asst. Attys. Gen., William Bradford Reynolds, Beatrice Rosenberg, and Sidney M. Glazer, Washington, D.C., on the briefs.
Edwin A. Schroeting, Jr., Louisville, Ky., for respondents John P. Hayes and others in No. 70—85; W. C. Fisher, Jr., Louisville, Ky., on the brief.
Joseph J. Hurley, First Asst. Atty. Gen., for respondent, Commonwealth of Mass., in No. 70—94; Robert H. Quinn, Atty. Gen., Walter H. Mayo III, Asst. Atty. Gen., and Lawrence T. Bench, Deputy Asst. Atty. Gen., on the brief.
Anthony G. Amsterdam, Washington, D.C., for respondent Earl Caldwell in No. 70—57; Jack Greenberg, James M. Nabrit III, Charles Stephen Ralston, New York City, and William Bennett Turner, San Francisco, Cal., on the brief.
William Bradford Reynolds, Washington, D.C., for the United States as amicus curiae urging affirmance in Nos. 70—85 and 70—94; Sol. Gen. Erwin Griswold, Asst. Atty. Gen., David B. Wilson, Jr., and Beatrice Rosenberg, Washington, D.C., on the brief.
Briefs of amici curiae urging affirmance in No. 70—57 and reversal in Nos. 70—85 and 70—94 were filed by Alexander M. Bickel, New Haven, Conn., Lawrence J. McKay, Floyd Abrams, Daniel Sheehan, Corydon B. Dunham, Clarence Fried, Alan J. Hruska, New York City, Robert S. Rifkind, Washington, D.C., Anthony A. Dean, and Edward C. Wallace, New York City, for New York Times Co., Inc., and others; by Don H. Reuben, Lawrence Gunnels, Steven L. Bashwiner, and Thomas F. Ging., Chicago, Ill., for Chicago Tribune Co.; by Arthur B. Hanson, Washington, D.C., for American Newspaper Publishers Assn.; and by Irving Leuchter, Newark, N.J., for American Newspaper Guild, AFL-CIO, CLC.
John T. Corrigan, Cleveland, Ohio, filed a brief for the National District Attorneys Association urging reversal in No. 70 57 and affirmance in No. 70—94.
Briefs of amici cruiae urging affirmance in No. 70—57 were filed by Irwin Karp, New York City, for Authors League of America, Inc.; by W. Theodore Pierson and J. Laurent Scharff, Washington, D.C., for Radio Television News Directors Assn.; and by Earle K. Moore and Samuel Rabinove, New York City, for Office of Communication of the United Church of Christ and others.
Briefs of amici curiae in No. 70—57 were filed by Leo P. Larkin, Jr., Stanley Godofsky, and John J. Sheehy, New York City, for Washington Post Co. and others; by Richard M. Schmidt, Jr., for American Society of Newspaper Editors and others; by Roger A. Clark, New York City, for National Press Photographers Assn.; and by Melvin L. Wulf, New York City, Paul N. Halvonik, San Francisco, Cal., A. L. Wirin, Fred Okrand and Lawrence R. Sperber, Los Angeles, Cal., for American Civil Liberties Union and others.
Opinion of the Court by Mr. Justice WHITE, announced by THE CHIEF JUSTICE.
1
The issue in these cases is whether requiring newsmen to appear and testify before state or federal grand juries abridges the freedom of speech and press guaranteed by the First Amendment. We hold that it does not.
2
* The writ of certiorari in No. 70—85, Branzburg v. Hayes and Meigs, brings before us two judgments of the Kentucky Court of Appeals, both involving petitioner Branzburg, a staff reporter for the Courier-Journal, a daily newspaper published in Louisville, Kentucky.
3
On November 15, 1969, the Courier-Journal carried a story under petitioner's by-line describing in detail his observations of two young residents of Jefferson County synthesizing hashish from marihuana, an activity which, they asserted, earned them about $5,000 in three weeks. The article included a photograph of a pair of hands working above a laboratory table on which was a substance identified by the caption as hashish. The article stated that petitioner had promised not to reveal the identity of the two hashish makers.1 Petitioner was shortly subpoenaed by the Jefferson County grand jury; he appeared, but refused to identify the individuals he had seen possessing marihuana or the persons he had seen making hashish from marihuana.2 A state trial court judge3 ordered petitioner to answer these questions and rejected his contention that the Kentucky reporters' privilege statute, Ky.Rev.Stat. § 421.100 (1962),4 the First Amendment of the United States Constitution, or §§ 1, 2 and 8 of the Kentucky Constitution authorized his refusal to answer. Petitioner then sought prohibition and mandamus in the Kentucky Court of Appeals on the same grounds, but the Court of Appeals denied the petition. Branzburg v. Pound, 461 S.W.2d 345 (1970), as modified on denial of rehearing, Jan. 22, 1971. It held that petitioner had abandoned his First Amendment argument in a supplemental memorandum he had filed and tacitly rejected his argument based on the Kentucky Constitution. It also construed Ky.Rev.Stat. § 421.100 as affording a newsman the privilege of refusing to divulge the identity of an informant who supplied him with information, but held that the statute did not permit a reporter to refuse to testify about events he had observed personally, including the identities of those persons he had observed.
4
The second case involving petitioner Branzburg arose out of his later story published on January 10, 1971, which described in detail the use of drugs in Frankfort, Kentucky. The article reported that in order to provide a comprehensive survey of the 'drug scene' in Frankfort, petitioner had 'spent two weeks interviewing several dozen drug users in the capital city' and had seen some of them smoking marihuana. A number of conversations with and observations of several unnamed drug users were recounted. Subpoenaed to appear before a Franklin County grand jury 'to testify in the matter of violation of statutes concerning use and sale of drugs,' petitioner Branzburg moved to quash the summons;5 the motion was denied, although an order was issued protecting Branzburg from revealing 'confidential associations, sources or information' but requiring that he 'answer any questions which concern or pertain to any criminal act, the commission of which was actually observed by (him).' Prior to the time he was slated to appear before the grand jury, petitioner sought mandamus and prohibition from the Kentucky Court of Appeals, arguing that if he were forced to go before the grand jury or to answer questions regarding the identity of informants or disclose information given to him in confidence, his effectiveness as a reporter would be greatly damaged. The Court of Appeals once again denied the requested writs, reaffirming its construction of Ky.Rev.Stat. § 421.100, and rejecting petitioner's claim of a First Amendment privilege. It distinguished Caldwell v. United States, 434 F.2d 1081 (CA9 1970), and it also announced its 'misgivings' about that decision, asserting that it represented 'a drastic departure from the generally recognized rule that the sources of information of a newspaper reporter are not privileged under the First Amendment.' It characterized petitioner's fear that his ability to obtain news would be destroyed as 'so tenuous that it does not, in the opinion of this court, present an issue of abridgement of the freedom of the press within the meaning of that term as used in the Constitution of the United States.'
5
Petitioner sought a writ of certiorari to review both judgments of the Kentucky Court of Appeals, and we granted the writ.6 402 U.S. 942, 91 S.Ct. 1616, 29 L.Ed.2d 109 (1971).
6
In re Pappas, No. 70—94, originated when petitioner Pappas, a television newsman-photographer working out of the Providence, Rhode Island, office of a New Bedford, Massachusetts, television station, was called to New Bedford on July 30, 1970, to report on civil disorders there which involved fires and other turmoil. He intended to cover a Black Panther news conference at that group's headquarters in a boarded-up store. Petitioner found the streets around the store barricaded, but he ultimately gained entrance to the area and recorded and photographed a prepared statement read by one of the Black Panther leaders at about 3 p.m.7 He then asked for and received permission to re-enter the area. Returning at about 9 o'clock, he was allowed to enter and remain inside Panther headquarters. As a condition of entry, Pappas agreed not to disclose anything he saw or heard inside the store except an anticipated police raid, which Pappas, 'on his own,' was free to photograph and report as he wished. Pappas stayed inside the headquarters for about three hours, but there was no police raid, and petitioner wrote no story and did not otherwise reveal what had occurred in the store while he was there. Two months later, petitioner was summoned before the Bristol County Grand Jury and appeared, answered questions as to his name, address, employment, and what he had seen and heard outside Panther headquarters, but refused to answer any questions about what had taken place inside headquarters while he was there, claiming that the First Amendment afforded him a privilege to protect confidential informants and their information. A second summons was then served upon him, again directing him to appear before the grand jury and 'to give such evidence as he knows relating to any matters which may be inquired of on behalf of the Commonwealth before . . . the Grand Jury.' His motion to quash on First Amendment and other grounds was denied by the trial judge who, noting the absence of a statutory newsman's privilege in Massachusetts, ruled that petitioner had no constitutional privilege to refuse to divulge to the grand jury what he had seen and heard, including the identity of persons he had observed. The case was reported for decision to the Supreme Judicial Court of Massachusetts.8 The record there did not include a transcript of the hearing on the motion to quash, nor did it reveal the specific questions petitioner had refused to answer, the expected nature of his testimony, the nature of the grand jury investigation, or the likelihood of the grand jury's securing the information it sought from petitioner by other means.9 The Supreme Judicial Court, however, took 'judicial notice that in July, 1970, there were serious civil disorders in New Bedford, which involved street barricades, exclusion of the public from certain streets, fires, and similar turmoil. We were told at the arguments that there was gunfire in certain streets. We assume that the grand jury investigation was an appropriate effort to discover and indict those responsible for criminal acts.' 358 Mass. 604, 607, 266 N.E.2d 297, 299 (1971). The court then reaffirmed prior Massachusetts holdings that testimonial privileges were 'exceptional' and 'limited,' stating that '(t)he principle that the public 'has a right to every man's evidence" had usually been preferred, in the Commonwealth, to countervailing interests. Ibid. The court rejected the holding of the Ninth Circuit in Caldwell v. United States, supra, and 'adhere(d) to the view that there exists no constitutional newsman's privilege, either qualified or absolute, to refuse to appear and testify before a court or grand jury.'10 358 Mass., at 612, 266 N.E.2d, at 302—303. Any adverse effect upon the free dissemination of news by virtue of petitioner's being called to testify was deemed to be only 'indirect, theoretical, and uncertain.' Id., at 612, 266 N.E.2d, at 302. The court concluded that '(t)he obligation of newsmen . . . is that of every citizen . . . to appear when summoned, with relevant written or other material when required, and to answer relevant and reasonable inquiries.' Id., at 612, 266 N.E.2d, at 303. The court nevertheless noted that grand juries were subject to supervision by the presiding judge, who had the duty 'to prevent oppressive, unnecessary, irrelevant, and other improper inquiry and investigation,' ibid., to insure that a witness' Fifth Amendment rights were not infringed, and to assess the propriety, necessity, and pertinence of the probable testimony to the investigation in progress.11 The burden was deemed to be on the witness to establish the impropriety of the summons or the questions asked. The denial of the motion to quash was affirmed and we granted a writ of certiorari to petitioner Pappas. 402 U.S. 942, 91 S.Ct. 1619, 29 L.Ed.2d 110 (1971).
7
United States v. Caldwell, No. 70—57, arose from subpoenas issued by a federal grand jury in the Northern District of California to respondent Earl Caldwell, a reporter for the New York Times assigned to cover the Black Panther Party and other black militant groups. A subpoena duces tecum was served on respondent on February 2, 1970, ordering him to appear before the grand jury to testify and to bring with him notes and tape recordings of interviews given him for publication by officers and spokesmen of the Black Panther Party concerning the aims, purposes, and activities of that organization.12 Respondent objected to the scope of this subpoena, and an agreement between his counsel and the Government attorneys resulted in a continuance. A second subpoena, served on March 16, omitted the documentary requirement and simply ordered Caldwell 'to appear . . . to testify before the Grand Jury.' Respondent and his employer, the New York Times,13 moved to quash on the ground that the unlimited breadth of the subpoenas and the fact that Caldwell would have to appear in secret before the grand jury would destroy his working relationship with the Black Panther Party and 'suppress vital First Amendment freedoms . . . by driving a wedge of distrust and silence between the news media and the militants.' App. 7. Respondent argued that 'so drastic an incursion upon First Amendment freedoms' should not be permitted 'in the absence of a compelling governmental interest not shown here—in requiring Mr. Caldwell's appearance before the grand jury.' Ibid. The motion was supported by amicus curiae memoranda from other publishing concerns and by affidavits from newsmen asserting the unfavorable impact on news sources of requiring reporters to appear before grand juries. The Government filed three memoranda in opposition to the motion to quash, each supported by affidavits. These documents stated that the grand jury was investigating, among other things, possible violations of a number of criminal statutes, including 18 U.S.C. § 871 (threats against the President), 18 U.S.C. s 1751 (assassination, attempts to assassinate, conspiracy to assassinate the President), 18 U.S.C. § 231 (civil disorders), 18 U.S.C. § 2101 (interstate travel to incite a riot), and 18 U.S.C. § 1341 (mail frauds and swindles). It was recited that on November 15, 1969, an officer of the Black Panther Party made a publicly televised speech in which he had declared that '(w)e will kill Richard Nixon' and that this threat had been repeated in three subsequent issues of the Party newspaper. App. 66, 77. Also referred to were various writings by Caldwell about the Black Panther Party, including an article published in the New York Times on December 14, 1969, stating that '(i)n their role as the vanguard in a revolutionary struggle the Panthers have picked up guns,' and quoting the Chief of Staff of the Party as declaring that: 'We advocate the very direct overthrow of the Government by way of force and violence. By picking up guns and moving against it because we recognize it as being oppressive and in recognizing that we know that the only solution to it is armed struggle (sic).' App. 62. The Government also stated that the Chief of Staff of the Party had been indicted by the grand jury on December 3, 1969, for uttering threats against the life of the President in violation of 18 U.S.C. § 871 and that various efforts had been made to secure evidence of crimes under investigation through the immunization of persons allegedly associated with the Black Panther Party.
8
On April 6, the District Court denied the motion to quash, Application of Caldwell, 311 F.Supp. 358 (NDCal.1970), on the ground that 'every person within the jurisdiction of the government' is bound to testify upon being properly summoned. Id., at 360 (emphasis in original). Nevertheless, the court accepted respondent's First Amendment arguments to the extent of issuing a protective order providing that although respondent had to divulge whatever information had been given to him for publication, he 'shall not be required to reveal confidential associations, sources or information received, developed or maintained by him as a professional journalist in the course of his efforts to gather news for dissemination to the public through the press or other news media.' The court held that the First Amendment afforded respondent a privilege to refuse disclosure of such confidential information until there had been 'a showing by the Government of a compelling and overriding national interest in requiring Mr. Caldwell's testimony which cannot be served by any alternative means.' Id., at 362.
9
Subsequently,14 the term of the grand jury expired, a new grand jury was convened, and a new subpoena ad testificandum was issued and served on May 22, 1970. A new motion to quash by respondent and memorandum in opposition by the Government were filed, and, by stipulation of the parties, the motion was submitted on the prior record. The court denied the motion to quash, repeating the protective provisions in its prior order but this time directing Caldwell to appear before the grand jury pursuant to the May 22 subpoena. Respondent refused to appear before the grand jury, and the court issued an order to show cause why he should not be held in contempt. Upon his further refusal to go before the grand jury, respondent was ordered committed for contempt until such time as he complied with the court's order or until the expiration of the term of the grand jury.
10
Respondent Caldwell appealed the contempt order,15 and the Court of Appeals reversed. Caldwell v. United States, 434 F.2d 1081 (CA9 1970). Viewing the issue before it as whether Caldwell was required to appear before the grand jury at all, rather than the scope of permissible interrogation, the court first determined that the First Amendment provided a qualified testimonial privilege to newsmen; in its view, requiring a reporter like Caldwell to testify would deter his informants from communicating with him in the future and would cause him to censor his writings in an effort to avoid being subpoenaed. Absent compelling reasons for requiring his testimony, he was held privileged to withhold it. The court also held, for similar First Amendment reasons, that, absent some special showing of necessity by the Government, attendance by Caldwell at a secret meeting of the grand jury was something he was privileged to refuse because of the potential impact of such an appearance on the flow of news to the public. We granted the United States' petition for certiorari.16 402 U.S. 942, 91 S.Ct. 1616, 29 L.Ed.2d 109 (1971).
II
11
Petitioners Branzburg and Pappas and respondent Caldwell press First Amendment claims that may be simply put: that to gather news it is often necessary to agree either not to identify the source of information published or to publish only part of the facts revealed, or both; that if the reporter is nevertheless forced to reveal these confidences to a grand jury, the source so identified and other confidential sources of other reporters will be measurably deterred from furnishing publishable information, all to the detriment of the free flow of information protected by the First Amendment. Although the newsmen in these cases do not claim an absolute privilege against official interrogation in all circumstances, they assert that the reporter should not be forced either to appear or to testify before a grand jury or at trial until and unless sufficient grounds are shown for believing that the reporter possesses information relevant to a crime the grand jury is investigating, that the information the reporter has is unavailable from other sources, and that the need for the information is sufficiently compelling to overide the claimed invasion of First Amendment interests occasioned by the disclosure. Principally relied upon are prior cases emphasizing the importance of the First Amendment guarantees to individual development and to our system of representative government,17 decisions requiring that official action with adverse impact on First Amendment rights be justified by a public interest that is 'compelling' or 'paramount,'18 and those precedents establishing the principle that justifiable governmental goals may not be achieved by unduly broad means having an unnecessary impact on protected rights of speech, press, or association.19 The heart of the claim is that the burden on news gathering resulting from compelling reporters to disclose confidential information outweighs any public interest in obtaining the information.20
12
We do not question the significance of free speech, press, or assembly to the country's welfare. Nor is it suggested that news gathering does not quality for First Amendment protection; without some protection for seeking out the news, freedom of the press could be eviscerated. But these cases involve no intrusions upon speech or assemby, no prior restraint or restriction on what the press may publish, and no express or implied command that the press publish what it prefers to withhold. No exaction or tax for the privilege of publishing, and no penalty, civil or criminal, related to the content of published material is at issue here. The use of confidential sources by the press is not forbidden or restricted; reporters remain free to seek news from any source by means within the law. No attempt is made to require the press to publish its sources of information or indiscriminately to disclose them on request.
13
The sole issue before us is the obligation of reporters to respond to grand jury subpoenas as other citizens do and to answer questions relevant to an investigation into the commission of crime. Citizens generally are not constitutionally immune from grand jury subpoenas; and neither the First Amendment nor any other constitutional provision protects the average citizen from disclosing to a grand jury information that he has received in confidence.21 The claim is, however, that reporters are exempt from these obligations because if forced to respond to subpoenas and identify their sources or disclose other confidences, their informants will refuse or be reluctant to furnish newsworthy information in the future. This asserted burden on news gathering is said to make compelled testimony from newsmen constitutionally suspect and to require a privileged position for them.
14
It is clear that the First Amendment does not invalidate every incidental burdening of the press that may result from the enforcement of civil or criminal statutes of general applicability. Under prior cases, otherwise valid laws serving substantial public interests may be enforced against the press as against others, despite the possible burden that may be imposed. The Court has emphasized that '(t)he publisher of a newspaper has no special immunity from the application of general laws. He has no special privilege to invade the rights and liberties of others.' Associated Press v. NLRB, 301 U.S. 103, 132—133, 57 S.Ct. 650, 656, 81 L.Ed. 953 (1937). It was there held that the Associated Press, a news-gathering and disseminating organization, was not exempt from the requirements of the National Labor Relations Act. The holding was reaffirmed in Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186, 192—193, 66 S.Ct. 494, 497—498, 90 L.Ed. 614 (1946), where the Court rejected the claim that applying the Fair Labor Standards Act to a newspaper publishing business would abridge the freedom of press guaranteed by the First Amendment. See also Mabee v. White Plains Publishing Co., 327 U.S. 178, 66 S.Ct. 511, 90 L.Ed. 607 (1946). Associated Press v. United States, 326 U.S. 1, 65 S.Ct. 1416, 89 L.Ed. 2013 (1945), similarly overruled assertions that the First Amendment precluded application of the Sherman Act to a news-gathering and disseminating organization. Cf. Indiana Farmer's Guide Publishing Co. v. Prairie Farmer Publishing Co., 293 U.S. 268, 276, 55 S.Ct. 182, 184, 79 L.Ed. 356 (1934); Citizen Publishing Co. v. United States, 394 U.S. 131, 139, 89 S.Ct. 927, 931, 22 L.Ed.2d 148 (1969); Lorain Journal Co. v. United States, 342 U.S. 143, 155—156, 72 S.Ct. 181, 187—188, 96 L.Ed. 162 (1951). Likewise, a newspaper may be subjected to nondiscriminatory forms of general taxation. Grosjean v. American Press Co., 297 U.S. 233, 250, 56 S.Ct. 444, 449, 80 L.Ed. 660 (1936); Murdock v. Pennsylvania, 319 U.S. 105, 112, 63 S.Ct. 870, 874, 87 L.Ed. 1292 (1943).
15
The prevailing view is that the press is not free to publish with impunity everything and anything it desires to publish. Although it may deter or regulate what is said or published, the press may not circulate knowing or reckless falsehoods damaging to private reputation without subjecting itself to liability for damages, including punitive damages, or even criminal prosecution. See New York Times Co. v. Sullivan, 376 U.S. 254, 279—280, 84 S.Ct. 710, 725—726, 11 L.Ed.2d 686 (1964); Garrison v. Louisiana, 379 U.S. 64, 74, 85 S.Ct. 209, 215, 13 L.Ed.2d 125 (1964); Curtis Publishing Co. v. Butts, 388 U.S. 130, 147, 87 S.Ct. 1975, 1987, 18 L.Ed.2d 1094 (1967) (opinion of Harlan, J.,); Monitor Patriot Co. v. Roy, 401 U.S. 265, 277, 91 S.Ct. 621, 628, 28 L.Ed.2d 35 (1971). A newspaper or a journalist may also be punished for contempt of court, in appropriate circumstances. Craig v. Harney, 331 U.S. 367, 377—378, 67 S.Ct. 1249, 1255—1256, 91 L.Ed. 1546 (1947).
16
It has generally been held that the First Amendment does not guarantee the press a constitutional right of special access to information not available to the public generally. Zemel v. Rusk, 381 U.S. 1, 16—17, 85 S.Ct. 1271, 1280—1281, 14 L.Ed.2d 179 (1965); New York Times Co. v. United States, 403 U.S. 713, 728 730, 91 S.Ct. 2140, 2148—2149, 29 L.Ed.2d 822 (1971), (Stewart, J., concurring); Tribune Review Publishing Co. v. Thomas, 254 F.2d 883, 885 (CA3 1958); In the Matter of United Press Assns. v. Valente, 308 N.Y. 71, 77, 123 N.E.2d 777, 778 (1954). In Zemel v. Rusk, supra, for example, the Court sustained the Government's refusal to validate passports to Cuba even though that restriction 'render(ed) less than wholly free the flow of information concerning that country.' 381 U.S., at 16, 85 S.Ct., at 1281. The ban on travel was held constitutional, for '(t)he right to speak and publish does not carry with it the unrestrained right to gather information.' Id., at 17, 85 S.Ct., at 1281.22
17
Despite the fact that news gathering may be hampered, the press is regularly excluded from grand jury proceedings, our own conferences, the meetings of other official bodies gathered in executive session, and the meetings of private organizations. Newsmen have no constitutional right of access to the scenes of crime or disaster when the general public is excluded, and they may be prohibited from attending or publishing information about trials if such restrictions are necessary to assure a defendant a fair trial before an impartial tribunal. In Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966), for example, the Court reversed a state court conviction where the trial court failed to adopt 'stricter rules governing the use of the courtroom by newsmen, as Sheppard's counsel requested,' neglected to insulate witnesses from the press, and made no 'effort to control the release of leads, information, and gossip to the press by police officers, witnesses, and the counsel for both sides.' Id., at 358, 359, 86 S.Ct., at 1520. '(T)he trial court might well have proscribed extrajudicial statements by any lawyer, party, witness, or court official which divulged prejudicial matters.' Id., at 361, 86 S.Ct., at 1521. See also Estes v. Texas, 381 U.S. 532, 539 540, 85 S.Ct. 1628, 1631—1632, 14 L.Ed.2d 543 (1965); Rideau v. Louisiana, 373 U.S. 723, 726, 83 S.Ct. 1417, 1419, 10 L.Ed.2d 663 (1963).
18
It is thus not surprising that the great weight of authority is that newsmen are not exempt from the normal duty of appearing before a grand jury and answering questions relevant to a criminal investigation. At common law, courts consistently refused to recognize the existence of any privilege authorizing a newsman to refuse to reveal confidential information to a grand jury. See, e.g., Ex parte Lawrence, 116 Cal. 298, 48 P. 124 (1897); Plunkett v. Hamilton, 136 Ga. 72, 70 S.E. 781 (1911); Clein v. State, 52 So.2d 117 (Fla.1950); In re Grunow, 84 N.J.L. 235, 85 A. 1011 (1913); People ex rel. Mooney v. Sheriff, 269 N.Y. 291, 199 N.E. 415 (1936); Joslyn v. People, 67 Colo. 297, 184 P. 375 (1919); Adams v. Associated Press, 46 F.R.D. 439 (SD Tex. 1969); Brewster v. Boston Herald-Traveler Corp., 20 F.R.D. 416 (D.C.Mass.1957). See generally Annot., 7 A.L.R.3d 591 (1966). In 1958, a news gatherer asserted for the first time that the First Amendment exempted confidential information from public disclosure pursuant to a subpoena issued in a civil suit, Garland v. Torre, 259 F.2d 545 (CA2), cert. denied, 358 U.S. 910, 79 S.Ct. 237, 3 L.Ed.2d 231 (1958), but the claim was denied, and this argument has been almost uniformly rejected since then although there are occasional dicta that, in circumstances not presented here, a newsman might be excused. In re Goodfader, 45 Haw. 317, 367 P.2d 472 (1961); In re Taylor, 412 Pa. 32, 193 A.2d 181 (1963); State v. Buchanan, 250 Or. 244, 436 P.2d 729, cert. denied, 392 U.S. 905, 88 S.Ct. 2055, 20 L.Ed.2d 1363 (1968); Murphy v. Colorado (No. 19604 Sup.Ct.Colo.), cert. denied, 365 U.S. 843, 81 S.Ct. 802, 5 L.Ed.2d 810 (1961) (unreported, discussed in In re Goodfader, supra, 45 Haw., at 366, 367 P.2d, at 498 (Mizuha, J., dissenting)). These courts have applied the presumption against the existence of an asserted testimonial privilege, United States v. Bryan, 339 U.S. 323, 331, 70 S.Ct. 724, 730, 94 L.Ed. 884 (1950), and have concluded that the First Amendment interest asserted by the newsman was outweighed by the general obligation of a citizen to appear before a grand jury or at trial, pursuant to a subpoena, and give what information he possesses. The opinions of the state courts in Branzburg and Pappas are typical of the prevailing view, although a few recent cases, such as Caldwell, have recognized and given effect to some form of constitutional newsman's privilege. See State v. Knops, 49 Wis.2d 647, 183 N.W.2d 93 (1971) (dictum); Alioto v. Cowles Communications, Inc., C.A. No. 52150 (ND Cal.1969); In re Grand Jury Witnesses, 322 F.Supp. 573 (ND Cal.1970); People v. Dohrn, Crim.No. 69—3808 (Cook County, Ill., Cir.Ct.1970).
19
The prevailing constitutional view of the newsman's privilege is very much rooted in the ancient role of the grand jury that has the dual function of determining if there is probable cause to believe that a crime has been committed and of protecting citizens against unfounded criminal prosecutions.23 Grand jury proceedings are constitutionally mandated for the institution of federal criminal prosecutions for capital or other serious crimes, and 'its constitutional prerogatives are rooted in long centuries of Anglo-American history.' Hannah v. Larche, 363 U.S. 420, 489—490, 80 S.Ct. 1502, 1544, 4 L.Ed.2d 1307 (1960). (Frankfurter, J., concurring in result). The Fifth Amendment provides that '(n)o person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury.'24 The adoption of the grand jury 'in our Constitution as the sole method for preferring charges in serious criminal cases shows the high place it held as an instrument of justice.' Costello v. United States, 350 U.S. 359, 362, 76 S.Ct. 406, 408, 100 L.Ed. 397 (1956). Although state systems of criminal procedure differ greatly among themselves, the grand jury is similarly guaranteed by many state constitutions and plays an important role in fair and effective law enforcement in the overwhelming majority of the States.25 Because its task is to inquire into the Existence of possible criminal conduct and to return only well-founded indictments, its investigative powers are necessarily broad. 'It is a grand inquest, a body with powers of investigation and inquisition, the scope of whose inquiries is not to be limited narrowly by questions of propriety or forecasts of the probable result of the investigation, or by doubts whether any particular individual will be found properly subject to an accusation of crime.' Blair v. United States, 250 U.S. 273, 282, 39 S.Ct. 468, 471, 63 L.Ed. 979 (1919). Hence, the grand jury's authority to subpoena witnesses is not only historic, id., at 279—281, 39 S.Ct., at 470—471, but essential to its task. Although the powers of the grand jury are not unlimited and are subject to the supervision of a judge, the longstanding principle that 'the public . . . has a right to every man's evidence,' except for those persons protected by a constitutional, common-law, or statutory privilege, United States v. Bryan, 339 U.S. 323, 331, 70 S.Ct. 724, 730, 94 L.Ed. 884 (1950); Blackmer v. United States, 284 U.S. 421, 438, 52 S.Ct. 252, 255, 76 L.Ed. 375 (1932); 8 J. Wigmore, Evidence § 2192 (McNaughton rev. 1961), is particularly applicable to grand jury proceedings.26
20
A number of States have provided newsmen a statutory pvivilege of varying breadth,27 but the majority have not done so, and none has been provided by federal statute.28 Until now the only testimonial privilege for unofficial witnesses that is rooted in the Federal Constitution is the Fifth Amendment privilege against compelled self-incrimination. We are asked to create another by interpreting the First Amendment to grant newsmen a testimonial privilege that other citizens do not enjoy. This we decline to do.29 Fair and effective law enforcement aimed at providing security for the person and property of the individual is a fundamental function of government, and the grand jury plays an important, constitutionally mandated role in this process. On the records now before us, we perceive no basis for holding that the public interest in law enforcement and in ensuring effective grand jury proceedings is insufficient to override the consequential, but uncertain, burden on news gathering that is said to result from insisting that reporters, like other citizens, respond to relevant questions put to them in the course of a valid grand jury investigation or criminal trial.
21
This conclusion itself involves no restraint on what newspapers may publish or on the type or quality of information reporters may seek to acquire, nor does it threaten the vast bulk of confidential relationships between reporters and their sources. Grand juries address themselves to the issues of whether crimes have been committed and who committed them. Only where news sources themselves are implicated in crime or possess information relevant to the grand jury's task need they or the reporter be concerned about grand jury subpoenas. Nothing before us indicates that a large number or percentage of all confidential news sources falls into either category and would in any way be deterred by our holding that the Constitution does not, as it never has, exempt the newsman from performing the citizen's normal duty of appearing and furnishing information relevant to the grand jury's task.
22
The preference for anonymity of those confidential informants involved in actual criminal conduct is presumably a product of their desire to escape criminal prosecution, and this preference, while understandable, is hardly deserving of constitutional protection. It would be frivolous to assert—and no one does in these cases—that the First Amendment, in the interest of securing news or otherwise, confers a license on either the reporter or his news sources to violate valid criminal laws. Although stealing documents or private wiretapping could provide newsworthy information, neither reporter nor source is immune from conviction for such conduct, whatever the impact on the flow of news. Neither is immume, on First Amendment grounds, from testifying against the other, before the grand jury or at a criminal trial. The Amendment does not reach so far as to override the interest of the public in ensuring that neither reporter nor source is invading the rights of other citizens through reprehensible conduct forbidden to all other persons. To assert the contrary proposition
23
'Is to answer it, since it involves in its very statement the contention that the freedom of the press is the freedom to do wrong with impunity and implies the right to frustrate and defeat the discharge of those governmental duties upon the performance of which the freedom of all, including that of the press, depends. . . . It suffices to say that however complete is the right of the press to state public things and discuss them, that right, as every other right enjoyed in human society, is subject to the restraints which separate right from wrong-doing.' Toledo Newspaper Co. v. United States, 247 U.S. 402, 419—420, 38 S.Ct. 560, 564, 62 L.Ed. 1186 (1918).30
24
Thus, we cannot seriously entertain the notion that the First Amendment protects a newsman's agreement to conceal the criminal conduct of his source, or evidence thereof, on the theory that it is better to write about crime than to do something about it. Insofar as any reporter in these cases undertook not to reveal or testify about the crime he witnessed, his claim of privilege under the First Amendment presents no substantial question. The crimes of news sources are no less reprehensible and threatening to the public interest when witnessed by a reporter than when they are not.
25
There remain those situations where a source is not engaged in criminal conduct but has information suggesting illegal conduct by others. Newsmen frequently receive information from such sources pursuant to a tacit or express agreement to withhold the source's name and suppress any information that the source wishes not published. Such informants presumably desire anonymity in order to avoid being entangled as a witness in a criminal trial or grand jury investigation. They may fear that disclosure will threaten their job security or personal safety or that it will simply result in dishonor or embarassment.
26
The argument that the flow of news will be diminished by compelling reporters to aid the grand jury in a criminal investigation is not irrational, nor are the records before us silent on the matter. But we remain unclear how often and to what extent informers are actually deterred from furnishing information when newsmen are forced to testify before a grand jury. The available data indicate that some newsmen rely a great deal on confidential sources and that some informants are particularly sensitive to the threat of exposure and may be silenced if it is held by this Court that, ordinarily, newsmen must testify pursuant to subpoenas,31 but the evidence fails to demonstrate that there would be a significant construction of the flow of news to the public if this Court reaffirms the prior common-law and constitutional rule regarding the testimonial obligations of newsmen. Estimates of the inhibiting effect of such subpoenas on the willingness of informants to make disclosures to newsmen are widely divergent and to a great extent speculative.32 It would be difficult to canvass the views of the informants themselves; surveys of reporters on this topic are chiefly opinions of predicted informant behavior and must be viewed in the light of the professional self-interest of the interviewees.33 Reliance by the press on confidential informants does not mean that all such sources will in fact dry up because of the later possible appearance of the newsman before a grand jury. The reporter may never be called and if he objects to testifying, the prosecution may not insist. Also, the relationship of many informants to the press is a symbiotic one which is unlikely to be greatly inhibited by the threat of subpoena: quite often, such informants are members of a minority political or cultural group that relies heavily on the media to propagate its views, publicize its aims, and magnify its exposure to the public. Moreover, grand juries characteristically conduct secret proceedings, and law enforcement officers are themselves experienced in dealing with informers, and have their own methods for protecting them without interference with the effective administration of justice. There is little before us indicating that informants whose interest in avoiding exposure is that it may threaten job security, personal safety, or peace of mind, would in fact be in a worse position, or would think they would be, if they risked placing their trust in public officials as well as reporters. We doubt if the informer who prefers anonymity but is sincerely interested in furnishing evidence of crime will always or very often be deterred by the prospect of dealing with those public authorities characteristically charged with the duty to protect the public interest as well as his.
27
Accepting the fact, however, that an undetermined number of informants not themselves implicated in crime will nevertheless, for whatever reason, refuse to talk to newsmen if they fear identification by a reporter in an official investigation, we cannot accept the argument that the public interest in possible future news about crime from undisclosed, unverified sources must take precedence over the public interest in pursuing and prosecuting those crimes reported to the press by informants and in thus deterring the commission of such crimes in the future.
28
We note first that the privilege claimed is that of the reporter, not the informant, and that if the authorities independently identify the informant, neither his own reluctance to testify nor the objection of the newsman would shield him from grand jury inquiry, whatever the impact on the flow of news or on his future usefulness as a secret source of information. More important, it is obvious that agreements to conceal information relevant to commission of crime have very little to recommend them from the standpoint of public policy. Historically, the common law recognized a duty to raise the 'hue and cry' and report felonies to the authorities.34 Misprision of a felony—that is, the concealment of a felony 'which a man knows, but never assented to . . . (so as to become) either principal or accessory,' 4 W. Blackstone, Commentaries, *121, was often said to be a common-law crime.35 The first Congress passed a statute, 1 Stat. 113, § 6, as amended, 35 Stat. 1114, § 146, 62 Stat. 684, which is still in effect, defining a federal crime of misprision:
29
'Whoever, having knowledge of the actual commission of a felony cognizable by a court of the United States, conceals and does not as soon as possible make known the same to some judge or other person in civil or military authority under the United States, shall be (guilty of misprision).' 18 U.S.C. § 4.36
30
It is apparent from this statute, as well as from our history and that of England, that concealment of crime and agreements to do so are not looked upon with favor. Such conduct deserves no encomium, and we decline now to afford it First Amendment protection by denigrating the duty of a citizen, whether reporter or informer, to respond to grand jury subpoena and answer relevant questions put to him.
31
Of course, the press has the right to abide by its agreement not to publish all the information it has, but the right to withhold news is not equivalent to a First Amendment exemption from the ordinary duty of all other citizens to furnish relevant information to a grand jury performing an important public function. Private restraints on the flow of information are not so favored by the First Amendment that they override all other public interests. As Mr. Justice Black declared in another context, '(f)reedom of the press from governmental interference under the First Amendment does not sanction repression of that freedom by private interests.' Associated Press v. United States, 326 U.S., at 20, 65 S.Ct., at 1425.
32
Neither are we now convinced that a virtually impenetrable constitutional shield, beyond legislative or judicial control, should be forged to protect a private system of informers operated by the press to report on criminal conduct, a system that would be unaccountable to the public, would pose a threat to the citizen's justifiable expectations of privacy, and would equally protect well-intentioned informants and those who for pay or otherwise betray their trust to their employer or associates. The public through its elected and appointed law enforcement officers regularly utilizes informers, and in proper circumstances may assert a privilege against disclosing the identity of these informers. But
33
'(t)he purpose of the privilege is the furtherance and protection of the public interest in effective law enforcement. The privilege recognizes the obligation of citizens to communicate their knowledge of the commission of crimes to law-enforcement officials and, by preserving their anonymity, encourages them to perform that obligation.' Roviaro v. United States, 353 U.S. 53, 59, 77 S.Ct. 623, 627, 1 L.Ed.2d 639 (1957).
34
Such informers enjoy no constitutional protection. Their testimony is available to the public when desired by grand juries or at criminal trials; their identity cannot be concealed from the defendant when it is critical to his case. Roviaro v. United States, supra, at 60—61, 62, 77 S.Ct. at 627—628, 629; McCray v. Illinois, 386 U.S. 300, 310, 87 S.Ct. 1056, 1062, 18 L.Ed.2d 62 (1967); Smith v. Illinois, 390 U.S. 129, 131, 88 S.Ct. 748, 749, 19 L.Ed.2d 956 (1968); Alford v. United States, 282 U.S. 687, 693, 51 S.Ct. 218, 220, 75 L.Ed. 624 (1931). Clearly, this system is not impervious to control by the judiciary and the decision whether to unmask an informer or to continue to profit by his anonymity is in public, not private, hands. We think that it should remain there and that public authorities should retain the options of either insisting on the informer's testimony relevant to the prosecution of crime or of seeking the benefit of further information that his exposure might prevent.
35
We are admonished that refusal to provide a First Amendment reporter's privilege will undermine the freedom of the press to collect and disseminate news. But this is not the lesson history teaches us. As noted previously, the common law recognized no such privilege, and the constitutional argument was not even asserted until 1958. From the beginning of our country the press has operated without constitutional protection for press informants, and the press has flourished. The existing constitutional rules have not been a serious obstacle to either the development or retention of confidential news sources by the press.37
36
It is said that currently press subpoenas have multiplied,38 that mutual distrust and tension between press and officialdom have increased, that reporting styles have changed, and that there is now more need for confidential sources, particularly where the press seeks news about minority cultural and political groups or dissident organizations suspicious of the law and public officials. These developments, even if true, are treacherous grounds for a far-reaching interpretation of the First Amendment fastening a nationwide rule on courts, grand juries, and prosecuting officials everywhere. The obligation to testify in response to grand jury subpoenas will not threaten these sources not involved with criminal conduct and without information relevant to grand jury investigations, and we cannot hold that the Constitution places the sources in these two categories either above the law or beyond its reach.
37
The argument for such a constitutional privilege rests heavily on those cases holding that the infringement of protected First Amendment rights must be no broader than necessary to achieve a permissible governmental purpose, see cases cited at n. 19, supra. We do not deal, however, with a governmental institution that has abused its proper function, as a legislative committee does when it 'expose(s) for the sake of exposure.' Watkins v. United States, 354 U.S. 178, 200, 77 S.Ct. 1173, 1185, 1 L.Ed.2d 1273 (1957). Nothing in the record indicates that these grand juries were 'prob(ing) at will and without relation to existing need.' DeGregory v. Attorney General of New Hampshire, 383 U.S. 825, 829, 86 S.Ct. 1148, 1151, 16 L.Ed.2d 292 (1966). Nor did the grand juries attempt to invade protected First Amendment rights by forcing wholesale disclosure of names and organizational affiliations for a purpose that was not germane to the determination of whether crime has been committed, cf. NAACP v. Alabama, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958); NAACP v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963); Bates v. Little Rock, 361 U.S. 516, 80 S.Ct. 412, 4 L.Ed.2d 480 (1960), and the characteristic secrecy of grand jury proceedings is a further protection against the undue invasion of such rights. See Fed.Rule CrimProc. 6(e). The investigative power of the grand jury is necessarily broad if its public responsibility is to be adequately discharged. Costello v. United States, 350 U.S. 359, at 364, 76 S.Ct. 406, at 409, 100 L.Ed. 397 (1956).
38
The requirements of those cases, see n. 18, supra, which hold that a State's interest must be 'compelling' or 'paramount' to justify even an indirect burden on First Amendment rights, are also met here. As we have indicated, the investigation of crime by the grand jury implements a fundamental governmental role of securing the safety of the person and property of the citizen, and it appears to us that calling reporters to give testimony in the manner and for the reasons that other citizens are called 'bears a reasonable relationship to the achievement of the governmental purpose asserted as its justification.' Bates v. Little Rock, supra, 361 U.S. at 525, 80 S.Ct. at 417. If the test is that the government 'convincingly show a substantial relation between the information sought and a subject of overriding and compelling state interest,' Gibson v. Florida Legislative Investigation Committee, 372 U.S. 539, 546, 83 S.Ct. 889, 894, 9 L.Ed.2d 929 (1963), it is quite apparent (1) that the State has the necessary interest in extirpating the traffic in illegal drugs, in forestalling assassination attempts on the President, and in preventing the community from being disrupted by violent disorders endangering both persons and property; and (2) that, based on the stories Branzburg and Caldwell wrote and Pappas' admitted conduct, the grand jury called these reporters as they would others—because it was likely that they could supply information to help the government determine whether illegal conduct had occurred and, if it had, whether there was sufficient evidence to return an indictment.
39
Similar considerations dispose of the reporters' claims that preliminary to requiring their grand jury appearance, the State must show that a crime has been committed and that they possess relevant information not available from other sources, for only the grand jury itself can make this determination. The role of the grand jury as an important instrument of offective law enforcement necessarily includes an investigatory function with respect to determining whether a crime has been committed and who committed it. To this end it must call witnesses, in the manner best suited to perform its task. 'When the grand jury is performing its investigatory function into a general problem area . . . society's interest is best served by a thorough and extensive investigation.' Wood v. Georgia, 370 U.S. 375, 392, 82 S.Ct. 1364, 1374, 8 L.Ed.2d 569 (1962). A grand jury investigation 'is not fully carried out until every available clue has been run down and all witnesses examined in every proper way to find if a crime has been committed.' United States v. Stone, 249 F.2d 138, 140 (C.A.2 1970). Such an investigation may be triggered by tips, rumors, evidence proffered by the prosecutor, or the personal knowledge of the grand jurors. Costello v. United States, 350 U.S., at 362, 76 S.Ct., at 408. It is only after the grand jury has examined the evidence that a determination of whether the proceeding will result in an indictment can be made.
40
'It is impossible to conceive that in such cases the examination of witnesses must be stopped until a basis is laid by an indictment formally preferred, when the very object of the examination is to ascertain who shall be indicted.' Hale v. Henkel, 201 U.S. 43, 65, 26 S.Ct. 370, 375, 50 L.Ed. 652 (1906).
41
See also Hendricks v. United States, 223 U.S. 178, 32 S.Ct. 313, 56 L.Ed. 394 (1912); Blair v. United States, 250 U.S., at 282 283, 39 S.Ct., at 471, 63 L.Ed. 979. We see no reason to hold that these reporters, any more than other citizens, should be excused from furnishing information that may help the grand jury in arriving at its initial determinations.
42
The privilege claimed here is conditional, not absolute; given the suggested preliminary showings and compelling need, the reporter would be required to testify. Presumably, such a rule would reduce the instances in which reporters could be required to appear, but predicting in advance when and in what circumstances they could be compelled to do so would be difficult. Such a rule would also have implications for the issuance of compulsory process to reporters at civil and criminal trials and at legislative hearings. If newsmen's confidential sources are as sensitive as they are claimed to be, the prospect of being unmasked whenever a judge determines the situation justifies it is hardly a satisfactory solution to the problem.39 For them, it would appear that only an absolute privilege would suffice.
43
We are unwilling to embark the judiciary on a long and difficult journey to such an uncertain destination. The administration of a constitutional newsman's privilege would present practical and conceptual difficulties of a high order. Sooner or later, it would be necessary to define those categories of newsmen who qualified for the privilege, a questionable procedure in light of the traditional doctrine that liberty of the press is the right of the lonely pamphleteer who uses carbon paper or a mimeograph just as much as of the large metropolitan publisher who utilizes the latest photocomposition methods. Cf. In re Grand Jury Witnesses, 322 F.Supp. 573, 574 (ND Cal.1970). Freedom of the press is a 'fundamental personal right' which 'is not confined to newspapers and periodicals. It necessarily embraces pamphlets and leaflets. . . . The press in its historic connotation comprehends every sort of publication which affords a vehicle of information and opinion.' Lovell v. City of Griffin, 303 U.S. 444, 450, 452, 58 S.Ct. 666, 669, 82 L.Ed. 949 (1938). See also Mills v. Alabama, 384 U.S. 214, 219, 86 S.Ct. 1434, 1437, 16 L.Ed.2d 484 (1966); Murdock v. Pennsylvania, 319 U.S. 105, 111, 63 S.Ct. 870, 874, 87 L.Ed. 1292 (1943). The informative function asserted by representatives of the organized press in the present cases is also performed by lecturers, political pollsters, novelists, academic researchers, and dramatists. Almost any author may quite accurately assert that he is contributing to the flow of information to the public, that he relies on confidential sources of information, and that these sources will be silenced if he is forced to make disclosures before a grand jury.40
44
In each instance where a reporter is subpoenaed to testify, the courts would also be embroiled in preliminary factual and legal determinations with respect to whether the proper predicate had been laid for the reporter's appearance: Is there probable cause to believe a crime has been committed? Is it likely that the reporter has useful information gained in confidence? Could the grand jury obtain the information elsewhere? Is the official interest sufficient to outweigh the claimed privilege?
45
Thus, in the end, by considering whether enforcement of a particular law served a 'compelling' governmental interest, the courts would be inextricably involved in distinguishing between the value of enforcing different criminal laws. By requiring testimony from a reporter in investigations involving some crimes but not in others, they would be making a value judgment that a legislature had declined to make, since in each case the criminal law involved would represent a considered legislative judgment, not constitutionally suspect, of what conduct is liable to criminal prosecution. The task of judges, like other officials outside the legislative branch, is not to make the law but to uphold it in accordance with their oaths.
46
At the federal level, Congress has freedom to determine whether a statutory newsman's privilege is necessary and desirable and to fashion standards and rules as narrow or broad as deemed necessary to deal with the evil discerned and, equally important, to refashion those rules as experience from time to time may dictate. There is also merit in leaving state legislatures free, within First Amendment limits, to fashion their own standards in light of the conditions and problems with respect to the relations between law enforcement officials and press in their own areas. It goes without saying, of course, that we are powerless to bar state courts from responding in their own way and construing their own constitutions so as to recognize a newsman's privilege, either qualified or absolute.
47
In addition, there is much force in the pragmatic view that the press has at its disposal powerful mechanisms of communication and is far from helpless to protect itself from harassment or substantial harm. Furthermore, if what the newsmen urged in these cases is true—that law enforcement cannot hope to gain and may suffer from subpoenaing newsmen before grand juries—prosecutors will be loath to risk so much for so little. Thus, at the federal level the Attorney General has already fashioned a set of rules for federal officials in connection with subpoenaing members of the press to testify before grand juries or at criminal trials.41 These rules are a major step in the direction the reporters herein desire to move. They may prove wholly sufficient to resolve the bulk of disagreements and controversies between press and federal officials.
48
Finally, as we have earlier indicated, news gathering is not without its First Amendment protections, and grand jury investigations if instituted or conducted other than in good faith, would pose wholly different issues for resolution under the First Amendment.42 Official harassment of the press undertaken not for purposes of law enforcement but to disrupt a reporter's relationship with his news sources would have no justification. Grand juries are subject to judicial control and subpoenas to motions to quash. We do not expect courts will forget that grand juries must operate within the limits of the First Amendment as well as the Fifth.
III
49
We turn, therefore, to the disposition of the cases before us. From what we have said, it necessarily follows that the decision in United States v. Caldwell, No. 70—57, must be reversed. If there is no First Amendment privilege to refuse to answer the relevant and material questions asked during a good-faith grand jury investigation, then it is a fortiori true that there is no privilege to refuse to appear before such a grand jury until the Government demonstrates some 'compelling need' for a newsman's testimony. Other issues were urged upon us, but since they were not passed upon by the Court of Appeals, we decline to address them in the first instance.
50
The decisions in No. 70—85, Branzburg v. Hayes and Branzburg v. Meigs, must be affirmed. Here, petitioner refused to answer questions that directly related to criminal conduct that he had observed and written about. The Kentucky Court of Appeals noted that marihuana is defined as a narcotic drug by statute, Ky.Rev.Stat. § 218.010(14) (1962), and that unlicensed possession or compounding of it is a felony punishable by both fine and imprisonment. Ky.Rev.Stat. § 218.210 (1962). It held that petitioner 'saw the commission of the statutory felonies of unlawful possession of marijuana and the unlawful conversion of it into hashish,' in Branzburg v. Pound, 461 S.W.2d, at 346. Petitioner may be presumed to have observed similar violations of the state narcotics laws during the research he did for the story that forms the basis of the subpoena in Branzburg v. Meigs. In both cases, if what petitioner wrote was true, he had direct information to provide the grand jury concerning the ommission of serious crimes.
51
The only question presented at the present time in In re Pappas, No. 70—94, is whether petitioner Pappas must appear before the grand jury to testify pursuant to subpoena. The Massachusetts Supreme Judicial Court characterized the record in this case as 'meager,' and it is not clear what petitioner will be asked by the grand jury. It is not even clear that he will be asked to divulge information received in confidence. We affirm the decision of the Massachusetts Supreme Judicial Court and hold that petitioner must appear before the grand jury to answer the questions put to him, subject, of course, to the supervision of the presiding judge as to 'the propriety, purposes, and scope of the grand jury inquiry and the pertinence of the probable testimony.' 358 Mass., at 614, 266 N.E.2d, at 303—304.
52
So ordered.
53
Judgment at 434 F.2d 1081 reversed; judgments at 461 S.W.2d 345 and 266 N.E.2d 297 affirmed.
54
Mr. Justice POWELL, concurring.
55
I add this brief statement to emphasize what seems to me to be the limited nature of the Court's holding. The Court does not hold that newsmen, subpoenaed to testify before a grand jury, are without constitutional rights with respect to the gathering of news or in safeguarding their sources. Certainly, we do not hold, as suggested in Mr. Justice STEWART's dissenting opinion, that state and federal authorities are free to 'annex' the news media as 'an investigative arm of government.' The solicitude repeatedly shown by this Court for First Amendment freedoms should be sufficient assurance against any such effort, even if one seriously believed that the media—properly free and untrammeled in the fullest sense of these terms—were not able to protect themselves.
56
As indicated in the concluding portion of the opinion, the Court states that no harassment of newsmen will be tolerated. If a newsman believes that the grand jury investigation is not being conducted in good faith he is not without remedy. Indeed, if the newsman is called upon to give information bearing only a remote and tenuous relationship to the subject of the investigation, or if he has some other reason to believe that his testimony implicates confidential source relationship without a legitimate need of law enforcement, he will have access to the court on a motion to quash and an appropriate protective order may be entered. The asserted claim to privilege should be judged on its facts by the striking of a proper balance between freedom of the press and the obligation of all citizens to give relevant testimony with respect to criminal conduct. The balance of these vital constitutional and societal interests on a case-by-case basis accords with the tried and traditional way of adjudicating such questions.*
57
In short, the courts will be available to newsmen under circumstances where legitimate First Amendment interests require protection.
58
Mr. Justice DOUGLAS, dissenting.
59
Caldwell, a black, is a reporter for the New York Times and was assigned to San Francisco with the hope that he could report on the activities and attitudes of the Black Panther Party. Caldwell in time gained the complete confidence of its members and wrote in-depth articles about them.
60
He was subpoenaed to appear and testify before a federal grand jury and to bring with him notes and tapes covering interviews with its members. A hearing on a motion to quash was held. The District Court ruled that while Caldwell had to appear before the grand jury, he did not have to reveal confidential communications unless the court was satisfied that there was a 'compelling and overriding national interest.' See Application of Caldwell, 311 F.Supp. 358, 362. Caldwell filed a notice of appeal and the Court of Appeals dismissed the appeal without opinion.
61
Shortly thereafter a new grand jury was impanelled and it issued a new subpoena for Caldwell to testify. On a motion to quash, the District Court issued an order substantially identical to its earlier one.
62
Caldwell refused to appear and was held in contempt. On appeal, the Court of Appeals vacated the judgment of contempt. It said that the revealing of confidential sources of information jeopardized a First Amendment freedom and that Caldwell did not have to appear before the grand jury absent a showing that there was a 'compelling and overriding national interest' in pursuing such an interrogation.
63
The District Court had found that Caldwell's knowledge of the activities of the Black Panthers 'derived in substantial part' from information obtained 'within the scope of a relationship of trust and confidence.' Id., at 361. It also found that confidential relationships of this sort are commonly developed and maintained by professional journalists, and are indispensable to their work of gathering, analyzing, and publishing the news.
64
The District Court further had found that compelled disclosure of information received by a journalist within the scope of such confidential relationships jeopardized those relationships and thereby impaired the journalist's ability to gather, analyze, and publish the news.
65
The District Court, finally, had found that, without a protective order delimiting the scope of interrogation of Earl Caldwell by the grand jury, his appearance and examination before the jury would severely impair and damage his confidential relationships with members of the Black Panther Party and other militants, and thereby severely impair and damage his ability to gather, analyze, and publish news concerning them; and that it would also damage and impair the abilities of all reporters to gather, analyze, and publish news concerning them.
66
The Court of Appeals agreed with the findings of the District Court but held that Caldwell did not have to appear at all before the grand jury absent a 'compelling need' shown by the Government. 9 Cir., 434 F.2d 1081.
67
It is my view that these is no 'compelling need' that can be shown which qualifies the reporter's immunity from appearing or testifying before a grand jury, unless the reporter himself is implicated in a crime. His immunity in my view is therefore quite complete, for, absent his involvement in a crime, the First Amendment protects him against an appearance before a grand jury and if he is involved in a crime, the Fifth Amendment stands as a barrier. Since in my view there is no area of inquiry not protected by a privilege, the reporter need not appear for the futile purpose of invoking one to each question. And, since in my view a newsman has an absolute right not to appear before a grand jury, it follows for me that a journalist who voluntarily appears before that body may invoke his First Amendment privilege to specific questions. The basic issue is the extent to which the First Amendment (which is applicable to investigating committees, Watkins v. United States, 354 U.S. 178, 77 S.Ct. 1173, 1 L.Ed.2d 1273; NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 463, 78 S.Ct. 1163, 1172, 2 L.Ed.2d 1488; Gibson v. Florida Legislative Investigation Committee, 372 U.S. 539, 83 S.Ct. 889, 9 L.Ed.2d 929; Baird v. State Bar of Arizona, 401 U.S. 1, 6—7, 91 S.Ct. 702, 705—707, 27 L.Ed.2d 639; In re Stolar, 401 U.S. 23, 91 S.Ct. 713, 27 L.Ed.2d 657) must yield to the Government's asserted need to know a reporter's unprinted information.
68
The starting point for decision pretty well marks the range within which the end result lies. The New York Times, whose reporting functions are at issue here, takes the amazing position that First Amendment rights are to be balanced against other needs or conveniences of government.1 My belief is that all of the 'balancing' was done by those who wrote the Bill of Rights. By casting the First Amendment in absolute terms, they repudiated the timid, watered-down, emasculated versions of the First Amendment which both the Government and the New York Times advance in the case.
69
My view is close to that of the late Alexander Meiklejohn:2
70
'For the understanding of these principles it is essential to keep clear the crucial difference between 'the rights' of the governed and 'the powers' of the governors. And at this point, the title 'Bill of Rights' is lamentably inaccurate as a designation of the first ten amendments. They are not a 'Bill or Rights' but a 'Bill of Powers and Rights.' The Second through the Ninth Amendments limit the powers of the subordinate agencies in order that due regard shall be paid to the private 'rights' of the governed.' The First and Tenth Amendments protect the governing 'powers' of the people from abridgment by the agencies which are established as their servants. In the field of our 'rights,' each one of us can claim 'due process of law.' In the field of our governing 'powers,' the notion of 'due process' is irrelevant.'
71
He also believed that '(s)elf-government can exist only insofar as the voters acquire the intelligence, integrity, sensitivity, and generous devotion to the general welfare that, in theory, casting a ballot is assumed to express,'3 and that '(p)ublic discussions of public issues, together with the spreading of information and opinion bearing on those issues, must have a freedom unabridged by our agents. Though they govern us, we, in a deeper sense, govern them. Over our governing, they have no power. Over their governing we have sovereign power.'4
72
Two principles which follow from this understanding of the First Amendment are at stake here. One is that the people, the ultimate governors, must have absolute freedom of, and therefore privacy of, their individual opinions and beliefs regardless of how suspect or strange they may appear to others. Ancillary to that principle is the conclusion that an individual must also have absolute privacy over whatever information he may generate in the course of testing his opinions and beliefs. In this regard, Caldwell's status as a reporter is less relevant than is his status as a student who affirmatively pursued empirical research to enlarge his own intellectual viewpoint. The second principle is that effective self-government cannot succeed unless the people are immersed in a steady, robust, unimpeded, and uncensored flow of opinion and reporting which are continuously subjected to critique, rebuttal, and re-examination. In this respect, Caldwell's status as a news-gatherer and an integral part of that process becomes critical.
73
* Government has many interests that compete with the First Amendment. Congressional investigations determine how existing laws actually operate or whether new laws are needed. While congressional committees have broad powers, they are subject to the restraints of the First Amendment. As we said in Watkins v. United States, 354 U.S., at 197, 77 S.Ct., at 1184: 'Clearly, an investigation is subject to the command that the Congress shall make no law abridging freedom of speech or press or assembly. While it is true that there is no statute to be reviewed, and that an investigation is not a law, nevertheless an investigation is part of lawmaking. It is justified solely as an adjunct to the legislative process. The First Amendment may be invoked against infringement of the protected freedoms by law or by lawmaking.'
74
Hence, matters of belief, ideology, religious practices, social philosophy, and the like are beyond the pale and of no rightful concern of government, unless the belief or the speech, or other expression has been translated into action. West Virginia State Board of Education v. Barnette, 319 U.S. 624, 642, 63 S.Ct. 1178, 1187, 87 L.Ed. 1628; Baird v. State Bar of Arizona, 401 U.S., at 6—7, 91 S.Ct., at 705—707; In re Stolar, 401 U.S. 23, 91 S.Ct. 713, 27 L.Ed.2d 657.
75
Also at stake here is Caldwell's privacy of association. We have held that '(i)nviolability of privacy in group association may in many circumstances be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs.' NAACP v. Alabama ex rel. Patterson, 357 U.S., at 462, 78 S.Ct., at 1172; NAACP v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405.
76
As I said in Gibson v. Florida Legislative Investigation Committee, 372 U.S., at 565, 83 S.Ct., at 903: 'the associational rights protected by the First Amendment . . . cover the entire spectrum in political ideology as well as in art, in journalism, in teaching, and in religion. . . . (G)overnment is . . . precluded from probing the intimacies of spiritual and intellectual relationships in the myriad of such societies and groups that exist in this country, regardless of the legislative purpose sought to be served. . . . If that is not true I see no barrier to investigation of newspapers, churches, political parties, clubs, societies, unions, and any other association for their political, economic, social, philosophical, or religious views.' (Concurring opinion.) (Emphasis added.)
77
The Court has not always been consistent in its protection of these First Amendment rights and has sometimes allowed a government interest to override the absolutes of the First Amendment. For example, under the banner of the 'clear and present danger' test,5 and later under the influence of the 'balancing' formula,6 the Court has permitted men to be penalized not for any harmful conduct but solely for holding unpopular beliefs.
78
In recent years we have said over and over again that where First Amendment rights are concerned any regulation 'narrowly drawn,'7 must be 'compelling' and not merely 'rational' as is the case where other activities are concerned.8 But the 'compelling' interest in regulation neither includes paring down or diluting the right, nor embraces penalizing one solely for his intellectual viewpoint; it concerns the State's interest, for example, in regulating the time and place or perhaps manner of exercising First Amendment rights. Thus, one has an undoubted right to read and proclaim the First Amendment in the classroom or in a park. But he would not have the right to blare it forth from a sound truck rolling through the village or city at 2 a.m. The distinction drawn in Cantwell v. Connecticut, 310 U.S. 296, 303—304, 60 S.Ct. 900, 903, 84 L.Ed. 1213 should still stand: '(T)he Amendment embraces two concepts, freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second cannot be.'9
79
Under these precedents there is no doubt that Caldwell could not be brought before the grand jury for the sole purpose of exposing his political beliefs. Yet today the Court effectively permits that result under the guise of allowing an attempt to elicit from him 'factual information.' To be sure, the inquiry will be couched only in terms of extracting Caldwell's recollection of what was said to him during the interviews, but the fact remains that his questions to the Panthers and therefore the respective answers were guided by Caldwell's own preconceptions and views about the Black Panthers. His entire experience was shaped by his intellectual viewpoint. Unlike the random bystander, those who affirmatively set out to test a hypothesis, as here, have no tidy means of segregating subjective opinion from objective facts.
80
Sooner or later, any test which provides less than blanket protection to beliefs and associations will be twisted and relaxed so as to provide virtually no protection at all. As Justice Holmes noted in Abrams v. United States, 250 U.S. 616, 624, 40 S.Ct. 17, 20, 63 L.Ed. 1173, such was the fate of the 'clear and present danger' test which he had coined in Schenck v. United States, 249 U.S. 47, 39 S.Ct. 247, 63 L.Ed. 470. Eventually, that formula was so watered down that the danger had to be neither clear nor present but merely 'not improbable.' Dennis v. United States, 341 U.S. 494, 510, 71 S.Ct. 857, 867, 95 L.Ed. 1137. See my concurring opinion in Brandenburg v. Ohio, 395 U.S. 444, 450, 89 S.Ct. 1827, 1831, 23 L.Ed.2d 430. A compelling-interest test may prove as pliable as did the clear-and-present-danger test. Perceptions of the worth of state objectives will change with the composition of the Court and with the intensity of the politics of the times. For example, in Uphaus v. Wyman, 360 U.S. 72, 79 S.Ct. 1040, 3 L.Ed.2d 1090, sustaining an attempt to compel a witness to divulge the names of participants in a summer political camp, Justice Brennan dissented on the ground that 'it is patent that there is really no subordinating interest . . . demonstrated on the part of the State.' Id., at 106, 79 S.Ct., at 1059. The majority, however, found that 'the governmental interest in self-preservation is sufficiently compelling to subordinate the interest in associational privacy . . ..' Id., at 81, 79 S.Ct., at 1046. That is to enter the world of 'make believe,' for New Hampshire, the State involved in Uphaus, was never in fear of being overthrown.
II
81
Today's decision will impede the wideopen and robust dissemination of ideas and counterthought which a free press both fosters and protects and which is essential to the success of intelligent self-government. Forcing a reporter before a grand jury will have two retarding effects upon the ear and the pen of the press. Fear of exposure will cause dissidents to communicate less openly to trusted reporters. And, fear of accountability will cause editors and critics to write with more restrained pens.
82
I see no way of making mandatory the disclosure of a reporter's confidential source of the information on which he bases his news story.
83
The press has a preferred position in our constitutional scheme, not to enable it to make money, not to set newsmen apart as a favored class, but to bring fulfillment to the public's right to know. The right to know is crucial to the governing powers of the people, to paraphrase Alexander Meiklejohn. Knowledge is essential to informed decisions.
84
As Mr. Justice Black said in New York Times Co. v. United States, 403 U.S. 713, 717, 91 S.Ct. 2140, 2143, 29 L.Ed.2d 822 (concurring opinion), 'The press was to serve the governed, not the governors. . . . The press was protected so that it could bare the secrets of government and inform the people.'
85
Government has an interest in law and order; and history shows that the trend of rulers—the bureaucracy and the police—is to suppress the radical and his ideas and to arrest him rather than the hostile audience. See Feiner v. New York, 340 U.S. 315, 71 S.Ct. 303, 95 L.Ed. 295. Yet, as held in Terminiello v. Chicago, 337 U.S. 1, 4, 69 S.Ct. 894, 896, 93 L.Ed. 1131, one 'function of free speech under our system of government is to invite dispute.' We went on to say, 'It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea.'
86
The people who govern are often far removed from the cabals that threaten the regime; the people are often remote from the sources of truth even though they live in the city where the forces that would undermine society operate. The function of the press is to explore and investigate events, inform the people what is going on, and to expose the harmful as well as the good influences at work. There is no higher function performed under our constitutional regime. Its performance means that the press is often engaged in projects that bring anxiety or even fear to the bureaucracies, departments, or officials of government. The whole weight of government is therefore often brought to bear against a paper or a reporter.
87
A reporter is no better than his source of information. Unless he has a privilege to withhold the identity of his source, he will be the victim of governmental intrigue or aggression. If he can be summoned to testify in secret before a grand jury, his sources will dry up and the attempted exposure, the effort to enlighten the public, will be ended. If what the Court sanctions today becomes settled law, then the reporter's main function in American society will be to pass on to the public the press releases which the various departments of government issue.
88
It is no answer to reply that the risk that a newsman will divulge one's secrets to the grand jury is no greater than the threat that he will in any event inform to the police. Even the most trustworthy reporter may not be able to withstand relentless badgering before a grand jury.10
89
The record in this case is replete with weighty affidavits from responsible newsmen, telling how important is the sanctity of their sources of information.11 When we deny newsmen that protection, we deprive the people of the information needed to run the affairs of the Nation in an intelligent way.
Madison said:
90
'A popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or, perhaps both. Knowledge will forever govern ignorance: And a people who mean to be their own Governors, must arm themselves with the power which knowledge gives.' (To W. T. Barry, Aug. 4, 1822). 9 Writings of James Madison 103. (G. Hunt ed. 1910).
91
Today's decision is more than a clog upon news gathering. It is a signal to publishers and editors that they should exercise caution in how they use whatever information they can obtain. Without immunity they may be summoned to account for their criticism. Entrenched officers have been quick to crash their powers down upon unfriendly commentators.12 E.g., New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686; Garrison v. Louisiana, 379 U.S. 64, 85 S.Ct. 209, 13 L.Ed.2d 125; Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811; Gravel v. United States, 408 U.S. 606, 92 S.Ct. 2614, 33 L.Ed.2d 583.
92
The intrusion of government into this domain is symptomatic of the disease of this society. As the years pass the power of government becomes more and more pervasive. It is a power to suffocate both people and causes. Those in power, whatever their politics, want only to perpetuate it. Now that the fences of the law and the tradition that has protected the press are broken down, the people are the victims. The First Amendment, as I read it, was designed precisely to prevent that tragedy.
93
I would also reverse the judgments in No. 70—85, Branzburg v. Hayes, and No. 70—94, In re Pappas, 408 U.S. 665, 92 S.Ct. 2646, for the reasons stated in the above dissent in No. 70—57, United States v. Caldwell.[725]
94
Mr. Justice STEWART, with whom Mr. Justice BRENNAN and Mr. Justice MARSHALL join, dissenting.
95
The Court's crabbed view of the First Amendment reflects a disturbing insensitivity to the critical role of an independent press in our society. The question whether a reporter has a constitutional right to a confidential relationship with his source is of first impression here, but the principles that should guide our decision are as basic as any to be found in the Constitution. While Mr. Justice POWELL'S enigmatic concurring opinion gives some hope of a more flexible view in the future, the Court in these cases holds that a newsman has no First Amendment right to protect his sources when called before a grand jury. The Court thus invites state and federal authorities to undermine the historic independence of the press by attempting to annex the journalistic profession as an investigative arm of government. Not only will this decision impair performance of the press' constitutionally protected functions, but it will, I am convinced, in the long run, harm rather than help the administration of justice.
96
I respectfully dissent.
97
* The reporter's constitutional right to a confidential relationship with his source stems from the broad societal interest in a full and free flow of information to the public. It is this basic concern that underlies the Constitution's protection of a free press, Grosjean v. American Press Co., 297 U.S. 233, 250, 56 S.Ct. 444, 449, 80 L.Ed. 660; New York Times Co. v. Sullivan, 376 U.S. 254, 269, 84 S.Ct. 710, 720, 11 L.Ed.2d 686,1 because the guarantee is 'not for the benefit of the press so much as for the benefit of all of us.' Time, Inc. v. Hill, 385 U.S. 374, 389, 87 S.Ct. 534, 543, 17 L.Ed.2d 456.2
98
Enlightened choice by an informed citizenry is the basic ideal upon which an open society is premised,3 and a free press is thus indispensable to a free society. Not only does the press enhance personal self-fulfillment by providing the people with the widest possible range of fact and opinion, but it also is an incontestable precondition of self-government. The press 'has been a mighty catalyst in awakening public interest in governmental affairs, exposing corruption among public officers and employees and generally informing the citizenry of public events and occurrences . . ..' Estes v. Texas, 381 U.S. 532, 539, 85 S.Ct. 1628, 1631, 14 L.Ed.2d 543; Mills v. Alabama, 384 U.S. 214, 219, 86 S.Ct. 1434, 1437, 16 L.Ed.2d 484; Grosjean, supra, 297 U.S. at 250, 56 S.Ct. at 449. As private and public aggregations of power burgeon in size and the pressures for conformity necessarily mount, there is obviously a continuing need for an independent press to disseminate a robust variety of information and opinion through reportage, investigation, and criticism, if we are to preserve our constitutional tradition of maximizing freedom of choice by encouraging diversity of expression.
99
In keeping with this tradition, we have held that the right to publish is central to the First Amendment and basic to the existence of constitutional democracy. Grosjean, supra, at 250, 56 S.Ct. at 449; New York Times, supra, 376 U.S. at 270, 84 S.Ct. at 720.
100
A corollary of the right to publish must be the right to gather news. The full flow of information to the public protected by the free-press guarantee would be severely curtailed if no protection whatever were afforded to the process by which news is assembled and disseminated. We have, therefore, recognized that there is a right to publish without prior governmental approval, Near v. Minnesota, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357; New York Times Co. v. United States, 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822, a right to distribute information, see, e.g., Lovell v. Griffin, 303 U.S., 444, 452, 58 S.Ct. 666, 669, 82 L.Ed. 949; Marsh v. Alabama, 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265; Martin v. City of Struthers, 319 U.S. 141, 63 S.Ct. 862, 87 L.Ed. 1313; Grosjean, supra, and a right to receive printed matter, Lamont v. Postmaster General, 381 U.S. 301, 85 S.Ct. 1493, 14 L.Ed.2d 398.
101
No less important to the news dissemination process is the gathering of information. News must not be unnecessarily cut off at its source, for without freedom to acquire information the right to publish would be impermissibly compromised. Accordingly, a right to gather news, of some dimensions, must exist. Zemel v. Rusk, 381 U.S. 1, 85 S.Ct. 1271, 14 L.Ed.2d 179.4 Note, The Right of the Press to Gather Information, 71 Col.L.Rev. 838 (1971). As Madison wrote: 'A popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or perhaps both.' 9 Writings of James Madison 103 (G. Hunt ed. 1910).
B
102
The right to gather news implies, in turn, a right to a confidential relationship between a reporter and his source. This proposition follows as a matter of simple logic once three factual predicates are recognized: (1) newsmen require informants to gather news; (2) confidentiality—the promise or understanding that names or certain aspects of communications will be kept off the record—is essential to the creation and maintenance of a news-gathering relationship with informants; and (3) an unbridled subpoena power—the absence of a constitutional right protecting, in any way, a confidential relationship from compulsary process will either deter sources from divulging information or deter reporters from gathering and publishing information.
103
It is obvious that informants are necessary to the news-gathering process as we know it today. If it is to perform its constitutional mission, the press must do far more than merely print public statements or publish prepared handouts. Familiarity with the people and circumstances involved in the myriad background activities that result in the final product called 'news' is vital to complete and responsible journalism, unless the press is to be a captive mouthpiece of 'newsmakers.'5
104
It is equally obvious that the promise of confidentiality may be a necessary prerequisite to a productive relationship between a newsman and his informants. An officeholder may fear his superior; a member of the bureaucracy, his associates; a dissident, the scorn of majority opinion. All may have information valuable to the public discourse, yet each may be willing to relate that information only in confidence to a reporter whom he trusts, either because of excessive caution or because of a reasonable fear of reprisals or censure for unorthodox views. The First Amendment concern must not be with the motives of any particular news source, but rather with the conditions in which informants of all shades of the spectrum may make information available through the press to the public. Cf. Talley v. California, 362 U.S. 60, 65, 80 S.Ct. 536, 539, 4 L.Ed.2d 559; Bates v. City of Little Rock, 361 U.S. 516, 80 S.Ct. 412, 4 L.Ed.2d 480; NAACP v. Alabama, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488.6
105
In Caldwell, the District Court found that 'confidential relationships . . . are commonly developed and maintained by professional journalists, and are indispensable to their work of gathering, analyzing and publishing the news.'7 Commentators and individual reporters have repeatedly noted the importance of confidentiality.8 And surveys among reporters and editors indicate that the promise of nondisclosure is necessary for many types of news gathering.9
106
Finally, and most important, when governmental officials possess an unchecked power to compel newsmen to disclose information received in confidence, sources will clearly be deterred from giving information, and reporters will clearly be deterred from publishing it, because uncertainty about exercise of the power will lead to 'self-censorship.' Smith v. California, 361 U.S. 147, 149—154, 80 S.Ct. 215, 216—219, 4 L.Ed.2d 205; New York Times Co. v. Sullivan, 376 U.S., at 279, 84 S.Ct., at 725. The uncertainty arises, of course, because the judiciary has traditionally imposed virtually no limitations on the grand jury's broad investigatory powers. See Antell, The Modern Grand Jury: Benighted Supergovernment, 51 A.B.A.J. 153 (1965). See also Part II, infra.
107
After today's decision, the potential informant can never be sure that his identity or off-the-record communications will not subsequently be revealed through the compelled testimony of a newsman. A public-spirited person inside government, who is not implicated in any crime, will now be fearful of revealing corruption or other governmental wrongdoing, because he will now know he can subsequently be identified by use of compulsory process. The potential source must, therefore, choose between risking exposure by giving information or avoiding the risk by remaining silent.
108
The reporter must speculate about whether contact with a controversial source or publication of controversial material will lead to a subpoena. In the event of a subpoena, under today's decision, the newsman will know that he must choose between being punished for contempt if he refuses to testify, or violating his profession's ethics10 and impairing his resourcefulness as a reporter if he discloses confidential information.11
109
Again, the commonsense understanding that such deterrence will occur is buttressed by concrete evidence. The existence of deterrent effects through fear and self-censorship was impressively developed in the District Court in Caldwell.12 Individual reporters13 and commentators14 have noted such effects. Surveys have verified that an unbridled subpoena power will substantially impair the flow of news to the public, especially in sensitive areas involving governmental officials, financial affairs, political figures, dissidents, or minority groups that require in-depth, investigative reporting.15 And the Justice Department has recognized that 'compulsory process in some circumstances may have a limiting effect on the exercise of First Amendment right.'16 No evidence contradicting the existence of such deterrent effects was offered at the trials or in the briefs here by the petitioner in Caldwell or by the respondents in Branzburg and Pappas.
110
The impairment of the flow of news cannot, of course, be proved with scientific precision, as the Court seems to demand. Obviously, not every news-gathering relationship requires confidentiality. And it is difficult to pinpoint precisely how many relationship do require a promise or understanding of nondisclosure. But we have never before demanded that First Amendment rights rest on elaborate empirical studies demonstrating beyond any conceivable doubt that deterrent effects exist; we have never before required proof of the exact number of people potentially affected by governmental action, who would actually be dissuaded from engaging in First Amendment activity.
111
Rather, on the basis of common sense and available information, we have asked, often implicitly, (1) whether there was a rational connection between the cause (the governmental action) and the effect (the deterrence or impairment of First Amendment activity), and (2) whether the effect would occur with some regularity, i.e., would not be de minimis. See, e.g., Grosjean v. American Press Co., 297 U.S., at 244—245, 56 S.Ct., at 446—447; Burstyn, Inc. v. Wilson, 343 U.S. 495, 503, 72 S.Ct. 777, 781, 96 L.Ed. 1098; Sweezy v. New Hampshire, 354 U.S. 234, 248, 77 S.Ct. 1203, 1210, 1 L.Ed.2d 1311 (plurality opinion); NAACP v. Alabama, 357 U.S., at 461—466, 78 S.Ct., at 1171—1174; Smith v. California, 361 U.S., at 150—154, 80 S.Ct., at 217—219; Bates v. City of Little Rock, 361 U.S., at 523 524, 80 S.Ct., at 416—417; Talley v. California, 362 U.S., at 64 65, 80 S.Ct., at 538—539; Shelton v. Tucker, 364 U.S. 479, 485 486, 81 S.Ct. 247, 250—251, 5 L.Ed.2d 231; Cramp v. Board of Public Instructions, 368 U.S. 278, 286, 82 S.Ct. 275, 280, 7 L.Ed.2d 285; NAACP v. Button, 371 U.S. 415, 431—438, 83 S.Ct. 328, 337—341, 9 L.Ed.2d 405; Gibson v. Florida Legislation Investigation Committee, 372 U.S. 539, 555—557, 83 S.Ct. 889, 898 899, 9 L.Ed.2d 929; New York Times Co. v. Sullivan, 376 U.S., at 277—278, 84 S.Ct., at 724—725; Freedman v. Maryland, 380 U.S. 51, 59, 85 S.Ct. 734, 739, 13 L.Ed.2d 649; DeGregory v. Attorney General of New Hampshire, 383 U.S. 825, 86 S.Ct. 1148, 16 L.Ed.2d 292; Elfbrandt v. Russell, 384 U.S. 11, 16—19, 86 S.Ct. 1238, 1240 1242, 16 L.Ed.2d 321. And, in making this determination, we have shown a special solicitude towards the 'indispensable liberties' protected by the First Amendment, NAACP v. Alabama, supra, 357 U.S., at 461, 78 S.Ct. at 1171; Bantam Books, inc. v. Sullivan, ,372 U.S. 58, 66, 83 S.Ct. 631, 637, 9 L.Ed.2d 584, for '(f)reedoms such as these are protected not only against heavy-handed frontal attack, but also from being stifled by more subtle governmental interference.' Bates, supra, 361 U.S., at 523, 80 S.Ct., at 416.17 Once this threshold inquiry has been satisfied, we have then examined the competing interests in determining whether there is an unconstitutional infringement of First Amendment freedoms.
112
For example, in NAACP v. Alabama, supra, we found that compelled disclosure of the names of those in Alabama who belonged to the NAACP 'is likely to affect adversely the ability (of the NAACP) and its members to pursue their . . . beliefs which they admittedly have the right to advocate, in that it may induce members to withdraw from the Association and dissuade others from joining it because of fear of exposure of their beliefs shown through their associations and of the consequences of this exposure.' Id., at 462—463, 78 S.Ct., at 1172. In Talley, supra, we held invalid a city ordinance that forbade circulation of any handbill that did not have the distributor's name on it, for there was 'no doubt that such an identification requirement would tend to restrict freedom to distribute information and thereby freedom of expression.' Id., 362 U.S., at 64, 80 S.Ct., at 538. And in Burstyn, Inc., supra, we found deterrence of First Amendment activity inherent in a censor's power to exercise unbridled discretion under an overbroad statute. Id., 343 U.S., at 503, 72 S.Ct., at 781.
113
Surely the analogous claim of deterrence here is as securely grounded in evidence and common sense as the claims in the cases cited above, although the Court calls the claim 'speculative.' See ante, at 694. The deterrence may not occur in every confidential relationship between a reporter and his source.18 But it will certainly occur in certain types of relationships involving sensitive and controversial matters. And such relationships are vital to the free flow of information.
114
To require any greater burden of proof is to shirk our duty to protect values securely embedded in the Constitution. We cannot await an unequivocal—and therefore unattainable—imprimatur from empirical studies.19 We can and must accept the evidence developed in the record, and elsewhere, that overwhelmingly supports the premise that deterrence will occur with regularity in important types of news-gathering relationships.20
115
Thus, we cannot escape the conclusion that when neither the reporter nor his source can rely on the shield of confidentiality against unrestrained use of the grand jury's subpoena power, valuable information will not be published and the public dialogue will inevitably be impoverished.
II
116
Posed against the First Amendment's protection of the newsman's confidential relationships in these cases is society's interest in the use of the grand jury to administer justice fairly and effectively. The grand jury serves two important functions: 'to examine into the commission of crimes' and 'to stand between the prosecutor and the accused, and to determine whether the charge was founded upon credible testimony or was dictated by malice or personal ill will.' Hale v. Henkel, 201 U.S. 43, 59, 26 S.Ct. 370, 373, 50 L.Ed. 652. And to perform these functions the grand jury must have available to it every man's relevant evidence. See Blair v. United States, 250 U.S 273, 281, 39 S.Ct. 468, 471, 63 L.Ed. 979; Blackmer v. United States, 284 U.S. 421, 438, 52 S.Ct. 252, 255, 76 L.Ed. 375.
117
Yet the longstanding rule making every person's evidence available to the grand jury is not absolute. The rule has been limited by the Fifth Amendment,21 the Fourth Amendment,22 and the evidentiary privileges of the common law.23 So it was that in Blair, supra, after recognizing that the right against compulsory self-incrimination prohibited certain inquiries, the Court noted that 'some confidential matters are shielded from considerations of policy, and perhaps in other cases for special reasons a witness may be excused from telling all that he knows.' Id., 250 U.S. at 281, 39 S.Ct. at 471 (emphasis supplied). And in United States v. Bryan, 339 U.S. 323, 70 S.Ct. 724, 94 L.Ed. 844, the Court observed that any exemption from the duty to testify before the grand jury 'presupposes a very real interest to be protected.' Id., at 332, 70 S.Ct. at 731.
118
Such an interest must surely be the First Amendment protection of a confidential relationship that I have discussed above in Part I. As noted there, this protection does not exist for the purely private interests of the newsman or his informant, nor even, at bottom, for the First Amendment interests of either partner in the news-gathering relationship.24 Rather, it functions to insure nothing less than democratic decisionmaking through the free flow of information to the public, and it serves, thereby, to honor the 'profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.' New York Times Co. v. Sullivan, 376 U.S., at 270, 84 S.Ct., at 721.
119
In striking the proper balance between the public interest in the efficient administration of justice and the First Amendment guarantee of the fullest flow of information, we must begin with the basic proposition that because of their 'delicate and vulnerable' nature, NAACP v. Button, 371 U.S., at 433, 83 S.Ct., at 338, and their transcendent importance for the just functioning of our society, First Amendment rights require special safeguards.
A.
120
This Court has erected such safeguards when government, by legislative investigation or other investigative means, has attempted to pierce the shield of privacy inherent in freedom of association.25 In no previous case have we considered the extent to which the First Amendment limits the grand jury subpoena power. But the Court has said that '(t)he Bill of Rights is applicable to investigations as to all forms of governmental action. Witnesses cannot be compelled to give evidence against themselves. They cannot be subjected to unreasonable search and seizure. Nor can the First Amendment freedoms of speech, press . . . or political belief and association be abridged.' Watkins v. United States, 354 U.S. 178, 188, 77 S.Ct. 1173, 1179, 1 L.Ed.2d 1273. And in Sweezy v. New Hampshire, it was stated: 'It is particularly important that the exercise of the power of compulsory process be carefully circumscribed when the investigative process tends to impinge upon such highly sensitive areas as freedom of speech or press, freedom of political association, and freedom of communication of ideas.' 354 U.S., at 245, 77 S.Ct., at 1209 (plurality opinion).
121
The established method of 'carefully' circumscribing investigative powers is to place a heavy burden of justification on government officials when First Amendment rights are impaired. The decisions of this Court have 'consistently held that only a compelling state interest in the regulation of a subject within the State's constitutional power to regulate can justify limiting First Amendment freedoms.' NAACP v. Button, 371 U.S., at 438, 83 S.Ct., at 341. And 'it is an essential prerequisite to the validity of an investigation which intrudes into the area of constitutionally protected rights of speech, press, association and petition that the State convincingly show a substantial relation between the information sought and a subject of overriding and compelling state interest.' Gibson v. Florida Legislative Investigation Committee, 372 U.S., at 546, 83 S.Ct., at 894 (emphasis supplied). See also DeGregory v. Attorney General of New Hampshire, 383 U.S. 825, 86 S.Ct. 1148, 16 L.Ed.2d 292; NAACP v. Alabama, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488; Sweezy, supra; Watkins, supra.
122
Thus, when an investigation impinges on First Amendment rights, the government must not only show that the inquiry is of 'compelling and overriding importance' but it must also 'convincingly' demonstrate that the investigation is 'substantially related' to the information sought.
123
Governmental officials must, therefore, demonstrate that the information sought is clearly relevant to a precisely defined subject of governmental inquiry. Watkins, supra; Sweezy, supra.26 They must demonstrate that it is reasonable to think the witness in question has that information. Sweezy, supra; Gibson, supra.27 And they must show that there is not any means of obtaining the information less destructive of First Amendment liberties. Shelton v. Tucker, 364 U.S., at 488, 81 S.Ct., at 252; Louisiana ex rel. Gremillion v. NAACP, 366 U.S. 293, 296—297, 81 S.Ct. 1333, 1335 1336, 6 L.Ed.2d 301.28
124
These requirements, which we have recognized in decisions involving legislative and executive investigations, serve established policies reflected in numerous First Amendment decisions arising in other contexts. The requirements militate against vague investigations that, like vague laws, create uncertainty and needlessly discourage First Amendment activity.29 They also insure that a legitimate governmental purpose will not be pursued by means that 'broadly stifle fundamental personal liberties when the end can be more narrowly achieved.' Shelton, supra, 364 U.S. at 488, 81 S.Ct. at 252.30 As we said in Gibson, supra, 'Of course, a legislative investigation as any investigation—must proceed 'step by step,' . . . but step by step or in totality, an adequate foundation for inquiry must be laid before proceeding in such a manner as will substantially intrude upon and severely curtail or inhibit constitutionally protected activities or seriously interfere with similarly protected associational rights.' 372 U.S., at 557, 83 S.Ct., at 899.
125
I believe the safeguards developed in our decisions involving governmental investigations must apply to the grand jury inquiries in these cases. Surely the function of the grand jury to aid in the enforcement of the law is no more important than the function of the legislature, and its committees, to make the law. We have long recognized the value of the role played by legislative investigations, see e.g., United States v. Rumely, 345 U.S. 41, 43, 73 S.Ct. 543, 544, 97 L.Ed. 770; Barenblatt v. United States, 360 U.S. 109, 111—112, 79 S.Ct. 1081, 1085, 3 L.Ed.2d 1115, for the 'power of the Congress to conduct investigations is inherent . . . (encompassing) surveys of defects in our social, economic or political system for the purpose of enabling the Congress to remedy them.' Watkins, supra, 354 U.S., at 187, 77 S.Ct., at 1179. Similarly, the associational rights of private individuals, which have been the prime focus of our First Amendment decisions in the investigative sphere, are hardly more important than the First Amendment rights of mass circulation newspapers and electronic media to disseminate ideas and information, and of the general public to receive them. Moreover, the vices of vagueness and overbreadth that legislative investigations may manifest are also exhibited by grand jury inquiries, since grand jury investigations are not limited in scope to specific criminal acts, see e.g., Wilson v. United States, 221 U.S. 361, 31 S.Ct. 538, 55 L.Ed. 771; Hendricks v. United States, 223 U.S. 178, 184, 32 S.Ct. 313, 316, 56 L.Ed. 394; United States v. Johnson, 319 U.S. 503, 63 S.Ct. 1233, 87 L.Ed. 1546, and since standards of materiality and relevance are greatly relaxed. Holt v. United States, 218 U.S. 245, 31 S.Ct. 2, 54 L.Ed. 1021; Costello v. United States, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397. See generally Note, The Grand Jury as an Investigatory Body, 74 Harv.L.Rev. 590, 591—592 (1961).31 For, as the United States notes in its brief in Caldwell, the grand jury 'need establish no factual basis for commencing an investigation, and can pursue rumors which further investigation may prove groundless.'
126
Accordingly, when a reporter is asked to appear before a grand jury and reveal confidences, I would hold that the government must (1) show that there is probable cause to believe that the newsman has information that is clearly relevant to a specific probable violation of law;32 (2) demonstrate that the information sought cannot be obtained by alternative means less destructive of First Amendment rights; and (3) demonstrate a compelling and overriding interest in the information.33
127
This is not to say that a grand jury could not issue a subpoena until such a showing were made, and it is not to say that a newsman would be in any way privileged to ignore any subpoena that was issued. Obviously, before the government's burden to make such a showing were triggered, the reporter would have to move to quash the subpoena, asserting the basis on which he considered the particular relationship a confidential one.
B
128
The crux of the Court's rejection of any newsman's privilege is its observation that only 'where news sources themselves are implicated in crime or possess information relevant to the grand jury's task need they or the reporter be concerned about grand jury subpoenas.' See ante, at 691 (emphasis supplied). But this is a most misleading construct. For it is obviously not true that the only persons about whom reporters will be forced to testify will be those 'confidential informants involved in actual criminal conduct' and those having 'information suggesting illegal conduct by others.' See ante, at 691, 693. As noted above, given the grand jury's extraordinarily broad investigative powers and the weak standards of relevance and materiality that apply during such inquiries, reporters, if they have no testimonial privilege, will be called to give information about informants who have neither committed crimes nor have information about crime. It is to avoid deterrence of such sources and thus to prevent needless injury to First Amendment values that I think the government must be required to show probable cause that the newsman has information that is clearly relevant to a specific probable violation of criminal law.34
129
Similarly, a reporter may have information from a confidential source that is 'related' to the commission of crime, but the government may be able to obtain an indictment or otherwise achieve its purposes by subpoenaing persons other than the reporter. It is an obvious but important truism that when government aims have been fully served, there can be no legitimate reason to disrupt a confidential relationship between a reporter and his source. To do so would not aid the administration of justice and would only impair the flow of information to the public. Thus, it is to avoid deterrence of such sources that I think the government must show that there are no alternative means for the grand jury to obtain the information sought.
130
Both the 'probable cause' and 'alternative means' requirements would thus serve the vital function of mediating between the public interest in the administration of justice and the constitutional protection of the full flow of information. These requirements would avoid a direct conflict between these competing concerns, and they would generally provide adequate protection for newsmen. See Part III, infra.35 No doubt the courts would be required to make some delicate judgments in working out this accommodation. But that, after all, is the function of courts of law. Better such judgments, however difficult, than the simplistic and stultifying absolutism adopted by the Court in denying any force to the First Amendment in these cases.36
131
The error in the Court's absolute rejection of First Amendment interests in these cases seems to me to be most profound. For in the name of advancing the administration of justice, the Court's decision, I think, will only impair the achievement of that goal. People entrusted with law enforcement responsibility, no less than private citizens, need general information relating to controversial social problems. Obviously, press reports have great value to government, even when the newsman cannot be compelled to testify before a grand jury. The sad paradox of the Court's position is that when a grand jury may exercise an unbridled subpoena power, and sources involved in sensitive matters become fearful of disclosing information, the newsman will not only cease to be a useful grand jury witness; he will cease to investigate and publish information about issues of public import. I cannot subscribe to such an anomalous result, for, in my view, the interests protected by the First Amendment are not antagonistic to the administration of justice. Rather, they can, in the long run, only be complementary, and for that reason must be given great 'breathing space.' NAACP v. Button, 371 U.S., at 433, 83 S.Ct., at 338.
III
132
In deciding what protection should be given to information a reporter receives in confidence from a news source, the Court of Appeals for the Ninth Circuit affirmed the holding of a District Court that the grand jury power of testimonial compulsion must not be exercised in a manner likely to impair First Amendment interests 'until there has been a clear showing of a compelling and overriding national interest that cannot be served by any alternative means.' Caldwell v. United States, 434 F.2d 1081, 1086. It approved the request of respondent Caldwell for specification by the government of the 'subject, direction or scope of the Grand Jury inquiry.' Id., at 1085. And it held that in the circumstances of this case Caldwell need not divulge confidential information.
133
I think this decision was correct. On the record before us the United States has not met the burden that I think the appropriate newsman's privilege should require.
134
In affidavits before the District Court, the United States said it was investigating possible violations of 18 U.S.C. § 871 (threats against the President), 18 U.S.C. § 1751 (assassination, attempts to assassinate, conspiracy to assassinate the President), 18 U.S.C. § 231 (civil disorders), 18 U.S.C. § 2101 (interstate travel to incite a riot), 18 U.S.C. § 1341 (mail fraud and swindles) and other crimes that were not specified. But, with one exception, there has been no factual showing in this case of the probable commission of, or of attempts to commit, any crimes.37 The single exception relates to the allegation that a Black Panther Party leader, David Hilliard, violated 18 U.S.C. § 871 during the course of a speech in November 1969. But Caldwell was subpoenaed two months after an indictment was returned against Hilliard, and that charge could not, subsequent to the indictment, be investigated by a grand jury. See In re National Window Glass Workers, D.C. 287 F. 219; United States v. Dardi, 2 Cir., 330 F.2d 316, 336.38 Furthermore, the record before us does not show that Caldwell probably had any information about the violation of any other federal criminal laws,39 or that alternative means of obtaining the desired information were pursued.40
135
In the Caldwell case, the Court of Appeals further found that Caldwell's confidential relationship with the leaders of the Black Panther Party would be impaired if he appeared before the grand jury at all to answer questions, even though not privileged. Caldwell v. United States, 434 F.2d, at 1088. On the particular facts before it,41 the court concluded that the very appearance by Caldwell before the grand jury would jeopardize his relationship with his sources, leading to a severance of the news-gathering relationship and impairment of the flow of news to the public:42
136
'Appellant asserted in affidavit that there is nothing to which he could testify (beyond that which he has already made public and for which, therefore, his appearance is unnecessary) that is not protected by the District Court's order. If this is true—and the Government apparently has not believed it necessary to dispute it—appellant's response to the subpoena would be a barren performance—one of no benefit to the Grand Jury. To destroy appellant's capacity as news gatherer for such a return hardly makes sense. Since the cost to the public of excusing his attendance is so slight, it may be said that there is here no public interest of real substance in competition with the First Amendment freedoms that are jeopardized.
137
'If any competing public interest is ever to arise in a case such as this (where First Amendment liberties are threatened by mere appearance at a Grand Jury investigation) it will be on an occasion in which the witness, armed with his privilege, can still serve a useful purpose before the Grand Jury. Considering the scope of the privilege embodied in the protective order, these occasions would seem to be unusual. It is not asking too much of the Government to show that such an occasion is presented here.' Id., at 1089.
138
I think this ruling was also correct in light of the particularized circumstances of the Caldwell case. Obviously, only in very rare circumstances would a confidential relationship between a reporter and his source be so sensitive that mere appearance before the grand jury by the newsman would substantially impair his news-gathering function. But in this case, the reporter made out a prima facie case that the flow of news to the public would be curtailed. And he stated, without contradiction, that the only nonconfidential material about which he could testify was already printed in his newspaper articles.43 Since the United States has not attempted to refute this assertion, the appearance of Caldwell would, on these facts, indeed be a 'barren performance.' But this aspect of the Caldwell judgment I would confine to its own facts. As the Court of Appeals appropriately observed: '(T) he rule of this case is a narrow one. . . .' Caldwell, supra, at 1090.
139
Accordingly, I would affirm the judgment of the Court of Appeals in No. 70—57, United States v. Caldwell.44 In the other two cases before us, No. 70—85, Branzburg v. Hayes and Meigs, and No. 70—94, In re Pappas, I would vacate the judgments and remand the cases for further proceedings not inconsitent with the views I have expressed in this opinion.
1
The article contained the following paragraph: "I don't know why I'm letting you do this story,' (one informant) said quietly. 'To make the narcs (narcotics detectives) mad, I guess. That's the main reason.' However, Larry and his partner asked for and received a promise that their names would be changed.' App. 3 4.
2
The Foreman of the grand jury reported that petitioner Branzburg had refused to answer the following two questions: '#1. On November 12, or 13, 1969, who was the person or persons you observed in possession of Marijuana, about which you wrote an article in the Courier-Journal on November 15, 1969? #2. On Novebmer 12, or 13, 1969, who was the person or persons you observed compounding Marijuana, producing same to a compound known as Hashish?' App. 6.
3
Judge J. Miles Pound. The respondent in this case, Hon. John P. Hayes, is the successor of Judge Pound.
4
Ky.Rev.Stat. § 421.100 provides:
'No person shall be compelled to disclose in any legal proceeding or trial before any court, or before any grand or petit jury, or before the presiding officer of any tribunal, or his agent or agents, or before the General Assembly, or any committee thereof, or before any city or county legislative body, or any committee thereof, or elsewhere, the source of any information procured or obtained by him, and published in a newspaper or by a radio or television broadcasting station by which he is engaged or employed, or with which he is connected.'
5
Petitioner's Motion to Quash argued: 'If Mr. Branzburg were required to disclose these confidences to the Grand Jury, or any other person, he would thereby destroy the relationship of trust which he presently enjoys with those in the drug culture. They would refuse to speak to him; they would become even more reluctant than they are now to speak to any newsman; and the news media would thereby vitally hampered in their ability to cover the views and activities of those involved in the drug culture.
'The inevitable effect of the subpoena issued to Mr. Branzburg, if it not be quashed by this Court, will be to suppress vital First Amendment freedoms of Mr. Branzburg, of the Courier-Journal, of the news media, and of those involved in the drug culture by driving a wedge of distrust and silence between the news media and the drug culture. This Court should not sanction a use of its process entailing so drastic an incursion upon First Amendment freedoms in the absence of compelling Commonwealth interest in requiring Mr. Branzburg's apearance before the Grand Jury. It is insufficient merely to protect Mr. Branzburg's right to silence after he appears before the Grand Jury. This Court should totally excuse Mr. Branzburg from responding to the subpoena and even entering the Grand Jury room. Once Mr. Branzburg is required to go behind the closed doors of the Grand Jury room, his effectiveness as a reporter in these areas is totally destroyed. The secrecy that surrounds Grand Jury testimony necessarily introduces uncertainties in the minds of those who fear a betrayal of their confidences.' App. 43—44.
6
After the Kentucky Court of Appeals' decision in Branzburg v. Meigs was announced, petitioner filed a rehearing motion in Branzburg v. Pound suggesting that the court had not passed upon his First Amendment argument and calling to the court's attention the recent Ninth Circuit decision in Caldwell v. United States, 434 F.2d 1081 (1970). On Jan. 22, 1971, the court denied petitioner's motion and filed an amended opinion in the case, adding a footnote, 461 S.W.2d 345, at 346 n. 1, to indicate that petitioner had abandoned his First Amendment argument and elected to rely wholly on Ky.Rev.Stat. § 421.100 when he filed a Supplemental Memorandum before oral argument. In his Petition for Prohibition and Mandamus, petitioner had clearly relied on the First Amendment, and he had filed his Supplemental Memorandum in response to the State's Memorandum in Opposition to the granting of the writs. As its title indicates, this Memorandum was complementary to petitioner's earlier Petition, and it dealt primarily with the State's construction of the phrase 'source of any information' in Ky.Rev.Stat. § 421.100. The passage that the Kentucky Court of Appeals cited to indicate abandonment of petitioner's First Amendment claim is as follows:
'Thus, the controversy continues as to whether a newsman's source of information should be privileged. However, that question is not before the Court in this case. The Legislature of Kentucky has settled the issue, having decided that a newsman's source of information is to be privileged. Because of this there is no point in citing Professor Wigmore and other authorities who speak against the grant of such a privilege. The question has been many times debated, and the Legislature has spoken. The only question before the Court is the construction of the term 'source of information' as it was intended by the Legislature.'
Though the passage itself is somewhat unclear, the surrounding discussion indicates that petitioner was asserting here that the question of whether a common-law privilege should be recognized was irrelevant since the legislature had already enacted a statute. In his earlier discussion, petitioner had analyzed certain cases in which the First Amendment argument was made but indicated that it was not necessary to reach this question if the statutory phrase 'source of any information' were interpreted expansively. We do not interpret this discussion as indicating that petitioner was abandoning his First Amendment claim if the Kentucky Court of Appeals did not agree with his statutory interpretation argument, and we hold that the constitutional question in Branzburg v. Pound was properly preserved for review.
7
Petitioner's news films of this event were made available to the Bristol County District Attorney. App. 4.
8
The case was reported by the superior court directly to the Supreme Judicial Court for an interlocutory ruling under Mass.Gen.Laws, c. 278, § 30A and Mass.Gen.Laws, c. 231, § 111 (1959). The Supreme Judicial Court's decision appears at 358 Mass. 604, 266 N.E.2d 297 (1971).
9
'We do not have before us the text of any specific questions which Pappas has refused to answer before the grand jury, or any petition to hold him for contempt for his refusal. We have only general statements concerning (a) the inquiries of the grand jury, and (b) the materiality of the testimony sought from Pappas. The record does not show the expected nature of his testimony or what likelihood there is of being able to obtain that testimony from persons other than news gatherers.' 358 Mass., at 606—607, 266 N.E.2d, at 299 (footnote omitted).
10
The court expressly declined to consider, however, appearances of newsmen before legislative or administrative bodies. Id., at 612 n. 10, 266 N.E.2d, at 303 n. 10.
11
The court noted that 'a presiding judge may consider in his discretion' the argument that the use of newsmen as witnesses is likely to result in unnecessary or burdensome use of their work product, id., at 614 n. 13, 266 N.E.2d, at 304 n. 13, and cautioned that: 'We do not suggest that a general investigation of mere political or group association of persons, without substantial relation to criminal events, may not be viewed by a judge in a somewhat different manner from an investigation of particular criminal events concerning which a newsman may have knowledge.' Id., at 614 n. 14, 266 N.E.2d, at 304 n. 14.
12
The subpoena ordered production of '(n)otes and tape recordings of interviews covering the period from January 1, 1969, to date, reflecting statements made for publication by officers and spokesmen for the Black Panther Party concerning the aims and purposes of said organization and the activities of said organization, its officers, staff, personnel, and members, including specifically but not limited to interviews given by David Hilliard and Raymond 'Masai' Hewitt.' App. 20.
13
The New York Times was granted standing to intervene as a party on the motion to quash the subpoenas. Application of Caldwell, 311 F.Supp. 358, 359 (ND Cal. 1970). It did not file an appeal from the District Court's contempt citation, and it did not seek certiorari here. It has filed an amicus curiae brief, however.
14
Respondent appealed from the District Court's April 6 denial of his motion to quash on April 17, 1970, and the Government moved to dismiss that appeal on the ground that the order was interlocutory. On May 12, 1970, the Ninth Circuit dismissed the appeal without opinion.
15
The Government did not file a cross-appeal and did not challenge the validity of the District Court protective order in the Court of Appeals.
16
The petition presented a single question: 'Whether a newspaper reporter who has published articles about an organization can, under the First Amendment, properly refuse to appear before a grand jury investigating possible crimes by members of that organization who have been quoted in the published articles.'
17
Curtis Publishing Co. v. Butts, 388 U.S. 130, 145, 87 S.Ct. 1975, 1986, 18 L.Ed.2d 1094 (1967) (opinion of Harlan, J.); New York Times Co. v. Sullivan, 376 U.S. 254, 270, 84 S.Ct. 710, 720, 11 L.Ed.2d 686 (1964); Talley v. California, 362 U.S. 60, 64 65, 80 S.Ct. 536, 538—539, 4 L.Ed.2d 559 (1960); Bridges v. California, 314 U.S. 252, 263, 62 S.Ct. 190, 194, 86 L.Ed. 192 (1941); Grosjean v. American Press Co., 297 U.S. 233, 250, 56 S.Ct. 444, 449, 80 L.Ed. 660 (1936); Near v. Minnesota, 283 U.S. 697, 722, 51 S.Ct. 625, 633, 75 L.Ed. 1357 (1931).
18
NAACP v. Button, 371 U.S. 415, 439, 83 S.Ct. 328, 341, 9 L.Ed.2d 405 (1963); Thomas v. Collins, 323 U.S. 516, 530, 65 S.Ct. 315, 322, 89 L.Ed. 430 (1945); DeGregory v. Attorney General of New Hampshire, 383 U.S. 825, 829, 86 S.Ct. 1148, 1151, 16 L.Ed.2d 292 (1966); Bates v. Little Rock, 361 U.S. 516, 524, 80 S.Ct. 412, 417, 4 L.Ed.2d 480 (1960); Schneider v. State, 308 U.S. 147, 161, 60 S.Ct. 146, 150, 84 L.Ed. 155 (1939); NAACP v. Alabama, 357 U.S. 449, 464, 78 S.Ct. 1163, 1173, 2 L.Ed.2d 1488 (1958).
19
Freedman v. Maryland, 380 U.S. 51, 56, 85 S.Ct. 734, 737, 13 L.Ed.2d 649 (1965); NAACP v. Alabama, 377 U.S. 288, 307, 84 S.Ct. 1302, 1313, 12 L.Ed.2d 325 (1964); Martin v. City of Struthers, 319 U.S. 141, 147, 63 S.Ct. 862, 865, 87 L.Ed. 1313 (1943); Elfbrandt v. Russell, 384 U.S. 11, 18, 86 S.Ct. 1238, 1241, 16 L.Ed.2d 321 (1966).
20
There has been a great deal of writing in recent years on the existence of a newsman's constitutional right of nondisclosure of confidential information. See, e.g., Beaver, The Newsman's Code, The Claim of Privilege and Everyman's Right to Evidence, 47 Ore.L.Rev. 243 (1968); Guest & Stanzler, The Constitutional Argument for Newsmen Concealing Their Sources, 64 Nw.U.L.Rev. 18 (1969); Note, Reporters and Their Sources: The Constitutional Right to a Confidential Relationship, 80 Yale L.J. 317 (1970); Comment, The Newsman's Privilege: Government Investigations, Criminal Prosecutions and Private Litigation, 58 Calif.L.Rev. 1198 (1970); Note, The Right of the Press to Gather Information, 71 Col.L.Rev. 838 (1971); Nelson, The Newsmen's Privilege Against Disclosure of Confidential Sources and Information, 24 Vand.L.Rev. 667 (1971).
21
'In general, then, the mere fact that a communication was made in express confidence, or in the implied confidence of a confidential relation, does not create a privilege.
'. . . No pledge of privacy nor oath of secrecy can avail against demand for the truth in a court of justice.' 8 J. Wigmore, Evidence § 2286 (McNaughton rev. 1961). This was not always the rule at common law, however. In 17th century England, the obligations of honor among gentlemen were occasionally recognized as privileging from compulsory disclosure information obtained in exchange for a promise of confidence. See Bulstrod v. Letchmere, 2 Freem. 6, 22 Eng.Rep. 1019 (1676); Lord Grey's Trial, 9 How.St.Tr. 127 (1682).
22
'There are few restrictions on action which could not be clothed by ingenious argument in the garb of decreased data flow. For example, the prohibition of unauthorized entry into the White House diminishes the citizen's opportunities to gather information he might find relevant to his opinion of the way the country is being run, but that does not make entry into the White House a First Amendment right.' 381 U.S., at 16—17, 85 S.Ct., at 1281.
23
'Historically, (the grand jury) has been regarded as a primary security to the innocent against hasty, malicious and oppressive persecution; it serves the invaluable function in our society of standing between the accuser and the accused . . . to determine whether a charge is founded upon reason or was dictated by an intimidating power or by malice and personal ill will.' Wood v. Georgia, 370 U.S. 375, 390, 82 S.Ct. 1364, 1373, 8 L.Ed.2d 569 (1962) (footnote omitted).
24
It has been held that 'infamous' punishments include confinement at hard labor, United States v. Moreland, 258 U.S. 433, 42 S.Ct. 368, 66 L.Ed. 700 (1922); incarceration in a penitentiary, Mackin v. United States, 117 U.S. 348, 6 S.Ct. 777, 29 L.Ed. 909 (1886); and imprisonment for more than a year, Barkman v. Sanford, 162 F.2d 592 (CA5), cert. denied, 332 U.S. 816, 68 S.Ct. 155, 92 L.Ed. 393 (1947). Fed.Rule Crim.Proc. 7(a) has codified these holdings: 'An offense which may be punished by death shall be prosecuted by indictment. An offense which may be punished by imprisonment for a term exceeding one year or at hard labor shall be prosecuted by indictment, or, if indictment is waived, it may be prosecuted by information. Any other offense may be prosecuted by indictment or by information.'
25
Although indictment by grand jury is not part of the due process of law guaranteed to state criminal defendants by the Fourteenth Amendment, Hurtado v. California, 110 U.S. 516, 4 S.Ct. 111, 28 L.Ed. 232 (1884), a recent study reveals that 32 States require that certain kinds of criminal prosecutions he initiated by indictment. Spain, the Grand Jury, Past and Present: A Survey, 2 Am.Crim.L.Q. 119, 126—142 (1964). In the 18 States in which the prosecutor may proceed by information, the grand jury is retained as an alternative means of invoking the criminal process and as an investigative tool. Ibid.
26
Jeremy Bentham vividly illustrated this maxim:
'Are men of the first rank and consideration—are men high in office—men whose time is not less valuable to the public than to themselves—are such men to be forced to quit their business, their functions, and what is more than all, their pleasure, at the beck of every idle or malicious adversary, to dance attendance upon every petty cause? Yes, as far as it is necessary, they and everybody. . . . Were the Prince of Wales, the Archbishop of Canterbury, and the Lord High Chancellor, to be passing by in the same coach, while a chimney-sweeper and a barrow-woman were in dispute about a halfpennyworth of apples, and the chimney-sweeper or the barrow-woman were to think proper to call upon them for their evidence, could they refuse it? No, most certainly.' 4 The Works of Jeremy Bentham 320—321 (J. Bowring ed. 1843).
In United States v. Burr, 25 Fed.Cas. pp. 30, 34 (No. 14,692d) (C.C.Va.1807), Chief Justice Marshall, sitting on Circuit, opined that in proper circumstances a subpoena could be issued to the President of the United States.
27
Thus far, 17 States have provided some type of statutory protection to a newsman's confidential sources:
Ala.Code, Tit. 7, § 370 (1960); Alaska Stat. § 09.25.150 (Supp.1971); Ariz.Rev.Stat.Ann. § 12—2337 (Supp.1971—1972); Ark.Stat.Ann. § 43—917 (1964); Cal.Evid.Code § 1070 (Supp.1972); Ind.Ann.Stat. § 2—1733 (1968), IC 1971, 34—3—5—1; Ky.Rev.Stat. § 421.100 (1962); La.Rev.Stat.Ann. §§ 45:1451—45:1454 (Supp.1972); Md.Ann.Code, art. 35, § 2 (1971); Mich.Comp.Laws § 767.5a (Supp.1956), Mich.Stat.Ann. § 28.945(1) (1954); Mont.Rev.Codes Ann. § 93—601—2 (1964); Nev.Rev.Stat. § 49.275 (1971); N.J.Rev.Stat. §§ 2A:84A—21, 2A:84A—29 (Supp.1972—1973); N.M.Stat.Ann. § 20—1—12.1 (1970); N.Y.Civil Rights Laws, McKinney's Consol.Laws, c. 6, § 79—h (Supp.1971—1972); Ohio Rev.Code Ann. § 2739.12 (1954); Pa.Stat.Ann., Tit. 28, § 330 (Supp.1972—1973).
28
Such legislation has been introduced, however. See, e.g., S. 1311, 92d Cong., 1st Sess. (1971); S. 3552, 91st Cong., 2d Sess. (1970); H.R. 16328, H.R. 16704, 91st Cong., 2d Sess. (1970); S. 1851, 88th Cong., 1st Sess. (1963); H.R. 8519, H.R. 7787, 88th Cong., 1st Sess. (1963); S. 965, 86th Cong., 1st Sess. (1959); H.R. 355, 86th Cong., 1st Sess. (1959). For a general analysis of proposed congressional legislation, see Staff of Sentate Committee on the Judiciary, 89th Cong., 2d Sess., The Newsman's Privilege (Comm. Print 1966).
29
The creation of new testimonial privileges has been met with disfavor by commentators since such privileges obstruct the search for truth. Wigmore condemns such privileges as 'so many derogations from a positive general rule (that everyone is obligated to testify when properly summoned)' and as 'obstacle(s) to the administration of justice.' 8 J. Wigmore, Evidence § 2192 (McNaughton rev. 1961). His criticism that 'all privileges of exemption from this duty are exceptional, and are therefore to be discountenanced,' id., at § 2192, p. 73 (emphasis in original) has been frequently echoed. Morgan, Foreward, Model Code of Evidence 22—30 (1942); 2 Z. Chafee, Government and Mass Communications 496 497 (1947); Report of ABA Committee on Improvements in the Law of Evidence, 63 A.B.A. Reports 595 (1938); C. McCormick, Evidence 159 (2d ed. 1972); Chafee, Privileged Communications: Is justice Served or Obstructed by Closing the Doctor's Mouth on the Witness Stand?, 52 Yale L.J. 607 (1943); Ladd, Privileges, 1969 Law & the Social Order 555, 556; 58 Am.Jur., Witnesses § 546 (1948); 97 C.J.S. Wtinesses § 259 (1957); McMann v. Securities and Exchange Commission, 87 F.2d 377, 378 (CA2 1937) (L. Hand, J.). Neither the ALI's Model Code of Evidence (1942), the Uniform Rules of Evidence of the National Conference of Commissioners on Uniform State Laws (1953), nor the Proposed Rules of Evidence for the United States Courts and Magistrates (rev. ed. 1971) has included a newsman's privilege.
30
The holding in this case involved a construction of the Contempt of Court Act of 1831, 4 Stat. 487, which permitted summary trial of contempts 'so near (to the court) as to obstruct the administration of justice.' The Court held that the Act required only that the conduct have a 'direct tendency to prevent and obstruct the discharge of judicial duty.' 247 U.S., at 419, 38 S.Ct., at 564. This view was overruled and the Act given a much narrower reading in Nye v. United States, 313 U.S. 33, 47—52, 61 S.Ct. 810, 815—817, 85 L.Ed. 1172 (1941). See Bloom v. Illinois, 391 U.S. 194, 205—206, 88 S.Ct. 1477, 1484—1485, 20 L.Ed.2d 522 (1968).
31
Respondent Caldwell attached a number of affidavits from prominent newsmen to his initial motion to quash, which detail the experiences of such journalists after they have been subpoenaed. Appendix to No. 70—57, pp. 22—61.
32
Cf. e.g., the results of a study conducted by Guest & Stanzler, which appears as an appendix to their article, supra, n. 20. A number of editors of daily newspapers of varying circulation were asked the question, 'Excluding one-or two-sentence gossip items, on the average how many stories based on information received in confidence are published in your paper each year? Very rough estimate.' Answers varied significantly, e.g., 'Virtually innumerable,' Tucson Daily Citizen (41,969 daily circ.), 'Too many to remember,' Los Angeles Herald-Examiner (718,221 daily circ.), 'Occasionally,' Denver Post (252,084 daily circ.), 'Rarely,' Cleveland Plain Dealer (370,499 daily circ.), 'Very rare, some politics,' Oregon Journal (146,403 daily circ.). This study did not purport to measure the extent of deterrence of informants caused by subpoenas to the press.
33
In his Press Subpoenas: An Empirical and legal Analysis, Study Report of the Reporters' Committee on Freedom of the Press 6 12, Prof. Vince Blasi discusses these methodological problems. Prof. Blasi's survey found that slightly more than half of the 975 reporters questioned said that they relied on regular confidential sources for at least 10% of their stories. Id., at 21. Of this group of reporters, only 8% were able to say with some certainty that their professional functioning had been adversely affected by the threat of subpoena; another 11% were not certain whether or not they had been adversely affected. Id., at 53.
34
See Statute of Westminster First, 3 Edw. 1, c. 9, p. 43 (1275); Statute of Westminster Second, 13 Edw. 1, c. 6, pp. 114 115 (1285); Sheriffs Act of 1887, 50 & 51 Vict., c. 55, § 8(1); 4 W. Blackstone, Commentaries *293—295; 2 W. Holdsworth, History of English Law 80—81, 101—102 (3d ed. 1927); 4 id., at 521—522.
35
See, e.g., Scrope's Case, referred to in 3 Coke's Institute 36; Rex v. Cowper, 5 Mod. 206, 87 Eng.Rep. 611 (1969); Proceedings under a Special Commission for the County of York, 31 How.St.Tr. 965, 969 (1813); Sykes v. Director of Public Prosecutions, (1961) 3 W.L.R. 371. But see Glazebrook, Misprision of Felony—Shadow or Phantom?, 8 Am.J.Legal Hist. 189 (1964). See also Act 5 & 6 Edw. 6, c. 11 (1552).
36
This statute has been contrued, however, to require both knowledge of a crime and some affirmative act of concealment or participation. Bratton v. United States, 73 F.2d 795 (CA10 1934); United States v. Farrar, 38 F.2d 515, 516 (Mass.), aff'd on other grounds, 281 U.S. 624, 50 S.Ct. 425, 74 L.Ed. 1078 (1930); United States v. Norman, 391 F.2d 212 (CA6), cert. denied, 390 U.S. 1014, 88 S.Ct. 1265, 20 L.Ed.2d 163 (1968); Lancey v. United States, 356 F.2d 407 (CA9), cert. denied, 385 U.S. 922, 87 S.Ct. 234, 17 L.Ed.2d 145 (1966). Cf. Marbury v. Brooks, 7 Wheat. 556, 575, 5 L.Ed. 522 (1822) (Marshall, C.J).
37
Though the constitutional argument for a newsman's privilege has been put forward very recently, newsmen have contended for a number of years that such a privilege was desirable. See, e.g., Siebert & Ryniker, Press Winning Fight to Guard Sources, Editor & Publisher, Sept. 1, 1934, pp. 9, 36—37; G. Bird & F. Merwin, The Press and Society 592 (1971). The first newsman's privilege statute was enacted by Maryland in 1896, and currently is codified as Md.Ann.Code Art. 35, § 2 (1971).
38
A list of recent subpoenas to the news media is contained in the appendix to the brief of amicus New York Times in No. 70 57.
39
'Under the case-by-case method of developing rules, it will be difficult for potential informants and reporters to predict whether testimony will be compelled since the decision will turn on the judge's ad hoc assessment in different fact settings of 'importance' or 'relevance' in relation to the free press interest. A 'general' deterrent
effect is likely to result. This type of effect stems from the vagueness of the tests and from the uncertainty attending their application. For example, if a reporter's information goes to the 'heart of the matter' in Situation X, another reporter and informant who subsequently are in Situation Y will not know if 'heart of the matter rule X' will be extended to them, and deterrence will thereby result. Leaving substantial discretion with judges to delineate those 'situations' in which rules of 'relevance' or 'importance' apply would therefore seem to undermine significantly the effectiveness of a reporter-informer privilege.' Note, Reporters and Their Sources: The Constitutional Right to a Confidential Relationship, 80 Yale L.J. 317, 341 (1970).
In re Grand Jury Witnesses, 322 F.Supp. 573 (ND Cal.1970), illustrates the impact of this ad hoc approach. Here, the grand jury was, as in Caldwell, investigating the Black Panther Party, and was 'inquiring into matters which involve possible violations of Congressional acts passed to protect the person of the President (18 U.S.C. § 1751), to free him from threats (18 U.S.C. § 871), to protect our armed forces from unlawful interference (18 U.S.C. § 2387), conspiracy to commit the foregoing offenses (18 U.S.C. § 371), and related statutes prohibiting acts directed against the security of the government.' Id., at 577. The two witnesses, reporters for a Black Panther Party newspaper, were subpoenaed and given Fifth Amendment immunity against criminal prosecution, and they claimed a First Amendment journalist's privilege. The District Court entered a protective order, allowing them to refuse to divulge confidential information until the the Government demonstrated 'a compelling and overriding national interest in requiring the testimony of (the witnesses) which cannot be served by any alternative means.' Id., at 574. The Government claimed that it had information that the witnesses had associated with persons who had conspired to perform some of the criminal acts that the grand jury was investigating. The court held the Government had met its burden and ordered the witnesses to testify:
'The whole point of the investigation is to identify persons known to the (witnesses) who may have engaged in activities violative of the above indicated statutes, and also to ascertain the details of their alleged unlawful activities. All questions directed to such
objectives of the investigation are unquestionably relevant, and any other evaluation thereof by the Court without knowledge of the facts before the Grand Jury would clearly constitute 'undue interference of the Court." Id., at 577.
Another illustration is provided by State v. Knops, 49 Wis.2d 647, 183 N.W.2d 93 (1971), in which a grand jury was investigating the August 24, 1970, bombing of Sterling Hall on the University of Wisconsin Madison campus. On August 26, 1970, an 'underground' newspaper, the Madison Kaleidoscope, printed a front-page story entitled 'The Bombers Tell Why and What Next—Exclusive to Kaleidoscope.' An editor of the Kaleidoscope was subpoenaed, appeared, asserted his Fifth Amendment right against self-incrimination, was given immunity, and then pleaded that he had a First Amendment privilege against disclosing his confidential informants. The Wisconsin Supreme Court rejected his claim and upheld his contempt sentence: '(Appellant) faces five very narrow and specific questions, all of which are founded on information which he himself has already volunteered. The purpose of these questions is very clear. The need for answers to them is 'overriding,' to say the least. The need for these answers is nothing short of the public's need (and right) to protect itself from physical attack by apprehending the perpetrators of such attacks.' 49 Wis.2d, at 658, 183 N.W.2d, at 98—99.
40
Such a privilege might be claimed by groups that set up newspapers in order to engage in criminal activity and to therefore be insulated from grand jury inquiry, regardless of Fifth Amendment grants of immunity. It might appear that such 'sham' newspapers would be easily distinguishable, yet the First Amendment ordinarily prohibits courts from inquiring into the content of expression, except in cases of obscenity or libel, and protects speech and publications regardless of their motivation, orthodoxy, truthfulness, timeliness, or taste. New York Times Co. v. Sullivan, 376 U.S. 254, at 269—270, 84 S.Ct. 710, at 720—721, 11 L.Ed.2d 686; Kingsley International Pictures Corp. v. Regents, 360 U.S. 684, 689, 79 S.Ct. 1362, 1365, 3 L.Ed.2d 1512 (1959); Winters v. New York 333 U.S. 507, 510, 68 S.Ct. 665, 667, 92 L.Ed. 840 (1948); Thomas v. Collins, 323 U.S. 516, at 537, 65 S.Ct. 315, at 326, 89 L.Ed. 430. By affording a privilege to some organs of communication but not to others, courts would inevitably be discriminating on the basis of content.
41
The Guidelines for Subpoenas to the News Media were first announced in a speech by the Attorney General on August 10, 1970, and then were expressed in Department of Justice Memo. No. 692 (Sept. 2, 1970), which was sent to all United States Attorneys by the Assistant Attorney General in charge of the Criminal Division. The Guidelines state that: 'The Department of Justice recognizes that compulsory process in some circumstances may have a limiting effect on the exercise of First Amendment rights. In determining whether to request issuance of a subpoena to the press, the approach in every case must be to weigh that limiting effect against the public interest to be served in the fair administration of justice' and that: 'The Department of Justice does not consider the press 'an investigative arm of the government.' Therefore, all reasonable attempts should be made to obtain information from non-press sources before there is any consideration of subpoenaing the press.' The Guidelines provide for negotiations with the press and require the express authorization of the Attorney General for such subpoenas. The principles to be applied in authorizing such subpoenas are stated to be whether there is 'sufficient reason to believe that the information sought (from the journalist) is essential to a successful investigation,' and whether the Government has unsuccessfully attempted to obtain the information from alternative non-press sources. The Guidelines provide, however, that in 'emergencies and other unusual situations,' subpoenas may be issued which do not exactly conform to the Guidelines.
42
Cf. Younger v. Harris, 401 U.S. 37, 49, 53—54, 91 S.Ct. 746, 753, 754—755, 27 L.Ed.2d 669 (1971).
*
It is to be remembered tha tCaldwell asserts a constitutional privilege not even to appear before the grand jury unless a court decides that the Government has made a showing that meets the three preconditions specified in the dissenting opinion of Mr. Justice Stewart. To be sure, this would require a 'balancing' of interests by the court, but under circumstances and constraints significantly different from the balancing that will be appropriate under the court's decision. The newsman witness, like all other witnesses, will have to appear; he will not be in a position to litigate at the threshold the State's very authority to subpoena him. Moreover, absent the constitutional preconditions that Caldwell and that dissenting opinion would impose as heavy burdens of proof to be carried by the State, the court—when called upon to protect a newsman from improper or prejudicial questioning would be free to balance the competing interests on their merits in the particular case. The new constitutional rule endorsed by that dissenting opinion would, as a practical matter, defeat such a fair balancing and the essential societal interest in the detection and prosecution of crime would be heavily subordinated.
1
'The three minimal tests we contend must be met before testimony divulging confidences may be compelled from a reporter are these: 1. The government must clearly show that there is probable cause to believe that the reporter possesses information which is specifically relevant to a specific probable violation of law. 2. The government must clearly show that the information it seeks cannot be obtained by alternative means, which is to say, from sources other than the reporter. 3. The government must clearly demonstrate a compelling and overriding interest in the information.' Brief for New York Times as Amicus Curiae 29.
2
The First Amendment Is An Absolute, 1961 Sup.Ct.Rev. 245, 254.
3
Id., at 255.
4
Id., at 257.
5
E.g., Schenck v. United States, 249 U.S. 47, 39 S.Ct. 247, 63 L.Ed. 470 (wartime antidraft 'leafleting'); Debs v. United States, 249 U.S. 211, 39 S.Ct. 252, 63 L.Ed. 566 (wartime anti-draft speech); Abrams v. United States, 250 U.S. 616, 40 S.Ct. 17, 63 L.Ed. 1173 (wartime leafleting calling for general strike); Feiner v. New York, 340 U.S. 315, 71 S.Ct. 303, 95 L.Ed. 295 (arrest of radical speaker without attempt to protect him from hostile audience); Dennis v. United States, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137 (reformulation of test as 'not improbable' rule to sustain conviction of knowing advocacy of overthrow); Scales v. United States, 367 U.S. 203, 81 S.Ct. 1469, 6 L.Ed.2d 782 (knowing membership in group which espouses forbidden advocacy is punishable). For a more detailed account of the infamy of the 'clear and present danger' test see my concurring opinion in Brandenburg v. Ohio, 395 U.S. 444, 450, 89 S.Ct. 1827, 1831, 23 L.Ed.2d 430.
6
E.g., Adler v. Board of Education, 342 U.S. 485, 72 S.Ct. 380, 96 L.Ed. 517 (protection of schools from 'pollution' outweighs public teachers' freedom to advocate violent overthrow); Uphaus v. Wyman, 360 U.S. 72, 79, 81, 79 S.Ct. 1040, 1045, 1046, 3 L.Ed.2d 1090 (preserving security of New Hampshire from subversives
outweighs privacy of list of participants in suspect summer camp); Barenblatt v. United States, 360 U.S. 109, 79 S.Ct. 1081, 3 L.Ed.2d 1115 (legislative inquiry more important than protecting HUAC witness' refusal to answer whether a third person had been a Communist); Wilkinson v. United States, 365 U.S. 399, 81 S.Ct. 567, 5 L.Ed.2d 633 (legislative inquiry more important than protecting HUAC witness' refusal to state whether he was currently a member of the Communist Party); Braden v. United States, 365 U.S. 431, 435, 81 S.Ct. 584, 587, 5 L.Ed.2d 653 (legislative inquiry more important than protecting HUAC witness' refusal to state whether he had once been a member of the Communist Party); Konigsberg v. State Bar, 366 U.S. 36, 81 S.Ct. 997, 6 L.Ed.2d 105 (regulating membership of bar outweighs interest of applicants in refusing to answer question concerning Communist affiliations); In re Anastaplo, 366 U.S. 82, 81 S.Ct. 978, 6 L.Ed.2d 135 (regulating membership of bar outweighs protection of applicant's belief in Declaration of Independence that citizens should revolt against an oppressive government); Communist Party v. Subversive Activities Control Board, 367 U.S. 1, 81 S.Ct. 1357, 6 L.Ed.2d 625 (national security outweighs privacy of association of leaders of suspect groups); Law Students Civil Rights Research Council v. Wadmond, 401 U.S. 154, 91 S.Ct. 720, 27 L.Ed.2d 749 (regulating membership of bar outweighs privacy of applicants' views on the soundness of the Constitution).
7
Thus, we have held 'overbroad' measures which unduly restricted the time, place, and manner of expression. Schneider v. State, 308 U.S. 147, 161, 60 S.Ct. 146, 150, 84 L.Ed. 155 (anti-leafleting law); Thornhill v. Alabama, 310 U.S. 88, 102, 60 S.Ct. 736, 744, 84 L.Ed. 1093 (anti-boycott statute); Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213 (breach-of-peace measure); Cox v. Louisiana, 379 U.S. 536, 85 S.Ct. 453, 13 L.Ed.2d 471 (breach-of-peace measure); Edwards v. South Carolina, 372 U.S. 229, 83 S.Ct. 680, 9 L.Ed.2d 697 (breach-of-peace statute); Cohen v. California, 403 U.S. 15, 22, 91 S.Ct. 1780, 1786, 29 L.Ed.2d 284 (breach-of-peace statute); Gooding v. Wilson, 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408 (breach-of-peace statute). But insofar as penalizing the content of thought and opinion is concerned, the Court has not in recent Terms permitted any interest to override the absolute privacy of one's philosophy. To be sure, opinions have often adverted to the absence of a compelling justification for attempted intrusions into philosophical or associational privacy. E.g., Bates v. Little Rock, 361 U.S. 516, 523, 80 S.Ct. 412, 416, 4 L.Ed.2d 480 (disclosure of NAACP membership lists to city officials); Gibson v. Florida Legislative Investigation
Committee, 372 U.S. 539, 546, 83 S.Ct. 889, 893, 9 L.Ed.2d 929 (disclosure of NAACP membership list to state legislature); DeGregory v. Attorney General of New Hampshire, 383 U.S. 825, 829, 86 S.Ct. 1148, 1151, 16 L.Ed.2d 292 (witness' refusal to state whether he had been a member of the Communist Party three years earlier); Baird v. State Bar of Arizona, 401 U.S. 1, 6—7, 91 S.Ct. 702, 705—707, 27 L.Ed.2d 639 (refusal of bar applicant to state whether she had been a member of the Communist Party); In re Stolar, 401 U.S. 23, 91 S.Ct. 713, 27 L.Ed.2d 657 (refusal of bar applicant to state whether he was 'loyal' to the Government); see also Street v. New York, 394 U.S. 576, 89 S.Ct. 1354, 22 L.Ed.2d 572 (expression of disgust for flag). Yet, while the rhetoric of these opinions did not expressly embrace an absolute privilege for the privacy of opinions and philosophy, the trend of those results was not inconsistent with and in their totality appeared to be approaching such a doctrine. Moreover, in another group of opinions invalidating for overbreadth intrusions into the realm of belief and association, there was no specification of whether a danger test, a balancing process, an absolute doctrine, or a compelling justification inquiry had been used to detect invalid applications comprehended by the challenged measures. E.g., Wieman v. Updegraff, 344 U.S. 183, 73 S.Ct. 215, 97 L.Ed. 216 (loyalty test which condemned mere unknowing membership in a suspect group); Shelton v. Tucker, 364 U.S. 479, 81 S.Ct. 247, 5 L.Ed.2d 231 (requirement that public teachers disclose all affiliations); Louisiana ex rel. Gremillion v. NAACP, 366 U.S. 293, 296, 81 S.Ct. 1333, 1335, 6 L.Ed.2d 301 (disclosure of NAACP membership lists); Whitehill v. Elkins, 389 U.S. 54, 59, 88 S.Ct. 184, 186, 19 L.Ed.2d 228 (nonactice membership in a suspect group a predicate for refusing employment as a public teacher); United States v. Robel, 389 U.S. 258, 88 S.Ct. 419, 19 L.Ed.2d 508 (mere membership in Communist Party a sole ground for exclusion from employment in defense facility). Regrettably, the vitality of the overdue trend toward a complete privilege in this area has been drawn into question by quite recent decisions of the Court, Law Students Civil Rights Research Council v. Wadmond, 401 U.S. 154, 91 S.Ct. 720, 27 L.Ed.2d 749, holding that bar applicants may be turned away for refusing to disclose their opinions on the soundness of the Constitution; Cole v. Richardson, 405 U.S. 676, 92 S.Ct. 1332, 31 L.Ed.2d 593, sustaining an oath required of public employees that they will 'oppose' a violent overthrow; and, of course, by today's decision.
8
Where no more than economic interests were affected this Court has upheld legislation only upon a showing that it was 'rationally connected' to some permissible state objective. E.g.,
United States v. Carolene Products Co., 304 U.S. 144, 152, 58 S.Ct. 778, 783, 82 L.Ed. 1234; Goesaert v. Cleary, 335 U.S. 464, 69 S.Ct. 198, 93 L.Ed. 163; Williamson v. Lee Optical Co., 348 U.S. 483, 75 S.Ct. 461, 99 L.Ed. 563; McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393; McDonald v. Board of Election Com'rs, 394 U.S. 802, 89 S.Ct. 1404, 22 L.Ed.2d 739; United States v. Maryland Savings-Share Ins. Corp., 400 U.S. 4, 91 S.Ct. 16, 27 L.Ed.2d 4; Richardson v. Belcher, 404 U.S. 78, 92 S.Ct. 254, 30 L.Ed.2d 231; Schilb v. Kuebel, 404 U.S. 357, 92 S.Ct. 479, 30 L.Ed.2d 502.
9
The majority cites several cases which held that certain burdens on the press were permissible despite incidental burdens on its news-gathering ability. For example, see Sheppard v. Maxwell, 384 U.S. 333, 358, 86 S.Ct. 1507, 1509, 16 L.Ed.2d 600. Even assuming that those cases were rightly decided, the fact remains that in none of them was the Government attempting to extract personal belief from a witness and the privacy of a citizen's personal intellectual viewpoint was not implicated.
10
'The secrecy of the (grand jury's) proceedings and the possibility of a jail sentence for contempt so intimidate the witness that he may be led into answering questions which pry into his personal life and associations and which, in the bargain, are frequently immaterial and vague. Alone and faced by either hostile or apathetic grand juries, the witness is frequently undone by his experience. Life in a relatively open society makes him especially vulnerable to a secret appearance before a body that is considering criminal charges. And the very body toward which he could once look for protection has become a weapon of the prosecution. When he seeks protective guidance from his lawyer he learns that the judicial broadening of the due process which has occurred in the past two decades has largely ignored grand jury matters, precisely because it was assumed that the grand jury still functioned as a guardian of the rights of potential defendants.' Donner & Cerruti, The Grand Jury Network: How the Nixon Administration Has Secretly Perverted A Traditional Safeguard of Individual Rights, 214 The Nation 5, 6 (1972).
11
It is said that 'we remain unclear how often and to what extent informers are actually deterred from furnishing information when newsmen are forced to testify before a grand jury.' 408 U.S., at 693, 92 S.Ct., at 2662. But the majority need look no further than its holdings that prosecutors need not disclose informers' names because disclosure would (a) terminate the usefulness of an exposed informant inasmuch as others would no longer confide in him, and (b) it would generally inhibit persons from becoming confidential informers. McCray v. Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62; Scher v. United States, 305 U.S. 251, 59 S.Ct. 174, 83 L.Ed. 151; cf. Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639.
12
For a summary of early reprisals against the press, such as the John Peter Zenger trial, the Alien and Sedition Acts prosecutions, and Civil War suppression of newspapers, see Press Freedoms Under Pressure, Report of the Twentieth Century Fund Task Force on the Government and the Press 3—5 (1972). We have not outlived the tendency of officials to retaliate against critics. For recent examples see J. Wiggins, Freedom or Secrecy 87 (1956) ('New Mexico, in 1954, furnished a striking example of government reprisal against . . . a teacher in the state reform school (who) wrote a letter to the New Mexican, confirming stories it had printed about mistreatment of inmates by guards. . . . (Two days later he) was notified of his dismissal.'); Note, The Right of Government Employees to Furnish Information to Congress: Statutory and Constitutional Aspects, 57 Va.L.Rev. 885—886 (1971) (dismissal of an Air Force employee who testified before a Senate committee with respect to C—5A cargo plane cost overrums and firing of an FBI agent who wrote Senators complaining of the Bureau's personnel practices); N.Y.Times, Nov. 8, 1967, p. 1, col. 2; id., Nov. 9, 1967, p. 2, col. 4 (Selective Service directive to local draft boards requiring conscription of those who protested war); N.Y.Times, Nov. 11, 1971, p. 95, col. 4; id., Nov. 12, 1971, p. 13, col. 1; id., Nov. 14, 1971, pt. 4, p. 13, col. 1 (FBI investigation of a television commentator who criticized administration policies); id., Nov. 14, 1971, p. 75, col. 3 (denial of White House press pass to underground journalist).
1
We have often described the process of informing the public as the core purpose of the constitutional guarantee of free speech and a free press. See, e.g., Stromberg v. California, 283 U.S. 359, 369, 51 S.Ct. 532, 535, 75 L.Ed. 1117; De Jonge v. Oregon, 299 U.S. 353, 365, 57 S.Ct. 255, 260, 81 L.Ed. 278; Smith v. California, 361 U.S. 147, 153, 80 S.Ct. 215, 218, 4 L.Ed.2d 205.
2
As I see it, a reporter's right to protect his source is bottomed on the constitutional guarantee of a full flow of information to the public. A newsman's personal First Amendment rights or the associational rights of the newsman and the source are subsumed under that broad societal interest protected by the First Amendment. Obviously, we are not here concerned with the parochial personal concerns of particular newsmen or informants.
'The newsman-informer relationship is different from . . . other relationships whose confidentiality is protected by statute, such as the attorney-client and physician-patient relationship. In the case of other statutory privileges, the right of nondisclosure is granted to the person making the communication in order that he will be encouraged by trong assurances of confidentiality to seek such relationships which contribute to his personal well-being. The judgment is made that the interests of society will be served when individuals consult physicians and lawyers; the public interest is thus advanced by creating a zone of privacy that the individual can control. However, in the case of the reporter-informer relationship, society's interest is not in the welfare of the informant per se, but rather in creating conditions in which information possessed by news sources can reach public attention.' Note, 80 Yale L.J. 317, 343 (1970) (footnotes omitted) (hereinafter Yale Note).
3
See generally Z. Chafee, Free Speech in the United States (1941); A. Meikeljohn, Free Speech and Its Relation to Self-Government (1948); T. Emerson, Toward a General Theory of the First Amendment (1963).
4
In Zemel v. Rusk, 381 U.S. 1, 85 S.Ct. 1271, 14 L.Ed.2d 179, we held that the Secretary of State's denial of a passport for travel to Cuba did not violate a citizen's First Amendment rights. The rule was justified by the 'weightiest considerations of national security' and we concluded that the 'right to speak and publish does not carry with it the unrestrained right to gather information.' Id., at 16—17, 85 S.Ct. at 1281 (emphasis supplied). The necessary implication is that some right to gather information does exist.
5
In Caldwell v. United States, 434 F.2d 1081, the Government claimed that Caldwell did not have to maintain a confidential relationship with members of the Black Panther Party and provide independent reporting of their activities, since the Party and its leaders could issue statements on their own. But, as the Court of Appeals for the Ninth Circuit correctly observed:
'(I)t is not enough that Black Panther press releases and public addresses by Panther leaders may continue unabated in the wake of subpoenas such as the one here in question. It is not enough that the public's knowledge of groups such as the Black Panthers should be confined to their deliberate public pronouncements or distant news accounts of their occasional dramatic forays into the public view. 'The need for an untrammeled press takes on special urgency in times of widespread protest and dissent. In such times the First Amendment protections exist to maintain communication with dissenting groups and to provide the public with a wide range of information about the nature of protest and heterodoxy.' Citing Associated Press v. United States, 326 U.S. 1, 20, 65 S.Ct. 1416, 89 L.Ed. 2013; Thornhill v. Alabama, 310 U.S. 88, 102, 60 S.Ct. 736, 84 L.Ed. 1093. Id., at 1084—1085.
6
As we observed in Talley v. California, 362 U.S 60, 80 S.Ct. 536, 4 L.Ed.2d 559, 'Anonymous pamphlets, leaflets, brochures and even books have played an important rule in the progress of mankind. . . . Before the Revolutionary War colonial patriots frequently had to conceal their authorship or distribution of literature that easily could have brought down on them prosecutions by English-controlled courts. . . . Even the Federalist Papers, written in favor of the adoption of our Constitution, were published under fictitious names. It is plain that anonymity has sometimes been assumed for the most constructive purposes.' Id., at 64—65, 80 S.Ct., at 538. And in Lamont v. Postmaster General, 381 U.S. 301, 85 S.Ct. 1493, 14 L.Ed.2d 398, we recognized the importance to First Amendment values of the right to receive information anonymously.
7
Application of Caldwell, 311 F.Supp. 358, 361.
8
See, e.g., F. Chalmers, A Gentleman of the Press: The Biography of Colonel John Bayne MacLean 74—75 (1969); H. Klurfeld, Behind the Lines: The World of Drew Pearson 50, 52—55 (1968); A. Krock, Memoris: Sixty Years on the Firing Line 181, 184—185 (1968); E. Larsen, First with the Truth 22—23 (1968); R. Ottley, The Lonely Warrior—The Life and Times of Robert S. Abbott 143—145 (1955); C. Sulzberger, A Long Row of Candles; Memoirs and Diaries 241 (1969).
As Walter Cronkite, a network television reporter, said in an affidavit in Caldwel: 'In doing my work, I (and those who assist me) depend constantly on information, ideas, leads and opinions received in confidence. Such material is essential in digging out newsworthy facts and, equally important, in assessing the importance and analyzing the significance of public events.' App. 52.
9
See Guest & Stanzler, The Constitutional Argument for Newsmen Concealing Their Sources, 64 Nw.U.L.Rev. 18 (1969); V. Blasi, Press Subpoenas: An Empirical and Legal Analysis, Study Report of the Reporters' Committee on Freedom of the Press 20—29 (hereinafter Blasi).
10
The American Newspaper Guild has adopted the following rule as part of the newsman's code of ethics: '(N)ewspapermen shall refuse to reveal confidences or disclose sources of confidential information in court or before other judicial or investigating bodies.' G. Bird & F. Merwin, The Press and Society 592 (1971).
11
Obviously, if a newsman does not honor a confidence he will have difficulty establishing other confidential relationships necessary for obtaining information in the future. See Siebert & Ryniker, Press Winning Fight to Guard Sources, Editor & Publisher, Sept. 1, 1934, pp. 9, 36—37.
12
The court found that 'compelled disclosure of information received by a journalist within the scope of . . . confidential relationships jeopardizes those relationships and thereby impairs the journalist's ability to gather, analyze and publish the news.' Application of Caldwell, 311 F.Supp., at 361.
13
See n. 8, supra.
14
Recent commentary is nearly unanimous in urging either an absolute or qualified newsman's privilege. See, e.g., Goldstein, Newsmen and Their Confidential Sources, New Republic, Mar. 21, 1970, pp. 13—14; Yale Note, supra, n. 2; Comment, 46 N.Y.U.L.Rev. 617 (1971); Nelson, The Newsmen's Privilege Against Disclosure of Confidential Sources and Information, 24 Vand.L.Rev. 667 (1971); Note, The Right of the Press to Gather Information, 71 Col.L.Rev. 838 (1971); Comment, 4 U.Mich.J.L.Ref. 85 (1970); Comment, 6 Harv.Civ.Rights-Civ.Lib.L.Rev. 119 (1970); Comment, The Newsman's Privilege; Government Investigations, Criminal Prosecutions and Private Litigation, 58 Calif.L.Rev. 1198 (1970). But see the Court's opinion, ante, at 690 n. 29. And see generally articles collected in Yale Note, supra, n. 2.
Recent decisions are in conflict both as to the importance of the deterrent effects and, a fortiori, as to the existence of a constitutional right to a confidential reporter-source. relationship. See the Court's opinion, ante, at 686, and cases collected in Yale Note, at 318 nn. 6—7.
15
See Blasi 6—71; Guest & Stanzler, supra, n. 9, at 43—50.
16
Department of Justice Memo. No. 692 (Sept. 2, 1970).
17
although, as the Court points out, we have held that the press is not free from the requirements of the National Labor Relations Act, the Fair Labor Standards Act, the antitrust laws, or nondiscriminatory taxation, ante, at 683, these decisions were concerned 'only with restraints on certain business or commercial practices' of the press. Citizen Publishing Co. v. United States, 394 U.S. 131, 139, 89 S.Ct. 927, 931, 22 L.Ed.2d 148. And due weight was given to First Amendment interests. For example, 'The First Amendment, far from providing an argument against application of the Sherman Act . . . provides powerful reasons to the contrary.' Associated Press v. United States, 326 U.S., at 20, 65 S.Ct., at 1424.
18
The fact that some informants will not be deterred from giving information by the prospect of the unbridled exercise of the subpoena power only means that there will not always be a conflict between the grand jury's inquiry and the protection of First Amendment activities. But even if the percentage of such informants is relatively large compared to the total 'universe' of potential informants, there will remain a large number of people in 'absolute' terms who will be deterred, and the flow of news through mass circulation newspapers and electronic media will inevitably be impaired.
19
Empirical studies, after all, can only provide facts. It is the duty of courts to give legal significance to facts; and it is the special duty of this Court to understand the constitutional significance of facts. We must often proceed in a state of less than perfect knowledge, either because the facts are murky or the methodology used in obtaining the facts is open to question. It is then that we must look to the Constitution for the values that inform our presumptions. And the importance to our society of the full flow of information to the public has buttressed this Court's historic presumption in favor of First Amendment values.
20
See, e.g., the uncontradicted evidence presented in affidavits from newsmen in Caldwell, Appendix to No. 70—57, pp. 22 61 (statements from Gerald Fraser, Thomas Johnson, John Kifner, Timothy Knight, Nicholas Proffitt, Anthony Ripley, Wallace Turner, Gilbert Noble, Anthony Lukas, Martin Arnold, David Burnham, Jon Lowell, Frank Morgan, Min Yee, Walter Cronkite, Eric Sevareid, Mike Wallace, Dan Rather, Marvin Kalb).
21
See Blau v. United States, 340 U.S. 159, 71 S.Ct. 223, 95 L.Ed. 170; Quinn v. United States, 349 U.S. 155, 75 S.Ct. 668, 99 L.Ed. 964; Curcio v. United States, 354 U.S. 118, 77 S.Ct. 1145, 1 L.Ed.2d 1225; Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653.
22
See Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319.
23
See Committee on Rules of Practice and Procedure of Judicial Conference of the United States, Revised Draft of Proposed Rules of Evidence for the United States Courts and Magistrates (1971); 8 J. Wigmore, Evidence §§ 2290—2391 (McNaughton rev. 1961).
24
Although there is a longstanding presumption against creation of common-law testimonial privileges, United States v. Bryan, 339 U.S. 323, 70 S.Ct. 724, 94 L.Ed. 884, these privileges are grounded in an 'individual interest which has been found . . . to outweigh the public interest in the search for truth' rather than in the broad public concerns that inform the First Amendment. Id., at 331, 70 S.Ct., at 730.
25
The protection of information from compelled disclosure for broad purposes of public policy has been recognized in decisions involving police informers, see Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639; United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 745, 13 L.Ed.2d 684; Aguilar v. Texas, 378 U.S. 108, 114, 84 S.Ct. 1509, 1514, 12 L.Ed.2d 723; McCray v. Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62, and military and state secrets, United States v. Reynolds, 345 U.S. 1, 73 S.Ct. 528, 97 L.Ed. 727.
26
As we said in Watkins v. United States, 354 U.S. 178, 77 S.Ct. 1173, 1 L.Ed.2d 1273,
'(W)hen First Amendment rights are threatened, the delegation of power to the (legislative) committee must be clearly revealed in its charter.' 'It is the responsibility of the Congress . . . to insure that compulsory process is used only in furtherance of a legislative purpose. That requires that the instructions to an investigating committee spell out the group's jurisdiction and purpose with sufficient particularity. . . . The more vague the committee's charter is, the greater becomes the possibility that the committee's specific actions are not in conformity with the will of the parent House of Congress.' Id., at 198, 201, 77 S.Ct., at 1186.
27
We noted in Sweezy v. New Hampshire, 354 U.S. 234, 77 S.Ct. 1203, 1 L.Ed.2d 1311:
'The State Supreme Court itself recognized that there was a weakness in its conclusion that the menace of forcible overthrow of the government justified sacrificing constitutional rights. There was a missing link in the chain of reasoning. The syllogism was not complete. There was nothing to connect the questioning of petitioner with this fundamental interest of the State.' Id., at 251, 77 S.Ct. at 1212 (emphasis supplied).
28
See generally Note, Less Drastic Means and the First Amendment, 78 Yale L.J. 464 (1969).
29
See Watkins, supra, 354 U.S. at 208—209, 77 S.Ct. at 1189 1190. See generally Baggett v. Bullitt, 377 U.S. 360, 372, 84 S.Ct. 1316, 1322, 12 L.Ed.2d 377; Speiser v. Randall, 357 U.S. 513, 526, 78 S.Ct. 1332, 1342, 2 L.Ed.2d 1460; Ashton v. Kentucky, 384 U.S. 195, 200—201, 86 S.Ct. 1407, 1410—1411, 16 L.Ed.2d 469; Dombrowski v. Pfister, 380 U.S. 479, 486, 85 S.Ct. 1116, 1120, 14 L.Ed.2d 22; Smith v. California, 361 U.S., at 150—152, 80 S.Ct., at 217—218; Winters v. New York, 333 U.S. 507, 68 S.Ct. 665, 92 L.Ed. 840; Stromberg v. California, 283 U.S., at 369, 51 S.Ct., at 535. See also Note, The Chilling Effect in Constitutional Law, 69 Col.L.Rev. 808 (1969).
30
See generally Zwickler v. Koota, 389 U.S. 241, 249—250, 88 S.Ct. 391, 396—397, 19 L.Ed.2d 444; and cases cited therein; Coates v. Cincinnati, 402 U.S. 611, 616, 91 S.Ct. 1686, 1689, 29 L.Ed.2d 214; Cantwell v. Connecticut, 310 U.S. 296, 307, 60 S.Ct. 900, 904, 84 L.Ed. 1213; De Jonge v. Oregon, 299 U.S., at 364—365, 57 S.Ct., at 259—260; Schneider v. State, 308 U.S. 147, 164, 60 S.Ct. 146, 152, 84 L.Ed. 155; Cox v. Louisiana, 379 U.S. 559, 562 564, 85 S.Ct. 476, 479—481, 13 L.Ed.2d 487. Cf. NAACP v. Button, 371 U.S. 415, 438, 83 S.Ct. 328, 340, 9 L.Ed.2d 405. See also Note, The First Amendment Overbreadth Doctrine, 83 Harv.L.Rev. 844 (1970).
31
In addition, witnesses customarily are not allowed to object to questions on the grounds of materiality or relevance, since the scope of the grand jury inquiry is deemed to be of no concern to the witness. Carter v. United States, 9 Cir., 417 F.2d 384, cert. denied, 399 U.S. 935, 90 S.Ct. 2253, 26 L.Ed.2d 807. Nor is counsel permitted to be present to aid a witness. See In re Groban, 352 U.S. 330, 77 S.Ct. 510, 1 L.Ed.2d 376.
See generally Younger, The Grand Jury Under Attack, pt. 3, 46 J.Crim.L.C. & P.S. 214 (1955); Recent Cases, 104 U.Pa.L.Rev. 429 (1955); Watts, Grand Jury: Sleeping Watchdog or Expensive Antique, 37 N.C.L.Rev. 290 (1959); Whyte, Is the Grand Jury Necessary, 45 Va.L.Rev. 461 (1959); Note, 2 Col.J.Law & Soc.Prob. 47, 58 (1966); Antell, The Modern Grand Jury: Benighted Supergovernment, 51 A.B.A.J. 153 (1965); Orfield, The Federal Grand Jury, 22 F.R.D. 343.
32
The standard of proof employed by most grand juries, federal and State, is simply 'probable cause' to believe that the accused has committed a crime. See Note, 1963 Wash.U.L.Q. 102; L. Hall et al., Modern Criminal Procedure 793—794 (1969). Generally speaking, it is extremely difficult to challenge indictments on the ground that they are not supported by adequate or competent evidence. Cf. Costello v. United States, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397; Beck v. Washington, 369 U.S. 541, 82 S.Ct. 955, 8 L.Ed.2d 98.
33
Cf. Garland v. Torre, 259 F.2d 545. The Court of Appeals for the Second Circuit declined to provide a testimonial privilege to a newsman called to testify at a civil trial. But the court recognized a newsman's First Amendment right to a confidential relationship with his source and concluded: 'It is to be noted that we are not dealing here with the use of the judicial process to force a wholesale disclosure of a newspaper's confidential sources of news, nor with a case where the identity of the news source is of doubtful relevance or materiality. . . . The question asked . . . went to the heart of the plaintiff's claim.' Id., at 549—550 (citations omitted).
34
If this requirement is not met, then the government will basically be allowed to undertake a 'fishing expedition' at the expense of the press. Such general, exploratory investigations will be most damaging to confidential news-gathering relationships, since they will create great uncertainty in both reporters and their sources. The Court sanctions such explorations, by refusing to apply a meaningful 'probable cause' requirement. See ante, at 701—702. As the Court states, a grand jury investigation 'may be triggered by tips, rumors, evidence proffered by the prosecutor, or the personal knowledge of the grand jurors.' Ante, at 701. It thereby invites government to try to annex the press as an investigative arm, since any time government wants to probe the relationships between the newsman and his source, it can, on virtually any pretext, convene a grand jury and compel the journalist to testify.
The Court fails to recognize that under the guise of 'investigating crime' vindictive prosecutors can, using the broad powers of the grand jury which are, in effect, immune from judicial supervision, explore the newsman's sources at will, with no serious law enforcement purpose. The secrecy of grand jury proceedings, affords little consolation to a news source; the prosecutor obviously will, in most cases, have knowledge of testimony given by grand jury witnesses.
35
We need not, therefore, reach the question of whether government's interest in these cases is 'overriding and compelling.' I do not, however, believe, as the Court does, that all grand jury investigations automatically would override the newsman's testimonial privilege.
36
The disclaimers in Mr. Justice POWELL'S concurring opinion leave room for the hope that in some future case the Court may take a less absolute position in this area.
37
See Blasi 61 et seq.
38
After Caldwell was first subpoenaed to appear before the grand jury, the Government did undertake, by affidavits, to 'set forth facts indicating the general nature of the grand jury's investigation (and) witness Earl Caldwell's possession of information relevant to this general inquiry.' In detailing the basis for the belief that a crime had probably been committed, the Government simply asserted that certain actions had previously been taken by other grand juries, and by Government counsel, with respect to certain members of the Black Panther Party (i.e., immunity grants for certain Black Panthers were sought; the Government moved to compel party members to testify before grand juries; and contempt citations were sought when party members refused to testify). No facts were asserted suggesting the actual commission of crime. The exception, as noted, involved David Hilliard's speech and its republication in the party newspaper, the Black Panther, for which Hilliard had been indicted before Caldwell was subpoenaed.
39
In its affidavits, the Government placed primary reliance on certain articles published by Caldwell in the New York Times during 1969 (on June 15, July 20, July 22, July 27, and Dec. 14). On Dec. 14, 1969, Caldwell wrote:
"We are special,' Mr. Hilliard said recently 'We advocate the very direct overthrow of the Government by way of force and violence. By picking up guns and moving against it because we recognize it as being oppressive and in recognizing that we know that the only solution to it is armed struggle.'
'In their role as the vanguard in a revolutionary struggle, the Panthers have picked up guns.
'Last week two of their leaders were killed during the police raid on one of their offices in Chicago. And in Los Angeles a few days earlier, three officers and three Panthers were wounded in a similar shooting incident. In these and in some other raids, the police have found caches of weapons, including high-powered rifles.' App. in No. 70—57, p. 13.
In my view, this should be read as indicating that Caldwell had interviewed Panther leaders. It does not indicate that he probably had knowledge of the crimes being investigated by the Government. And, to repeat, to the extent it does relate to Hilliard's threat, an indictment had already been brought in that matter. The other articles merely demonstrate that Black Panther Party leaders had told Caldwell their ideological beliefs—beliefs that were readily available to the Government through other sources, like the party newspaper.
40
The Government did not attempt to show that means less impinging upon First Amendment interests had been pursued.
41
In an affidavit filed with the District Court, Caldwell stated:
'I began covering and writing articles about the Black Panthers almost from the time of their inception, and I myself found that in those first months . . . they were very brief and reluctant to discuss any substantive matter with me. However, as they realized I could be trusted and that my sole purpose was to collect my information and present it objectively in the newspaper and that I had no other motive. I found that not only were the party leaders available for in-depth interviews but also the rank and file members were cooperative in aiding me in the newspaper stories that I wanted to do. During the time that I have been covering the party, I have noticed other newspapermen representing legitimate organizations in the news media being turned away because they were not known and trusted by the party leadership.
'As a result of the relationship that I have developed, I have been able to write lengthy stories about the Panthers that have appeared in The New York Times and have been of such a nature that other reporters who have not known the Panthers have not been able to write. Many of these stories have appeared in up to 50 or 60 other newspapers around the country.
'The Black Panther Party's method of operation with regard to members of the press is significantly different from that of other organizations. For instance, press credentials are not recognized as being of any significance. In addition, interviews are not normally designated as being 'backgrounders' or 'off the record' or 'for publication' or 'on the record.' Because no substantive interviews are given until a relationship of trust and confidence is developed between the Black Panther Party members and a reporter, statements are rarely made to such reporters on an expressed 'on' or 'off' the record basis. Instead, an understanding is developed over a period of time between the Black Panther Party members and the reporter as to matters which the Black Panther Party wishes to disclose for publications and those matters which are given in confidence. . . . Indeed, if I am forced to appear in secret grand jury proceedings, my appearance alone would be interpreted by the Black Panthers and other dissident groups as a possible disclosure of confidences and trusts and would similarly destroy my effectiveness as a newspaperman.'
The Government did not contradict this affidavit.
42
'Militant groups might very understandably fear that, under the pressure of examination before a Grand Jury, the witness may fail to protect their confidences . . .. The Government characterizes this anticipated loss of communication as Black Panther reprisal . . . But it is not an extortionate threat we face. It is human reaction as reasonable to expect as that a client will leave his lawyer when his confidence is shaken. . . . As the Government points out, loss of such a sensitive news source can also result from its reaction to indiscreet or unfavorable reporting or from a reporter's association with Government agents or persons disapproved of by the news source. Loss in such a case, however, results from an exercise of the choice and prerogative of a free press. It is not the result of Government compulsion.' Caldwell v. United States, 434 F.2d, at 1088.
43
Caldwell stated in his affidavit filed with the District Court, see n. 40, supra:
'It would be virtually impossible for me to recall whether any particular matter disclosed to me by members of the Black Panther Party since January 1, 1969, was based on an understanding that it would or would not be confidential. Generally, those matters which were made on a nonconfidential or 'for publication' basis have been published in articles I have written in The New York Times; conversely, any matters which I have not thus far disclosed in published articles would have been given to me based on the understanding that they were confidential and would not be published.'
44
The District Court reserved jurisdiction to modify its order on a showing of a governmental interest which cannot be served by means other than Caldwell's grand jury testimony. The Government would thus have further opportunity in that court to meet the burden that, I think, protection of First Amendment rights requires.
| 23
|
408 U.S. 845
92 S.Ct. 2845
33 L.Ed.2d 744
John S. STEWARTv.MASSACHUSETTS.
No. 71-5446.
Supreme Court of the United States
June 29, 1972
PER CURIAM.
1
The appellant in this case was sentenced to death. The imposition and carrying out of that death penalty constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). The motion for leave to proceed in forma pauperis is granted. The judgment is therefore vacated insofar as it leaves undisturbed the death penalty imposed, and the case is remanded for further proceedings.
| 01
|
408 U.S. 606
92 S.Ct. 2614
33 L.Ed.2d 583
Mike GRAVEL, United States Senator,v.UNITED STATES. UNITED STATES, Petitioner, v. Mike GRAVEL, United States Senator.
Nos. 71—1017, 71—1026.
Argued April 19, 20, 1972.
Decided June 29, 1972.
Syllabus
A United States Senator read to a subcommittee from classified documents (the Pentagon Papers), which he then placed in the public record. The press reported that the Senator had arranged for private publication of the Papers. A grand jury investigating whether violations of federal law were implicated subpoenaed an aide to the Senator. The Senator, as an intervenor, moved to quash the subpoena, contending that it would violate the Speech or Debate Clause to compel the aide to testify. The District Court denied the motion but limited the questioning of the aide. The Court of Appeals affirmed the denial but modified the protective order, ruling that congressional aides and other persons may not be questioned regarding legislative acts and that, though the private publication was not constitutionally protected, a common-law privilege similar to the privilege of protecting executive officials from liability for libel, see Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434, barred questioning the aide concerning such publication. Held:
1. The Speech or Debate Clause applies not only to a Member of Congress but also to his aide, insofar as the aide's conduct would be a protected legislative act if performed by the Member himself. Kilbourn v. Thompson, 103 U.S. 168, 26 L.Ed. 377; Dombrowski v. Eastland, 387 U.S. 82, 87 S.Ct. 1425, 18 L.Ed.2d 577, and Powell v. McCormack, 395 U.S. 486, 89 S.Ct. 1944, 23 L.Ed.2d 491 distinguished. Pp. 613—622.
2. The Speech or Debate Clause does not extend immunity to the Senator's aide from testifying before the grand jury about the alleged arrangement for private publication of the Pentagon Papers, as such publication had no connection with the legislative process. Pp. 622—627.
3. The aide, similarly, had no non-constitutional testimonial privilege from being questioned by the grand jury in connection with its inquiry into whether private publication of the Papers violated federal law. P. 627.
4. The Court of Appeals' protective order was overly broad in enjoining interrogation of the aide with respect to any act, 'in the broadest sense,' that he performed within the scope of his employment, since the aide's immunity extended only to legislative acts as to which the Senator would be immune. And the aide may be questioned by the grand jury about the source of classified documents in the Senator's possession, as long as the questioning implicates no legislative act. The order in other respects would suffice if it forbade questioning the aide or others about the conduct or motives of the Senator or his aides at the subcommittee meeting; communications between the Senator and his aides relating to that meeting or any legislative act of the Senator; or steps of the Senator or his aides preparatory for the meeting, if not relevant to third-party crimes. Pp. 627—629.
455 F.2d 753, vacated and remanded.
Sam J. Ervin, Jr., Morganton, N.C., William B. Saxbe, Washington, D.C., for the United States Senate, as amici curiae, by special leave of Court.
Robert J. Reinstein, Baltimore, Md., Charles Louis Fishman, Washington, D.C., for Mike Gravel.
Sol. Gen. Erwin N. Griswold for the United States.
Opinion of the Court by Mr. Justice WHITE, announced by Mr. Justice BLACKMUN.
1
These cases arise out of the investigation by a federal grand jury into possible criminal conduct with respect to the release and publication of a classified Defense Department study entitled History of the United States Decision-Making Process on Viet Nam Policy. This document, popularly known as the Pentagon Papers, bore a Defense security classification of Top Secret-Sensitive. The crimes being investigated included the retention of public property or records with intent to convert (18 U.S.C. § 641), the gathering and transmitting of national defense information (18 U.S.C. § 793), the concealment or removal of public records or documents (18 U.S.C. § 2071), and conspiracy to commit such offenses and to defraud the United States (18 U.S.C. § 371).
2
Among the witnesses subpoenaed were Leonard S. Rodberg, an assistant to Senator Mike Gravel of Alaska and a resident fellow at the Institute of Policy Studies, and Howard Webber, Director of M.I.T. Press. Senator Gravel, as intervenor,1 filed motions to quash the subpoenas and to require the Government to specify the particular questions to be addressed to Rodberg.2 He asserted that requiring these witnesses to appear and testify would violate his privilege under the Speech or Debate Clause of the United States Constitution, Art. I, § 6, cl. 1.
3
It appeared that on the night of June 29, 1971, Senator Gravel, as Chairman of the Subcommittee on Buildings and Grounds of the Senate Public Works Committee, convened a meeting of the subcommittee and there read extensively from a copy of the Pentagon Papers. He then placed the entire 47 volumes of the study in the public record. Rodberg had been added to the Senator's staff earlier in the day and assisted Gravel in preparing for and conducting the hearing.3 Some weeks later there were press reports that Gravel had arranged for the papers to be published by Beacon Press4 And that members of Gravel's staff had talked with Webber as editor of M.I.T. Press.5
4
The District Court overruled the motions to quash and to specify questions but entered an order proscribing certain categories of questions. United States v. Doe, 332 F.Supp. 930 (Mass.1971). The Government's contention that for purposes of applying the Speech or Debate Clause the courts were free to inquire into the regularity of the subcommittee meeting was rejected.6 Because the Clause protected all legislative acts, it was held to shield from inquiry anything the Senator did at the subcommittee meeting and 'certain acts done in preparation therefor.' Id., at 935. The Senator's privilege also prohibited 'inquiry into things done by Dr. Rodberg as the Senator's agent or assistant which would have been legislative acts, and therefore privileged, if performed by the Senator personally.' Id., at 937 938.7 The trial court, however, held the private publication of the documents was not privileged by the Speech or Debate Clause. Id., at 936.8
5
The Court of Appeals affirmed the denial of the motions to quash but modified the protective order to reflect its own views of the scope of the congressional privilege. United States v. Doe, 455 F.2d 753 (CA1 1972). Agreeing that Senator and aide were one for the purposes of the Speech or Debate Clause and that the Clause foreclosed inquiry of both Senator and aide with respect to legislative acts, the Court of Appeals also viewed the privilege as barring direct inquiry of the Senator or his aide, but not of third parties, as to the sources of the Senator's information used in performing legislative duties.9 Although it did not consider private publication by the Senator or Beacon Press to be protected by the Constitution, the Court of Appeals apparently held that neither Senator nor aide could be questioned about it because of a common-law privilege akin to the judicially created immunity of executive officers from liability for libel contained in a news release issued in the course of their normal duties. See Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959). This privilege, fashioned by the Court of Appeals, would not protect third parties from similar inquiries before the grand jury. As modified by the Court of Appeals, the protective order to be observed by prosecution and grand jury was:
6
'(1) No witness before the grand jury currently investigating the release of the Pentagon Papers may be questioned about Senator Mike Gravel's conduct at a meeting of the Subcommittee on Public Buildings and Grounds on June 29, 1971, nor, if the questions are directed to the motives or purposes behind the Senator's conduct at that meeting, about any communications with him or with his aides regarding the activities of the Senator or his aides during the period of their employment, in preparation for and related to said meeting.
7
'(2) Dr. Leonard S. Rodberg may not be questioned about his own actions in the broadest sense, including observations and communications, oral or written, by or to him or coming to his attention while being interviewed for, or after having been engaged as a member of Senator Gravel's personal staff to the extent that they were in the course of his employment.'
8
The United States petitioned for certiorari challenging the ruling that aides and other persons may not be questioned with respect to legislative acts and that an aide to a Member of Congress has a common-law privilege not to testify before a grand jury with respect to private publication of materials introduced into a subcommittee record. Senator Gravel also petitioned for certiorari seeking reversal of the Court of Appeals insofar as it held private publication unprotected by the Speech or Debate Clause and asserting that the protective order of the Court of Appeals too narrowly protected against inquiries that a grand jury could direct to third parties. We granted both petitions. 405 U.S. 916, 92 S.Ct. 963, 30 L.Ed.2d 785 (1972).
9
* Because the claim is that a Member's aide shares the Member's constitutional privilege, we consider first whether and to what extent Senator Gravel himself is exempt from process or inquiry by a grand jury investigating the commission of a crime. Our frame of reference is Art. I, § 6, cl. 1, of the Constitution:
10
'The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.'
11
The last sentence of the Clause provides Members of Congress with two distinct privileges. Except in cases of 'Treason, Felony and Breach of the Peace,' the Clause shields Members from arrest while attending or traveling to and from a session of their House. History reveals, and prior cases so hold, that this part of the Clause exempts Members from arrest in civil cases only. 'When the Constitution was adopted, arrests in civil suits were still common in America. It is only to such arrests that the provision applies.' Long v. Ansell, 293 U.S. 76, 83, 55 S.Ct. 21, 22, 79 L.Ed. 208 (1934) (footnote omitted). 'Since . . . the term treason, felony, and breach of the peace, as used in the constitutional provision relied upon, excepts from the operation of the privilege all criminal offenses, the conclusion results that the claim of privilege of exemption from arrest and sentence was without merit . . ..' Williamson v. United States, 207 U.S. 425, 446, 28 S.Ct. 163, 170, 52 L.Ed. 278 (1908).10 Nor does freedom from arrest confer immunity on a Member from service of process as a defendant in civil matters, Long v. Ansell, supra, 293 U.S. at 82—83, 55 S.Ct. at 22, or as a witness in a criminal case. 'The constitution gives to every man, charged with an offence, the benefit of compulsory process, to secure the attendance of his witnesses. I do not know of any privilege to exempt members of congress from the service, or the obligations, of a subpoena, in such cases.' United States v. Cooper, 4 Dall. 341, 1 L.Ed. 859 (1800) (Chase, J., sitting on Circuit). It is, therefore, sufficiently plain that the constitutional freedom from arrest does not exempt Members of Congress from the operation of the ordinary criminal laws, even though imprisonment may prevent or interfere with the performance of their duties as Members. Williamson v. United States, supra; cf. Burton v. United States, 202 U.S. 344, 26 S.Ct. 688, 50 L.Ed. 1057 (1906). Indeed, implicit in the narrow scope of the privilege of freedom from arrest is, as Jefferson noted, the judgment that legislators ought not to stand above the law they create but ought generally to the bound by it as are ordinary persons. T. Jefferson, Manual of Parliamentary Practice, S.Doc. No. 92—1, p. 437 (1971).
12
In recognition, no doubt, of the force of this part of § 6, Senator Gravel disvows any assertion of general immunity from the criminal law. But he points out that the last portion of § 6 affords Members of Congress another vital privilege—they may not be questioned in any other place for any speech or debate in either House. The claim is not that while one part of § 6 generally permits prosecutions for treason, felony, and breach of the peace, another part nevertheless broadly forbids them. Rather, his insistence is that the Speech or Debate Clause at the very least protects him from criminal or civil liability and from questioning elsewhere than in the Senate, with respect to the events occurring at the subcommittee hearing at which the Pentagon Papers were introduced into the public record. To us this claim is incontrovertible. The Speech or Debate Clause was designed to assure a co-equal branch of the government wide freedom of speech, debate, and deliberation without intimidation or threats from the Executive Branch. It thus protects Members against prosecutions that directly impinge upon or threaten the legislative process. We have no doubt that Senator Gravel may not be made to answer—either in terms of questions or in terms of defending himself from prosecution—for the events that occurred at the subcommittee meeting. Our decision is made easier by the fact that the United States appears to have abandoned whatever position it took to the contrary in the lower courts.
13
Even so, the United States strongly urges that because the Speech or Debate Clause confers a privilege only upon 'Senators and Representatives,' Rodberg himself has no valid claim to constitutional immunity from grand jury inquiry. In our view, both courts below correctly rejected this position. We agree with the Court of Appeals that for the purpose of construing the privilege a Member and his aide are to be 'treated as one,' United States v. Doe, 455 F.2d, at 761; or, as the District Court put it: the 'Speech or Debate Clause prohibits inquiry into things done by Dr. Rodberg as the Senator's agent or assistant which would have been legislative acts, and therefore privileged, if performed by the Senator personally.' United States v. Doe, 332 F.Supp., at 937 938. Both courts recognized what the Senate of the United States urgently presses here: that it is literally impossible, in view of the complexities of the modern legislative process, with Congress almost constantly in session and matters of legislative concern constantly proliferating, for Members of Congress to perform their legislative tasks without the help of aides and assistants; that the day-to-day work of such aides is so critical to the Members' performance that they must be treated as the latter's alter egos; and that if they are not so recognized, the central role of the Speech or Debate Clause—to prevent intimidation of legislators by the Executive and accountability before a possibly hostile judiciary, United States v. Johnson, 383 U.S. 169, 181, 86 S.Ct. 749, 755, 15 L.Ed.2d 681 (1966)—will inevitably be diminished and frustrated.
14
The Court has already embraced similar views in Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959), where, in immunizing the Acting Director of the Office of Rent Stabilization from liability for an alleged libel contained in a press release, the Court held that the executive privilege recognized in prior cases could not be restricted to those of cabinet rank. As stated by Mr. Justice Harlan, the 'privilege is not a badge or emolument of exalted office, but an expression of a policy designed to aid in the effective functioning of government. The complexities and magnitude of governmental activity have become so great that there must of necessity be a delegation and redelegation of authority as to many functions, and we cannot say that these functions become less important simply because they are exercised by officers of lower rank in the executive hierarchy.' Id., at 572—573, 79 S.Ct., at 1340 (footnote omitted).
15
It is true that the Clause itself mentions only 'Senators and Representatives,' but prior cases have plainly not taken a literalistic approach in applying the privilege. The Clause also speaks only of 'Speech or Debate,' but the Court's consistent approach has been that to confine the protection of the Speech or Debate Clause to words spoken in debate would be an unacceptably narrow view. Committee reports, resolutions, and the act of voting are equally covered; '(i)n short, . . . things generally done in a session of the House by one of its members in relation to the business before it.' Kilbourn v. Thompson, 103 U.S. 168, 204, 26 L.Ed. 377 (1881), quoted with approval in United States v. Johnson, 383 U.S., at 179, 86 S.Ct., at 755. Rather than giving the clause a cramped construction, the Court has sought to implement its fundamental purpose of freeing the legislator from executive and judicial oversight that realistically threatens to control his conduct as a legislator. We have little doubt that we are neither exceeding our judicial powers nor mistakenly construing the Constitution by holding that the Speech or Debate Clause applies not only to a Member but also to his aides insofar as the conduct of the latter would be a protected legislative act if performed by the Member himself.
16
Nor can we agree with the United States that our conclusion is foreclosed by Kilbourn v. Thompson, supra, Dombrowski v. Eastland, 387 U.S. 82, 87 S.Ct. 1425, 18 L.Ed.2d 577 (1967), and Powell v. McCormack, 395 U.S. 486, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969), where the speech or debate privilege was held unavailable to certain House and committee employees. Those cases do not hold that persons other than Members of Congress are beyond the protection of the Clause when they perform or aid in the performance of legislative acts. In Kilbourn, the Speech or Debate Clause protected House Members who had adopted a resolution authorizing Kilbourn's arrest; that act was clearly legislative in nature. But the resolution was subject to judicial review insofar as its execution impinged on a citizen's rights as it did there. That the House could with impunity order an unconstitutional arrest afforded no protection for those who made the arrest. The Court quoted with approval from Stockdale v. Hansard, 9 Ad. & E. 1, 112 Eng.Rep. 1112 (K.B.1839): "So if the speaker by authority of the House order an illegal act, though that authority shall exempt him from question, his order shall no more justify the person who executed it than King Charles's warrant for levying ship-money could justify his revenue officer," 103 U.S., at 202.11 The Speech or Debate Clause could not be construed to immunize an illegal arrest even though directed by an immune legislative act. The Court was careful to point out that the Members themselves were not implicated in the actual arrest, id., at 200, and, significantly enough, reserved the question whether there might be circumstances in which 'there may . . . be things done, in the one House or the other, of an extraordinary character, for which the members who take part in the act may be held legally responsible.' 103 U.S., at 204 (emphasis added).
17
Dombrowski v. Eastland, supra, is little different in principle. The Speech or Debate Clause there protected a Senator, who was also a subcommittee chairman, but not the subcommittee counsel. The record contained no evidence of the Senator's involvement in any activity that could result in liability, 387 U.S., at 84, 87 S.Ct., at 1427, whereas the committee counsel was charged with conspiring with state officials to carry out an illegal seizure of records that the committee sought for its own proceedings. Ibid. The committee counsel was deemed protected to some extent by legislative privilege, but it did not shield him from answering as yet unproved charges of conspiring to violate the constitutional rights of private parties. Unlawful conduct of this kind the Speech or Debate Clause simply did not immunize.
18
Powell v. McCormack reasserted judicial power to determine the validity of legislative actions impinging on individual rights there the illegal exclusion of a representative-elect—and to afford relief against House aides seeking to implement the invalid resolutions. The Members themselves were dismissed from the case because shielded by the Speech or Debate Clause both from liability for their illegal legislative act and from having to defend themselves with respect to it. As in Kilbourn, the Court did not reach the question 'whether under the Speech or Debate Clause petitioners would be entitled to maintain this action solely against the members of Congress where no agents participated in the challenged action and no other remedy was available.' 395 U.S., at 506 n. 26, 89 S.Ct., at 1956.
19
None of these three cases adopted the simple proposition that immunity was unavailable to congressional or committee employees because they were not Representatives or Senators; rather, immunity was unavailable because they engaged in illegal conduct that was not entitled to Speech or Debate Clause protection. The three cases reflect a decidedly jaundiced view towards extending the Clause so as to privilege illegal or unconstitutional conduct beyond that essential to foreclose executive control of legislative speech or debate and associated matters such as voting and committee reports and proceedings. In Kilbourn, the Sergeant-at-Arms was executing a legislative order, the issuance of which fell within the Speech or Debate Clause; in Eastland, the committee counsel was gathering information for a hearing; and in Powell, the Clerk and Doorkeeper were merely carrying out directions that were protected by the Speech or Debate Clause. In each case, protecting the rights of others may have to some extent frustrated a planned or completed legislative act; but relief could be afforded without proof of a legislative act or the motives or purposes underlying such an act. No threat to legislative independence was posed, and Speech or Debate Clause protection did not attach.
20
None of this, as we see it, involves distinguishing between a Senator and his personal aides with respect to legislative immunity. In Kilbourn-type situations, both aide and Member should be immune with respect to committee and House action leading to the illegal resolution. So, too, in Eastland, as in this litigation, senatorial aides should enjoy immunity for helping a Member conduct committee hearings. On the other hand, no prior case has held that Members of Congress would be immune if they executed an invalid resolution by themselves carrying out an illegal arrest, or if, in order to secure information for a hearing, themselves seized the property or invaded the privacy of a citizen. Neither they nor their aides should be immune from liability or questioning in such circumstances. Such acts are no more essential to legislating than the conduct held unprotected in United States v. Johnson, 383 U.S. 169, 86 S.Ct. 749, 15 L.Ed.2d 681 (1966).12
21
The United States fears the abuses that history reveals have occurred when legislators are invested with the power to relieve others from the operation of otherwise valid civil and criminal laws. But these abuses, it seems to us, are for the most part obviated if the privilege applicable to the aide is viewed, as it must be, as the privilege of the Senator, and invocable only by the Senator or by the aide on the Senator's behalf,13 and if in all events the privilege available to the aide is confined to those services that would be immune legislative conduct if performed by the Senator himself. This view places beyond the Speech or Debate Clause a variety of services characteristically performed by aides for Members of Congress, even though within the scope of their employment. It likewise provides no protection for criminal conduct threatening the security of the person or property of others, whether performed at the direction of the Senator in preparation for or in execution of a legislative act or done without his knowledge or direction. Neither does it immunize Senator or aide from testifying at trials or grand jury proceedings involving third-party crimes where the questions do not require testimony about or impugn a legislative act. Thus our refusal to distinguish between Senator and aide in applying the Speech or Debate Clause does not mean that Rodberg is for all purposes exempt from grand jury questioning.
II
22
We are convinced also that the Court of Appeals correctly determined that Senator Gravel's alleged arrangement with Beacon Press to publish the Pentagon Papers was not protected speech or debate within the meaning of Art. I, § 6, cl. 1, of the Constitution.
23
Historically, the English legislative privilege was not viewed as protecting republication of an otherwise immune libel on the floor of the House. Stockdale v. Hansard, 9 Ad. & E., at 114, 112 Eng.Rep., at 1156 (1839), recognized that '(f)or speeches made in Parliament by a member to the prejudice of any other person, or hazardous to the public peace, that member enjoys complete impunity.' But it was clearly stated that 'if the calumnious or inflammatory speeches should be reported and published, the law will attach responsibility on the publisher.'14 This was accepted in Kilbourn v. Thompson as a 'sound statement of the legal effect of the Bill of Rights and of the parliamentary law of England' and as a reasonable basis for inferring 'that the framers of the Constitution meant the same thing by the use of language borrowed from that source.' 103 U.S., at 202.
24
Prior cases have read the Speech or Debate Clause 'broadly to effectuate its purposes,' United States v. Johnson, 383 U.S., at 180, 86 S.Ct. at 755, and have included within its reach anything 'generally done in a session of the House by one of its members in relation to the business before it.' Kilbourn v. Thompson, 103 U.S., at 204; United States v. Johnson, 383 U.S., at 179, 86 S.Ct. at 755. Thus, voting by Members and committee reports are protected; and we recognize today—as the Court has recognized before, Kilbourn v. Thompson, 103 U.S., at 204; Tenney v. Brandhove, 341 U.S. 367, 377—378, 71 S.Ct. 783, 788—789, 95 L.Ed. 1019 (1951)—that a Member's conduct at legislative committee hearings, although subject to judicial review in various circumstances, as is legislation itself, may not be made the basis for a civil or criminal judgment against a Member because that conduct is within the 'sphere of legitimate legislative activity.' Id., at 376, 71 S.Ct., at 788.15
25
But the Clause has not been extended beyond the legislative sphere. That Senators generally perform certain acts in their official capacity as Senators does not necessarily make all such acts legislative in nature. Members of Congress are constantly in touch with the Executive Branch of the Government and with administrative agencies—they may cajole, and exhort with respect to the administration of a federal statute—but such conduct, though generally done, is not protected legislative activity. United States v. Johnson decided at least this much. 'No argument is made, nor do we think that it could be successfully contended, that the Speech or Debate Clause reaches conduct, such as was involved in the attempt to influence the Department of Justice, that is in no wise related to the due functioning of the legislative process.' 383 U.S., at 172, 86 S.Ct., at 751. Cf. Burton v. United States, 202 U.S., at 367—368, 26 S.Ct., at 693, 50 L.Ed. 1057.
26
Legislative acts are not all-encompassing. The heart of the Clause is speech or debate in either House. Insofar as the Clause is construed to reach other matters, they must be an integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation or with respect to other matters which the Constitution places within the jurisdiction of either House. As the Court of Appeals put it, the courts have extended the privilege to matters beyond pure speech or debate in either House, but 'only when necessary to prevent indirect impairment of such deliberations.' United States v. Doe, 455 F.2d, at 760.
27
Here, private publication by Senator Gravel through the cooperation of Beacon Press was in no way essential to the deliberations of the Senate; nor does questioning as to private publication threaten the integrity or independence of the Senate by impermissibly exposing its deliberations to executive influence. The Senator had conducted his hearings; the record and any report that was forthcoming were available both to his committee and the Senate. Insofar as we are advised, neither Congress nor the full committee ordered or authorized the publication.16 We cannot but conclude that the Senator's arrangements with Beacon Press were not part and parcel of the legislative process.
28
There are additional considerations. Article I, § 6, cl. 1, as we have emphasized, does not purport to confer a general exemption upon Members of Congress from liability or process in criminal cases. Quite the contrary is true. While the Speech or Debate Clause recognizes speech, voting, and other legislative acts as exempt from liability that might otherwise attach, it does not privilege either Senator or aide to violate an otherwise valid criminal law in preparing for or implementing legislative acts. If republication of these classified papers would be a crime under an Act of Congress, it would not be entitled to immunity under the Speech or Debate Clause. It also appears that the grand jury was pursuing this very subject in the normal course of a valid investigation. The Speech or Debate Clause does not in our view extend immunity to Rodberg, as a Senator's aide, from testifying before the grand jury about the arrangement between Senator Gravel and Beacon Press or about his own participation, if any, in the alleged transaction, so long as legislative acts of the Senator are not impugned.
III
29
Similar considerations lead us to disagree with the Court of Appeals insofar as it fashioned, tentatively at least, a nonconstitutional testimonial privilege protecting Rodberg from any questioning by the grand jury concerning the matter of republication of the Pentagon Papers. This privilege, thought to be similar to that protecting executive officials from liability for libel, see Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959), was considered advisable '(t)o the extent that a congressman has responsibility to inform his constituents . . ..' 455 F.2d, at 760. But we cannot carry a judicially fashioned privilege so far as to immunize criminal conduct proscribed by an Act of Congress or to frustrate the grand jury's inquiry into whether publication of these classified documents violated a federal criminal statute. The so-called executive privilege has never been applied to shield executive officers from prosecution for crime, the Court of Appeals was quite sure that third parties were neither immune from liability nor from testifying about the republication matter, and we perceive no basis for conferring a testimonial privilege on Rodberg as the Court of Appeals seemed to do.
IV
30
We must finally consider, in the light of the foregoing, whether the protective order entered by the Court of Appeals is an appropriate regulation of the pending grand jury proceedings.
31
Focusing first on paragraph two of the order, we think the injunction against interrogating Rodberg with respect to any act, 'in the broadest sense,' performed by him within the scope of his employment, overly restricts the scope of grand jury inquiry. Rodberg's immunity, testimonial or otherwise, extends only to legislative acts as to which the Senator himself would be immune. The grand jury, therefore, if relevant to its investigation into the possible violations of the criminal law, and absent Fifth Amendment objections, may require from Rodberg answers to questions relating to his or the Senator's arrangements, if any, with respect to republication or with respect to third-party conduct under valid investigation by the grand jury, as long as the questions do not implicate legislative action of the Senator. Neither do we perceive any constitutional or other privilege that shields Rodberg, any more than any other witness, from grand jury questions relevant to tracing the source of obviously highly classified documents that came into the Senator's possession and are the basic subject matter of inquiry in this case, as long as no legislative act is implicated by the questions.17
32
Because the Speech or Debate Clause privilege applies both to Senator and aide, it appears to us that paragraph one of the order, alone, would afford ample protection for the privilege if it forbade questioning any witness, including Rodberg: (1) concerning the Senator's conduct, or the conduct of his aides, at the June 29, 1971, meeting of the subcommittee;18 (2) concerning the motives and purposes behind the Senator's conduct, or that of his aides, at that meeting; (3) concerning communications between the Senator and his aides during the term of their employment and related to said meeting or any other legislative act of the Senator; (4) except as it proves relevant to investigating possible third-party crime, concerning any act, in itself not criminal, performed by the Senator, or by his aides in the course of their employment, in preparation for the subcommittee hearing. We leave the final form of such an order to the Court of Appeals in the first instance, or, if that court prefers, to the District Court.
33
The judgment of the Court of Appeals is vacated and the cases are remanded to that court for further proceedings consistent with this opinion.
34
So ordered.
35
Judgment of Court of Appeals vacated and cases remanded.
36
Mr. Justice STEWART, dissenting in part.
37
The Court today holds that the Speech or Debate Clause does not protect a Congressman from being forced to testify before a grand jury about sources of information used in preparation for legislative acts. This critical question was not embraced in the petitions for certiorari. It was not dealt with in the written briefs. It was addressed only tangentially during the oral arguments. Yet it is a question with profound implications for the effective functioning of the legislative process. I cannot join in the Court's summary resolution of so vitally important a constitutional issue.
38
In preparing for legislative hearings, debates, and roll calls, a member of Congress obviously needs the broadest possible range of information. Valuable information may often come from sources in the Executive Branch or from citizens in private life. And informants such as these may be willing to relate information to a Congressman only in confidence, fearing that disclosure of their identities might cause loss of their jobs or harassment by their colleagues or employers. In fact, I should suppose it to be self-evident that many such informants would insist upon an assurance of confidentiality before revealing their information. Thus, the acquisition of knowledge through a promise of nondisclosure of its source will often be a necessary concomitant of effective legislative conduct, if the members of Congress are properly to perform their constitutional duty.
39
The Court of Appeals for the First Circuit recognized the importance of the information-gathering process in the performance of the legislative function. It held that the Speech or Debate Clause bars all grand jury questioning of a member of Congress regarding the sources of his information. The Court of Appeals reasoned that to allow a 'grand jury to question a senator about his sources would chill both the vigor with which legislators seek facts, and the willingness of potential sources to supply them.' United States v. Doe, 455 F.2d 753, 758—759. The Government did not seek review of this ruling, but rather sought certiorari on the question whether the Speech or Debate Clause bars a grand jury from questioning congressional aides about privileged actions of Senators or Representatives.1
40
The Court, however, today decides, sua sponte, that a Member of Congress may, despite the Speech or Debate Clause, be compelled to testify before a grand jury concerning the sources of information used by him in the performance of his legislative duties, if such an inquiry 'proves relevant to investigating possible third-party crime.' Ante, at 629 (emphasis supplied).2 In my view, this ruling is highly dubious in view of the basic purpose of the Speech or Debate Clause—'to prevent intimidation (of Congressmen) by the executive and accountability before a possibly hostile judiciary.' United States v. Johnson, 383 U.S. 169, 181, 86 S.Ct. 749, 755, 15 L.Ed.2d 681.
41
Under the Court's ruling, a Congressman may be subpoenaed by a vindictive Executive to testify about informants who have not committed crimes and who have no knowledge of crime. Such compulsion can occur, because the judiciary has traditionally imposed virtually no limitations on the grand jury's broad investigatory powers; grand jury investigations are not limited in scope to specific criminal acts, and standards of materiality and relevance are greatly relaxed.3 But even if the Executive had reason to believe that a Member of Congress had knowledge of a specific probable violation of law, it is by no means clear to me that the Executive's interest in the administration of justice must always override the public interest in having an informed Congress. Why should we not, given the tension between two competing interests, each of constitutional dimensions, balance the claims of the Speech or Debate Clause against the claims of the grand jury in the particularized contexts of specific cases? And why are not the Houses of Congress the proper institutions in most situations to impose sanctions upon a Representative or Senator who withholds information about crime acquired in the course of his legislative duties?4
42
I am not prepared to accept the Court's rigid conclusion that the Executive may always compel a legislator to testify before a grand jury about sources of information used in preparing for legislative acts. For that reason, I dissent from that part of the Court's opinion that so inflexibly and summarily decides this vital question.
43
Mr. Justice DOUGLAS, dissenting.
44
I would construe the Speech or Debate Clause1 to insulate Senator Gravel and his aides from inquiry concerning the Pentagon Papers, and Beacon Press from inquiry concerning publication of them, for that publication was but another way of informing the public as to what had gone on in the privacy of the Executive Branch concerning the conception and pursuit of the so-called 'war' in Vietnam. Alternatively, I would hold that Beacon Press is protected by the First Amendment from prosecution or investigations for publishing or undertaking to publish the Pentagon Papers.
45
Gravel, Senator from Alaska, was Chairman of the Senate Subcommittee on Public Buildings and Grounds. He convened a meeting of the Subcommittee and read to it a summary of the so-called Pentagon Papers. He then introduced 'the entire Papers, allegedly some 47 volumes and said to contain seven million words, as an exhibit.' 455 F.2d 753, 756. Thereafter, he supplied a copy of the papers to the Beacon Press, a Boston publishing house, on the understanding that it would publish the papers without profit to the Senator. A grand jury was investigating the release of the Pentagon Papers and subpoenaed one Rodberg, an aide to Senator Gravel, to testify. Rodberg moved to quash the subpoena; and on the same day the Senator moved to intervene. Intervention was granted and in due course the Court of Appeals entered the following order which is now before us for review:
46
'(1) No witness before the grand jury currently investigating the release of the Pentagon Papers may be questioned about Senator Mike Gravel's conduct at a meeting of the Subcommittee on Public Buildings and Grounds on June 29, 1971, nor, if the questions are directed to the motives or purposes behind the Senator's conduct at that meeting, about any communications with him or with his aides regarding the activities of the Senator or his aides during the period of their employment, in preparation for and related to said meeting.
47
'(2) Dr. Leonard S. Rodberg may not be questioned about his own actions in the broadest sense, including observations and communications, oral or written, by or to him or coming to his attention while being interviewed for, or after having been engaged as a member of Senator Gravel's personal staff to the extent that they were in the course of his employment.'
48
* Both the introduction of the Pentagon Papers by Senator Gravel into the record before his Subcommittee and his efforts to publish them were clearly covered by the Speech or Debate Clause, as construed in Kilbourn v. Thompson, 103 U.S. 168, 204, 26 L.Ed. 377:
49
'It would be a narrow view of the constitutional provision to limit it to words spoken in debate. The reason of the rule is as forcible in its application to written reports presented in that body by its committees, to resolutions offered, which, though in writing, must be reproduced in speech, and to the act of voting, whether it is done vocally or by passing between the tellers. In short, to things generally done in a session of the House by one of its members in relation to the business before it.'2
50
One of the things normally done by a Member 'in relation to the business before it' is the introduction of documents or other exhibits in the record the committee or subcommittee is making. The introduction of a document into a record of the Committee or subcommittee by its Chairman certainly puts it in the public domain. Whether a particular document is relevant to the inquiry of the committee may be questioned by the Senate in the exercise of its power to prescribe rules for the governance and discipline of wayward members. But there is only one instance, as I see it, where supervisory power over that issue is vested in the courts, and that is where a witness before a committee is prosecuted for contempt and he makes the defense that the question he refused to answer was not germane to the legislative inquiry or within its permissible range. See Uphaus v. Wyman, 360 U.S. 72, 79 S.Ct. 1040, 3 L.Ed.2d 1090; Kilbourn v. Thompson, supra, 103 U.S. at 190.
51
In all other situations, however, the udiciary's view of the motives or germaneness of a Senator's conduct before a committee is irrelevant. For, '(t) he claim of an unworthy purpose does not destroy the privilege.' Tenney v. Brandhove, 341 U.S. 367, 377, 71 S.Ct. 783, 788, 95 L.Ed. 1019. If there is an abuse, there is a remedy; but it is legislative, not judicial.
52
As to Senator Gravel's efforts to publish the Subcommittee record's contents, wide dissemination of this material as an educational service is as much a part of the Speech or Debate Clause philosophy as mailing under a frank a Senator's or a Congressman's speech across the Nation. As mentioned earlier, '(i)t is the proper duty of a representative body to look diligently into every affair of government and to talk much about what it sees. . . . The informing function of Congress should be preferred even to its legislative function.' W. Wilson, Congressional Government 303 (1885), quoted with approval in Tenney v. Brandhove, supra, 341 U.S., at 377 n. 6, 71 S.Ct., at 789. 'From the earliest times in its history, the Congress has assiduously performed an 'informing function." Watkins v. United States, 354 U.S. 178, 200 n. 33, 77 S.Ct. 1173, 1186, 1 L.Ed.2d 1273. 'Legislators have an obligation to take positions on controversial political questions so that their constituents can be fully informed by them.' Bond v. Floyd, 385 U.S. 116, 136, 87 S.Ct. 339, 349, 17 L.Ed.2d 235.
53
We said in United States v. Johnson, 383 U.S. 169, 179, 86 S.Ct. 749, 754, 15 L.Ed.2d 681, that the Speech or Debate Clause established a 'legislative privilege' that protected a member of Congress against prosecution 'by an unfriendly executive and conviction by a hostile judiciary' in order, as Mr. Justice Harlan put it, to ensure 'the independence of the legislature.' That hostility emanates from every stage of the present proceedings. It emphasizes the need to construe the Speech or Debate Clause generously, not niggardly. If republication of a Senator's speech in a newspaper carries the privilege, as it doubtless does, then republication of the exhibits introduced at a hearing before Congress must also do so. That means that republication by Beacon Press is within the ambit of the Speech or Debate Clause and that the confidences of the Senator in arranging it are not subject to inquiry 'in any other Place' than the Congress.
54
It is said that though the Senator is immune from questioning as to what he said and did in preparation for the committee hearing and in conducting it, his aides may be questioned in his stead. Such easy circumvention of the Speech or Debate Clause would indeed make it a mockery. The aides and agents such as Beacon Press must be taken as surrogates for the Senator and the confidences of the job that they enjoy are his confidences that the Speech or Debate Clause embraces.
II
55
The secrecy of documents in the Executive Department has been a bone of contention between it and Congress from the beginning.3 Most discussions have centered on the scope of the executive privilege in stamping documents as 'secret,' 'top secret,' 'confidential,' and so on, thus withholding them from the eyes of Congress and the press. The practice has reached large proportions, it being estimated that
56
(1) Over 30,000 people in the Executive Branch have the power to wield the classification stamp.4
57
(2) The Department of State, the Department of Defense, and the Atomic Energy Commission have over 20 million classified documents in their files.
58
(3) Congress appropriates approximately $15 billion annually without most of its members or the public or the press knowing for what purposes the money is to be used.5
59
The problem looms large as one of separation of powers. Woodrow Wilson wrote about it in terms of the 'informing function' of Congress:6
60
'It is the proper duty of a representative body to look diligently into every affair of government and to talk much about what it sees. It is meant to be the eyes and the voice, and to embody the wisdom and will of its constituents. Unless Congress have and use every means of acquainting itself with the acts and the disposition of the administrative agents of the government, the country must be helpless to learn how it is being served; and unless Congress both scrutinize these things and sift them by every form of discussion, the country must remain in embarrassing, crippling ignorance of the very affairs which it is most important that it should understand and direct. The informing function of Congress should be preferred even to its legislative function. The argument is not only that discussed and interrogated administration is the only pure and efficient administration, but, more than that, that the only really self-governing people is that people which discusses and interrogates its administration. The talk on the part of Congress which we sometimes justly condemn is the profitless squabble of words over frivolous bills or selfish party issues. It would be hard to conceive of there being too much talk about the practical concerns and processes of government. Such talk it is which, when earnestly and purposefully conducted, clears the public mind and shapes the demands of public opinion.'
61
Classification of documents is a concern of the Congress. It is, however, no concern of the courts, as I see it, how a document is stamped in an Executive Department or whether a committee of Congress can obtain the use of it. The federal courts do not sit as an ombudsman, refereeing the disputes between the other two branches. The federal courts do become vitally involved whenever their power is sought to be invoked either to protect the press against censorship as in New York Times Co. v. United States, 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822, or to protect the press against punishment for publishing 'secret' documents or to protect an individual against his disclosure of their contents for any of the purposes of the First Amendment.
62
Forcing the press to become the Government's coconspirator in maintaining state secrets is at war with the objectives of the First Amendment. That guarantee was designed in part to ensure a meaningful version of self-government by immersing the people in a 'steady, robust, unimpeded, and uncensored flow of opinion and reporting which are continuously subjected to critique, rebuttal, and re-examination.' Branzburg v. Hayes, 408 U.S. 665, 711, at 715, 92 S.Ct. 2646, 2686, at 2688, 33 L.Ed.2d 626 (Douglas, J., dissenting); Brandenburg v. Ohio, 395 U.S. 444, 89 S.Ct. 1827, 23 L.Ed.2d 430; Stanley v. Georgia, 394 U.S. 557, 564, 89 S.Ct. 1243, 1247, 22 L.Ed.2d 542; Lamont v. Postmaster General, 381 U.S. 301, 308, 85 S.Ct. 1493, 1497, 14 L.Ed.2d 398 (Brennan, J., concurring); New York Times Co. v. Sullivan, 376 U.S. 254, 270, 84 S.Ct. 710, 720, 11 L.Ed.2d 686. As I have said, in dissent, elsewhere, e.g., Branzburg, supra; Kleindienst v. Mandel, 408 U.S. 753, 770, at 771, 92 S.Ct. 2576, 2585, at 2586, 33 L.Ed.2d 683, that Amendment is aimed at protecting not only speakers and writers but also listeners and readers. The essence of our form of governing was at the heart of Mr. Justice Black's reminder in the Pentagon Papers case that '(t)he press was protected so that it could bare the secrets of government and inform the people.' 403 U.S., at 717, 91 S.Ct., at 2143 (concurring opinion). Similarly, Senator Sam Ervin has observed: 'When the people do not know what their government is doing, those who govern are not accountable for their actions—and accountability is basic to the democratic system. By using devices of secrecy, the government attains the power to 'manage' the news and through it to manipulate public opinion.'7 Ramsey Clark as Attorney General expressed a similar sentiment: 'If government is to be truly of, by, and for the people, the people must know in detail the activities of government. Nothing so diminishes democracy as secrecy.'8 And see Meiklejohn, The First Amendment Is An Absolute, 1961 Sup.Ct.Rev. 245; Press Freedoms Under Pressure: Report of the Twentieth Century Fund Task Force on the Government and the Press 109—117 (1972) (background paper by Fred Graham on access to news); M. Johnson, The Government Secrecy Controversy 39—41 (1967).
63
Jefferson in a letter to Madison, dated December 20, 1787, posed the question 'whether peace is best preserved by giving energy to the government, or information to the people,' and then answered, 'This last is the most certain, and the most legitimate engine of government.' 6 Writings of Thomas Jefferson 392 (Memorial ed. 1903).
64
Madison at the time of the Whiskey Rebellion spoke in the House against a resolution of censure against the groups stirring up the turmoil against that rebellion.
65
"If we advert to the nature of Republican Government, we shall find that the censorial power is in the people over the Government, and not in the Government over the people." Brant, The Madison Heritage, 35 N.Y.U.L.Rev. 882, 900.
66
Yet, as has been revealed by such expose § as the Pentagon Papers, the My Lai massacres, the Gulf of Tonkin 'incident,' and the Bay of Pigs invasion, the Government usually suppresses damaging news but high lights favorable news. In this filtering process the secrecy stamp is the officials' tool of suppression and it has been used to withhold information which in '99 1/2%' of the cases would present no danger to national security.9 To refuse to publish 'classified' reports would at times relegate a publisher to distributing only the press releases of Government or remaining silent; if he printed only the press releases or 'leaks' he would become an arm of officialdom, not its critic. Rather, in my view, when a publisher obtains a classified document he should be free to print it without fear of retribution, unless it contains material directly bearing on future, sensitive planning of the Government.10 By that test Beacon Press could with impunity reproduce the Pentagon Papers inasmuch as their content 'is all history, not future events. None of it is more recent than 1968.' New York Times Co. v. United States, 403 U.S., at 722 n. 3, 91 S.Ct., at 2146, 29 L.Ed.2d 822 (concurring opinion).
67
The late Mr. Justice Harlan in the Pentagon Papers case said that in that situation the courts had only two restricted functions to perform: first, to ascertain whether the subject matter of the dispute lies within the proper compass of the President's constitutional power; and second, to insist that the head of the Executive Department concerned—whether State or Defense—determine if disclosure of the subject matter 'would irreparably impair the national security.' Beyond those two inquiries, he concluded, the judiciary may not go. Id., at 757 758, 91 S.Ct., at 2163 (dissenting opinion).
68
My view is quite different. When the press stands before the court as a suspected criminal, it is the duty of the court to disregard what the prosecution claims is the executive privilege and to acquit the press or overturn the ruling or judgment against it, if the First Amendment and the assertion of the executive privilege conflict. For the executive privilege—nowhere made explicit in the Constitution—is necessarily subordinate to the express commands of the Constitution.
69
United States v. Curtiss-Wright Corp., 299 U.S. 304, 57 S.Ct. 216, 81 L.Ed. 255 involved the question whether a proclamation issued by the President, pursuant to a Joint Resolution of the Congress, was adequate to sustain an indictment. The Court, in holding that it was, discussed at length the power of the President. The Court said that the power of the President in the field of international relations does not require as a basis an Act of Congress; but it added that his power 'like every other governmental power, must be exercised in subordination to the applicable provisions of the Constitution.' Id., at 320, 57 S.Ct., at 221.
70
When the Executive Branch launches a criminal prosecution against the press, it must do so only under an Act of Congress. Yet Congress has no authority to place the press under the restraints of the executive privilege without 'abridging' the press within the meaning of the First Amendment.
71
In related and analogous situations, federal courts have subordinated the executive privilege to the requirements of a fair trial.
72
Mr. Chief Justice Marshall in the trial of Aaron Burr ruled '(t)hat the president of the United States may be subpoenaed, and examined as a witness, and required to produce any paper in his possession, is not controverted.' United States v. Burr, 25 Fed.Cas. pages 187, 191 No. 14,694 (CC Va.1807). Yet he 'may have sufficient motives for declining to produce a particular paper, and those motives may be such as to restrain the court from enforcing its production.' Ibid. A letter to the President, he said, 'may relate to public concerns' and not be 'forced into public view.' Id., at 192. But where the paper was shown 'to be essential to the justice of the case,' ibid., (the paper (should) be produced, or the cause be continued.' Ibid.
73
Jencks v. United States, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103, is in that tradition. It was a criminal prosecution for perjury, the telling evidence against the accused being the testimony of Government investigators. The defense asked for contemporary notes made by agents at the time. Refusal was based on their confidential character. We held that to be reversible error.11
74
'We hold that the criminal action must be dismissed when the Government, on the ground of privilege, elects not to comply with an order to produce, for the accused's inspection and for admission in evidence, relevant statements or reports in its possession of government witnesses touching the subject matter of their testimony at the trial. Accord, Roviaro v. United States, 353 U.S. 53, 60—61, 77 S.Ct. 623, 627—628, 1 L.Ed.2d 639. The burden is the Government's, not to be shifted to the trial judge, to decide whether the public prejudice of allowing the crime to go unpunished is greater than that attendant upon the possible disclosure of state secrets and other confidential information in the Government's possession.' Id., at 672, 77 S.Ct., at 1015.
75
Congress enacted the so-called Jencks Act, 18 U.S.C. § 3500, regulating the use of Government documents in criminal prosecutions. We sustained that Act. Scales v. United States, 367 U.S. 203, 258, 81 S.Ct. 1469, 1500, 6 L.Ed.2d 782. Under the Act a defendant 'on trial in a federal criminal prosecution is entitled, for impeachment purposes, to relevant and competent statements of a government witness in possession of the Government touching the events or activities as to which the witness has testified at the trial. . . . The command of the statute is thus designed to further the fair and just administration of criminal justice, a goal of which the judiciary is the special guardian.' Campbell v. United States, 365 U.S. 85, 92, 81 S.Ct. 421, 425, 5 L.Ed.2d 428. And see Clancy v. United States, 365 U.S. 312, 81 S.Ct. 645, 5 L.Ed.2d 574.
76
The prosecution often dislikes to make public the identity of the informer on whose information its case rests. But his identity must be disclosed where his testimony is material to the trial. Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639. In other words, the desire for Government secrecy does not override the demands for a fair trial. And see Scher v. United States, 305 U.S. 251, 254, 59 S.Ct. 174, 176, 83 L.Ed. 151. The constitutional demands for a fair trial, implicit in the concept of due process, In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 625, 99 L.Ed. 942, override the Government's desire for secrecy, whether the identity of an informer or the executive privilege be involved. And see Smith v. Illinois, 390 U.S. 129, 88 S.Ct. 748, 19 L.Ed.2d 956.
77
The requirements of the First Amendment are not of lesser magnitude. They override any claim to executive privilege. As stated in United States v. Curtiss-Wright Corp., supra, the class of executive privilege 'like every other governmental power, must be exercised in subordination to the applicable provisions of the Constitution.' 299 U.S., at 320, 57 S.Ct., at 221.
III
78
Aside from the question of the extent to which publishers can be penalized for printing classified documents, surely the First Amendment protects against all inquiry into the dissemination of information which, although once classified, has become part of the public domain.
79
To summon Beacon Press through its officials before the grand jury and to inquire into why it did what it did and its publication plans is 'abridging' the freedom of the press contrary to the command of the First Amendment. In light of the fact that these documents were part of the official Senate record,12 Beacon Press has violated no valid law, and the grand jury's scrutiny of it reduces to '(e)xposure purely for the sake of exposure.' Uphaus v. Wyman, 360 U.S., at 82, 79 S.Ct., at 1047 (Brennan, J., dissenting). As in United States v. Rumely, 345 U.S. 41, 73 S.Ct. 543, 97 L.Ed. 770, where a legislative committee inquired of a publisher of political tracts as to its customers' identities, '(i)f the present inquiry were sanctioned the press would be subjected to harassment that in practical effect might be as serious as censorship.' Id., at 57, 73 S.Ct., at 551 (concurring opinion). Under our Constitution the Government has no surveillance over the press. That includes, as we held in New York Times Co. v. United States, 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822, the prohibition against prior restraints. Yet criminal punishment for or investigations of what the press publishes, though a different species of abridgment, is nonetheless within the ban of the First Amendment.
80
The story of the Pentagon Papers is a chronicle of suppression of vital decisions to protect the reputations and political hides of men who worked an amazingly successful scheme of deception on the American people. They were successful not because they were astute but because the press had become a frightened, regimented, submissive instrument, fattening on favors from those in power and forgetting the great tradition of reporting. To allow the press further to be cowed by grand jury inquiries and prosecution is to carry the concept of 'abridging' the press to frightening proportions.
81
What would be permissible if Beacon Press 'stole' the Pentagon Papers is irrelevant to today's decision. What Beacon Press plans to publish is matter introduced into a public record by a Senator acting under the full protection of the Speech or Debate Clause.13 In light of the command of the First Amendment we have no choice but to rule that here government, not the press, is lawless.
82
I would affirm the judgment of the Court of Appeals except as to Beacon Press, in which case I would reverse.
83
Mr. Justice BRENNAN, with whom Mr. Justice DOUGLAS, and Mr. Justice MARSHALL, join, dissenting.
84
The facts of this litigation, which are detailed by the Court, and the objections to overclassification of documents by the Executive, detailed by my Brother DOUGLAS, need not be repeated here. My concern is with the narrow scope accorded the Speech or Debate Clause by today's decision. I fully agree with the Court that a Congressman's immunity under the Clause must also be extended to his aides if it is to be at all effective. The complexities and press of congressional business make it impossible for a Member to function without the close cooperation of his legislative assistants. Their role as his agents in the performance of official duties requires that they share his immunity for those acts. The scope of that immunity, however, is as important as the persons to whom it extends. In my view, today's decision so restricts the privilege of speech or debate as to endanger the continued performance of legislative tasks that are vital to the workings of our democratic system.
85
* In holding that Senator Gravel's alleged arrangement with Beacon Press to publish the Pentagon Papers is not shielded from extra-senatorial inquiry by the Speech or Debate Clause, the Court adopts what for me is a far too narrow view of the legislative function. The Court seems to assume that words spoken in debate or written in congressional reports are protected by the Clause, so that if Senator Gravel had recited part of the Pentagon Papers on the Senate floor or copied them into a Senate report, those acts could not be questioned 'in any other Place.' Yet because he sought a wider audience, to publicize information deemed relevant to matters pending before his own committee, the Senator suddenly loses his immunity and is exposed to grand jury investigation anad possible prosecution for the republication. The explanation for this anomalous result is the Court's belief that 'Speech or Debate' encompasses only acts necessary to the internal deliberations of Congress concerning proposed legislation. 'Here,' according to the Court, 'private publication by Senator Gravel through the cooperation of Beacon Press was in no way essential to the deliberations of the Senate.' Ante, at 625. Therefore, 'the Senator's arrangements with Beacon Press were not part and parcel of the legislative process.' Id., at 626.
86
Thus, the Court excludes from the sphere of protected legislative activity a function that I had supposed lay at the heart of our democratic system. I speak, of course, of the legislator's duty to inform the public about matters affecting the administration of government. That this 'informing function' falls into the class of things 'generally done in a session of the House by one of its members in relation to the business before it,' Kilbourn v. Thompson, 103 U.S. 168, 204, 26 L.Ed. 377 (1881), was explicitly acknowledged by the Court in Watkins v. United States, 354 U.S. 178, 77 S.Ct. 1173, 1 L.Ed.2d 1273 (1957). In speaking of the 'power of the Congress to inquire into and publicize corruption, maladministration or inefficiency in agencies of the Government,' the Court noted that '(f)rom the earliest times in its history, the Congress has assiduously performed an 'informing function' of this nature.' Id., at 200 n. 33, 77 S.Ct., at 1185.
87
We need look no further than Congress itself to find evidence supporting the Court's observation in Watkins. Congress has provided financial support for communications between its Members and the public, including the franking privilege for letters, telephone and telegraph allowances, stationery allotments, and favorable prices on reprints from the Congressional Record. Congressional hearings, moreover, are not confined to gathering information for internal distribution, but are often widely publicized, sometimes televised, as a means of alerting the electorate to matters of public import and concern. The list is virtually endless, but a small sampling of contemporaneous hearings of this kind would certainly include the Kefauver hearings on organized crime, the 1966 hearings on automobile safety, and the numerous hearings of the Senate Foreign Relations Committee on the origins and conduct of the war in Vietnam. In short, there can be little doubt that informing the electorate is a thing 'generally done' by the Members of Congress 'in relation to the business before it.'
88
The informing function has been cited by numerous students of American politics, both within and without the Government, as among the most important responsibilities of legislative office. Woodrow Wilson, for example, emphasized its role in preserving the separation of powers by ensuring that the administration of public policy by the Executive is understood by the legislature and electorate:
89
'It is the proper duty of a representative body to look diligently into every affair of government and to talk much about what it sees. It is meant to be the eyes and the voice, and to embody the wisdom and will of its constituents. Unless Congress have and use every means of acquainting itself with the acts and the disposition of the administrative agents of the government, the country must be helpless to learn how it is being served; and unless Congress both scrutinize these things and sift them by every form of discussion, the country must remain in embarrassing, crippling ignorance of the very affairs which it is most important that it should understand and direct.' Congressional Government 303 (1885).
90
Others have viewed the give-and-take of such communication as an important means of educating both the legislator and his constituents:
91
'With the decline of Congress as an original source of legislation, this function of keeping the government in touch with public opinion and of keeping public opinion in touch with the conduct of the government becomes increasingly important. Congress no longer governs the country; the Administration in all its ramifications actually governs. But Congress serves as a forum through which public opinion can be expressed, general policy discussed, and the conduct of governmental affairs exposed and criticized.' The Reorganization of Congress, A Report of the Committee on Congress of the American Political Science Association 14 (1945).
92
Though I fully share these and related views on the educational values served by the informing function, there is yet another, and perhaps more fundamental, interest at stake. It requires no citation of authority to state that public concern over current issues—the war, race relations, governmental invasions of privacy—has transformed itself in recent years into what many believe is a crisis of confidence, in our system of government and its capacity to meet the needs and reflect the wants of the American people. Communication between Congress and the electorate tends to alleviate that doubt by exposing and clarifying the workings of the political system, the policies underlying new laws and the role of the Executive in their administration. To the extent that the informing function succeeds in fostering public faith in the responsiveness of Government, it is not only an 'ordinary' task of the legislator but one that is essential to the continued vitality of our democratic institutions.
93
Unlike the Court, therefore, I think that the activities of Congressmen in communicating with the public are legislative acts protected by the Speech or Debate Clause. I agree with the Court that not every task performed by a legislator is privileged; intervention before Executive departments is one that is not. But the informing function carries a far more persuasive claim to the protections of the Clause. It has been recognized by this Court as something 'generally done' by Congressmen, the Congress itself has established special concessions designed to lower the cost of such communication, and, most important, the function furthers several well-recognized goals of representative government. To say in the face of these facts that the informing function is not privileged merely because it is not necessary to the internal deliberations of Congress is to give the Speech or Debate Clause an artificial and narrow reading unsupported by reason.
94
Nor can it be supported by history. There is substantial evidence that the Framers intended the Speech or Debate Clause to cover all communications from a Congressman to his constituents. Thomas Jefferson clearly expressed that view of legislative privilege in a case involving Samuel Cabell, Congressman from Virginia. In 1797 a federal grand jury in Virginia investigated the conduct of several Congressmen, including Cabell, in sending newsletters to constituents critical of the administration's policy in the war with France. The grand jury found that the Congressmen had endeavored 'at a time of real public danger, to disseminate unfounded calumnies against the happy government of the United States, and thereby to separate the people therefrom; and to increase or produce a foreign influence, ruinous to the peace, happiness, and independence of these United States.' Jefferson immediately drafted a long essay signed by himself and several citizens of Cabell's district, condemning the grand jury investigation as a blatant violation of the congressional privilege. Revised and joined by James Madison, the protest was forwarded to the Virginia House of Delegates. It reads in part as follows:
95
'(T)hat in order to give to the will of the people the influence it ought to have, and the information which may enable them to exercise it usefully, it was a part of the common law, adopted as the law of this land, that their representatives, in the discharge of their functions, should be free from the cognizance or coercion of the co-ordinate branches, Judiciary and Executive; and that their communications with their constituents should of right, as of duty also, be free, full, and unawed by any: that so necessary has this intercourse been deemed in the country from which they derive principally their descent and laws, that the correspondence between the representative and constituent is privileged there to pass free of expense through the channel of the public post, and that the proceedings of the legislature have been known to be arrested and suspended at times until the Representatives could go home to their several counties and confer with their constituents.
96
'That when circumstances required that the ancient confederation of this with the sister States, for the government of their common concerns, should be improved into a more regular and effective form of general government, the same representative principle was preserved in the new legislature, one branch of which was to be chosen directly by the citizens of each State, and the laws and principles remained unaltered which privileged the representative functions, whether to be exercised in the State or General Government, against the cognizance and notice of the co-ordinate branches, Executive and Judiciary; and for its safe and convenient exercise, the intercommunication of the representative and constituent has been sanctioned and provided for through the channel of the public post, at the public expense.
97
'That the grand jury is a part of the Judiciary, not permanent indeed, but in office, pro hac vice and responsible as other judges are for their actings and doings while in office: that for the Judiciary to interpose in the legislative department between the constituent and his representative, to control them in the exercise of their functions or duties towards each other, to overawe the free correspondence which exists and ought to exist between them, to dictate what communications may pass between them, and to punish all others, to put the representative into jeopardy of criminal prosecution, of vexation, expense, and punishment before the Judiciary, if his communications, public or private, do not exactly square with their ideas of fact or right, or with their designs of wrong, is to put the legislative department under the feet of the Judiciary, is to leave us, indeed, the shadow, but to take away the substance of representation, which requires essentially that the representative be as free as his constituents would be, that the same interchange of sentiment be lawful between him and them as would be lawful among themselves were they in the personal transaction of their own business; is to do away the influence of the people over the proceedings of their representatives by excluding from their knowledge, by the terror of punishment, all but such information or misinformation as may suit their own views; and is the more vitally dangerous when it is considered that grand jurors are selected by officers nominated and holding their places at the will of the Executive . . .; and finally, is to give to the Judiciary, and through them to the Executive, a complete preponderance over the legislature rendering ineffectual that wise and cautious distribution of powers made by the constitution between the three branches, and subordinating to the other two that branch which most immediately depends on the people themselves, and is responsible to them at short periods.' 8 The Works of Thomas Jefferson 322—327 (Ford ed. 1904).
98
Jefferson's protest is perhaps the most significant and certainly the most cogent analysis of the privileged nature of communication between Congressman and public. Its comments on the history, purpose, and scope of the Clause leave no room for the notion that the Executive or Judiciary can in any way question the contents of that dialogue. Nor was Jefferson alone among the Framers in that view. Aside from Madison, who joined in the protest, James Wilson took the position that a member of Congress 'should enjoy the fullest liberty of speech, and . . . should be protected from the resentment of every one, however powerful, to whom the exercise of that liberty may occasion offence.' 1 Works of James Wilson 421 (R. McCloskey ed. 1967). Wilson, a member of the Committee responsible for drafting the Speech or Debate Clause, stated in plainest terms his belief in the duty of Congressmen to inform the people about proceedings in the Congress:
99
'That the conduct and proceedings of representatives should be as open as possible to the inspection of those whom they represent, seems to be, in republican government, a maxim, of whose truth or importance the smallest doubt cannot be entertained. That, by a necessary consequence, every measure, which will facilitate or secure this open communication of the exercise of delegated power, should be adopted and patronised by the constitution and laws of every free state, seems to be another maxim, which is the unavoidable result of the former.' Id., at 422.
100
Wilson's statements, like those of Jefferson and Madison, reflect a deep conviction of the Framers, that selfgovernment can succeed only when the people are informed by their representatives, without interference by the Executive or Judiciary, concerning the conduct of their agents in government. That conviction is no less valid today than it was at the time of our founding. I would honor the clear intent of the Framers and extend to the informing function the protections embodied in the Speech or Debate Clause.
101
The Court, however, offers not a shred of evidence concerning the Framers' intent, but relies instead on the English view of legislative privilege to support its interpretation of the Clause. Like the Court itself, ante, at 623—624, n. 14, I have some doubt concerning the relevance of English authority to this case, particularly authority post-dating the adoption of our Constitution. But in any event it is plain that the Court has misread the history on which it relies. The Speech or Debate Clause of the English Bill of Rights was at least in part the product of a struggle between Parliament and Crown over the very type of activity involved in this litigation. During the reign of Charles II, the House of Commons received a number of reports about an alleged plot between the Crown and the King of France to restore Catholicism as the established religion of England. The most famous of these reports, Dangerfield's Narrative, was entered into the Commons Journal and then republished by order of the Speaker of the House, Sir William Williams, with the consent of Commons. In 1686, after James II came to the throne, informations charging libel were filed against Williams in King's Bench. Despite the arguments of his attorney, Sir Robert Atkyns, that the publication was necessary to the 'counselling' and 'enquiring' functions of Parliament, Williams' plea of privilege was rejected and he was fined 10,000. Shortly after Williams' conviction James II was sent into exile, and a committee was appointed by the House of Commons to report upon 'such things as are absolutely necessary for securing the Laws and Liberties of the Nation.' 9 Debates of the House of Commons, coll. by A. Grey, 1763, p. 37. In reporting to the House, the chairman of the committee stated that the provision for freedom of speech and debate was included 'for the sake of one . . . Sir William Williams, who was punished out of Parliament for what he had done in Parliament,' Id., at 81. Following consultation with the House of Lords, that provision was included as part of the English Bill of Rights, and the judgment against Williams was declared by Commons 'illegal and subversive of the freedom of parliament.' 1 W. Townsend, Memoirs of the House of Commons 414 (2d ed. 1844).
102
Although the origins of the Speech or Debate Clause in England can thus be traced to a case involving republication, the Court, citing Stockdale v. Hansard, 9 Ad. & E. 1, 112 Eng.Rep. 1112 (K.B.1839), says that 'English legislative privilege was not viewed as protecting republication of an otherwise immune libel on the floor of the House.' Ante, at 622. That conclusion reflects an erroneous reading of precedent. Stockdale did state that 'if the calumnious or inflammatory speeches should be reported and published, the law will attach responsibility on the publisher.' Id., at 114, 112 Eng.Rep., at 1156. But Stockdale concerned only the publisher's liability, not that of a member of Parliament; thus, it has little bearing on the instant case. Furthermore, contrary to the Court's assertion, ante, at 623—624, n. 14, even the narrow result of Stockdale was repudiated 30 years later in Wason v. Walter, L.R. 4 Q.B. 73 (1868), for reasons strikingly similar to those expressed by Jefferson in his protest.1 In my view, therefore, the English precedent, if relevant at all, supports Senator Gravel's position here.
103
Thus, from the standpoint of function or history, it is plain that Senator Gravel's dissemination of material, placed by him in the record of a congressional hearing, is itself legislative activity protected by the privilege of speech or debate. Whether or not that privilege protects the publisher from prosecution or the Senator from senatorial discipline, it certainly shields the Senator from any grand jury inquiry about his part in the publication. As we held in United States v. Johnson, 383 U.S. 169, 86 S.Ct. 749, 15 L.Ed.2d 681 (1966), neither a Congressman, nor his aides, nor third parties may be made to testify concerning privileged acts or their motives. That immunity, which protects legislators 'from deterrents to the uninhibited discharge of their legislative duty,' Tenney v. Brandhove, 341 U.S. 367, 377, 71 S.Ct. 783, 788, 95 L.Ed. 1019 (1951), is the essence of the Clause, designed not for the legislators' 'private indulgence but for the public good.' Id., at 377, 71 S.Ct. at 788.
104
That privilege, moreover, may not be defeated merely because a court finds that the publication was irregular or the material irrelevant to legislative business. Legislative immunity secures 'to every member exemption from prosecution, for every thing said or done by him, as a representative, in the exercise of the functions of that office . . . whether the exercise was regular according to the rules of the house, or irregular and against their rules.' Coffin v. Coffin, 4 Mass. 1, 27 (1808). Thus, if the republication of this committee record was unauthorized or even prohibited by the Senate rules, it is up to the Senate, not the Executive or Judiciary, to fashion the appropriate sanction to discipline Senator Gravel.
105
Similarly, the Government cannot strip Senator Gravel of the immunity by asserting that his conduct 'did not relate to any pending Congressional business.' Brief for United States 41. The Senator has stated that his hearing on the Pentagon Papers had a direct bearing on the work of his Subcommittee on Buildings and Grounds, because of the effect of the Vietnam war on the domestic economy and the lack of sufficient federal funds to provide adequate public facilities. If in fact the Senator is wrong in this contention, and his conduct at the hearing exceeded the subcommittee's jurisdiction, then again it is the Senate that must call him to task. This Court has permitted congressional witnesses to defend their refusal to answer questions on the ground of nongermaneness. Watkins v. United States, 354 U.S. 178, 77 S.Ct. 1173, 1 L.Ed.2d 1273 (1957). Here, however, it is the Executive that seeks the aid of the judiciary, not to protect individual rights, but to extend its power of inquiry and interrogation into the privileged domain of the legislature. In my view the Court should refuse to turn the freedom of speech or debate on the Government's notions of legislative propriety and relevance. We would weaken the very structure of our constitutional system by becoming a partner in this assault on the separation of powers.
106
Whether the Speech or Debate Clause extends to the informing function is an issue whose importance goes beyond the fate of a single Senator or Congressman. What is at stake is the right of an elected representative to inform, and the public to be informed, about matters relating directly to the workings of our Government. The dialogue between Congress and people has been recognized, from the days of our founding, as one of the necessary elements of a representative system. We should not retreat from that view merely because, in the course of that dialogue, information may be revealed that is embarrassing to the other branches of government or violates their notions of necessary secrecy. A Member of Congress who exceeds the bounds of propriety in performing this official task may be called to answer by the other Members of his chamber. We do violence to the fundamental concepts of privilege, however, when we subject that same conduct to judicial scrutiny at the instance of the Executive.2 The threat of 'prosecution by an unfriendly executive and conviction by a hostile judiciary,' United States v. Johnson, 383 U.S., at 179, 86 S.Ct., at 754, that the Clause was designed to avoid, can only lead to timidity in the performance of this vital function. The Nation as a whole benefits from the congressional investigation and exposure of official corruption and deceit. It likewise suffers when that exposure is replaced by muted criticism, carefully hushed behind congressional walls.
II
107
Equally troubling in today's decision is the Court's refusal to bar grand jury inquiry into the source of documents received by the Senator and placed by him in the hearing record. The receipt of materials for use in a congressional hearing is an integral part of the preparation for that legislative act. In United States v. Johnson, supra, the Court acknowledged the privileged nature of such preparatory steps, holding that they, like the act itself and its motives, must be shielded from scrutiny by the Executive and Judiciary. That holding merely recognized the obvious—that speeches, hearings, and the casting of votes require study and planning in advance. It would accomplish little toward the goal of legislative freedom to exempt an official act from intimidating scrutiny, if other conduct leading up to the act and intimately related to it could be deterred by a similar threat. The reasoning that guided that Court in Johnson is no less persuasive today, and I see no basis, nor does the Court offer any, for departing from it here. I would hold that Senator Gravel's receipt of the Pentagon Papers, including the name of the person from whom he received them, may not be the subject of inquiry by the grand jury.
108
I would go further, however, and also exclude from grand jury inquiry any knowledge that the Senator or his aides might have concerning how the source himself first came to possess the Papers. This immunity, it seems to me, is essential to the performance of the informing function. Corrupt and deceitful officers of government do not often post for public examination the evidence of their own misdeeds. That evidence must be ferreted out, and often is, by fellow employees and subordinates. Their willingness to reveal that information and spark congressional inquiry may well depend on assurances from their contact in Congress that their identities and means of obtaining the evidence will be held in strictest confidence. To permit the grand jury to frustrate that expectation through an inquiry of the Congressman and his aides can only dampen the flow of information to the Congress and thus to the American people. There is a similar risk, of course, when the Member's own House requires him to break the confidence. But the danger, it seems to me, is far less if the Member's colleagues, and not an 'unfriendly executive' or 'hostile judiciary,' are charged with evaluating the propriety of his conduct. In any event, assuming that a Congressman can be required to reveal the sources of his information and the methods used to obtain that information, that power of inquiry, as required by the Clause, is that of the Congressman's House, and of that House only.
109
I respectfully dissent.
1
The District Court permitted Senator Gravel to intervene in the proceeding on Dr. Rodberg's motion to quash the subpoena ordering his appearance before the grand jury and accepted motions from Gravel to quash the subpoena and to specify the exact nature of the questions to be asked Rodberg. The Government contested Gravel's standing to appeal the trial court's disposition of these motions on the ground that, had the subpoena been directed to the Senator, he could not have appealed from a denial of a motion to quash without first refusing to comply with the subpoena and being held in contempt. United States v. Ryan, 402 U.S. 530, 91 S.Ct. 1580, 29 L.Ed.2d 85 (1971); Cobbledick v. United States, 309 U.S. 323, 60 S.Ct. 540, 84 L.Ed. 783 (1940). The Court of Appeals, United States v. Doe, 455 F.2d 753, 756—757 (CA1 1972), held that because the subpoena was directed to third parties, who could not be counted on to risk contempt to protect intervenor's rights, Gravel might be 'powerless to avert the mischief of the order' if not permitted to appeal, citing Perlman v. United States, 247 U.S. 7, 13, 38 S.Ct. 417, 62 L.Ed. 950 (1918). The United States does not here challenge the propriety of the appeal.
2
Dr. Rodberg, who filed his own motion to quash the subpoena directing his appearance and testimony, appeared as amicus curiae both in the Court of Appeals and this Court. Technically, Rodberg states, he is a party to No. 71—1026, insofar as the Government appeals from the protective order entered by the District Court. However, since Gravel intervened, Rodberg does not press the point. Brief of Leonard S. Rodberg as Amicus Curiae 2 n. 2.
3
The District Court found 'that 'as personal assistant to movant (Gravel), Dr. Rodberg assisted movant in preparing for disclosure and subsequently disclosing to movant's colleagues and constituents, at a hearing of the Senate Subcommittee on Public Buildings and Grounds, the contents of the so-called 'Pentagon Papers,' which were critical of the Executive's conduct in the field of foreign relations." United States v. Doe, 332 F.Supp. 930, 932 (Mass.1971).
4
Beacon Press is a division of the Unitarian Universalist Association, which appeared here as amicus curiae in support of the position taken by Senator Gravel.
5
Gravel so alleged in his motion to intervene in the Webber matter and to quash the subpoena ordering Webber to appear and testify. App. 15—18.
6
The Government maintained that Congress does not enjoy unlimited power to conduct business and that judicial review has often been exercised to curb extralegislative incursions by legislative committees, citing Watkins v. United States, 354 U.S. 178, 77 S.Ct. 1173, 1 L.Ed.2d 1273 (1957); McGrain v. Daugherty, 273 U.S. 135, 47 S.Ct. 319, 71 L.Ed. 580 (1927); Hentoff v. Ichord, 318 F.Supp. 1175 (DC 1970), at least where such incursions are unrelated to a legitimate legislative purpose. It was alleged that Gravel had 'convened a special, unauthorized, and untimely meeting of the Senate Subcommittee on Public Works (at midnight on June 29, 1971), for the purpose of reading the documents and thereafter placed all unread portions in the subcommittee record, with Dr. Rodberg soliciting publication following the meeting.' App. 9. The District Court rejected the contention: 'Senator Gravel has suggested that the availability of funds for the construction and improvement of public buildings and grounds has been affected by the necessary costs of the war in Vietnam and that therefore the development and conduct of the war is properly within the concern of his subcommittee. The court rejects the Government's argument without detailed consideration of the merits of the Senator's position, on the basis of the general rule restricting judicial inquiry into matters of legislative purpose and operations.' United States v. Doe, 332 F.Supp., at 935. Cases such as Watkins, supra, were distinguished on the ground that they concerned the power of Congress under the Constitution: 'It has not been suggested by the Government that the subcommittee itself is unauthorized, nor that the war in Vietnam is an issue beyond the purview of congressional debate and action. Also, the individual rights at stake in these proceedings are not those of a witness before a congressional committee or of a subject of a committee's investigation, but only those of a congressman and member of his personal staff who claim 'intimidation by the executive." 332 F.Supp., at 936.
7
The District Court thought that Rodberg could be questioned concerning his own conduct prior to joining the Senator's staff and concerning the activities of third parties with whom Rodberg and Gravel dealt. Id., at 934.
8
The protective order entered by the District Court provided as follows:
'(1) No witness before the grand jury currently investigating the release of the Pentagon Papers may be questioned about Senator Mike Gravel's conduct at a meeting of the Subcommittee on Public Buildings and Grounds on June 29, 1971 nor about things done by the Senator in preparation for and intimately related to said meeting.
'(2) Dr. Leonard S. Rodberg may not be questioned about his own actions on June 29, 1971 after having been engaged as a member of Senator Gravel's personal staff to the extent that they were taken at the Senator's direction either at a meeting of the Subcommittee on Public Buildings and Grounds or in preparation for and intimately related to said meeting.' Id., at 938.
9
The Court of Appeals thought third parties could be questioned as to their own conduct regarding the Pentagon Papers, 'including their dealing with intervenor or his aides.' United States v. Doe, 455 F.2d, at 761. The court found no merit in the claim that such parties should be shielded from questioning under the Speech or Debate Clause concerning their own wrongful acts, even if such questioning may bring the Senator's conduct into question. Id., at 758 n. 2.
10
Williamson, United States Congressman, had been found guilty of conspiring to commit subornation of perjury in connection with proceedings for the purchase of public land. He objected to the court's passing sentence upon him and particularly protested that any imprisonment would deprive him of his constitutional right to 'go to, attend at, and return from the ensuing session of Congress.' Williamson v. United States, 207 U.S. 425, 433, 28 S.Ct. 163, 165, 52 L.Ed. 278 (1908). The Court rejected the contention that the Speech or Debate Clause freed legislators from accountability for criminal conduct.
11
In Kilbourn v. Thompson, 103 U.S. 168, 198, 26 L.Ed. 377 (1881), the Court noted a second example, used by Mr. Justice Coleridge in Stockdale v. Hansard, 9 Ad. & E. 1, 225—226, 112 Eng.Rep. 1112, 1196—1197 (K.B.1839): "Let me suppose, by way of illustration, an extreme case; the House of Commons resolves that any one wearing a dress of a particular manufacture is guilty of a breach of privilege, and orders the arrest of such persons by the constable of the parish. An arrest is made and action brought, to which the order of the House is pleaded as a justification. . . . In such a case as the one supposed, the plaintiff's counsel would insist on the distinction between power and privilege; and no lawyer can seriously doubt that it exists: but the argument confounds them, and forbids us to enquire, in any particular case, whether it ranges under the one or the other. I can find no principle which sanctions this."
12
Senator Gravel is willing to assume that if he personally had 'stolen' the Pentagon Papers, and that act were a crime, he could be prosecuted, as could aides or other assistants who participated in the theft. Consolidated Brief for Senator Gravel 93.
13
It follows that an aide's claim of privilege can be repudiated and thus waived by the Senator.
14
Stockdale extensively reviewed the precedents and their interplay with the privilege so forcefully recognized in the Bill of Rights of 1689: 'That the Freedom of Speech, and Debates or Proceedings in Parliament, ought not to be impeached or questioned in any Court or Place out of Parliament.' 1 W. & M., Sess. 2, c. 2. From these cases, including Rex v. Creevey, 1 M. & S. 273, 105 Eng.Rep. 102 (K.B.1813); Rex v. Wright, 8 T.R. 293, 101 Eng.Rep. 1396 (K.B.1799); Rex v. Abingdon, 1 Esp. 226, 170 Eng.Rep. 337 (N.P.1794); Rex v. Williams, 2 Show.K.B. 471, 89 Eng.Rep. 1048 (1686), it is apparent that to the extent English precedent is relevant to the Speech or Debate Clause there is little, if any, support for Senator Gravel's position with respect to republication. Parliament reacted to Stockdale v. Hansard by adopting the Parliamentary Papers Act of 1840, 3 & 4 Vict., c. 9, which stayed proceedings in all cases where it could be shown that publication was by order of a House of Parliament and was a bona fide report, printed and circulated without malice. See generally C. Wittke, The History of English Parliamentary Privilege (1921).
Gravel urges that Stockdale v. Hansard was later repudiated in Wason v. Walter, L.R. 4 Q.B. 73 (1868), which held a proprietor immune from civil libel for an accurate republication of a debate in the House of Lords. But the immunity established in Wason was not founded on parliamentary privilege, id., at 84, but upon analogy to the privilege for reporting judicial proceedings. Id., at 87—90. The Wason court stated its 'unhesitating and unqualified adhesion' to the 'masterly judgments' rendered in Stockdale and characterized the question before it as whether republication, quite apart from any assertion of parliamentary privilege, was 'in itself privileged and lawful.' Id., at 86—87. That the privileges for nonmalicious republication of parliamentary and judicial proceedings—later established as qualified—were construed as coextensive in all respects, id., at 95, further underscores the inappositeness of reading Wason as based upon parliamentary privilege that, like the Speech or Debate Clause, is absolute. Much later Holdsworth was to comment that at the time of Wason the distinction between absolute and qualified privilege had not been worked out and that the 'part played by malice in the tort and crime of defamation' probably helped retard recognition of a qualified privilege. 8 W. Holds-worth, History of English Law 377 (1926).
15
The Court in Tenney v. Brandhove, 341 U.S. 367, 376—377, 71 S.Ct. 783, 788, 95 L.Ed. 1019 (1951), was equally clear that 'legislative activity' is not all-encompassing, nor may its limits be established by the Legislative Branch: 'Legislatures may not of course acquire power by an unwarranted extension of privilege. The House of Commons' claim of power to establish the limits of its privilege has been little more than a pretense since Ashby v. White, 2 Ld.Raym. 938, 3 id. 320. This Court has not hesitated to sustain the rights of private individuals when it found Congress was acting outside its legislative role. Kilbourn v. Thompson, 103 U.S. 168, 26 L.Ed. 377; Marshall v. Gordon, 243 U.S. 521, 37 S.Ct. 448, 61 L.Ed. 881; compare McGrain v. Daugherty, 273 U.S. 135, 176, 47 S.Ct. 319, 329, 71 L.Ed. 580.'
16
The sole constitutional claim asserted here is based on the Speech or Debate Clause. We need not address issues that may arise when Congress or either House, as distinguished from a single Member, orders the publication and/or public distribution of committee hearings, reports, or other materials. Of course, Art. I, § 5, cl. 3, requires that each House 'keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy . . ..' This Clause has not been the subject of extensive judicial examination. See Field v. Clark, 143 U.S. 649, 670—671, 12 S.Ct. 495, 496—497, 36 L.Ed. 294 (1892); United States v. Ballin, 144 U.S. 1, 4, 12 S.Ct. 507, 508, 36 L.Ed. 321 (1892).
17
The Court of Appeals held that the Speech or Debate Clause protects aides as well as Senators and that while third parties may be questioned about the source of a Senator's information, neither aide nor Senator need answer such inquiries. The Government's position is that the aide has no protection under the Speech or Debate Clause and may be questioned even about legislative acts. A contrary ruling, the Government fears, would invite great abuse. On the other hand, Gravel contends that the Court of Appeals insufficiently protected the Senator both with respect to the matter of republication and with respect to the scope of inquiry permitted the grand jury in questioning third-party witnesses with whom the Senator and his aides dealt. Hence, we are of the view that both the question of the aide's immunity and the question of the extent of that immunity are properly before us in this case. And surely we are not bound by the Government's view of the scope of the privilege.
18
Having established that neither the Senator nor Rodberg is subject to liability for what occurred at the subcommittee hearing, we perceive no basis for inquiry of either Rodberg or third parties on this subject. If it proves material to establish for the record the fact of publication at the subcommittee hearing, which seems undisputed, the public record of the hearing would appear sufficient for this purpose. We do not intend to imply, however, that in no grand jury investigations or criminal trials of third parties may third-party witnesses be interrogated about legislative acts of Members of Congress. As for inquiry of Rodberg about third-party crimes, we are quite sure that the District Court has ample power to keep the grand jury proceedings within proper bounds and to foreclose improvident harassment and fishing expeditions into the affairs of a Member of Congress that are no proper concern of the grand jury or the Executive Branch.
1
As stated in its petition for certiorari, the Government asked us to consider:
'Whether Article 1, Section 6, of the Constitution providing that '* * * for any Speech or Debate in either House, the Senators and Representatives' 'shall not be questioned in any other Place' bars a grand jury from questioning aides of members of Congress and other persons about matters that may touch on activities of a member of Congress which are protected 'Speech or Debate."
The Government also asked us to consider:
'Whether an aide of a member of Congress has a common law privilege not to testify before a grand jury concerning private republication of material which his Senator-employer had introduced into the record of a Senate subcommittee.' We granted certiorari on both questions. 405 U.S. 916, 92 S.Ct. 963, 30 L.Ed.2d 785.
2
See also, ante, at 622, 628.
3
See, e.g., Wilson v. United States, 221 U.S. 361, 31 S.Ct. 538, 55 L.Ed. 771; Hendricks v. United States, 223 U.S. 178, 32 S.Ct. 313, 56 L.Ed. 394; United States v. Johnson, 319 U.S. 503, 63 S.Ct. 1233, 87 L.Ed. 1546. See generally, Holt v. United States, 218 U.S. 245, 31 S.Ct. 2, 54 L.Ed. 1021; Costello v. United States, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397.
4
During oral argument, the Solicitor General virtually conceded, in the course of arguing that aides should not enjoy the same testimonial privilege as Congressmen, that a Senator could not be called before the grand jury to testify about the sources of his information:
'Q. Mr. Solicitor, am I correct that you wouldn't be able to question the Senator as to where he got the papers from?
'A. Oh, Mr. Justice, we are not able to question the Senator about anything insofar as it relates to speech or debate.
'Q. Well, this was related, you agree, to speech and debate?
'A. I am not contending to the contrary. . . .' Tr. of Oral Arg., Apr. 20, 1972, pp. 27—28.
The following exchange also took place:
'Q. You can't ask a Senator where you got the material you used in your speech.
'A. Yes, Mr. Justice.
'Q. You can't.
'A. Yes.' Id., at 29.
At another point in the oral argument, the Solicitor General said that even when a Senator or Representative has knowledge of crime as a result of legislative acts '(t)hey can't even be required to respond to questions with respect to their speeches and debates. That is a great and historic privilege which ought to be maintained which I fully support but which does not extend to any other persons than Senators and Representatives.' Id., at 32.
1
The Speech or Debate Clause included in Art. I, § 6, cl. 1, of the Constitution provides as respects Senators and Representatives that 'for any Speech or Debate in either House, they shall not be questioned in any other Place.'
2
And see United States v. Johnson, 383 U.S. 169, 172, 177, 86 S.Ct. 749, 751, 753, 15 L.Ed.2d 681, and Tenney v. Brandhove, 341 U.S. 367, 376, 71 S.Ct. 783, 788, 95 L.Ed. 1019.
3
See Developments In The Law—The National Security Interest and Civil Liberties, 85 Harv.L.Rev. 1130, 1207—1215 (1972); Note, The Right of Government Employees to Furnish Information to Congress: Statutory and Constitutional Aspects, 57 Va.L.Rev. 885 887 (1971); Berger, Executive Privilege v. Congressional Inquiry, 12 U.C.L.A.L.Rev. 1044 (1965); Schwartz, Executive Privilege and Congressional Investigatory Power, 47 Calif.L.Rev. 3 (1959); Executive Privilege: The Withholding of Information by the Executive, Hearing on S. 1125 before the Subcommittee on Separation of Powers of the Senate Committee on the Judiciary, 92d Cong., 1st Sess. (1971). There is no express statutory authority for the classification procedure used currently by the bureaucracies, although it has been claimed that Congress has recognized it in such measures as the exemptions from the disclosure requirements of the Freedom of Information Act, 5 U.S.C. § 552(b) and the espionage laws, 18 U.S.C. §§ 792—799. Rather, the classification regime has been implemented through a series of executive orders described in Developments In The Law, supra, at 1192—1198. It has also been claimed that several sections of Art. II (such as the designation of the President as Commander-in-Chief of the Army and Navy) confer upon the Executive an inherent power to classify documents. See Report of the Commission on Government Security, S.Doc. No. 64, 85th Cong., 1st Sess., 158 (1957).
4
Hearings on S. 1125, supra, n. 3, at 517—518. One estimate of the number of officials who can classify documents is even higher. In the Department of Defense alone, 803 persons have the authority to classify documents Top Secret; 7,687 have permission to stamp them Secret, and 31,048 have the authorization to denominate papers Confidential. United States Government Information Policies and Practices—The Pentagon Papers, Hearings before a Subcommittee of the House Committee on Government Operations, 92d Cong., 1st Sess., pt. 2, p. 599 (statement of David Cooke, Deputy Assistant Secretary of Defense).
5
Senator Fulbright, chairman of the Senate Foreign Relations Committee, recently testified that his committee had been so unsuccessful in obtaining accurate information about the Vietnam war from the Executive Branch that it was required to hire its own investigators and send them to Southeast Asia. Hearings on S.1125, supra, n. 3, at 206.
6
Congressional Government 303—304 (1885).
7
Secrecy in a Free Society, 213 Nation 454, 456 (1971).
8
Attorney General's Memorandum on the Public Information Section of the Administrative Procedure Act, 20 Ad.L.Rev. 263, 264 (1967).
9
United States Government Information Policies and Practices—The Pentagon Papers, Hearings before a Subcommittee of the House Committee on Government Operations, 92d Cong., 1st Sess., pt. 1, p. 97; Cong. Horton, The Public's Right to Know, 77 Case & Comm. 3, 5 (1972). We are told that the military has withheld as confidential a large selection of photographs showing atrocities against 'Vietnamese civilians wrought by both Communist and United States forces. Even a training manual devoted to the history of the Bolshevik revolution was dubbed secret by the military. Hearings, supra, pt. 3, at 966, 967 (testimony of former classification officer). And ordinary newspaper clippings of criticism aimed at the military have been routinely marked secret. Id., pt. 1, at 100. Former Justice and former Ambassador to the United Nations Arthur Goldberg has stated: 'I have read and prepared countless thousands of classified documents. In my experience, 75 percent of these documents should never have been classified in the first place; another 15 percent quickly outlived the need for secrecy; and only about 10 percent genuinely required restricted access over any significant period of time.' Id., pt. 1, at 12.
10
Moreover, I would not even permit a conviction for the publication of documents related to future and sensitive planning where the jury was permitted, as it was in United States v. Drummond, 354 F.2d 132, 152 (CA2), to consider the fact that the documents had been classified by the Executive Branch pursuant to its present overbroad system which, in my view, unnecessarily sweeps too much nonsensitive information into the locked files of the bureaucracies. In general, however, I agree that there may be situations and occasions in which the right to know must yield to other compelling and overriding interests. As Professor Henkin has observed, many deliberations in Government are kept confidential, such as the proceedings of grand juries or our own Conferences, despite the fact that the breadth of public knowledge is thereby diminished. Henkin, The Right To Know And The Duty To Withhold: The Case Of The Pentagon Papers, 120 U.Pa.L.Rev. 271, 274—275 (1971).
11
In Alderman v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176, we took a like course in requiring the prosecution to disclose to the defense records of unlawful electronic surveillance:
'It may be that the prospect of disclosure will compel the Government to dismiss some prosecutions in deference to national security or third-party interests. But this is a choice the Government concededly faces with respect to material which it has obtained illegally and which it admits, or which a judge would find, is arguably relevant to the evidence offered against the defendant.' Id., at 184, 89 S.Ct., at 972.
A different rule obtains in civil suits where the government is not the moving party but is a defendant and has specified the terms on which it may be sued. United States v. Reynolds, 345 U.S. 1, 12, 73 S.Ct. 528, 534, 97 L.Ed. 727.
12
Republication of what has filled the Congressional Record is commonplace. Newspapers, television, and radio use its contents constantly. I see no difference between republication of a paragraph and republication of material amounting to a book. Once a document or a series of documents is in the record of the Senate or House or one of its committees it is in the public domain.
13
It is conceded that all of the material which Beacon Press has undertaken to publish was introduced into the Subcommittee record and that this record is open to the public. See Brief for United States 3.
1
In Wason the proprietor of the London times was sued for printing an account of a libelous debate in the House of Lords. The court agreed with Stockdale that the House did not have final authority to determine the scope of its privileges and thus could not confer immunity on any publisher merely by ordering a document printed and then declaring it privileged. Indeed, the Wason court gave its 'unhesitating and unqualified adhesion' to Stockdale on that point. Id., at 86. The only issue for the court, therefore, was whether the publication 'is, independently of such order or assertion of privilege, in itself privileged and lawful.' Id., at 87. On that issue the court severely criticized the reasoning of earlier cases, including Stockdale, stating that two of the Justices in that case had expressed a 'very shortsighted view of the subject.' Id., at 91. The court held that so long as the republication was accurate and in good faith, it could not be the basis of a libel action; and the member himself was privileged to publish his speech 'for the information of his constituents.' Id., at 95. Relying, not on the Parliamentary Papers Act of 1840, which was enacted in response to Stockdale, but on the analogy to judicial reports and the need for an informed public, the court stated:
'It seems to us impossible to doubt that it is of paramount public and national importance that the proceedings of the houses of parliament
shall be communicated to the public, who have the deepest interest in knowing what passes within their walls, seeing that on what is there said and done, the welfare of the community depends. Where would be our confidence in the government of the country or in the legislature by which our laws are framed, and to whose charge the great interests of the country are committed,—where would be our attachment to the constitution under which we live,—if the proceedings of the great council of the realm were shrouded in secresy and concealed from the knowledge of the nation? How could the communications between the representatives of the people and their constituents, which are so essential to the working of the representative system, be usefully carried on, if the constituencies were kept in ignorance of what their representatives are doing? What would become of the right of petitioning on all measures pending in parliament, the undoubted right of the subject, if the people are to be kept in ignorance of what is passing in either house? Can any man bring himself to doubt that the publicity given in modern times to what passes in parliament is essential to the maintenance of the relations subsisting between the government, the legislature, and the country at large?' Id., at 89. The fact that the debate was published in violation of a standing order of Parliament was held to be irrelevant. 'Independently of the orders of the houses, there is nothing unlawful in publishing reports of parliamentary proceedings. . . . (A)ny publication of its debates made in contravention of its orders would be a matter between the house and the publisher.' Id., at 95.
Whether Wason was based on parliamentary privilege or on an analogy to the publication of judicial proceedings is unimportant. What is important to the instant litigation is that Wason firmly rejected any implication in Stockdale that the informing function was not among the legislative activities that a member of Parliament was privileged to perform. Indeed, that same conclusion was reached by Sir Gilbert Campion, a noted scholar, in his memorandum to the House of Commons' Select Committee on the Official Secrets Acts. After reviewing the republication cases through Wason, the memorandum concluded:
'If . . . a member circulated among his constituents a speech made
by him in Parliament in which he had disclosed information (otherwise subject to the Official Secrets Acts), it might be held on the analogy of the principles which have been said to apply to prosecutions for libel that he could not be proceeded against for disclosing it to his constituents, unless, of course, the speech had been made in a secret session. Even if the suggested analogy is not admitted, it would be repugnant to common sense to hold that though the original disclosure in the House was protected by parliamentary privilege, the circulation of the speech among the member's constituents was not.' Minutes of Evidence Taken before the Select Committee on the Official Secrets Acts 29 (1939).
2
Different considerations may apply, of course, where the republication is attacked, not by the Executive, but by private persons seeking judicial redress for an alleged invasion of their constitutional rights.
| 23
|
408 U.S. 238
92 S.Ct. 2726
33 L.Ed.2d 346
William Henry FURMAN, Petitioner,v.State of GEORGIA. Lucious JACKSON, Jr., Petitioner, v. State of GEORGIA. Elmer BRANCH, Petitioner, v. State of TEXAS.
Nos. 69—5003, 69—5030, 69—5031.
Argued Jan. 17, 1972.
Decided June 29, 1972.
Anthony G. Amsterdam, Stanford, Cal., for petitioner Furman.
Jack Greenberg, New York City, for petitioner Jackson.
Melvyn Carson Bruder, Dallas, Tex., for petitioner Branch.
Dorothy T. Beasley, Atlanta, Ga., for respondent State of Georgia.
Charles Alan Wright, Austin, Tex., for respondent State of Texas.
Willard J. Lassers and Elmer Gertz, Chicago, Ill., for amici curiae.
PER CURIAM.
1
Petitioner in No. 69—5003 was convicted of murder in Georgia and was sentenced to death pursuant to Ga.Code Ann. § 26—1005 (Supp.1971) (effective prior to July 1, 1969). 225 Ga. 253, 167 S.E.2d 628 (1969). Petitioner in No. 69—5030 was convicted of rape in Georgia and was sentenced to death pursuant to Ga.Code Ann. § 26—1302 (Supp.1971) (effective prior to July 1, 1969). 225 Ga. 790, 171 S.E.2d 501 (1969). Petitioner in No. 69—5031 was convicted of rape in Texas and was sentenced to death pursuant to Vernon's Tex.Penal Code, Art. 1189 (1961). 447 S.W.2d 932 (Ct.Crim.App.1969). Certiorari was granted limited to the following question: 'Does the imposition and carrying out of the death penalty in (these cases) constitute cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments?' 403 U.S. 952, 91 S.Ct. 2287, 29 L.Ed.2d 863 (1971). The Court holds that the imposition and carrying out of the death penalty in these cases constitute cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. The judgment in each case is therefore reversed insofar as it leaves undisturbed the death sentence imposed, and the cases are remanded for further proceedings. So ordered.
2
Judgment in each case reversed in part and cases remanded.
3
Mr. Justice DOUGLAS, Mr. Justice BRENNAN, Mr. Justice STEWART, Mr. Justice WHITE, and Mr. Justice MARSHALL have filed separate opinions in support of the judgments.
4
THE CHIEF JUSTICE, Mr. Justice BLACKMUN, Mr. Justice POWELL, and Mr. Justice REHNQUIST have filed separate dissenting opinions.
5
Mr. Justice DOUGLAS, concurring.
6
In these three cases the death penalty was imposed, one of them for murder, and two for rape. In each the determination of whether the penalty should be death or a lighter punishment was left by the State to the discretion of the judge or of the jury. In each of the three cases the trial was to a jury. They are here on petitions for certiorari which we granted limited to the question whether the imposition and execution of the death penalty constitute 'cruel and unusual punishment' within the meaning of the Eighth Amendment as applied to the States by the Fourteenth.1 I vote to vacate each judgment, believing that the exaction of the death penalty does violate the Eighth and Fourteenth Amendments.
7
That the requirements of due process ban cruel and unusual punishment is now settled. Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 463, and 473—474, 67 S.Ct. 374, 376, and 381, 91 L.Ed. 422 (Burton, J., dissenting); Robinson v. California, 370 U.S. 660, 667, 82 S.Ct. 1417, 1420, 8 L.Ed.2d 758. It is also settled that the proscription of cruel and unusual punishments forbids the judicial imposition of them as well as their imposition by the legislature. Weems v. United States, 217 U.S. 349, 378—382, 30 S.Ct. 544, 553—555, 54 L.Ed. 793.
8
Congressman Bingham, in proposing the Fourteenth Amendment, maintained that 'the privileges or immunities of citizens of the United States' as protected by the Fourteenth Amendment included protection against 'cruel and unusual punishments:'
9
'(M)any instances of State injustice and oppression have already occurred in the State legislation of this Union, of flagrant violations of the guarantied privileges of citizens of the United States, for which the national Government furnished and could furnish by law no remedy whatever. Contrary to the express letter of your Constitution, 'cruel and unusual punishments' have been inflicted under State laws within this Union upon citizens, not only for crimes committed, but for sacred duty done, for which and against which the Government of the United States had provided no remedy and could provide none.' Cong.Globe, 39th Cong., 1st Sess., 2542.
10
Whether the privileges and immunities route is followed, or the due process route, the result is the same.
11
It has been assumed in our decisions that punishment by death is not cruel, unless the manner of execution can be said to be inhuman and barbarous. In re Kemmler, 136 U.S. 436, 447, 10 S.Ct. 930, 933, 34 L.Ed. 519. It is also said in our opinions that the proscription of cruel and unusual punishments 'is not fastened to the obsolete, but may acquire meaning as public opinion becomes enlightened by a humane justice.' Weems v. United States, supra, 217 U.S. at 378, 30 S.Ct., at 553. A like statement was made in Trop v. Dulles, 356 U.S. 86, 101, 78 S.Ct. 590, 598, 2 L.Ed.2d 630, that the Eighth Amendment 'must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.'
12
The generality of a law inflicting capital punishment is one thing. What may be said of the validity of a law on the books and what may be done with the law in its application do, or may, lead to quite different conclusions.
13
It would seem to be incontestable that the death penalty inflicted on one defendant is 'unusual' if it discriminates against him by reason of his race, religion, wealth, social position, or class, or if it is imposed under a procedure that gives room for the play of such prejudices.
14
There is evidence that the provision of the English Bill of Rights of 1689, from which the language of the Eighth Amendment was taken, was concerned primarily with selective or irregular application of harsh penalties and that its aim was to forbid arbitrary and discriminatory penalties of a severe nature:2
15
'Following the Norman conquest of England in 1066, the old system of penalties, which ensured equality between crime and punishment, suddenly disappeared. By the time systematic judicial records were kept, its demise was almost complete. With the exception of certain grave crimes for which the punishment was death or outlawry, the arbitrary fine was replaced by a discretionary amercement. Although amercement's discretionary character allowed the circumstances of each case to be taken into account and the level of cash penalties to be decreased or increased accordingly, the amercement presented an opportunity for excessive or oppressive fines.
16
'The problem of excessive amercements became so prevalent that three chapters of the Magna Carta were devoted to their regulation. Maitland said of Chapter 14 that 'very likely there was no clause in the Magna Carta more grateful to the mass of the people.' Chapter 14 clearly stipulated as fundamental law a prohibition of excessiveness in punishments:
17
"A free man shall not be amerced for a trivial offense, except in accordance with the degree of the offence; and for a serious offence he shall be amerced according to its gravity, saving his livelihood; and a merchant likewise, saving his merchandise; in the same way a villein shall be amerced saving his wainage; if they fall into our mercy. And none of the aforesaid amercements shall be imposed except by the testimony of reputable men of the neighborhood."
18
The English Bill of Rights, enacted December 16, 1689, stated that 'excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.'3 These were the words chosen for our Eighth Amendment. A like provision had been in Virginia's Constitution of 17764 and in the constitutions of seven other States.5 The Northwest Ordinance, enacted under the Articles of Confederation, included a prohibition cruel and unusual punishments.6 But the debates of the First Congress on the Bill of Rights throw little light on its intended meaning. All that appears is the following:7
19
'Mr. Smith, of South Carolina, objected to the words 'nor cruel and unusual punishments;' the import of them being too indefinite.
20
'Mr. Livermore: The clause seems to express a great deal of humanity, on which account I have no objection to it; but as it seems to have no meaning in it, I do not think it necessary. What is meant by the terms excessive bail? Who are to be the judges? What is understood by excessive fines? It lies with the court to determine. No cruel and unusual punishment is to be inflicted; it is sometimes necessary to hang a man, villains often deserve whipping, and perhaps having their ears cut off; but are we in future to be prevented from inflicting these punishments because they are cruel? If a more lenient mode of correcting vice and deterring others from the commission of it could be invented, it would be very prudent in the Legislature to adopt it; but until we have some security that this will be done, we ought not to be restrained from making necessary laws by any declaration of this kind.'
21
The words 'cruel and unusual' certainly include penalties that are barbaric. But the words, at least when read in light of the English proscription against selective and irregular use of penalties, suggest that it is 'cruel and unusual' to apply the death penalty—or any other penalty—selectively to minorities whose numbers are few, who are outcasts of society, and who are unpopular, but whom society is willing to see suffer though it would not countenance general application of the same penalty across the board.8 Judge Tuttle, indeed, made abundantly clear in Novak v. Beto, 5 Cir., 453 F.2d 661, 673—679 (CA5) (concurring in part and dissenting in part), that solitary confinement may at times be 'cruel and unusual' punishment. Cf. Ex parte Medley, 134 U.S. 160, 10 S.Ct. 384, 33 L.Ed. 835; Brooks v. Florida, 389 U.S. 413, 88 S.Ct. 541, 19 L.Ed.2d 643.
22
The Court in McGautha v. California, 402 U.S. 183, 198, 91 S.Ct. 1454, 1462, 28 L.Ed.2d 711, noted that in this country there was almost from the beginning a 'rebellion against the common-law rule imposing a mandatory death sentence on all convicted murderers.' The first attempted remedy was to restrict the death penalty to defined offenses such as 'premeditated' murder.9 Ibid. But juries 'took the law into their own hands' and refused to convict on the capital offense. Id., at 199, 91 S.Ct., at 1463.
23
'In order to meet the problem of jury nullification, legislatures did not try, as before, to refine further the definition of capital homicides. Instead they adopted the method of forthrightly granting juries the discretion which they had been exercising in fact.' Ibid.
24
The Court concluded: 'In light of history, experience, and the present limitations of human knowledge, we find it quite impossible to say that committing to the untrammeled discretion of the jury the power to pronounce life or death in capital cases is offensive to anything in the Constitution.' Id., at 207, 91 S.Ct., at 1467.
25
The Court refused to find constitutional dimensions in the argument that those who exercise their discretion to send a person to death should be given standards by which that discretion should be exercised. Id., at 207—208, 91 S.Ct., at 1467—1468.
26
A recent witness at the Hearings before Subcommittee No. 3 of the House Committee on the Judiciary, 92d Cong., 2d Sess., Ernest van den Haag, testifying on H.R. 8414 et al.,10 stated:
27
'Any penalty, a fine, imprisonment or the death penalty could be unfairly or unjustly applied. The vice in this case is not in the penalty but in the process by which it is inflicted. It is unfair to inflict unequal penalties on equally guilty parties, or on any innocent parties, regardless of what the penalty is.' Id., at 116—117. (Emphasis supplied.)
28
But those who advance that argument overlook McGautha, supra.
29
We are now imprisoned in the McGautha holding. Indeed the seeds of the present cases are in McGautha. Juries (or judges, as the case may be) have practically untrammeled discretion to let an accused live or insist that he die.11
30
Mr. Justice Field, dissenting in O'Neil v. Vermont, 144 U.S. 323, 340, 12 S.Ct. 693, 700, 36 L.Ed. 450, said, 'The state may, indeed, make the drinking of one drop of liquor an offense to be punished by imprisonment, but it would be an unheard-of cruelty if it should count the drops in a single glass, and make thereby a thousand offenses, and thus extend the punishment for drinking the single glass of liquor to an imprisonment of almost indefinite duration.' What the legislature may not do for all classes uniformally and systematically, a judge or jury may not do for a class that prejudice sets apart from the community.
31
There is increasing recognition of the fact that the basic theme of equal protection is implicit in 'cruel and unusual' punishments. 'A penalty . . . should be considered 'unusually' imposed if it is administered arbitrarily or discriminatorily.'12 The same authors add that '(t)he extreme rarity with which applicable death penalty provisions are put to use raises a strong inference of arbitrariness.'13 The President's Commission on Law Enforcement and Administration of Justice recently concluded:14
32
'Finally there is evidence that the imposition of the death sentence and the exercise of dispensing power by the courts and the executive follow discriminatory patterns. The death sentence is disproportionately imposed and carried out on the poor, the Negro, and the members of unpopular groups.'
33
A study of capital cases in Texas from 1924 to 1968 reached the following conclusions:15
34
'Application of the death penalty is unequal: most of those executed were poor, young, and ignorant.
35
'Seventy-five of the 460 cases involved codefendants, who, under Texas law, were given separate trials. In several instances where a white and a Negro were co-defendants, the white was sentenced to life imprisonment or a term of years, and the Negro was given the death penalty.
36
'Another ethnic disparity is found in the type of sentence imposed for rape. The Negro convicted of rape is far more likely to get the death penalty than a term sentence, whereas whites and Latins are far more likely to get a term sentence than the death penalty.'
Warden Lewis E. Lawes of Sing Sing said:16
37
'Not only does capital punishment fail in its justification, but no punishment could be invented with so many inherent defects. It is an unequal punishment in the way it is applied to the rich and to the poor. The defendant of wealth and position never goes to the electric chair or to the gallows. Juries do not intentionally favour the rich, the law is theoretically impartial, but the defendant with ample means is able to have his case presented with every favourable aspect, while the poor defendant often has a lawyer assigned by the court. Sometimes such assignment is considered part of political patronage; usually the lawyer assigned has had no experience whatever in a capital case.'
38
Former Attorney General Ramsey Clark has said, 'It is the poor, the sick, the ignorant, the powerless and the hated who are executed.'17 One searches our chronicles in vain for the execution of any member of the affluent strata of this society. The Leopolds and Loebs are given prison terms, not sentenced to death.
39
Jackson, a black, convicted of the rape of a white woman, was 21 years old. A court-appointed psychiatrist said that Jackson was of average education and average intelligence, that he was not an imbecile, or schizophrenic, or phychotic, that his traits were the product of environmental influences, and that he was competent to stand trial. Jackson had entered the house after the husband left for work. He held scissors against the neck of the wife, demanding money. She could find none and a struggle ensued for the scissors, a battle which she lost; and she was then raped, Jackson keeping the scissors pressed against her neck. While there did not appear to be any long-term traumatic impact on the victim, she was bruised and abrased in the struggle but was not hospitalized. Jackson was a convict who had escaped from a work gang in the area, a result of a three-year sentence for auto theft. He was at large for three days and during that time had committed several other offenses—burglary, auto theft, and assault and battery.
40
Furman, a black, killed a householder while seeking to enter the home at night. Furman shot the deceased through a closed door. He was 26 years old and had finished the sixth grade in school. Pending trial, he was committed to the Georgia Central State Hospital for a psychiatric examination on his plea of insanity tendered by court-appointed counsel. The superintendent reported that a unanimous staff diagnostic conference had concluded 'that this patient should retain his present diagnosis of Mental Deficiency, Mild to Moderate, with Psychotic Episodes associated with Convulsive Disorder.' The physicians agreed that 'at present the patient is not psychotic, but he is not capable of cooperating with his counsel in the preparation of his defense'; and the staff believed 'that he is in need of further psychiatric hospitalization and treatment.'
41
Later, the superintendent reported that the staff diagnosis was Mental Deficiency, Mild to Moderate, with Psychotic Episodes associated with Convulsive Disorder. He concluded, however, that Furman was 'not psychotic at present, knows right from wrong and is able to cooperate with his counsel in preparing his defense.'
42
Branch, a black, entered the rural home of a 65-year-old widow, a white, while she slept and raped her, holding his arm against her throat. Thereupon he demanded money and for 30 minutes or more the widow searched for money, finding little. As he left, Jackson said if the widow told anyone what happened, he would return and kill her. The record is barren of any medical or psychiatric evidence showing injury to her as a result of Branch's attack.
43
He had previously been convicted of felony theft and found to be a borderline mental deficient and well below the average IQ of Texas prison inmates. He had the equivalent of five and a half years of grade school education. He had a 'dull intelligence' and was in the lowest fourth percentile of his class.
44
We cannot say from facts disclosed in these records that these defendants were sentenced to death because they were black. Yet our task is not restricted to an effort to divine what motives impelled these death penalties. Rather, we deal with a system of law and of justice that leaves to the uncontrolled discretion of judges or juries the determination whether defendants committing these crimes should die or be imprisoned. Under these laws no standards govern the selection of the penalty. People live or die, dependent on the whim of one man or of 12.
45
Irving Brant has given a detailed account of the Bloody Assizes, the reign of terror that occupied the closing years of the rule of Charles II and the opening years of the regime of James II (the Lord Chief Justice was George Jeffreys):
46
'Nobody knows how many hundreds of men, innocent or of unproved guilt, Jeffreys sent to their deaths in the pseudo trials that followed Monmouth's feeble and stupid attempt to seize the throne. When the ordeal ended, scores had been executed and 1,260 were awaiting the hangman in three counties. To be absent from home during the uprising was evidence of guilt. Mere death was considered much too mild for the villagers and farmers rounded up in these raids. The directions to a high sheriff were to provide an ax, a cleaver, 'a furnace or cauldron to boil their heads and quarters, and soil to boil therewith, half a bushel to each traitor, and tar to tar them with, and a sufficient number of spears and poles to fix their heads and quarters' along the highways. One could have crossed a good part of northern England by their guidance.
47
'The story of The Bloody Assizes, widely known to Americans, helped to place constitutional limitations on the crime of treason and to produce a bar against cruel and unusual punishents. But in the polemics that led to the various guarantees of freedom, it had no place compared with the tremendous thrust of the trial and execution of Sidney. The hundreds of judicial murders committed by Jeffreys and his fellow judges were totally inconceivable in a free American republic, but any American could imagine himself in Sidney's place—executed for putting on paper, in his closet, words that later on came to express the basic principles of republican government. Unless barred by fundamental law, the legal rulings that permitted this result could easily be employed against any person whose political opinions challenged the party in power.' The Bill of Rights 154—155 (1965).
48
Those who wrote the Eighth Amendment knew what price their forebears had paid for a system based, not on equal justice, but on discrimination. In those days the target was not the blacks or the poor, but the dissenters, those who opposed absolutism in government, who struggled for a parliamentary regime, and who opposed governments' recurring efforts to foist a particular religion on the people. Id., at 155—163. But the tool of capital punishment was used with vengeance against the opposition and those unpopular with the regime. One cannot read this history without realizing that the desire for equality was reflected in the ban against 'cruel and unusual punishments' contained in the Eighth Amendment.
49
In a Nation committed to equal protection of the laws there is no permissible 'caste' aspect18 of law enforcement. Yet we know that the discretion of judges and juries in imposing the death penalty enables the penalty to be selectively applied, feeding prejudices against the accused if he is poor and despised, and lacking political clout, or if he is a member of a suspect or unpopular minority, and saving those who by social position may be in a more protected position. In ancient Hindu law a Brahman was exempt from capital punishment,19 and under that law, '(g)enerally, in the law books, punishment increased in severity as social status diminished.'20 We have, I fear, taken in practice the same position, partially as a result of making the death penalty discretionary and partially as a result of the ability of the rich to purchase the services of the most respected and most resourceful legal talent in the Nation.
50
The high service rendered by the 'cruel and unusual' punishment clause of the Eighth Amendment is to require legislatures to write penal laws that are evenhanded, nonselective, and nonarbitrary, and to require judges to see to it that general laws are not applied sparsely, selectively, and spottily to unpopular groups.
51
A law that stated that anyone making more than $50,000 would be exempt from the death penalty would plainly fall, as would a law that in terms said that blacks, those who never went beyond the fifth grade in school, those who made less than $3,000 a year, or those who were unpopular or unstable should be the only people executed. A law which in the overall view reaches that result in practice21 has no more sanctity than a law which in terms provides the same.
52
Thus, these discretionary statutes are unconstitutional in their operation. They are pregnant with discrimination and discrimination is an ingredient not compatible with the idea of equal protection of the laws that is implicit in the ban on 'cruel and unusual' punishments.
53
Any law which is nondiscriminatory on its face may be applied in such a way as to violate the Equal Protection Clause of the Fourteenth Amendment. Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220. Such conceivably might be the fate of a mandatory death penalty, where equal or lesser sentences were imposed on the elite, a harsher one on the minorities or members of the lower castes. Whether a mandatory death penalty would otherwise be constitutional is a question I do not reach.
54
I concur in the judgments of the Court.
55
Mr. Justice BRENNAN, concurring.
56
The question presented in these cases is whether death is today a punishment for crime that is 'cruel and unusual' and consequently, by virtue of the Eighth and Fourteenth Amendments, beyond the power of the State to inflict.1
57
Almost a century ago, this Court observed that '(d)ifficulty would attend the effort to define with exactness the extent of the constitutional provision which provides that cruel and unusual punishments shall not be inflicted.' Wilkerson v. Utah, 99 U.S. 130, 135—136, 25 L.Ed. 345 (1879). Less than 15 years ago, it was again noted that '(t)he exact scope of the constitutional phrase 'cruel and unusual' has not been detailed by this Court.' Trop v. Dulles, 356 U.S. 86, 99, 78 S.Ct. 590, 597, 2 L.Ed.2d 630 (1958). Those statements remain true today. The Cruel and Unusual Punishments Clause, like the other great clauses of the Constitution, is not susceptible of precise definition. Yet we know that the values and ideals it embodies are basic to our scheme of government. And we know also that the Clause imposes upon this Court the duty, when the issue is properly presented, to determine the constitutional validity of a challenged punishment, whatever that punishment may be. In these cases, '(t)hat issue confronts us, and the task of resolving it is inescapably ours.' Id., at 103, 78 S.Ct., at 599.
58
* We have very little evidence of the Framers' intent in including the Cruel and Unusual Punishments Clause among those restraints upon the new Government enumerated in the Bill of Rights. The absence of such a restraint from the body of the Constitution was alluded to, so far as we now know, in the debates of only two of the state ratifying conventions. In the Massachusetts convention, Mr. Holmes protested:
59
'What gives an additional glare of horror to these gloomy circumstances is the consideration, that Congress have to ascertain, point out, and determine, what kind of punishments shall be inflicted on persons convicted of crimes. They are nowhere restraining from inventing the most cruel and unheard-of punishments, and annexing them to crimes; and there is no constitutional check on them, but that racks and gibbets may be amongst the most mild instruments of their discipline.' 2 J. Elliot's Debates 111 (2d ed. 1876).
60
Holmes' fear that Congress would have unlimited power to prescribe punishments for crimes was echoed by Patrick Henry at the Virginia convention:
61
'. . . Congress, from their general powers, may fully go into business of human legislation. They may legislate, in criminal cases, from treason to the lowest offence—petty larceny. They may define crimes and prescribe punishments. In the definition of crimes, I trust they will be directed by what wise representatives ought to be governed by. But when we come to punishments, no latitude ought to be left, nor dependence put on the virtue of representatives. What says our (Virginia) bill of rights?—'that excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.' Are you not, therefore, now calling on those gentlemen who are to compose Congress, to . . . define punishments without this control? Will they find sentiments there similar to this bill of rights? You let them loose; you do more—you depart from the genius of your country. . . .
62
'In this business of legislation, your members of Congress will loose the restriction of not imposing excessive fines, demanding excessive bail, and inflicting cruel and unusual punishments. These are prohibited by your (Virginia) declaration of rights. What has distinguished our ancestors? That they would not admit of tortures, or cruel and barbarous punishment.' 3 id., at 447.2
63
These two statements shed some light on what the Framers meant by 'cruel and unusual punishments.' Holmes referred to 'the most cruel and unheard-of punishments,' Henry to 'tortures, or cruel and barbarous punishment.' It does not follow, however, that the Framers were exclusively concerned with prohibiting torturous punishments. Holmes and Henry were objecting to the absence of a Bill of Rights, and they cited to support their objections the unrestrained legislative power to prescribe punishments for crimes. Certainly we may suppose that they invoked the specter of the most drastic punishments a legislature might devise.
64
In addition, it is quite clear that Holmes and Henry focused wholly upon the necessity to restrain the legislative power. Because they recognized 'that Congress have to ascertain, point out, and determine, what kinds of punishments shall be inflicted on persons convicted of crimes,' they insisted that Congress must be limited in its power to punish. Accordingly, they called for a 'constitutional check' that would ensure that 'when we come to punishments, no latitude ought to be left, nor dependence put on the virtue of representatives.'3
65
The only further evidence of the Framers' intent appears from the debates in the First Congress on the adoption of the Bill of Rights.4 As the Court noted in Weems v. United States, 217 U.S. 349, 368, 30 S.Ct. 544, 549, 54 L.Ed. 793 (1910), the Cruel and Unusual Punishments Clause 'received very little debate.' The extent of the discussion, by two opponents of the Clause in the House of Representatives, was this:
66
'Mr. Smith, of South Carolina, objected to the words 'nor cruel and unusual punishments;' the import of them being too indefinite.
67
'Mr. Livermore.—The (Eighth Amendment) seems to express a great deal of humanity, on which account I have no objection to it; but as it seems to have no meaning in it, I do not think it necessary. . .. No cruel and unusual punishment is to be inflicted; it is sometimes necessary to hang a man, villains often deserve whipping, and perhaps having their ears cut off; but are we in future to be prevented from inflicting these punishments because they are cruel? If a more lenient mode of correcting vice and deterring others from the commission of it could be invented, it would be very prudent in the Legislature to adopt it; but until we have some security that this will be done, we ought not to be restrained from making necessary laws by and declaration of this kind.
68
'The question was put on the (Eighth Amendment), and it was agreed to by a considerable majority.' 1 Annals of Cong. 754 (1789).5
69
Livermore thus agreed with Holmes and Henry that the Cruel and Unusual Punishments Clause imposed a limitation upon the legislative power to prescribe punishments. However, in contrast to Holmes and Henry, who were supporting the Clause, Livermore, opposing it, did not refer to punishments that were considered barbarous and torturous. Instead, he objected that the Clause might someday prevent the legislature from inflicting what were then quite common and, in his view, 'necessary' punishments—death, whipping, and earcropping.6 The only inference to be drawn from Livermore's statement is that the 'considerable majority' was prepared to run that risk. No member of the House rose to reply that the Clause was intended merely to prohibit torture.
70
Several conclusions thus emerge from the history of the adoption of the Clause. We know that the Framers' concern was directed specifically at the exercise of legislative power. They included in the Bill of Rights a prohibition upon 'cruel and unusual punishments' precisely because the legislature would otherwise have had the unfettered power to prescribe punishments for crimes. Yet we cannot now know exactly what the Framers thought 'cruel and unusual punishments' were. Certainly they intended to ban torturous punishments, but the available evidence does not support the further conclusion that only torturous punishments were to be outlawed. As Livermore's comments demonstrate, the Framers were well aware that the reach of the Clause was not limited to the proscription of unspeakable atrocities. Nor did they intend simply to forbid punishments considered 'cruel and unusual' at the time. The 'import' of the Clause is, indeed, 'indefinite,' and for good reason. A constitutional provision 'is enacted, it is true, from an experience of evils, but its general language should not, therefore, be necessarily confined to the form that evil had theretofore taken. Time works changes, brings into existence new conditions and purposes. Therefore a principle, to be vital, must be capable of wider application than the mischief which gave it birth.' Weems v. United States, 217 U.S., at 373, 30 S.Ct., at 551.
71
It was almost 80 years before this Court had occasion to refer to the Clause. See Pervear v. Commonwealth, 5 Wall. 475, 479 480, 18 L.Ed. 608 (1867). These early cases, as the Court pointed out in Weems v. United States, supra, 217 U.S., at 369, 30 S.Ct., at 550, did not undertake to provide 'an exhaustive definition' of 'cruel and unusual punishments.' Most of them proceeded primarily by 'looking backwards for examples by which to fix the meaning of the clause;' id., at 377, 30 S.Ct., at 553, concluding simply that a punishment would be 'cruel and unusual' if it were similar to punishments considered 'cruel and unusual' at the time the Bill of Rights was adopted.7 In Wilkerson v. Utah, 99 U.S., at 136, for instance, the Court found it 'safe to affirm that punishments of torture . . . and all others in the same line of unnecessary cruelty, are forbidden.' The 'punishments of torture,' which the Court labeled 'atrocities,' were cases where the criminal 'was embowelled alive, beheaded, and quartered,' and cases 'of public dissection . . . and burning alive.' Id., at 135. Similarly, in In re Kemmler, 136 U.S. 436, 446, 10 S.Ct. 930, 933, 34 L.Ed. 519 (1890), the Court declared that 'if the punishment prescribed for an offense against the laws of the state were manifestly cruel and unusual, as burning at the stake, crucifixion, breaking on the wheel, or the like, it would be the duty of the courts to adjudge such penalties to be within the constitutional prohibition.' The Court then observed, commenting upon the passage just quoted from Wilkerson v. Utah, supra, and applying the 'manifestly cruel and unusual' test, that '(p) unishments are cruel when they involve torture or a lingering death; but the punishment of death is not cruel within the meaning of that word as used in the constitution. It implies there something inhuman and barbarous,—something more than the mere extinguishment of life.' 136 U.S., at 447, 10 S.Ct., at 933.
72
Had this 'historical' interpretation of the Cruel and Unusual Punishments Clause prevailed, the Clause would have been effectively read out of the Bill of Rights. As the Court noted in Weems v. United States, supra, 217 U.S., at 371, 30 S.Ct., at 551, this interpretation led Story to conclude 'that the provision 'would seem to be wholly unnecessary in a free government, since it is scarcely possible that any department of such a government should authorize or justify such atrocious conduct." And Cooley in his book, Constitutional Limitations, said the Court, 'apparently in a struggle between the effect to be given to ancient examples and the inconsequence of a dread of them in these enlightened times, . . . hesitate(d) to advance definite views.' Id., at 375, 30 S.Ct., at 552. The result of a judicial application of this interpretation was not surprising. A state court, for example, upheld the constitutionality of the whipping post: 'In comparison with the 'barbarities of quartering, hanging in chains, castration, etc.,' it was easily reduced to insignificance.' Id., at 377, 30 S.Ct., at 553.
73
But this Court in Weems decisively repudiated the 'historical' interpretation of the Clause. The Court, returning to the intention of the Framers, 'rel(ied) on the conditions which existed when the Constitution was adopted.' And the Framers knew 'that government by the people, instituted by the Constitution, would not imitate the conduct of arbitrary monarchs. The abuse of power might, indeed, be apprehended, but not that it would be manifested in provisions or practices which would shock the sensibilities of men.' Id., at 375, 30 S.Ct., at 552. The Clause, then, guards against '(t)he abuse of power'; contrary to the implications in Wilkerson v. Utah, supra, and In re Kemmler, supra, the prohibition of the Clause is not 'confine(d) . . . to such penalties and punishment as were inflicted by the Stuarts.' 217 U.S., at 372, 30 S.Ct., at 551. Although opponents of the Bill of Rights 'felt sure that the spirit of liberty could be trusted, and that its ideals would be represented, not debased, by legislation(,)' ibid., the Framers disagreed:
74
'(Patrick) Henry and those who believed as he did would take no chances. Their predominant political impulse was distrust of power, and they insisted on constitutional limitations against its abuse. But surely they intended more than to register a fear of the forms of abuse that went out of practice with the Stuarts. Surely, their (jealousy) of power had a saner justification than that. They were men of action, practical and sagacious, not beset with vain imagining, and it must have come to them that there could be exercises of cruelty by laws other than those which inflicted bodily pain or mutilation. With power in a legislature great, if not unlimited, to give criminal character to the actions of men, with power unlimited to fix terms of imprisonment with what accompaniments they might, what more potent instrument of cruelty could be put into the hands of power? And it was believed that power might be tempted to cruelty. This was the motive of the clause, and if we are to attribute an intelligent providence to its advocates we cannot think that it was intended to prohibit only practices like the (Stuarts',) or to prevent only an exact repetition of history. We cannot think that the possibility of a coercive cruelty being exercised through other forms of punishment was overlooked.' Id., at 372—373, 30 S.Ct., at 551.
75
The Court in Weems thus recognized that this 'restraint upon legislatures' possesses an 'expansive and vital character' that is "essential . . . to the rule of law and the maintenance of individual freedom." Id., at 377, 30 S.Ct., at 553. Accordingly, the responsibility lies with the courts to make certain that the prohibition of the Clause is enforced.8 Referring to cases in which 'prominence (was) given to the power of the legislature to define crimes and their punishment,' the Court said:
76
'We concede the power in most of its exercises. We disclaim the right to assert a judgment against that of the legislature, of the expediency of the laws, or the right to oppose the judicial power to the legislative power to define crimes and fix their punishment, unless that power encounters in its exercise a constitutional prohibition. In such case, not our discretion, but our legal duty, strictly defined and imperative in its direction, is invoked.' Id., at 378, 30 S.Ct., at 553.9
77
In short, this Court finally adopted the Framers' view of the Clause as a 'constitutional check' to ensure that 'when we come to punishments, no latitude ought to be left, nor dependence put on the virtue of representatives.' That, indeed, is the only view consonant with our constitutional form of government. If the judicial conclusion that a punishment is 'cruel and unusual' 'depend(ed) upon virtually unanimous condemnation of the penalty at issue,' then, '(l)ike no other constitutional provision, (the Clause's) only function would be to legitimize advances already made by the other departments and opinions already the conventional wisdom.' We know that the Framers did not envision 'so narrow a role for this basic guaranty of human rights.' Goldberg & Dershowitz, Declaring the Death Penalty Unconstitutional, 83 Harv.L.Rev. 1773, 1782 (1970). The right to be free of cruel and unusual punishments, like the other guarantees of the Bill of Rights, 'may not be submitted to vote; (it) depend(s) on the outcome of no elections.' 'The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts.' West Virginia State Board of Education v. Barnette, 319 U.S. 624, 638, 63 S.Ct. 1178, 1185, 87 L.Ed. 1628 (1943).
78
Judicial enforcement of the Clause, then, cannot be evaded by invoking the obvious truth that legislatures have the power to prescribe punishments for crimes. That is precisely the reason the Clause appears in the Bill of Rights. The difficulty arises, rather, in formulating the 'legal principles to be applied by the courts' when a legislatively prescribed punishment is challenged as 'cruel and unusual.' In formulating those constitutional principles, we must avoid the insertion of 'judicial conception(s) of . . . wisdom or propriety,' Weems v. United States, 217 U.S., at 379, 30 S.Ct., at 554, yet we must not, in the guise of 'judicial restraint,' abdicate our fundamental responsibility to enforce the Bill of Rights. Were we to do so, the 'constitution would indeed be as easy of application as it would be deficient in efficacy and power. Its general principles would have little value and be converted by precedent into impotent and lifeless formulas. Rights declared in words might be lost in reality.' Id., at 373, 30 S.Ct., at 551. The Cruel and Unusual Punishments Clause would become, in short, 'little more than good advice.' Trop v. Dulles, 356 U.S., at 104, 78 S.Ct., at 599.
II
79
Ours would indeed be a simple task were we required merely to measure a challenged punishment against those that history has long condemned. That narrow and unwarranted view of the Clause, however, was left behind with the 19th century. Our task today is more complex. We know 'that the words of the (Clause) are not precise, and that their scope is not static.' We know, therefore, that the Clause 'must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.' Id., at 100—101, 78 S.Ct., at 598.10 That knowledge, of course, is but the beginning of the inquiry.
80
In Trop v. Dulles, supra, at 99, 78 S.Ct., at 597, it was said that '(t)he question is whether (a) penalty subjects the individual to a fate forbidden by the principle of civilized treatment guaranteed by the (Clause).' It was also said that a challenged punishment must be examined 'in light of the basic prohibition against inhuman treatment' embodied in the Clause. Id., at 100 n. 32, 78 S.Ct., at 598. It was said, finally, that:
81
'The basic concept underlying the (Clause) is nothing less than the dignity of man. While the State has the power to punish, the (Clause) stands to assure that this power be exercised within the limits of civilized standards.' Id., at 100, 78 S.Ct., at 597.
82
At bottom, then, the Cruel and Unusual Punishments Clause prohibits the infliction of uncivilized and inhuman punishments. The State, even as it punishes, must treat its members with respect for their intrinsic worth as human beings. A punishment is 'cruel and unusual,' therefore, if it does not comport with human dignity.
83
This formulation, of course, does not of itself yield principles for assessing the constitutional validity of particular punishments. Nevertheless, even though '(t)his Court has had little occasion to give precise content to the (Clause),' ibid., there are principles recognized in our cases and inherent in the Clause sufficient to permit a judicial determination whether a challenged punishment comports with human dignity.
84
The primary principle is that a punishment must not be so severe as to be degrading to the dignity of human beings. Pain, certainly, may be a factor in the judgment. The infliction of an extremely severe punishment will often entail physical suffering. See Weems v. United States, 217 U.S., at 366, 30 S.Ct., at 549.11 Yet the Framers also knew 'that there could be exercises of cruelty by laws other than those which inflicted bodily pain or mutilation.' Id., at 372, 30 S.Ct., at 551. Even though '(t)here may be involved no physical mistreatment, no primitive torture,' Trop v. Dulles, supra, 356 U.S. at 101, 78 S.Ct., at 598, severe mental pain may be inherent in the infliction of a particular punishment. See Weems v. United States, supra, 217 U.S., at 366, 30 S.Ct., at 549.12 That, indeed, was one of the conclusions underlying the holding of the plurality in Trop v. Dulles that the punishment of expatriation violates the Clause.13 And the physical and mental suffering inherent in the punishment of cadena temporal, see nn. 11—12, supra, was an obvious basis for the Court's decision in Weems v. United States that the punishment was 'cruel and unusual.'14
85
More than the presence of pain, however, is comprehended in the judgment that the extreme severity of a punishment makes it degrading to the dignity of human beings. The barbaric punishments condemned by history, 'punishments which inflict torture, such as the rack, the thumb-screw, the iron boot, the stretching of limbs, and the like,' are, of course, 'attended with acute pain and suffering.' O'Neil v. Vermont, 144 U.S. 323, 339, 12 S.Ct. 693, 699, 36 L.Ed. 450 (1892) (Field, J., dissenting). When we consider why they have been condemned, however, we realize that the pain involved is not the only reason. The true significance of these punishments is that they treat members of the human race as nonhumans, as objects to be toyed with and discarded. They are thus inconsistent with the fundamental premise of the Clause that even the vilest criminal remains a human being possessed of common human dignity.
86
The infliction of an extremely severe punishment, then, like the one before the Court in Weems v. United States, from which '(n)o circumstance of degradation (was) omitted,' 217 U.S., at 366, 30 S.Ct., at 549, may reflect the attitude that the person punished is not entitled to recognition as a fellow human being. That attitude may be apparent apart from the severity of the punishment itself. In Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 464, 67 S.Ct. 374, 376, 91 L.Ed. 422 (1947), for example, the unsuccessful electrocution, although it caused 'mental anguish and physical pain,' was the result of 'an unforeseeable accident.' Had the failure been intentional, however, the punishment would have been, like torture, so degrading and indecent as to amount to a refusal to accord the criminal human status. Indeed, a punishment may be degrading to human dignity solely because it is a punishment. A State may not punish a person for being 'mentally ill, or a leper, or . . . afflicted with a veneral disease,' or for being addicted to narcotics. Robinson v. California, 370 U.S. 660, 666, 82 S.Ct. 1417, 1420, 8 L.Ed.2d 758 (1962). To inflict punishment for having a disease is to treat the individual as a diseased thing rather than as a sick human being. That the punishment is not severe, 'in the abstract,' is irrelevant; '(e)ven one day in prison would be a cruel and unusual punishment for the 'crime' of having a common cold.' Id., at 667, 82 S.Ct., at 1421. Finally, of course, a punishment may be degrading simply by reason of its enormity. A prime example is expatriation, a 'punishment more primitive than torture,' Trop v. Dulles, 356 U.S., at 101, 78 S.Ct., at 598, for it necessarily involves a denial by society of the individual's existence as a member of the human community.15
87
In determining whether a punishment comports with human dignity, we are aided also by a second principle inherent in the Clause—that the State must not arbitrarily inflict a severe punishment. This principle derives from the notion that the State does not respect human dignity when, without reason, it inflicts upon some people a severe punishment that it does not inflict upon others. Indeed, the very words 'cruel and unusual punishments' imply condemnation of the arbitrary infliction of severe punishments. And, as we now know, the English history of the Clause16 reveals a particular concern with the establishment of a safeguard against arbitrary punishments. See Granucci, 'Nor Cruel and Unusual Punishments inflicted:' The Original Meaning, 57 Calif.L.Rev. 839, 857—860 (1969).17
88
This principle has been recognized in our cases.18 In Wilkerson v. Utah, 99 U.S., at 133—134, the Court reviewed various treatises on military law in order to demonstrate that under 'the custom of war' shooting was a common method of inflicting the punishment of death. On that basis, the Court concluded:
89
'Cruel and unusual punishments are forbidden by the Constitution, but the authorities referred to (treatises on military law) are quite sufficient to show that the punishment of shooting as a mode of executing the death penalty for the crime of murder in the first degree is not included in that category, within the meaning of the (Clause). Soldiers convicted of desertion or other capital military offenses are in the great majority of cases sentenced to be shot, and the ceremony for such occasions is given in great fulness by the writers upon the subject of courts-martial.' Id., at 134—135.
90
The Court thus upheld death by shooting, so far as appears, solely on the ground that it was a common method of execution.19
91
As Wilkerson v. Utah suggests, when a severe punishment is inflicted 'in the great majority of cases' in which it is legally available, there is little likelihood that the State is inflicting it arbitrarily. If, however, the infliction of a severe punishment is 'something different from that which is generally done' in such cases, Trop v. Dulles, 356 U.S., at 101 n. 32, 78 S.Ct., at 598,20 there is a substantial likelihood that the State, contrary to the requirements of regularity and fairness embodied in the Clause, is inflicting the punishment arbitrarily. This principle is especially important today. There is scant danger, given the political processes 'in an enlightened democracy such as ours,' id., at 100, 78 S.Ct., at 598, that extremely severe punishments will be widely applied. The more significant function of the Clause, therefore, is to protect against the danger of their arbitrary infliction.
92
A third principle inherent in the Clause is that a severe punishment must not be unacceptable to contemporary society. Rejection by society, of course, is a strong indication that a severe punishment does not comport with human dignity. In applying this principle, however, we must make certain that the judicial determination is as objective as possible.21 Thus, for example, Weems v. United States, 217 U.S., at 380, 30 S.Ct., at 554, and Trop v. Dulles, 356 U.S., at 102—103, 78 S.Ct., at 598—599, suggest that one factor that may be considered is the existence of the punishment in jurisdictions other than those before the Court. Wilkerson v. Utah, supra, suggests that another factor to be considered is the historic usage of the punishment.22 Trop v. Dulles, supra, 356 U.S., at 99, 78 S.Ct., at 597, combined present acceptance with past usage by observing that 'the death penalty has been employed throughout our history, and, in a day when it is still widely accepted, it cannot be said to violate the constitutional concept of cruelty.' In Robinson v. California, 370 U.S., at 666, 82 S.Ct., at 1420, which involved the infliction of punishment for narcotics addiction, the Court went a step further, concluding simply that 'in the light of contemporary human knowledge, a law which made a criminal offense of such disease would doubtless be universally thought to be an infliction of cruel and unusual punishment.'
93
The question under this principle, then, is whether there are objective indicators from which a court can conclude that contemporary society considers a severe punishment unacceptable. Accordingly, the judicial task is to review the history of a challenged punishment and to examine society's present practices with respect to its use. Legislative authorization, of course, does not establish acceptance. The acceptability of a severe punishment is measured, not by its availability, for it might become so offensive to society as never to be inflicted, but by its use.
94
The final principle inherent in the Clause is that a severe punishment must not be excessive. A punishment is excessive under this principle if it is unnecessary: The infliction of a severe punishment by the State cannot comport with human dignity when it is nothing more than the pointless infliction of suffering. If there is a significantly less severe punishment adequate to achieve the purposes for which the punishment is inflicted, cf. Robinson v. California, supra, at 666, 82 S.Ct., at 1420; id., at 677, 82 S.Ct., at 1426 (Douglas, J., concurring); Trop v. Dulles, supra, 356 U.S., at 114, 78 S.Ct., at 605 (Brennan, J., concurring), the punishment inflicted is unnecessary and therefore excessive.
95
This principle appeared in our cases in Mr. Justice Field's dissent in O'Neil v. Vermont, 144 U.S., at 337, 12 S.Ct., at 699.23 He there took the position that:
96
'(The Clause) is directed, not only against punishments of the character mentioned (torturous punishments), but against all punishments which by their excessive length or severity are greatly disproportioned to the offenses charged. The whole inhibition is against that which is excessive either in the bail required, or fine imposed, or punishment inflicted.' Id., at 339—340, 12 S.Ct., at 699.
97
Although the determination that a severe punishment is excessive may be grounded in a judgment that it is disproportionate to the crime,24 the more significant basis is that the punishment serves no penal purpose more effectively than a less severe punishment. This view of the principle was explicitly recognized by the Court in Weems v. United States, supra. There the Court, reviewing a severe punishment inflicted for the falsification of an official record, found that 'the highest punishment possible for a crime which may cause the loss of many thousand(s) of dollars, and to prevent which the duty of the state should be as eager as to prevent the perversion of truth in a public document, is not greater than that which may be imposed for falsifying a single item of a public account.' Id., at 381, 30 S.Ct., at 554. Stating that 'this contrast shows more than different exercises of legislative judgment,' the Court concluded that the punishment was unnecessarily severe in view of the purposes for which it was imposed. Ibid.25 See also Trop v. Dulles, 356 U.S., at 111—112, 78 S.Ct., at 603 604 (Brennan, J., concurring).26
98
There are, then, four principles by which we may determine whether a particular punishment is 'cruel and unusual.' The primary principle, which I believe supplies the essential predicate for the application of the others, is that a punishment must not by its severity be degrading to human dignity. The paradigm violation of this principle would be the infliction of a torturous punishment of the type that the Clause has always prohibited. Yet '(i)t is unlikely that any State at this moment in history(,)' Robinson v. California, 370 U.S., at 666, 82 S.Ct., at 1420, would pass a law providing for the infliction of such a punishment. Indeed, no such punishment has ever been before this Court. The same may be said of the other principles. It is unlikely that this Court will confront a severe punishment that is obviously inflicted in wholly arbitrary fashion; no State would engage in a reign of blind terror. Nor is it likely that this Court will be called upon to review a severe punishment that is clearly and totally rejected throughout society; no legislature would be able even to authorize the infliction of such a punishment. Nor, finally, is it likely that this Court will have to consider a severe punishment that is patently unnecessary; no State today would inflict a severe punishment knowing that there was no reason whatever for doing so. In short, we are unlikely to have occasion to determine that a punishment is fatally offensive under any one principle.
99
Since the Bill of Rights was adopted, this Court has adjudged only three punishments to be within the prohibition of the Clause. See Weems v. United States, 217 U.S. 349, 30 S.Ct. 544, 54 L.Ed. 793 (1910) (12 years in chains at hard and painful labor); Trop v. Dulles, 356 U.S. 86, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958) (expatriation); Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962) (imprisonment for narcotics addition). Each punishment, of course, was degrading to human dignity, but of none could it be said conclusively that it was fatally offensive under one or the other of the principles. Rather, these 'cruel and unusual punishments' seriously implicated several of the principles, and it was the application of the principles in combination that supported the judgment. That, indeed, is not surprising. The function of these principles, after all, is simply to provide means by which a court can determine whether a challenged punishment comports with human dignity. They are, therefore, interrelated, and in most cases it will be their convergence that will justify the conclusion that a punishment is 'cruel and unusual.' The test, then, will ordinarily be a cumulative one: If a punishment is unusually severe, if there is a strong probability that it is inflicted arbitrarily, if it is substantially rejected by contemporary society, and if there is no reason to believe that it serves any penal purpose more effectively than some less severe punishment, then the continued infliction of that punishment violates the command of the Clause that the State may not inflict inhuman and uncivilized punishments upon those convicted of crimes.
III
100
The punishment challenged in these cases is death. Death, of course, is a 'traditional' punishment, Trop v. Dulles, supra, 356 U.S., at 100, 78 S.Ct., at 598, one that 'has been employed throughout our history,' id., at 99, 78 S.Ct., at 597, and its constitutional background is accordingly an appropriate subject of inquiry.
101
There is, first, a textual consideration raised by the Bill of Rights itself. The Fifth Amendment declares that if a particular crime is punishable by death, a person charged with that crime is entitled to certain procedural protections.27 We can thus infer that the Framers recognized the existence of what was then a common punishment. We cannot, however, make the further inference that they intended to exempt this particular punishment from the express prohibition of the Cruel and Unusual Punishments Clause.28 Nor is there any indication in the debates on the Clause that a special exception was to be made for death. If anything, the indication is to the contrary, for Livermore specifically mentioned death as a candidate for future proscription under the Clause. See supra, at 262. Finally, it does not advance analysis to insist that the Framers did not believe that adoption of the Bill of Rights would immediately prevent the infliction of the punishment of death; neither did they believe that it would immediately prevent the infliction of other corporal punishments that, although common at the time, see n. 6, supra, are now acknowledged to be impermissible.29
102
There is also the consideration that this Court has decided three cases involving constitutional challenges to particular methods of inflicting this punishment. In Wilkerson v. Utah, 99 U.S. 130, 25 L.Ed. 345 (1879), and In re Kemmler, 136 U.S. 436, 10 S.Ct. 930, 34 L.Ed. 519 (1890), the Court, expressing in both cases the since-rejected 'historical' view of the Clause, see supra, at 264—265, approved death by shooting and death by electrocution. In Wilkerson, the Court concluded that shooting was a common method of execution, see supra, at 275—276;30 in Kemmler, the Court held that the Clause did not apply to the States, 136 U.S., at 447—449, 10 S.Ct., at 933—934.31 In Louisiana ex rel. Francis v. Resweber, supra, the Court approved a second attempt at electrocution after the first had failed. It was said that '(t)he Fourteenth (Amendment) would prohibit by its due process clause execution by a state in a cruel manner,' 329 U.S., at 463, 67 S.Ct., at 376, but that the abortive attempt did not make the 'subsequent execution any more cruel in the constitutional sense than any other execution,' id., at 464, 67 S.Ct., at 376.32 These three decisions thus reveal that the Court, while ruling upon various methods of inflicting death, has assumed in the past that death was a constitutionally permissible punishment.33 Past assumptions, however, are not sufficient to limit the scope of our examination of this punishment today. The constitutionality of death itself under the Cruel and Unusual Punishments Clause is before this Court for the first time; we cannot avoid the question by recalling past cases that never directly considered it.
103
The question, then, is whether the deliberate infliction of death is today consistent with the command of the Clause that the State may not inflict punishments that do not comport with human dignity. I will analyze the punishment of death in terms of the principles set out above and the cumulative test to which they lead: It is a denial of human dignity for the State arbitrarily to subject a person to an unusually severe punishment that society has indicated it does not regard as acceptable, and that cannot be shown to serve any penal purpose more effectively than a significantly less drastic punishment. Under these principles and this test, death is today a 'cruel and unusual' punishment.
104
Death is a unique punishment in the United States. In a society that so strongly affirms the sanctity of life, not surprisingly the common view is that death is the ultimate sanction. This natural human feeling appears all about us. There has been no national debate about punishment, in general or by imprisonment, comparable to the debate about the punishment of death. No other punishment has been so continuously restricted, see infra, at 296—298, nor has any State yet abolished prisons, as some have abolished this punishment. And those States that still inflict death reserve it for the most heinous crimes. Juries, of course, have always treated death cases differently, as have governors exercising their commutation powers. Criminal defendants are of the same view. 'As all practicing lawyers know, who have defended persons charged with capital offenses, often the only goal possible is to avoid the death penalty.' Griffin v. Illinois, 351 U.S. 12, 28, 76 S.Ct. 585, 595, 100 L.Ed. 891 (1956) (Burton and Minton, JJ., dissenting). Some legislatures have required particular procedures, such as two-stage trials and automatic appeals, applicable only in death cases. 'It is the universal experience in the administration of criminal justice that those charged with capital offenses are granted special considerations.' Ibid. See Williams v. Florida, 399 U.S. 78, 103, 90 S.Ct. 1893, 1907, 26 L.Ed.2d 446 (1970) (all States require juries of 12 in death cases). This Court, too, almost always treats death cases as a class apart.34 And the unfortunate effect of this punishment upon the functioning of the judicial process is well known; no other punishment has a similar effect.
105
The only explanation for the uniqueness of death is its extreme severity. Death is today an unusually severe punishment, unusual in its pain, in its finality, and in its enormity. No other existing punishment is comparable to death in terms of physical and mental suffering. Although our information is not conclusive, it appears that there is no method available that guarantees an immediate and painless death.35 Since the discontinuance of flogging as a constitutionally permissible punishment, Jackson v. Bishop, 404 F.2d 571 (CA8 1968), death remains as the only punishment that may involve the conscious infliction of physical pain. In addition, we know that mental pain is an inseparable part of our practice of punishing criminals by death, for the prospect of pending execution exacts a frightful toll during the inevitable long wait between the imposition of sentence and the actual infliction of death. Cf. Ex parte Medley, 134 U.S. 160, 172, 10 S.Ct. 384, 388, 33 L.Ed. 835 (1890). As the California Supreme Court pointed out, 'the process of carrying out a verdict of death is often so degrading and brutalizing to the human spirit as to constitute psychological torture.' People v. Anderson, 6 Cal.3d 628, 649, 100 Cal.Rptr. 152, 166, 493 P.2d 880, 894 (1972).36 Indeed, as Mr. Justice Frankfurther noted, 'the onset of insanity while awaiting execution of a death sentence is not a rare phenomenon.' Solesbee v. Balkcom, 339 U.S. 9, 14, 70 S.Ct. 457, 460, 94 L.Ed. 604 (1950) (dissenting opinion). The 'fate of ever-increasing fear and distress' to which the expatriate is subjected, Trop v. Dulles, 356 U.S., at 102, 78 S.Ct., at 599, can only exist to a greater degree for a person confined in prison awaiting death.37
106
The unusual severity of death is manifested most clearly in its finality and enormity. Death, in these respects, is in a class by itself. Expatriation, for example, is a punishment that 'destroys for the individual the political existence that was centuries in the development(,)' that 'strips the citizen of his status in the national and international political community(,)' and that puts '(h)is very existence' in jeopardy. Expatriation thus inherently entails 'the total destruction of the individual's status in organized society.' Id., at 101, 78 S.Ct., at 598. 'In short, the expatriate has lost the right to have rights.' Id., at 102, 78 S.Ct., at 598. Yet, demonstrably, expatriation is not 'a fate worse than death.' Id., at 125, 78 S.Ct., at 611 (Frankfurter, J., dissenting).38 Although death, like expatriation, destroys the individual's 'political existence' and his 'status in organized society,' it does more, for, unlike expatriation, death also destroys '(h)is very existence.' There is, too, at least the possibility that the expatriate will in the future regain 'the right to have rights.' Death forecloses even that possibility.
107
Death is truly an awesome punishment. The calculated killing of a human being by the State involves, by its very nature, a denial of the executed person's humanity. The contrast with the plight of a person punished by imprisonment is evident. An individual in prison does not lose 'the right to have rights.' A prisoner retains, for example, the constitutional rights to the free exercise of religion, to be free of cruel and unusual punishments, and to treatment as a 'person' for purposes of due process of law and the equal protection of the laws. A prisoner remains a member of the human family. Moreover, he retains the right of access to the courts. His punishment is not irrevocable. Apart from the common charge, grounded upon the recognition of human fallibility, that the punishment of death must inevitably be inflicted upon innocent men, we know that death has been the lot of men whose convictions were unconstitutionally secured in view of later, retroactively applied, holdings of this Court. The punishment itself may have been unconstitutionally inflicted, see Wither-spoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), yet the finality of death precludes relief. An executed person has indeed 'lost the right to have rights.' As one 19th century proponent of punishing criminals by death declared, 'When a man is hung, there is an end of our relations with him. His execution is a way of saying, 'You are not fit for this world, take your chance elsewhere."39
108
In comparison to all other punishments today, then, the deliberate extinguishment of human life by the State is uniquely degrading to human dignity. I would not hesitate to hold, on that ground alone, that death is today a 'cruel and unusual' punishment, were it not that death is a punishment of longstanding usage and acceptance in this country. I therefore turn to the second principle—that the State may not arbitrarily inflict an unusually severe punishment.
109
The outstanding characteristic of our present practice of punishing criminals by death is the infrequency with which we resort to it. The evidence is conclusive that death is not the ordinary punishment for any crime.
110
There has been a steady decline in the infliction of this punishment in every decade since the 1930's, the earliest period for which accurate statistics are available. In the 1930's, executions averaged 167 per year; in the 1940's, the average was 128; in the 1950's, it was 72; and in the years 1960—1962, it was 48. There have been a total of 46 executions since then, 36 of them in 1963—1964.40 Yet our population and the number of capital crimes committed have increased greatly over the past four decades. The contemporary rarity of the infliction of this punishment is thus the end result of a long-continued decline. That rarity is plainly revealed by an examination of the years 1961—1970, the last 10-year period for which statistics are available. During that time, an average of 106 death sentences was imposed each year.41 Not nearly that number, however, could be carried out, for many were precluded by commutations to life or a term of years,42 transfers to mental institutions because of insanity,43 resentences to life or a term of years, grants of new trials and orders for resentencing, dismissals of indictments and reversals of convictions, and deaths by suicide and natural causes.44 On January 1, 1961, the death row population was 219; on December 31, 1970, it was 608; during that span, there were 135 executions.45 Consequently, had the 389 additions to death row also been executed the annual average would have been 52.46 In short, the country might, at most, have executed one criminal each week. In fact, of course, far fewer were executed. Even before the moratorium on executions began in 1967, executions totaled only 42 in 1961 and 47 in 1962, an average of less than one per week; the number dwindled to 21 in 1963, to 15 in 1964, and to seven in 1965; in 1966, there was one execution, and in 1967, there were two.47
111
When a country of over 200 million people inflicts an unusually severe punishment no more than 50 times a year, the inference is strong that the punishment is not being regularly and fairly applied. To dispel it would indeed require a clear showing of nonarbitrary infliction.
112
Although there are no exact figures available, we know that thousands of murders and rapes are committed annually in States where death is an authorized punishment for those crimes. However the rate of infliction is characterized—as 'freakishly' or 'spectacularly' rare, or simply as rare—it would take the purest sophistry to deny that death is inflicted in only a minute fraction of these cases. How much rarer, after all, could the infliction of death be?
113
When the punishment of death is inflicted in a trivial number of the cases in which it is legally available, the conclusion is virtually inescapable that it is being inflicted arbitrarily. Indeed, it smacks of little more than a lottery system. The States claim, however, that this rarity is evidence not of arbitrariness, but of informed selectivity: Death is inflicted, they say, only in 'extreme' cases.
114
Informed selectivity, of course, is a value not to be denigrated. Yet presumably the States could make precisely the same claim if there were 10 executions per year, or five, or even if there were but one. That there may be as many as 50 per year does not strengthen the claim. When the rate of infliction is at this low level, it is highly implausible that only the worst criminals or the criminals who commit the worst crimes are selected for this punishment. No one has yet suggested a rational basis that could differentiate in those terms the few who die from the many who go to prison. Crimes and criminals simply do not admit of a distinction that can be drawn so finely as to explain, on that ground, the execution of such a tiny sample of those eligible. Certainly the laws that provide for this punishment do not attempt to draw that distinction; all cases to which the laws apply are necessarily 'extreme.' Nor is the distinction credible in fact. If, for example, petitioner Furman or his crime illustrates the 'extreme,' then nearly all murderers and their murders are also 'extreme.'48 Furthermore, our procedures in death cases, rather than resulting in the selection of 'extreme' cases for this punishment, actually sanction an arbitrary selection. For this Court has held that juries may, as they do, make the decision whether to impose a death sentence wholly unguided by standards governing that decision. McGautha v. California, 402 U.S. 183, 196 208, 91 S.Ct. 1454, 1461—1468, 28 L.Ed.2d 711 (1971). In other words, our procedures are not constructed to guard against the totally capricious selection of criminals for the punishment of death.
115
Although it is difficult to imagine what further facts would be necessary in order to prove that death is, as my Brother STEWART puts it, 'wantonly and . . . freakishly' inflicted, I need not conclude that arbitrary infliction is patently obvious. I am not considering this punishment by the isolated light of one principle. The probability of arbitrariness is sufficiently substantial that it can be relied upon, in combination with the other principles, in reaching a judgment on the constitutionality of this punishment.
116
When there is a strong probability that an unusually severe and degrading punishment is being inflicted arbitrarily, we may well expect that society will disapprove of its infliction. I turn, therefore, to the third principle. An examination of the history and present operation of the American practice of punishing criminals by death reveals that this punishment has been almost totally rejected by contemporary society.
117
I cannot add to my Brother MARSHALL's comprehensive treatment of the English and American history of this punishment. I emphasize, however, one significant conclusion that emerges from that history. From the beginning of our Nation, the punishment of death has stirred acute public controversy. Although pragmatic arguments for and against the punishment have been frequently advanced, this longstanding and heated controversy cannot be explained solely as the result of differences over the practical wisdom of a particular government policy. At bottom, the battle has been waged on moral grounds. The country has debated whether a society for which the dignity of the individual is the supreme value can, without a fundamental inconsistency, follow the practice of deliberately putting some of its members to death. In the United States, as in other nations of the western world, 'the struggle about this punishment has been one between ancient and deeply rooted beliefs in retribution, atonement or vengeance on the one hand, and, on the other, beliefs in the personal value and dignity of the common man that were born of the democratic movement of the eighteenth century, as well as beliefs in the scientific approach to an understanding of the motive forces of human conduct, which are the result of the growth of the sciences of behavior during the nineteenth and twentieth centuries.'49 It is this essentially moral conflict that forms the backdrop for the past changes in and the present operation of our system of imposing death as a punishment for crime.
118
Our practice of punishing criminals by death has changed greatly over the years. One significant change has been in our methods of inflicting death. Although this country never embraced the more violent and repulsive methods employed in England, we did for a long time rely almost exclusively upon the gallows and the firing squad. Since the development of the supposedly more humane methods of electrocution late in the 19th century and lethal gas in the 20th, however, hanging and shooting have virtaully ceased.50 Our concern for decency however, hanging and shooting have virtually changes in the circumstances surrounding the execution itself. No longer does our society countenance the spectacle of public executions, once thought desirable as a deterrent to criminal behavior by others. Today we reject public executions as debasing and brutalizing to us all.
119
Also significant is the drastic decrease in the crimes for which the punishment of death is actually inflicted. While esoteric capital crimes remain on the books, since 1930 murder and rape have accounted for nearly 99% of the total executions, and murder alone for about 87%.51 In addition, the crime of capital murder has itself been limited. As the Court noted in McGautha v. California, 402 U.S., at 198, 91 S.Ct., at 1462, 1463, there was in this country a 'rebellion against the common-law rule imposing a mandatory death sentence on all convicted murderers.' Initially, that rebellion resulted in legislative definitions that distinguished between degrees of murder, retaining the mandatory death sentence only for murder in the first degree. Yet '(t)his new legislative criterion for isolating crimes appropriately punishable by death soon proved as unsuccessful as the concept of 'malice aforethought(,)" ibid., the common-law means of separating murder from manslaughter. Not only was the distinction between degrees of murder confusing and uncertain in practice, but even in clear cases of first-degree murder juries continued to take the law into their own hands: if they felt that death was an inappropriate punishment, 'they simply refused to convict of the capital offense.' Id., at 199, 91 S.Ct., at 1463. The phenomenon of jury nullification thus remained to counteract the rigors of mandatory death sentences. Bowing to reality, 'legislatures did not try, as before, to refine further the definition of capital homicides. Instead they adopted the method of forthrightly granting juries the discretion which they had been exercising in fact.' Ibid. In consequence, virtually all death sentences today are discretionarily imposed. Finally, it is significant that nine States no longer inflict the punishment of death under any circumstances,52 and five others have restricted it to extremely rare crimes.53
120
Thus, although 'the death penalty has been employed throughout our history,' Trop v. Dulles, 356 U.S., at 99, 78 S.Ct., at 597, in fact the history of this punishment is one of successive restriction. What was once a common punishment has become, in the context of a continuing moral debate, increasingly rare. The evolution of this punishment evidences, not that it is an inevitable part of the American scene, but that it has proved progressively more troublesome to the national conscience. The result of this movement is our current system of administering the punishment, under which death sentences are rarely imposed and death is even more rarely inflicted. It is, of course, 'We, the People' who are responsible for the rarity both of the imposition and the carrying out of this punishment. Juries, 'express(ing) the conscience of the community on the ultimate question of life or death,' Witherspoon v. Illinois, 391 U.S., at 519, 88 S.Ct., at 1775 have been able to bring themselves to vote for death in a mere 100 or so cases among the thousands tried each year where the punishment is available. Governors, elected by and acting for us, have regularly commuted a substantial number of those sentences. And it is our society that insists upon due process of law to the end that no person will be unjustly put to death, thus ensuring that many more of those sentences will not be carried out. In sum, we have made death a rare punishment today.
121
The progressive decline in, and the current rarity of, the infliction of death demonstrate that our society seriously questions the appropriateness of this punishment today. The States point out that many legislatures authorize death as the punishment for certain crimes and that substantial segments of the public, as reflected in opinion polls and referendum votes, continue to support it. Yet the availability of this punishment through statutory authorization, as well as the polls and referenda, which amount simply to approval of that authorization, simply underscores the extent to which our society has in fact rejected this punishment. When an unusually severe punishment is authorized for wide-scale application but not, because of society's refusal, inflicted save in a few instances, the inference is compelling that there is a deep-seated reluctance to inflict it. Indeed, the likelihood is great that the punishment is tolerated only because of its disuse. The objective indicator of society's view of an unusually severe punishment is what society does with it, and today society will inflict death upon only a small sample of the eligible criminals. Rejection could hardly be more complete without becoming absolute. At the very least, I must conclude that contemporary society views this punishment with substantial doubt.
122
The final principle to be considered is that an unusually severe and degrading punishment may not be excessive in view of the purposes for which it is inflicted. This principle, too, is related to the others. When there is a strong probability that the State is arbitrarily inflicting an unusually severe punishment that is subject to grave societal doubts, it is likely also that the punishment cannot be shown to be serving any penal purpose that could not be served equally well by some less severe punishment.
123
The States' primary claim is that death is a necessary punishment because it prevents the commission of capital crimes more effectively than any less severe punishment. The first part of this claim is that the infliction of death is necessary to stop the individuals executed from committing further crimes. The sufficient answer to this is that if a criminal convicted of a capital crime poses a danger to society, effective administration of the State's pardon and parole laws can delay or deny his release from prison, and techniques of isolation can eliminate or minimize the danger while he remains confined.
124
The more significant argument is that the threat of death prevents the commission of capital crimes because it deters potential criminals who would not be deterred by the threat of imprisonment. The argument is not based upon evidence that the threat of death is a superior deterrent. Indeed, as my Brother MARSHALL establishes, the available evidence uniformly indicates, although it does not conclusively prove, that the threat of death has no greater deterrent effect than the threat of imprisonment. The States argue, however, that they are entitled to rely upon common human experience, and that experience, they say, supports the conclusion that death must be a more effective deterrent than any less severe punishment. Because people fear death the most, the argument runs, the threat of death must be the greatest deterrent.
125
It is important to focus upon the precise import of this argument. It is not denied that many, and probably most, capital crimes cannot be deterred by the threat of punishment. Thus the argument can apply only to those who think rationally about the commission of capital crimes. Particularly is that true when the potential criminal, under this argument, must not only consider the risk of punishment, but also distinguish between two possible punishments. The concern, then, is with a particular type of potential criminal, the rational person who will commit a capital crime knowing that the punishment is long-term imprisonment, which may well be for the rest of his life, but will not commit the crime knowing that the punishment is death. On the face of it, the assumption that such persons exist is implausible.
126
In any event, this argument cannot be appraised in the abstract. We are not presented with the theoretical question whether under any imaginable circumstances the threat of death might be a greater deterrent to the commission of capital crimes than the threat of imprisonment. We are concerned with the practice of punishing criminals by death as it exists in the United States today. Proponents of this argument necessarily admit that its validity depends upon the existence of a system in which the punishment of death is invariably and swiftly imposed. Our system, of course, satisfies neither condition. A rational person contemplating a murder or rape is confronted, not with the certainty of a speedy death, but with the slightest possibility that he will be executed in the distant future. The risk of death is remote and improbable; in contrast, the risk of long-term imprisonment is near and great. In short, whatever the speculative validity of the assumption that the threat of death is a superior deterrent, there is no reason to believe that as currently administerd the punishment of death is necessary to deter the commission of capital crimes. Whatever might be the case were all or substantially all eligible criminals quickly put to death, unverifiable possibilities are an insufficient basis upon which to conclude that the threat of death today has any greater deterrent efficacy than the threat of imprisonment.54
127
There is, however, another aspect to the argument that the punishment of death is necessary for the protection of society. The infliction of death, the States urge, serves to manifest the community's outrage at the commission of the crime. It is, they say, a concrete public expression of moral indignation that inculcates respect for the law and helps assure a more peaceful community. Moreover, we are told, not only does the punishment of death exert this widespread moralizing influence upon community values, it also satisfies the popular demand for grievous condemnation of abhorrent crimes and thus prevents disorder, lynching, and attempts by private citizens to take the law into their own hands.
128
The question, however, is not whether death serves these supposed purposes of punishment, but whether death serves them more effectively than imprisonment. There is no evidence whatever that utilization of imprisonment rather than death encourages private blood feuds and other disorders. Surely if there were such a danger, the execution of a handful of criminals each year would not prevent it. The assertion that death alone is a sufficiently emphatic denunciation for capital crimes suffers from the same defect. If capital crimes require the punishment of death in order to provide moral reinforcement for the basic values of the community, those values can only be undermined when death is so rarely inflicted upon the criminals who commit the crimes. Furthermore, it is certainly doubtful that the infliction of death by the State does in fact strengthen the community's moral code; if the deliberate extinguishment of human life has any effect at all, it more likely tends to lower our respect for life and brutalize our values. That, after all, is why we no longer carry out public executions. In any event, this claim simply means that one purpose of punishment is to indicate social disapproval of crime. To serve that purpose our laws distribute punishments according to the gravity of crimes and punish more severely the crimes society regards as more serious. That purpose cannot justify any particular punishment as the upper limit of severity.
129
There is, then, no substantial reason to believe that the punishment of death, as currently administered, is necessary for the protection of society. The only other purpose suggested, one that is independent of protection for society, is retribution. Shortly stated, retribution in this context means that criminals are put to death because they deserve it.
130
Although it is difficult to believe that any State today wishes to proclaim adherence to 'naked vengeance,' Trop v. Dulles, 356 U.S., at 112, 78 S.Ct., at 604 (Brennan, J., concurring), the States claim, in reliance upon its statutory authorization, that death is the only fit punishment for capital crimes and that this retributive purpose justifies its infliction. In the past, judged by its statutory authorization, death was considered the only fit punishment for the crime of forgery, for the first federal criminal statute provided a mandatory death penalty for that crime. Act of April 30, 1790, § 14, 1 Stat. 115. Obviously, concepts of justice change; no immutable moral order requires death for murderers and rapists. The claim that death is a just punishment necessarily refers to the existence of certain public beliefs. The claim must be that for capital crimes death alone comports with society's notion of proper punishment. As administered today, however, the punishment of death cannot be justified as a necessary means of exacting retribution from criminals. When the overwhelming number of criminals who commit capital crimes go to prison, it cannot be concluded that death serves the purpose of retribution more effectively than imprisonment. The asserted public belief that murderers and rapists deserve to die is flatly inconsistent with the execution of a random few. As the history of the punishment of death in this country shows, our society wishes to prevent crime; we have no desire to kill criminals simply to get even with them.
131
In sum, the punishment of death is inconsistent with all four principles: Death is an unusually severe and degrading punishment; there is a strong probability that it is inflicted arbitrarily; its rejection by contemporary society is virtually total; and there is no reason to believe that it serves any penal purpose more effectively than the less severe punishment of imprisonment. The function of these principles is to enable a court to determine whether a punishment comports with human dignity. Death, quite simply, does not.
IV
132
When this country was founded, memories of the Stuart horrors were fresh and severe corporal punishments were common. Death was not then a unique punishment. The practice of punishing criminals by death, moreover, was widespread and by and large acceptable to society. Indeed, without developed prison systems, there was frequently no workable alternative. Since that time successive restrictions, imposed against the background of a continuing moral controversy, have drastically curtailed the use of this punishment. Today death is a uniquely and unusually severe punishment. When examined by the principles applicable under the Cruel and Unusual Punishments Clause, death stands condemned as fatally offensive to human dignity. The punishment of death is therefore 'cruel and unusual,' and the States may no longer inflict it as a punishment for crimes. Rather than kill an arbitrary handful of criminals each year, the States will confine them in prison. 'The state thereby suffers nothing and loses no power. The purpose of punishment is fulfilled, crime is repressed by penalties of just, not tormenting, severity, its repetition is prevented, and hope is given for the reformation of the criminal.' Weems v. United States, 217 U.S., at 381, 30 S.Ct., at 554.
133
I concur in the judgments of the Court.
134
Mr. Justice STEWART, concurring.
135
The penalty of death differs from all other forms of criminal punishment, not in degree but in kind. It is unique in its total irrevocability. It is unique in its rejection of rehabilitation of the convict as a basic purpose of criminal justice. And it is unique, finally, in its absolute renunciation of all that is embodied in our concept of humanity.
136
For these and other reasons, at least two of my Brothers have concluded that the infliction of the death penalty is constitutionally impermissible in all circumstances under the Eight and Fourteenth Amendments. Their case is a strong one. But I find it unnecessary to reach the ultimate question they would decide. See Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 347, 56 S.Ct. 466, 483, 80 L.Ed. 688 (Brandeis, J., concurring).
137
The opinions of other Justices today have set out in admirable and thorough detail the origins and judicial history of the Eighth Amendmemt's guarantee against the infliction of cruel and unusual punishments,1 and the origin and judicial history of capital punishment.2 There is thus no need for me to review the historical materials here, and what I have to say can, therefore, be briefly stated.
138
Legislatures—state and federal—have sometimes specified that the penalty of death shall be the mandatory punishment for every person convicted of engaging in certain designated criminal conduct. Congress, for example, has provided that anyone convicted of acting as a spy for the enemy in time of war shall be put to death.3 The Rhode Island Legislature has ordained the death penalty for a life term prisoner who commits murder.4 Massachusetts has passed a law imposing the death penalty upon anyone convicted of murder in the commission of a forcible rape.5 An Ohio law imposes the mandatory penalty of death upon the assassin of the President of the United States or the Governor of a State.6
139
If we were reviewing death sentences imposed under these or similar laws, we would be faced with the need to decide whether capital punishment is unconstitutional for all crimes and under all circumstances. We would need to decide whether a legislature state or federal—could constitutionally determine that certain criminal conduct is so atrocious that societys' interest in deterrence and retribution wholly outweighs any considerations of reform or rehabilitation of the perpetrator, and that, despite the inconclusive empirical evidence,7 only the automatic penalty of death will provide maximum deterrence.
140
On that score I would say only that I cannot agree that retribution is a constitutionally impermissible ingredient in the imposition of punishment. The instinct for retribution is part of the nature of man, and channeling that instinct in the administration of criminal justice serves an important purpose in promoting the stability of a society governed by law. When people begin to believe that organized society is unwilling or unable to impose upon criminal offenders the punishment they 'deserve,' then there are sown the seeds of anarchy—of self-help, vigilante justice, and lynch law.
141
The constitutionality of capital punishment in the abstract is not, however, before us in these cases. For the Georgia and Texas Legislatures have not provided that the death penalty shall be imposed upon all those who are found guilty of forcible rape.8 And the Georgia Legislature has not ordained that death shall be the automatic punishment for murder.9 In a word, neither State has made a legislative determination that forcible rape and murder can be deterred only by imposing the penalty of death upon all who perpetrate those offenses. As Mr. Justice White so tellingly puts it, the 'legislative will is not frustrated if the penalty is never imposed.' Post, at 311.
142
Instead, the death sentences now before us are the product of a legal system that brings them, I believe, within the very core of the Eighth Amendment's guarantee against cruel and unusual punishments, a guarantee applicable against the States through the Fourteenth Amendment. Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758. In the first place, it is clear that these sentences are 'cruel' in the sense that they excessively go beyond, not in degree but in kind, the punishments that the state legislatures have determined to be necessary. Weems v. United States, 217 U.S. 349, 30 S.Ct. 544, 54 L.Ed. 793. In the second place, it is equally clear that these sentences are 'unusual' in the sense that the penalty of death is infrequently imposed for murder, and that its imposition for rape is extraordinarily rare.10 But I do not rest by conclusion upon these two propositions alone.
143
These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual. For, of all the people convicted of rapes and murders in 1967 and 1968,11 many just as reprehensible as these, the petitioners are among a capriciously selected random handful upon whom the sentence of death has in fact been imposed.12 My concurring Brothers have demonstrated that, if any basis can be discerned for the selection of these few to be sentenced to die, it is the constitutionally impermissible basis of race.13 See McLaughlin v. Florida, 379 U.S. 184, 85 S. Ct. 283, 13 L.Ed.2d 222. But racial discrimination has not been proved,14 and I put it to one side. I simply conclude that the Eighth and Fourteenth Amendments cannot tolerate the infliction of a sentence of death under legal systems that permit this unique penalty to be so wantonly and so freakishly imposed.
144
For these reasons I concur in the judgments of the Court.
145
Mr. Justice WHITE, concurring.
146
The facial constitutionality of statutes requiring the imposition of the death penalty for first-degree murder, for more narrowly defined categories of murder, or for rape would present quite different issues under the Eighth Amendment than are posed by the cases before us. In joining the Court's judgments, therefore, I do not at all intimate that the death penalty is unconstitutional per se or that there is no system of capital punishment that would comport with the Eighth Amendment. That question, ably argued by several of my Brethren, is not presented by these cases and need not be decided.
147
The narrower question to which I address myself concerns the constitutionality of capital punishment statutes under which (1) the legislature authorizes the imposition of the death penalty for murder or rape; (2) the legislature does not itself mandate the penalty in any particular class or kind of case (that is, legislative will is not frustrated if the penalty is never imposed), but delegates to judges or juries the decisions as to those cases, if any, in which the penalty will be utilized; and (3) judges and juries have ordered the death penalty with such infrequency that the odds are now very much against imposition and execution of the penalty with respect to any convicted murderer or rapist. It is in this context that we must consider whether the execution of these petitioners would violate the Eighth Amendment.
148
I begin with what I consider a near truism: that the death penalty could so seldom be imposed that it would cease to be a credible deterrent or measurably to contribute to any other end of punishment in the criminal justice system. It is perhaps true that no matter how infrequently those convicted of rape or murder are executed, the penalty so imposed is not disproportionate to the crime and those executed may deserve exactly what they received. It would also be clear that executed defendants are finally and completely incapacitated from again committing rape or murder or any other crime. But when imposition of the penalty reaches a certain degree of infrequency, it would be very doubtful that any existing general need for retribution would be measurably satisfied. Nor could it be said with confidence that society's need for specific deterrence justifies death for so few when for so many in like circumstances life imprisonment or shorter prison terms are judged sufficient, or that community values are measurably reinforced by authorizing a penalty so rarely invoked.
149
Most important, a major goal of the criminal law—to deter others by punishing the convicted criminal—would not be substantially served where the penalty is so seldom invoked that it ceases to be the credible threat essential to influence the conduct of others. For present purposes I accept the morality and utility of punishing one person to influence another. I accept also the effectiveness of punishment generally and need not reject the death penalty as a more effective deterrent than a lesser punishment. But common sense and experience tell us that seldom-enforced laws become ineffective measures for controlling human conduct and that the death penalty, unless imposed with sufficient frequency, will make little contribution to deterring those crimes for which it may be exacted.
150
The imposition and execution of the death penalty are obviously cruel in the dictionary sense. But the penalty has not been considered cruel and unusual punishment in the constitutional sense because it was thought justified by the social ends it was deemed to serve. At the moment that it ceases realistically to further these purposes, however, the emerging question is whether its imposition in such circumstances would violate the Eighth Amendment. It is my view that it would, for its imposition would then be the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes. A penalty with such negligible returns to the State would be patently excessive and cruel and unusual punishment violative of the Eighth Amendment.
151
It is also my judgment that this point has been reached with respect to capital punishment as it is presently administered under the statutes involved in these cases. Concededly, it is difficult to prove as a general proposition that capital punishment, however administered, more effectively serves the ends of the criminal law than does imprisonment. But however that may be, I cannot avoid the conclusion that as the statutes before us are now administered, the penalty is so infrequently imposed that the threat of execution is too attenuated to be of substantial service to criminal justice.
152
I need not restate the facts and figures that appear in the opinions of my Brethren. Nor can I 'prove' my conclusion from these data. But, like my Brethren, I must arrive at judgment; and I can do no more than state a conclusion based on 10 years of almost daily exposure to the facts and circumstances of hundreds and hundreds of federal and state criminal cases involving crimes for which death is the authorized penalty. That conclusion, as I have said, is that the death penalty is exacted with great infrequency even for the most atrocious crimes and that there is no meaningful basis for distinguishing the few cases in which it is imposed from the many cases in which it is not. The short of it is that the policy of vesting sentencing authority primarily in juries—a decision largely motivated by the desire to mitigate the harshness of the law and to bring community judgment to bear on the sentence as well as guilt or innocence—has so effectively achieved its aims that capital punishment within the confines of the statutes now before us has for all practical purposes run its course.
153
Judicial review, by definition, often involves a conflict between judicial and legislative judgment as to what the Constitution means or requires. In this respect, Eighth Amendment cases come to us in no different posture. It seems conceded by all that the Amendment imposes some obligations on the judiciary to judge the constitutionality of punishment and that there are punishments that the Amendment would bar whether legislatively approved or not. Inevitably, then, there will be occasions when we will differ with Congress or state legislatures with respect to the validity of punishment. There will also be cases in which we shall strongly disagree among ourselves. Unfortunately, this is one of them. But as I see it, this case is no different in kind from many others, although it may have wider impact and provoke sharper disagreement.
154
In this respect, I add only that past and present legislative judgment with respect to the death penalty loses much of its force when viewed in light of the recurring practice of delegating sentencing authority to the jury and the fact that a jury, in its own discretion and without violating its trust or any statutory policy, may refuse to impose the death penalty no matter what the circumstances of the crime. Legislative 'policy' is thus necessarily defined not by what is legislatively authorized but by what juries and judges do in exercising the discretion so regularly conferred upon them. In my judgment what was done in these cases violated the Eighth Amendment.
155
I concur in the judgments of the Court.
156
Mr. Justice MARSHALL, concurring.
157
These three cases present the question whether the death penalty is a cruel and unusual punishment prohibited by the Eighth Amendment to the United States Constitution.1
158
In No. 69—5003, Furman was convicted of murder for shooting the father of five children when he discovered that Furman had broken into his home early one morning. Nos. 69—5030 and 69—5031 involve state convictions for forcible rape. Jackson was found guilty of rape during the course of a robbery in the victim's home. The rape was accomplished as he held the pointed ends of scissors at the victim's throat. Branch also was convicted of a rape committed in the victim's home. No weapon was utilized, but physical force and threats of physical force were employed.
159
The criminal acts with which we are confronted are ugly, vicious, reprehensible acts. Their sheer brutality cannot and should not be minimized. But, we are not called upon to condone the penalized conduct; we are asked only to examine the penalty imposed on each of the petitioners and to determine whether or not it violates the Eighth Amendment. The question then is not whether we condone rape or murder, for surely we do not; it is whether capital punishment is 'a punishment no longer consistent with our own self-respect'2 and, therefore, violative of the Eighth Amendment.
160
The elasticity of the constitutional provision under consideration presents dangers of too little or too much self-restraint.3 Hence, we must proceed with caution to answer the question presented.4 By first examining the historical derivation of the Eighth Amendment and the construction given it in the past by this Court, and then exploring the history and attributes of capital punishment in this country, we can answer the question presented with objectivity and a proper measure of self-restraint.
161
Candor is critical to such an inquiry. All relevant material must be marshaled and sorted and forthrightly examined. We must not only be precise as to the standards of judgment that we are utilizing, but exacting in examining the relevant material in light of those standards.
162
Candor compels me to confess that I am not oblivious to the fact that this is truly a matter of life and death. Not only does it involve the lives of these three petitioners, but those of the almost 600 other condemned men and women in this country currently awaiting execution. While this fact cannot affect our ultimate decision, it necessitates that the decision be free from any possibility of error.
163
* The Eighth Amendment's ban against cruel and unusual punishments derives from English law. In 1583, John Whitgift, Archbishop of Canterbury, turned the High Commission into a permanent ecclesiastical court, and the Commission began to use torture to extract confessions from persons suspected of various offenses.5 Sir Robert Beale protested that cruel and barbarous torture violated Magna Carta, but his protests were made in vain.6
164
Cruel punishments were not confined to those accused of crimes, but were notoriously applied with even greater relish to those who were convicted. Blackstone described in ghastly detail the myriad of inhumane forms of punishment imposed on persons found guilty of any of a large number of offenses.7 Death, of course, was the usual result.8
165
The treason trials of 1685—the 'Bloody Assizes'—which followed an abortive rebellion by the Duke of Monmouth, marked the culmination of the parade of horrors, and most historians believe that it was this event that finally spurred the adoption of the English Bill of Rights containing the progenitor of our prohibition against cruel and unusual punishments.9 The conduct of Lord Chief Justice Jeffreys at those trials has been described as an 'insane lust for cruelty' which was 'stimulated by orders from the King' (James II).10 The assizes received wide publicity from Puritan pamphleteers and doubtless had some influence on the adoption of a cruel and unusual punishments clause. But, the legislative history of the English Bill of Rights of 1689 indicates that the assizes may not have been as critical to the adoption of the clause as is widely thought. After William and Mary of Orange crossed the channel to invade England, James II fled. Parliament was summoned into session and a committee was appointed to draft general statements containing 'such things as are absolutely necessary to be considered for the better securing of our religion, laws and liberties.'11 An initial draft of the Bill of Rights prohibited 'illegal' punishments, but a later draft referred to the infliction by James II of 'illegal and cruel' punishments, and declared 'cruel and unusual' punishments to be prohibited.12 The use of the word 'unusual' in the final draft appears to be inadvertent.
166
This legislative history has led at least one legal historian to conclude 'that the cruel and unusual punishments clause of the Bill of Rights of 1689 was, first, an objection to the imposition of punishments that were unauthorized by statute and outside the jurisdiction of the sentencing court, and second, a reiteration of the English policy against disproportionate penalties,'13 and not primarily a reaction to the torture of the High Commission, harsh sentences, or the assizes.
167
Whether the English Bill of Rights prohibition against cruel and unusual punishments is properly read as a response to excessive or illegal punishments, as a reaction to barbaric and objectionable modes of punishment, or as both, there is no doubt whatever that in borrowing the language and in including it in the Eighth Amendment, our Founding Fathers intended to outlaw torture and other cruel punishments.14
168
The precise language used in the Eighth Amendment first appeared in America on June 12, 1776, in Virginia's 'Declaration of Rights,' § 9 of which read: 'That excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.'15 This language was drawn verbatim from the English Bill of Rights of 1689. Other States adopted similar clauses,16 and there is evidence in the debates of the various state conventions that were called upon to ratify the Constitution of great concern for the omission of any prohibition against torture or other cruel punishments.17
169
The Virginia Convention offers some clues as to what the Founding Fathers had in mind in prohibiting cruel and unusual punishments. At one point George Mason advocated the adoption of a Bill of Rights, and Patrick Henry concurred, stating:
170
'By this Constitution, some of the best barriers of human rights are thrown away. Is there not an additional reason to have a bill of rights? . . . Congress, from their general powers, may fully go into business of human legislation. They may legislate, in criminal cases, from treason to the lowest offence—petty larceny. They may define crimes and prescribe punishments. In the definition of crimes, I trust they will be directed by what wise representatives ought to be governed by. But when we come to punishments, no latitude ought to be left, nor dependence put on the virtue of representatives. What says our bill of rights?—'that excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.' Are you not, therefore, now calling on those gentlemen who are to compose Congress, to prescribe trials and define punishments without this control? Will they find sentiments there similar to this bill of rights? You let them loose; you do more—you depart from the genius of your country. . . .
171
'In this business of legislation, your members of Congress will loose the restriction of not imposing excessive fines, demanding excessive bail, and inflicting cruel and unusual punishments. These are prohibited by your declaration of rights. What has distinguished our ancestors?—That they would not admit of tortures, or cruel and barbarous punishment. But Congress may introduce the practice of the civil law, in preference to that of the common law. They may introduce the practice of France, Spain, and Germany—of torturing, to extort a confession of the crime. They will say that they might as well draw examples from those countries as from Great Britain, and they will tell you that there is such a necessity of strengthening the arm of government, that they must have a criminal equity, and extort confession by torture, in order to punish with still more relentless severity. We are then lost and undone.'18
172
Henry's statement indicates that he wished to insure that 'relentless severity' would be prohibited by the Constitution. Other expressions with respect to the proposed Eighth Amendment by Members of the First Congress indicate that they shared Henry's view of the need for and purpose of the Cruel and Unusual Punishments Clause.19
173
Thus, the history of the clause clearly establishes that it was intended to prohibit cruel punishments. We must now turn to the case law to discover the manner in which courts have given meaning to the term 'cruel.'
II
174
This Court did not squarely face the task of interpreting the cruel and unusual punishments language for the first time until Wilkerson v. Utah, 99 U.S. 130, 25 L.Ed. 345 (1879), although the language received a cursory examination in several prior cases. See, e.g., Pervear v. Commonwealth, 5 Wall. 475, 18 L.Ed. 608 (1867). In Wilkerson the Court unanimously upheld a sentence of public execution by shooting imposed pursuant to a conviction for premeditated murder. In his opinion for the Court, Mr. Justice Clifford wrote:
175
'Difficulty would attend the effort to define with exactness the extent of the constitutional provision which provides that cruel and unusual punishments shall not be inflicted; but it is safe to affirm that punishments of torture, . . . and all others in the same line of unnecessary cruelty, are forbidden by that amendment to the Constitution.' 99 U.S., at 135—136.
176
Thus, the Court found that unnecessary cruelty was no more permissible than torture. To determine whether the punishment under attack was unnecessarily cruel, the Court examined the history of the Utah Territory and the then- current writings on capital punishment, and compared this Nation's practices with those of other countries. It is apparent that the Court felt it could not dispose of the question simply by referring to traditional practices; instead, it felt bound to examine developing thought.
177
Eleven years passed before the Court again faced a challenge to a specific punishment under the Eighth Amendment. In the case of In re Kemmler, 136 U.S. 436, 10 S.Ct. 930, 34 L.Ed. 519 (1890), Chief Justice Fuller wrote an opinion for a unanimous Court upholding electrocution as a permissible mode of punishment. While the Court ostensibly held that the Eighth Amendment did not apply to the States, it is very apparent that the nature of the punishment involved was examined under the Due Process Clause of the Fourteenth Amendment. The Court held that the punishment was not objectionable. Today, Kemmler stands primarily for the proposition that a punishment is not necessarily unconstitutional simply because it is unusual, so long as the legislature has a humane purpose in selecting it.20
178
Two years later in O'Neil v. Vermont, 144 U.S. 323, 12 S.Ct. 693, 36 L.Ed. 450 (1892), the Court reaffirmed that the Eighth Amendment was not applicable to the States. O'Neil was found guilty on 307 counts of selling liquor in violation of Vermont law. A fine of $6,140 ($20 for each offense) and the costs of prosecution ($497.96) were imposed. O'Neil was committed to prison until the fine and the costs were paid; and the court provided that if they were not paid before a specified date, O'Neil was to be confined in the house of corrections for 19,914 days (approximately 54 years) at hard labor. Three Justices—Field, Harlan, and Brewer—dissented. They maintained not only that the Cruel and Unusual Punishments Clause was applicable to the States, but that in O'Neil's case it had been violated. Mr. Justice Field wrote:
179
'That designation (cruel and unusual), it is true, is usually applied to punishments which inflict torture, such as the rack, the thumb-screw, the iron boot, the stretching of limbs, and the like, which are attended with acute pain and suffering. . . . The inhibition is directed, not only against punishments of the character mentioned, but against all punishments which by their excessive length or severity are greatly disproportioned to the offences charged. The whole inhibition is against that which is excessive . . .' Id., at 339—340, 12 S.Ct., at 699.
180
In Howard v. Fleming, 191 U.S. 126, 24 S.Ct. 49, 48 L.Ed. 121 (1903), the Court, in essence, followed the approach advocated by the dissenters in O'Neil. In rejecting the claim that 10-year sentences for conspiracy to defraud were cruel and unusual, the Court (per Mr. Justice Brewer) considered the nature of the crime, the purpose of the law, and the length of the sentence imposed.
181
The Court used the same approach seven years later in the landmark case of Weems v. United States, 217 U.S. 349, 30 S.Ct. 544, 54 L.Ed. 793 (1910). Weems, an officer of the Bureau of Coast Guard and Transportation of the United States Government of the Philippine Islands, was convicted of falsifying a 'public and official document.' He was sentenced to 15 years' incarceration at hard labor with chains on his ankles, to an unusual loss of his civil rights, and to perpetual surveillance. Called upon to determine whether this was a cruel and unusual punishment, the Court found that it was.21 The Court emphasized that the Constitution was not an 'ephemeral' enactment, or one 'designed to meet passing occasions.'22 Recognizing that '(t)ime works changes, (and) brings into existence new conditions and purposes(,)'23 the Court commented that '(i)n the application of a constitution . . . our contemplation cannot be only of what has been, but of what may be.'24
182
In striking down the penalty imposed on Weems, the Court examined the punishment in relation to the offense, compared the punishment to those inflicted for other crimes and to those imposed in other jurisdictions, and concluded that the punishment was excessive.25 Justices White and Holmes dissented and argued that the cruel and unusual prohibition was meant to prohibit only those things that were objectionable at the time the Constitution was adopted.26
183
Weems is a landmark case because it represents the first time that the Court invalidated a penalty prescribed by a legislature for a particular offense. The Court made it plain beyond any reasonable doubt that excessive punishments were as objectionable as those that were inherently cruel. Thus, it is apparent that the dissenters' position in O'Neil had become the opinion of the Court in Weems.
184
Weems was followed by two cases that added little to our knowledge of the scope of the cruel and unusual language, Badders v. United States, 240 U.S. 391, 36 S.Ct. 367, 60 L.Ed. 706 (1916), and United States ex rel. Milwaukee Social Democratic Publishing Co. v. Burleson, 255 U.S. 407, 41 S.Ct. 352, 65 L.Ed. 704 (1921).27 Then came another landmark case, Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 67 S.Ct. 374, 91 L.Ed. 422 (1947).
185
Francis had been convicted of murder and sentenced to be electrocuted. The first time the current passed through him, there was a mechanical failure and he did not die. Thereafter, Francis sought to prevent a second electrocution on the ground that it would be a cruel and unusual punishment. Eight members of the Court assumed the applicability of the Eighth Amendment to the States.28 The Court was virtually unanimous in agreeing that '(t)he traditional humanity of modern Anglo-American law forbids the infliction of unnecessary pain(,)'29 but split 5—4 on whether Francis would, under the circumstances, be forced to undergo any excessive pain. Five members of the Court treated the case like In re Kemmler and held that the legislature adopted electrocution for a humane purpose, and that its will should not be thwarted because, in its desire to reduce pain and suffering in most cases, it may have inadvertently increased suffering in one particular case.30 The four dissenters felt that the case should be remanded for further facts.
186
As in Weems, the Court was concerned with excessive punishments. Resweber is perhaps most significant because the analysis of cruel and unusual punishment questions first advocated by the dissenters in O'Neil was at last firmly entrenched in the minds of an entire Court.
187
Trop v. Dulles, 356 U.S. 86, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958), marked the next major cruel and unusual punishment case in this Court. Trop, a native-born American, was declared to have lost his citizenship by reason of a conviction by court-martial for wartime desertion. Writing for himself and Justices Black, Douglas, and Whittaker, Chief Justice Warren concluded that loss of citizenship amounted to a cruel and unusual punishment that violated the Eighth Amendment.31
188
Emphasizing the Flexibility inherent in the words 'cruel and unusual,' the Chief Justice wrote that '(t)he Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.'32 His approach to the problem was that utilized by the Court in Weems: he scrutinized the severity of the penalty in relation to the offense, examined the practices of other civilized nations of the world, and concluded that involuntary statelessness was an excessive and, therefore, an unconstitutional punishment. Justice Frankfurter, dissenting, urged that expatriation was not punishment, and that even if it were, it was not excessive. While he criticized the conclusion arrived at by the Chief Justice, his approach to the Eighth Amendment question was identical.
189
Whereas in Trop a majority of the Court failed to agree on whether loss of citizenship was a cruel and unusual punishment, four years later a majority did agree in Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962), that a sentence of 90 days' imprisonment for violation of a California statute making it a crime to 'be addicted to the use of narcotics' was cruel and unusual. Mr. Justice Stewart, writing the opinion of the Court, reiterated what the Court had said in Weems and what Chief Justice Warren wrote in Trop—that the cruel and unusual punishment clause was not a static concept, but one that must be continually re-examined 'in the light of contemporary human knowledge.'33 The fact that the penalty under attack was only 90 days evidences the Court's willingness to carefully examine the possible excessiveness of punishment in a given case even where what is involved is a penalty that is familiar and widely accepted.34
190
We distinguished Robinson in Powell v. Texas, 392 U.S. 514, 88 S.Ct. 2145, 20 L.Ed.2d 1254 (1968), where we sustained a conviction for drunkeness in a public place and a fine of $20. Four Justices dissented on the ground that Robinson was controlling. The analysis in both cases was the same; only the conclusion as to whether or not the punishment was excessive differed. Powell marked the last time prior to today's decision that the Court has had occasion to construe the meaning of the term 'cruel and unusual' punishment.
191
Several principles emerge from these prior cases and serve as a beacon to an enlightened decision in the instant cases.
III
192
Perhaps the most important principle in analyzing 'cruel and unusual' punishment questions is one that is reiterated again and again in the prior opinions of the Court: i.e., the cruel and unusual language 'must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.'35 Thus, a penalty that was permissible at one time in our Nation's history is not necessarily permissible today.
193
The fact, therefore, that the Court, or individual Justices, may have in the past expressed an opinion that the death penalty is constitutional is not now binding on us. A fair reading of Wilkerson v. Utah, supra; In re Kemmler, supra; and Louisiana ex rel. Francis v. Resweber, supra, would certainly indicate an acceptance sub silentio of capital punishment as constitutionally permissible. Several Justices have also expressed their individual opinions that the death penalty is constitutional.36 Yet, some of these same Justices and others have at times expressed concern over capital punishment.37 There is no holding directly in point, and the very nature of the Eighth Amendment would dictate that unless a very recent decision existed, stare decisis would bow to changing values, and the question of the constitutionality of capital punishment at a given moment in history would remain open.
194
Faced with an open question, we must establish our standards for decision. The decisions discussed in the previous section imply that a punishment may be deemed cruel and unusual for any one of four distinct reasons.
195
First, there are certain punishments that inherently involve so much physical pain and suffering that civilized people cannot tolerate them—e.g., use of the rack, the thumbscrew, or other mont, 144 U.S., at 339, 12 S.Ct., at 699. (Field, J., dissenting). Regardless of public sentiment with respect to imposition of one of these punishments in a particular case or at any one moment in history, the Constitution prohibits it. These are punishments that have been barred since the adoption of the Bill of Rights.
196
Second, there are punishments that are unusual, signifying that they were previously unknown as penalties for a given offense. Cf. United States ex rel. Milwaukee Social Democratic Publishing Co. v. Burleson, 255 U.S., at 435, 41 S.Ct., at 362 (Brandeis, J., dissenting). If these punishments are intended to serve a humane purpose, they may be constitutionally permissible. In re Kemmler, 136 U.S., at 447, 10 S.Ct., at 933—934; Louisiana ex rel. Francis v. Resweber, 329 U.S., at 464, 67 S.Ct., at 376. Prior decisions leave open the question of just how much the word 'unusual' adds to the word 'cruel.' I have previously indicated that use of the word 'unusual' in the English Bill of Rights of 1689 was inadvertent, and there is nothing in the history of the Eighth Amendment to give flesh to its intended meaning. In light of the meager history that does exist, one would suppose that an innovative punishment would probably be constitutional if no more cruel than that punishment which it superseded. We need not decide this question here, however, for capital punishment is certainly not a recent phenomenon.
197
Third, a penalty may be cruel and unusual because it is excessive and serves no valid legislative purpose. Weems v. United States, supra. The decisions previously discussed are replete with assertions that one of the primary functions of the cruel and unusual punishments clause is to prevent excessive or unnecessary penalties, e.g., Wilkerson v. Utah, 99 U.S., at 134, 25 L.Ed. 345; O'Neil v. Vermont, 144 U.S., at 339—340, 12 S.Ct., at 699—700 (Field, J., dissenting); Weems v. United States, 217 U.S., at 381, 30 S.Ct., at 554—555; Louisiana ex rel. Francis v. Resweber, supra; these punishments are unconstitutional even though popular sentiment may favor them. Both THE CHIEF JUSTICE and Mr. Justice POWELL seek to ignore or to minimize this aspect of the Court's prior decisions. But, since Mr. Justice Field first suggested that '(t)he whole inhibition (of the prohibition against cruel and unusual punishments) is against that which is excessive(,)' O'Neil v. Vermont, 144 U.S., at 340, 12 S.Ct., at 700, this Court has steadfastly maintained that a penalty is unconstitutional whenever it is unnecessarily harsh or cruel. This is what the Founders of this country intended; this is what their fellow citizens believed the Eighth Amendment provided; and this was the basis for our decision in Robinson v. California, supra, for the plurality opinion by Chief Justice Warren in Trop v. Dulles, supra, and for the Court's decision in Weems v. United States, supra. See also W. Bradford, An Enquiry How Far the Punishment of Death is Necessary in Pennsylvania (1793), reprinted in 12 Am.J.Legal Hist. 122, 127 (1968). It should also be noted that the 'cruel and unusual' language of the Eighth Amendment immediately follows language that prohibits excessive bail and excessive fines. The entire thrust of the Eighth Amendment is, in short, against 'that which is excessive.'
198
Fourth, where a punishment is not excessive and serves a valid legislative purpose, it still may be invalid if popular sentiment abhors it. For example, if the evidence clearly demonstrated that capital punishment served valid legislative purposes, such punishment would, nevertheless, be unconstitutional if citizens found it to be morally unacceptable. A general abhorrence on the part of the public would, in effect, equate a modern punishment with those barred since the adoption of the Eighth Amendment. There are no prior cases in this Court striking down a penalty on this ground, but the very notion of changing values requires that we recognize its existence.
199
It is immediately obvious, then, that since capital punishment is not a recent phenomenon, if it violates the Constitution, it does so because it is excessive or unnecessary, or because it is abhorrent to currently existing moral values.
200
We must proceed to the history of capital punishment in the United States.
IV
201
Capital punishment has been used to penalize various forms of conduct by members of society since the beginnings of civilization. Its precise origins are difficult to perceive, but there is some evidence that its roots lie in violent retaliation by members of a tribe or group, or by the tribe or group itself, against persons committing hostile acts toward group members.38 Thus, infliction of death as a penalty or objectionable conduct appears to have its beginnings in private vengeance.39
202
As individuals gradually ceded their personal prerogatives to a sovereign power, the sovereign accepted the authority to punish wrongdoing as part of its 'divince right' to rule. Individual vengeance gave way to the vengeance of the state, and capital punishment became a public function.40 Capital punishment worked its way into the laws of various countries,41 and was inflicted in a variety of macabre and horrific ways.42
203
It was during the reign of Henry II (1154—1189) that English law first recognized that crime was more than a personal affair between the victim and the perpetrator.43 The early history of capital punishment in England is set forth in McGautha v. California, 402 U.S. 183, 197—200, 91 S.Ct. 1454, 1462—1464, 28 L.Ed.2d 711 (1971), and need not be repeated here.
204
By 1500, English law recognized eight major capital crimes: Treason, petty treason (killing of husband by his wife), murder, larceny, robbery, burglary, rape, and arson.44 Tudor and Stuart kings added many more crimes to the list of those punishable by death, and by 1688 there were nearly 50.45 George II (1727—1760) added nearly 36 more, and George III (1760—1820) increased the number by 60.46
205
By shortly after 1800, capital offenses numbered more than 200 and not only included crimes against person and property, but even some against the public peace. While England may, in retrospect, look particularly brutal, Blackstone points out that England was fairly civilized when compared to the rest of Europe.47
206
Capital punishment was not as common a penalty in the American Colonies. 'The Capitall Lawes of New-England,' dating from 1636, were drawn by the Massachusetts Bay Colony and are the first written expression of capital offenses known to exist in this country. These laws make the following crimes capital offenses: idolatry, witchcraft, blasphemy, murder, assault in sudden anger, sodomy, buggery, adultery, statutory rape, rape, manstealing, perjury in a capital trial, and rebellion. Each crime is accompanied by a reference to the Old Testament to indicate its source.48 It is not known with any certainty exactly when, or even if, these laws were enacted as drafted; and, if so, just how vigorously these laws were enforced.49 We do know that the other Colonies had a variety of laws that spanned the spectrum of severity.50
207
By the 18th century, the list of crimes became much less theocratic and much more secular. In the average colony, there were 12 capital crimes.51 This was far fewer than existed in England, and part of the reason was that there was a scarcity of labor in the Colonies.52 Still, there were many executions, because '(w)ith county jails inadequate and insecure, the criminal population seemed best controlled by death, mutilation, and fines.'53
208
Even in the 17th century, there was some opposition to capital punishment in some of the colonies. In his 'Great Act' of 1682, William Penn prescribed death only for premeditated murder and treason,54 although his reform was not long lived.55
209
In 1776 the Philadelphia Society for Relieving Distressed Prisoners organized, and it was followed 11 years later by the Philadelphia Society for Alleviating the Miseries of Public Prisons.56 These groups pressured for reform of all penal laws, including capital offenses. Dr. Benjamin Rush soon drafted America's first reasoned argument against capital punishment, entitled An Enquiry into the Effects of Public Punishments upon Criminals and upon Society.57 In 1793, William Bradford, the Attorney General of Pennsylvania and later Attorney General of the United States, conducted 'An Enquiry How Far the Punishment of Death is Necessary in Pennsylvania.'58 He concluded that it was doubtful whether capital punishment was at all necessary, and that until more information could be obtained, it should be immediately eliminated for all offenses except high treason and murder.59
210
The 'Enquiries' of Rush and Bradford and the Pennsylvania movement toward abolition of the death penalty had little immediate impact on the practices of other States.60 But in the early 1800's, Governors George and DeWitt Clinton and Daniel Tompkins unsuccessfully urged the New York Legislature to modify or end capital punishment. During this same period, Edward Livingston, an American lawyer who later became Secretary of State and Minister to France under President Andrew Jackson, was appointed by the Louisiana Legislature to draft a new penal code. At the center of his proposal was 'the total abolition of capital punishment.'61 His Introductory Report to the System of Penal Law Prepared for the State of Louisiana62 contained a systematic rebuttal of all arguments favoring capital punishment. Drafted in 1824, it was not published until 1833. This work was a tremendous impetus to the abolition movement for the next half century.
211
During the 1830's, there was a rising tide of sentiment against capital punishment. In 1834, Pennsylvania abolished public executions,63 and two years later, The Report on Capital Punishment Made to the Maine Legislature was published. It led to a law that prohibited the executive from issuing a warrant for execution within one year after a criminal was sentenced by the courts. The totally discretionary character of the law was at odds with almost all prior practices. The 'Maine Law' resulted in little enforcement of the death penalty, which was not surprising since the legislature's idea in passing the law was that the affirmative burden placed on the governor to issue a warrant one full year or more after a trial would be an effective deterrent to exercise of his power.64 The law spread throughout New England and led to Michigan's being the first State to abolish capital punishment in 1846.65
212
Anti-capital punishment feeling grew in the 1840's as the literature of the period pointed out the agony of the condemned man and expressed the philosophy that repentance atoned for the worst crimes, and that true repentance derived, not from fear, but from harmony with nature.66
213
By 1850, societies for abolition existed in Massachusetts, New York, Pennsylvania, Tennessee, Ohio, Alabama, Louisiana, Indiaa, and Iowa.67 New York, Massachusetts, and Pennsylvania constantly had abolition bills before their legislatures. In 1852, Rhode Island followed in the footsteps of Michigan and partially abolished capital punishment.68 Wisconsin totally abolished the death penalty the following year.69 Those States that did not abolish the death penalty greatly reduced its scope, and '(f)ew states outside the South had more than one or two . . . capital offenses' in addition to treason and murder.70
214
But the Civil War halted much of the abolition furor. One historian has said that '(a)fter the Civil War, men's finer sensibilities, which had once been revolted by the execution of a fellow being, seemed hardened and blunted.'71 Some of the attention previously given to abolition was diverted to prison reform. An abolitionist movement still existed, however. Maine abolished the death penalty in 1876, restored it in 1883, and abolished it again in 1887; Iowa abolished capital punishment from 1872—1878; Colorado began an erratic period of de facto abolition and revival in 1872; and Kansas also abolished it in 1872, and by law in 1907.72
215
One great success of the abolitionist movement in the period from 1830—1900 was almost complete elimination of mandatory capital punishment. Before the legislatures formally gave juries discretion to refrain from imposing the death penalty, the phenomenon of 'jury nullification,' in which juries refused to convict in cases in which they believed that death was an inappropriate penalty, was experienced.73 Tennessee was the first State to give juries discretion, Tenn. Laws 1837—1838, c. 29, but other States quickly followed suit. Then, Rep. Curtis of New York introduced a federal bill that ultimately became law in 1897 which reduced the number of federal capital offenses from 60 to 3 (treason, murder, and rape) and gave the jury sentencing discretion in murder and rape cases.74
216
By 1917 12 States had become abolitionist jurisdictions.75 But, under the nervous tension of World War I, four of these States reinstituted capital punishment and promising movements in other States came grinding to a halt.76 During the period following the First World War, the abolitionist movement never regained its momentum.
217
It is not easy to ascertain why the movement lost its vigor. Certainly, much attention was diverted from penal reform during the economic crisis of the depression and the exhausting years of struggle during World War II. Also, executions, which had once been frequent public spectacles, became infrequent private affairs. The manner of inflicting death changed, and the horrors of the punishment were, therefore, somewhat diminished in the minds of the general public.77
218
In recent years there has been renewed interest in modifying capital punishment. New York has moved toward abolition,78 as have several other States.79 In 1967, a bill was introduced in the Senate to abolish capital punishment for all federal crimes, but it died in committee.80
219
At the present time, 41 States, the District of Columbia, and other federal jurisdictions authorize the death penalty for at least one crime. It would be fruitless to attempt here to categorize the approach to capital punishment taken by the various States.81 It is sufficient to note that murder is the crime most often punished by death, followed by kidnaping and treason.82 Rape is a capital offense in 16 States and the federal system.83
220
The foregoing history demonstrates that capital punishment was carried from Europe to America but, once here, was tempered considerably. At times in our history, strong abolitionist movements have existed. But, they have never been completely successful, as no more than one-quarter of the States of the Union have, at any one time, abolished the death penalty. They have had partial success, however, especially in reducing the number of capital crimes, replacing mandatory death sentences with jury discretion, and developing more humane methods of conducting executions.
221
This is where our historical foray leads. The question now to be faced is whether American society has reached a point where abolition is not dependent on a successful grass roots movement in particular jurisdictions, but is demanded by the Eighth Amendment. To answer this question, we must first examine whether or not the death penalty is today tantamount to excessive punishment.
V
222
In order to assess whether or not death is an excessive or unnecessary penalty, it is necessary to consider the reasons why a legislature might select it as punishment for one or more offenses, and examine whether less severe penalties would satisfy the legitimate legislative wants as well as capital punishment. If they would, then the death penalty is unnecessary cruelty, and, therefore, unconstitutional.
223
There are six purposes conceivably served by capital punishment: retribution, deterrence, prevention of repetitive criminal acts, encouragement of guilty pleas and confessions, eugenics, and economy. These are considered seriatim below.
224
A. The concept of retribution is one of the most misunderstood in all of our criminal jurisprudence. The principal source of confusion derives from the fact that, in dealing with the concept, most people confuse the question 'why do men in fact punish?' with the question 'what justifies men in punishing?'84 Men may punish for any number of reasons, but the one reason that punishment is morally good or morally justifiable is that someone has broken the law. Thus, it can correctly be said that breaking the law is the sine qua non of punishment, or, in other words, that we only tolerate punishment as it is imposed on one who deviates from the norm established by the criminal law.
225
The fact that the State may seek retribution against those who have broken its laws does not mean that retribution may then become the State's sole end in punishing. Our jurisprudence has always accepted deterrence in general, deterrence of individual recidivism, isolation of dangerous persons, and rehabilitation as proper goals of punishment. See Trop v. Dulles, 356 U.S., at 111, 78 S.Ct., at 603—604. (Brennan, J., concurring). Retaliation, vengeance, and 1 Archbold, On the Practice, Pleading, as intolerable aspirations for a government in a free society.
226
Punishment as retribution has been condemned by scholars for centuries,85 and the Eighth Amendment itself was adopted to prevent punishment from becoming synonymous with vengeance.
227
In Weems v. United States, 217 U.S., at 381, 30 S.Ct., at 554, the Court in the course of holding that Weems' punishment violated the Eighth Amendment, contrasted it with penalties provided for other offenses and concluded:
228
'(T)his contrast shows more than different exercises of legislative judgment. It is greater than that. It condemns the sentence in this case as cruel and unusual. It exhibits a difference between unrestrained power and that which is exercised under the spirit of constitutional limitations formed to establish justice. The State thereby suffers nothing and loses no power. The purpose of punishment is fulfilled, crime is repressed by penalties of just, not tormenting, severity, its repetition is prevented, and hope is given for the reformation of the criminal.' (Emphasis added.) It is plain that the view of the Weems Court was that punishment for the sake of retribution was not permissible under the Eighth Amendment. This is the only view that the Court could have taken if the 'cruel and unusual' language were to be given any meaning. Retribution surely underlies the imposition of some punishment on one who commits a criminal act. But, the fact that some punishment may be imposed does not mean that any punishment is permissible. If retribution alone could serve as a justification for any particular penalty, then all penalties selected by the legislature would be definition be acceptable means for designating society's moral approbation of a particular act. The 'cruel and unusual' language would thus be read out of the Constitution and the fears of Patrick Henry and the other Founding Fathers would become realities.
229
To preserve the integrity of the Eighth Amendment, the Court has consistently denigrated retribution as a permissible goal of punishment.86 It is undoubtedly correct that there is a demand for vengeance on the part of many persons in a community against one who is convicted of a particularly offensive act. At times a cry is heard that morality requires vengeance to evidence society's abhorrence of the act.87 But the Eighth Amendment is our insulation from our baser selves. The 'cruel and unusual' language limits the avenues through which vengeance can be channeled. Were this not so, the language would be empty and a return to the rack and other tortures would be possible in a given case.
230
Mr. Justice Story wrote that the Eighth Amendment's limitation on punishment 'would seem to be wholly unnecessary in a free government, since it is scarcely possible that any department of such a government should authorize or justify such atrocious conduct.'88
231
I would reach an opposite conclusion—that only in a free society would men recognize their inherent weaknesses and seek to compensate for them by means of a Constitution.
232
The history of the Eighth Amendment supports only the conclusion that retribution for its own sake is improper.
233
B. The most hotly contested issue regarding capital punishment is whether it is better than life imprisonment as a deterrent to crime.89
234
While the contrary position has been argued,90 it is my firm opinion that the death penalty is a more severe sanction than life imprisonment. Admittedly, there are some persons who would rather die than languish in prison for a lifetime. But, whether or not they should be able to choose death as an alternative is a far different question from that presented here—i.e., whether the State can impose death as a punishment. Death is irrevocable; life imprisonment is not. Death, of course, makes rehabilitation impossible; life imprisonment does not. In short, death has always been viewed as the ultimate sanction, and it seems perfectly reasonable to continue to view it as such.91
235
It must be kept in mind, then, that the question to be considered is not simply whether capital punishment is a deterrent, but whether it is a better deterrent than life imprisonment.92
236
There is no more complex problem than determining the deterrent efficacy of the death penalty. 'Capital punishment has obviously failed as a deterrent when a murder is committed. We can number its failures. But we cannot number its successes. No one can ever know how many people have refrained from murder because of the fear of being hanged.'93 This is the nub of the problem and it is exacerbated by the paucity of useful data. The United States is more fortunate than most countries, however, in that it has what are generally considered to be the world's most reliable statistics.94
237
The two strongest arguments in favor of capital punishment as a deterrent are both logical hypotheses devoid of evidentiary support, but persuasive nonetheless. The first proposition was best stated by Sir James Stephen in 1864:
238
'No other punishment deters men so effectually from committing crimes as the punishment of death. This is one of those propositions which it is difficult to prove, simply because they are in themselves more obvious than any proof can make them. It is possible to display ingenuity in arguing against it, but that is all. The whole experience of mankind is in the other direction. The threat of instant death is the one to which resort has always been made when there was an absolute necessity for producing some result. . . . No one goes to certain inevitable death except by compulsion. Put the matter the other way. Was there ever yet a criminal who, when sentenced to death and brought out to die, would refuse the offer of a commutation of his sentence for the severest secondary punishment? Surely not. Why is this? It can only be because 'All that a man has will be give for his life.' In any secondary punishment, however terrible, there is hope; but death is death; its terrors cannot be described more forcibly.'95
239
This hypothesis relates to the use of capital punishment as a deterrent for any crime. The second proposition is that 'if life imprisonment is the maximum penalty for a crime such as murder, an offender who is serving a life sentence cannot then be deterred from murdering a fellow inmate or a prison officer.'96 This hypothesis advocates a limited deterrent effect under particular circumstances.
240
Abolitionists attempt to disprove these hypotheses by amassing statistical evidence to demonstrate that there is no correlation between criminal activity and the existence or nonexistence of a capital sanction. Almost all of the evidence involves the crime of murder, since murder is punishable by death in more jurisdictions than are other offenses,97 and almost 90% of all executions since 1930 have been pursuant to murder convictions.98
241
Thorsten Sellin, one of the leading authorities on capital punishment, has urged that if the death penalty deters prospective murderers, the following hypotheses should be true:
242
'(a) Murders should be less frequent in states that have the death penalty than in those that have abolished it, other factors being equal. Comparisons of this nature must be made among states that are as alike as possible in all other respects—character of population, social and economic condition, etc.—in order not to introduce factors known to influence murder rates in a serious manner but present in only one of these states.
243
'(b) Murders should increase when the death penalty is abolished and should decline when it is restored.
244
'(c) The deterrent effect should be greatest and should therefore affect murder rates most powerfully in those communities where the crime occurred and its consequences are most strongly brought home to the population.
245
'(d) Law enforcement officers would be safer from murderous attacks in states that have the death penalty than in those without it.'99 (Footnote omitted.)
246
Sellin's evidence indicates that not one of these propositions is true. This evidence has its problems, however. One is that there are no accurate figures for capital murders; there are only figures on homicides and they, of course, include noncapital killings.100 A second problem is that certain murders undoubtedly are misinterpreted as accidental deaths or suicides, and there is no way of estimating the number of such undetected crimes. A third problem is that not all homicides are reported. Despite these difficulties, most authorities have assumed that the proportion of capital murders in a State's or nation's homicide statistics remains reasonably constant,101 and that the homicide statistics are therefore useful.
247
Sellin's statistics demonstrate that there is no correlation between the murder rate and the presence or absence of the capital sanction. He compares States that have similar characteristics and finds that irrespective of their position on capital punishment, they have similar murder rates. In the New England States, for example, there is no correlation between executions102 and homicide rates.103 The same is true for Midwestern States,104 and for all others studied. Both the United Nations105 and Great Britain106 have acknowledged the validity of Sellin's statistics.
248
Sellin also concludes that abolition and/or reintroduction of the death penalty had no effect on the homicide rates of the various States involved.107 This conclusion is borne out by others who have made similar in quiries108 and by the experience of other countries.109 Despite problems with the statistics,110 Sellin's evidence has been relied upon in international studies of capital punishment.111
249
Statistics also show that the deterrent effect of capital punishment is no greater in those communities where executions take place than in other communities.112 In fact, there is some evidence that imposition of capital punishment may actually encourage crime, rather than deter it.113 And, while police and law enforcement officers are the strongest advocates of capital punishment,114 the evidence is overwhelming that police are no safer in communities that retain the sanction than in those that have abolished it.115
250
There is also a substantial body of data showing that the existence of the death penalty has virtually no effect on the homicide rate in prisons.116 Most of the persons sentenced to death are murderers, and murderers tend to be model prisoners.117
251
In sum, the only support for the theory that capital punishment is an effective deterrent is found in the hypotheses with which we began and the occasional stories about a specific individual being deterred from doing a contemplated criminal act.118 These claims of specific deterrence are often spurious,119 however, and may be more than counterbalanced by the tendency of capital punishment to incite certain crimes.120
252
The United Nations Committee that studied capital punishment found that '(i)t is generally agreed between the retentionists and abolitionists, whatever their opinions about the validity of comparative studies of deterrence, that the data which now exist show no correlation between the existence of capital punishment and lower rates of capital crime.'121
253
Despite the fact that abolitionists have not proved non-deterrence beyond a reasonable doubt, they have succeeded in showing by clear and convincing evidence that capital punishment is not necessary as a deterrent to crime in our society. This is all that they must do. We would shirk our judicial responsibilities if we failed to accept the presently existing statistics and demanded more proof. It may be that we now possess all the proof that anyone could ever hope to assemble on the subject. But, even if further proof were to be forthcoming, I believe there is more than enough evidence presently available for a decision in this case.
254
In 1793 William Bradford studied the utility of the death penalty in Pennsylvania and found that it probably had no deterrent effect but that more evidence was needed.122 Edward Livingston reached a similar conclusion with respect to deterrence in 1833 upon completion of his study for Louisiana.123 Virtually every study that has since been undertaken has reached the same result.124
255
In light of the massive amount of evidence befure us, I see no alternative but to conclude that capital punishment cannot be justified on the basis of its deterrent effect.125
256
C. Much of what must be said about the death penalty as a device to prevent recidivism is obvious—if a murderer is executed, he cannot possibly commit another offense. The fact is, however, that murderers are extremely unlikely to commit other crimes either in prison or upon their release.126 For the most part, they are first offenders, and when released from prison they are known to become model citizens.127 Furthermore, most persons who commit capital crimes are not executed. With respect to those who are sentenced to die, it is critical to note that the jury is never asked to determine whether they are likely to be recidivists. In light of these facts, if capital punishment were justified purely on the basis of preventing recidivism, it would have to be considered to be excessive; no general need to obliterate all capital offenders could have been demonstrated, nor any specific need in individual cases.
257
D. The three final purposes which may underlie utilization of a capital sanction—encouraging guilty pleas and confessions, eugenics, and reducing state expenditures—may be dealt with quickly. If the death penalty is used to encourage guilty pleas and thus to deter suspects from exercising their rights under the Sixth Amendment to jury trials, it is unconstitutional. United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968).128 Its elimination would do little to impair the State's bargaining position in criminal cases, since life imprisonment remains a severe sanction which can be used as leverage for bargaining for pleas or confessions in exchange either for charges of lesser offenses or recommendations of leniency.
258
Moreover, to the extent that capital punishment is used to encourage confessions and guilty pleas, it is not being used for punishment purposes. A State that justifies capital punishment on its utility as part of the conviction process could not profess to rely on capital punishment as a deterrent. Such a State's system would be structured with twin goals only: obtaining guilty pleas and confessions and imposing imprisonment as the maximum sanction. Since life imprisonment is sufficient for bargaining purposes, the death penalty is excessive if used for the same purposes.
259
In light of the previous discussion on deterrence, any suggestions concerning the eugenic benefits of capital punishment are obviously meritless.129 As I pointed out above, there is not even any attempt made to discover which capital offenders are likely to be recidivists, let alone which are positively incurable. No test or procedure presently exists by which incurables can be screened from those who would benefit from treatment. On the one hand, due process would seem to require that we have some procedure to demonstrate incurability before execution; and, on the other hand, equal protection would then seemingly require that all incurables be executed, cf. Skinner v. Oklahoma, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942). In addition, the 'cruel and unusual' language would require that life imprisonment, treatment and sterilization be inadequate for eugenic purposes. More importantly, this Nation has never formally professed eugenic goals, and the history of the world does not look kindly on them. If eugenics is one of our purposes, then the legislatures should say so forthrightly and design procedures to serve this goal. Until such time, I can only conclude, as has virtually everyone else who has looked at the problem,130 that capital punishment cannot be defended on the basis of any eugenic purposes.
260
As for the argument that it is cheaper to execute a capital offender than to imprison him for life, even assuming that such an argument, if true, would support a capital sanction, it is simply incorrect. A disproportionate amount of money spent on prisons is attributable to death row.131 Condemned men are not productive members of the prison community, although they could be,132 and executions are expensive.133 Appeals are often automatic, and courts admittedly spend more time with death cases.134
261
At trial, the selection of jurors is likely to become a costly, time-consuming problem in a capital case,135 and defense counsel will reasonably exhaust every possible means to save his client from execution, no matter how long the trial takes.
262
During the period between conviction and execution, there are an inordinate number of collateral attacks on the conviction and attempts to obtain executive clemency, all of which exhaust the time, money, and effort of the State. There are also continual assertions that the condemned prisoner has gone insane.136 Because there is a formally established policy of not executing insane persons,137 great sums of money may be spent on detecting and curing mental illness in order to perform the execution.138 Since no one wants the responsibility for the execution, the condemned man is likely to be passed back and forth from doctors to custodial officials to courts like a ping-pong ball.139 The entire process is very costly.
263
When all is said and done, there can be no doubt that it costs more to execute a man than to keep him in prison for life.140
264
E. There is but one conclusion that can be drawn from all of this—i.e., the death penalty is an excessive and unnecessary punishment that violates the Eighth Amendment. The statistical evidence is not convincing beyond all doubt, but it is persuasive. It is not improper at this point to take judicial notice of the fact that for more than 200 years men have labored to demonstrate that capital punishment serves no purpose that life imprisonment could not serve equally well. And they have done so with great success. Little, if any, evidence has been adduced to prove the contrary. The point has now been reached at which deference to the legislatures is tantamount to abdication of our judicial roles as factfinders, judges, and ultimate arbiters of the Constitution. We know that at some point the presumption of constitutionality accorded legislative acts gives way to a realistic assessment of those acts. This point comes when there is sufficient evidence available so that judges can determine, not whether the legislature acted wisely, but whether it had any rational basis whatsoever for acting. We have this evidence before us now. There is no rational basis for concluding that capital punishment is not excessive. It therefore violates the Eighth Amendment.141
VI
265
In addition, even if capital punishment is not excessive, it nonetheless violates the Eighth Amendment because it is morally unacceptable to the people of the United States at this time in their history.
266
In judging whether or not a given penalty is morally acceptable, most courts have said that the punishment is valid unless 'it shocks the conscience and sense of justice of the people.'142
267
Judge Frank once noted the problems inherent in the use of such a measuring stick:
268
'(The court,) before it reduces a sentence as 'cruel and unusual,' must have reasonably good assurances that the sentence offends the 'common conscience.' And, in any context, such a standard—the community's attitude—is usually an unknowable. It resembles a slithery shadow, since one can seldom learn, at all accurately, what the community, or a majority, actually feels. Even a carefully-taken 'public opinion poll' would be inconclusive in a case like this.'143
269
While a public opinion poll obviously is of some assistance in indicating public acceptance or rejection of a specific penalty,144 its utility cannot be very great. This is because whether or not a punishment is cruel and unusual depends, not on whether its mere mention 'shocks the conscience and sense of justice of the people,' but on whether people who were fully informed as to the purposes of the penalty and its liabilities would find the penalty shocking, unjust, and unacceptable.145
270
In other words, the question with which we must deal is not whether a substantial proportion of American citizens would today, if polled, opine that capital punishment is barbarously cruel, but whether they would find it to be so in the light of all information presently available.
271
This is not to suggest that with respect to this test of unconstitutionality people are required to act rationally; they are not. With respect to this judgment, a violation of the Eighth Amendment is totally dependent on the predictable subjective, emotional reactions of informed citizens.146
272
It has often been noted that American citizens know almost nothing about capital punishment.147 Some of the conclusions arrived at in the preceding section and the supporting evidence would be critical to an informed judgment on the morality of the death penalty: e.g., that the death penalty is no more effective a deterrent than life imprisonment, that convicted murderers are rarely executed, but are usually sentenced to a term in prison; that convicted murderers usually are model prisoners, and that they almost always become lawabiding citizens upon their release from prison; that the costs of executing a capital offender exceed the costs of imprisoning him for life; that while in prison, a convict under sentence of death performs none of the useful functions that life prisoners perform; that no attempt is made in the sentencing process to ferret out likely recidivists for execution; and that the death penalty may actually stimulate criminal activity.
273
This information would almost surely convince the average citizen that the death penalty was unwise, but a problem arises as to whether it would convince him that the penalty was morally reprehensible. This problem arises from the fact that the public's desire for retribution, even though this is a goal that the legislature cannot constitutionally pursue as its sole justification for capital punishment, might influence the citizenry's view of the morality of capital punishment. The solution to the problem lies in the fact that no one has ever seriously advanced retribution as a legitimate goal of our society. Defenses of capital punishment are always mounted on deterrent or other similar theories. This should not be surprising. It is the people of this country who have urged in the past that prisons rehabilitate as well as isolate offenders, and it is the people who have injected a sense of purpose into our penology. I cannot believe that at this stage in our history, the American people would ever knowingly support purposeless vengeance. Thus, I believe that the great mass of citizens would conclude on the basis of the material already considered that the death penalty is immoral and therefore unconstitutional.
274
But, if this information needs supplementing, I believe that the following facts would serve to convince even the most hesitant of citizens to condemn death as a sanction: capital punishment is imposed discriminatorily against certain identifiable classes of people; there is evidence that innocent people have been executed before their innocence can be proved; and the death penalty wreaks havoc with our entire criminal justice system. Each of these facts is considered briefly below.
275
Regarding discrimination, it has been said that '(i)t is usually the poor, the illiterate, the underprivileged, the member of the minority group—the man who, because he is without means, and is defended by a court-appointed attorney—who becomes society's sacrificial lamb . . ..'148 Indeed, a look at the bare statistics regarding executions is enough to betray much of the discrimination. A total of 3,859 persons have been executed since 1930, of whom 1,751 were white and 2,066 were Negro.149 Of the executions, 3,334 were for murder; 1,664 of the executed murderers were white and 1,630 were Negro;150 455 persons, including 48 whites and 405 Negroes, were executed for rape.151 It is immediately apparent that Negroes were executed far more often than whites in proportion to their percentage of the population. Studies indicate that while the higher rate of execution among Negroes is partially due to a higher rate of crime, there is evidence of racial discrimination.152 Racial or other discriminations should not be surprising. In McGautha v. California, 402 U.S., at 207, 91 S.Ct., at 1467, this Court held 'that committing to the untrammeled discretion of the jury the power to pronounce life or death in capital cases is (not) offensive to anything in the Constitution.' This was an open invitation to discrimination.
276
There is also overwhelming evidence that the death penalty is employed against men and not women. Only 32 women have been executed since 1930, while 3,827 men have met a similar fate.153 It is difficult to understand why women have received such favored treatment since the purposes allegedly served by capital punishment seemingly are equally applicable to both sexes.154
277
It also is evident that the burden of capital punishment falls upon the poor, the ignorant, and the under privileged members of society.155 It is the poor, and the members of minority groups who are least able to voice their complaints against capital punishment. Their impotence leaves them victims of a sanction that the wealthier, better-represented, just-as-guilty person can escape. So long as the capital sanction is used only against the forlorn, easily forgotten members of society, legislators are content to maintain the status quo, because change would draw attention to the problem and concern might develop. Ignorance is perpetuated and apathy soon becomes its mate, and we have today's situation.
278
Just as Americans know little about who is executed and why, they are unaware of the potential dangers of executing an innocent man. Our 'beyond a reasonable doubt' burden of proof in criminal cases is intended to protect the innocent, but we know it is not foolproof. Various studies have shown that people whose innocence is later convincingly established are convicted and sentenced to death.156
279
Proving one's innocense after a jury finding of guilt is almost impossible. While reviewing courts are willing to entertain all kinds of collateral attacks where a sentence of death is involved, they very rarely dispute the jury's interpretation of the evidence. This is, perhaps, as it should be. But, if an innocent man has been found guilty, he must then depend on the good faith of the prosecutor's office to help him establish his innocence. There is evidence, however, that prosecutors do not welcome the idea of having convictions, which they labored hard to secure, overturned, and that their cooperation is highly unlikely.157
280
No matter how careful courts are, the possibility of perjured testimony, mistaken honest testimony, and human error remain all too real.158 We have no way of judging how many innocent persons have been executed but we can be certain that there were some. Whether there were many is an open question made difficult by the loss of those who were most knowledgeable about the crime for which they were convicted. Surely there will be more as long as capital punishment remains part of our penal law.
281
While it is difficult to ascertain with certainty the degree to which the death penalty is discriminatorily imposed or the number of innocent persons sentenced to die, there is one conclusion about the penalty that is universally accepted—i.e., it 'tends to distort the course of the criminal law.'159 As Mr. Justice Frankfurter said:
282
'I am strongly against capital punishment . . .. When life is at hazard in a trial, it sensationalizes the whole thing almost unwittingly; the effect on juries, the Bar, the public, the Judiciary, I regard as very bad. I think scientifically the claim of deterrence is not worth much. Whatever proof there may be in my judgment does not outweigh the social loss due to the inherent sensationalism of a trial for life.'160
283
The deleterious effects of the death penalty are also felt otherwise than at trial. For example, its very existence 'inevitably sabotages a social or institutional program of reformation.'161 In short '(t)he presence of the death penalty as the keystone of our penal system bedevils the administration of criminal justice all the way down the line and is the stumbling block in the path of general reform and of the treatment of crime and criminals.'162
284
Assuming knowledge of all the facts presently available regarding capital punishment, the average citizen would, in my opinion, find it shocking to his conscience and sense of justice.163 For this reason alone capital punishment cannot stand.
VII
285
To arrive at the conclusion that the death penalty violates the Eighth Amendment, we have had to engage in a long and tedious journey. The amount of information that we have assembled and sorted is enormous. Yet, I firmly believe that we have not deviated in the slightest from the principles with which we began.
286
At a time in our history when the streets of the Nation's cities inspire fear and despair, rather than pride and hope, it is difficult to maintain objectivity and concern for our fellow citizens. But, the measure of a country's greatness is its ability to retain compassion in time of crisis. No nation in the recorded history of man has a greater tradition of revering justice and fair treatment for all its citizens in times of turmoil, confusion, and tension than ours. This is a country which stands tallest in troubled times, a country that clings to fundamental principles, cherishes its constitutional heritage, and rejects simple solutions that compromise the values that lie at the roots of our democratic system.
287
In striking down capital punishment, this Court does not malign our system of government. On the contrary, it pays homage to it. Only in a free society could right triumph in difficult times, and could civilization record its magnificent advancement. In recognizing the humanity of our fellow beings, we pay ourselves the highest tribute. We achieve 'a major milestone in the long road up from barbarism'164 and join the approximately 70 other jurisdictions in the world which celebrate their regard for civilization and humanity by shunning capital punishment.165
288
I concur in the judgments of the Court.
Page 372
289
APPENDIX I TO OPINION OF MARSHALL J., CONCURRING
ABOLITION OF THE DEATH PENALTY IN THE UNITED STATES: 1846—1968
(States are listed according to year most recent action was taken)
Year of Year of
partial complete Year of Year of
State abolition abolition restoration reabolition
New York......... 19651 — — —
Vermont.......... 19652 — — —
West Virginia....— 1965 — —
Iowa.............— 1872 1878 1965
Oregon...........— 1914 1920 1964
Michigan......... 18473 1963 — —
Delaware.........— 1958 1961 —
Alaska...........— 1957 — —
Hawaii...........— 1957 — —
South Dakota.....— 1915 1939 —
Kansas...........— 1907 1935 —
Missouri.........— 1917 1919 —
Tennessee........ 19154 — 1919 —
Washington.......— 1913 1919 —
Arizona.......... 19165 — 1918 —
North Dakota..... 19156 — — —
Minnesota........— 1911 — —
Colorado.........— 1897 1901 —
Maine............— 1876 1883 1887
Wisconsin........— 1853 — —
Rhode Island..... 18527 — — —
Page 373
290
APPENDIX II TO OPINION OF MARSHALL, J., CONCURRING
CRUDE HOMICIDE DEATH RATES, PER 100,000 POPULATION, AND NUMBER OF
EXECUTIONS IN CERTAIN AMERICAN STATES: 1920—1955
N. H. Vt. Mass. R.I.* Conn.
Year.... Maine* Rates Exec. Rates Exec. RatesExec. Rates Exec.
1920..... 1.4 1.8 2.3 2.1 1 1.8 3.9 1
1921..... 2.2 2.2 1.7 2.8 3.1 2.9 2
1922..... 1.7 1.6 1.1 2.6 2.2 2.9 1
1923..... 1.7 2.7 1.4 2.8 1 3.5 3.1
1924..... 1.5 1.5 .6 2.7 1 2.0 3.5
1925..... 2.2 1.3 .6 2.7 1.8 3.7
1926..... 1.1 .9 2.2 2.0 1 3.2 2.9 1
1927..... 1.9 .7 .8 2.1 6 2.7 2.3 2
1928..... 1.6 1.3 1.4 1.9 3 2.7 2.7
1929..... 1.0 1.5 1.4 1.7 6 2.3 2.6 1
1930..... 1.8 .9 1.4 1.8 2.0 3.2 2
1931..... 1.4 2.1 1.1 1 2.0 2 2.2 2.7
1932..... 2.0 .2 1.1 2.1 1 1.6 2.9
1933..... 3.3 2.7 1.6 2.5 1.9 1.8
1934..... 1.1 1.4 1.9 2.2 4 1.8 2.4
1935..... 1.4 1.0 .3 1.8 4 1.6 1.9
1936..... 2.2 1.0 2.1 1.6 2 1.2 2.7 1
1937..... 1.4 1.8 1.8 1.9 2.3 2.0 1
1938..... 1.5 1.8 1.3 1.3 3 1.2 2.1 1
1939..... 1.2 2.3 1 .8 1.4 2 1.6 1.3
1940..... 1.5 1.4 .8 1.5 1.4 1.8 2
1941..... 1.1 .4 2.2 1.3 1 .8 2.2
1942..... 1.7 .2 .9 1.3 2 1.2 2.5
1943..... 1.7 .9 .6 .9 3 1.5 1.6 2
1944..... 1.5 1.1 .3 1.4 .6 1.9 1
1945...... .9 .7 2.9 1.5 1.1 1.5 1
1946..... 1.4 .8 1.7 1.4 1 1.5 1.6 3
1947..... 1.2 .6 1.1 1 1.6 2 1.5 1.9
1948..... 1.7 1.0 .8 1.4 2.7 1.7 1
1949..... 1.7 1.5 .5 1.1 .5 1.8
1950..... 1.5 1.3 .5 1.3 1.5 1.4
1951..... 2.3 .6 .5 1.0 .9 2.0
1952..... 1.0 1.5 .5 1.0 1.5 1.7
1953..... 1.4 .9 .3 1.0 .6 1.5
1954..... 1.7 .5 1.6 2 1.0 1.3 1.3
1955..... 1.2 1.1 .5 1.2 1.7 1.3 3
291
Mr. Chief Justice BURGER, with whom Mr. Justice BLACKMUN, Mr. Justice POWELL, and Mr. Justice REHNQUIST join, dissenting.
292
At the outset it is important to note that only two members of the Court, Mr. Justice BRENNAN and Mr. Justice MARSHALL, have concluded that the Eighth Amendment prohibits capital punishment for all crimes and under all circumstances. Mr. Justice DOUGLAS has also determined that the death penalty contravenes the Eighth Amendment, although I do not read his opinion as necessarily requiring final abolition of the penalty.1 For the reasons set forth in Parts I—IV of this opinion, I conclude that the constitutional prohibition against 'cruel and unusual punishments' cannot be construed to bar the imposition of the punishment of death.
293
Mr. Justice STEWART and Mr. Justice WHITE have concluded that petitioners' death sentences must be set aside because prevailing sentencing practices do not comply with the Eighth Amendment. For the reasons set forth in Part V of this opinion, I believe this approach fundamentally misconceives the nature of the Eighth Amendment guarantee and flies directly in the face of controlling authority of extremely recent vintage.
294
* It we were possessed of legislative power, I would either join with Mr. Justice BRENNAN and Mr. Justice MARSHALL or, at the very least, restrict the use of capital punishment to a small category of the most heinous crimes. Our constitutional inquiry, however, must be divorced from personal feelings as to the morality and efficacy of the death penalty, and be confined to the meaning and applicability of the uncertain language of the Eighth Amendment. There is no novelty in being called upon to interpret a constitutional provision that is less than self-defining, but, of all our fundamental guarantees, the ban on 'cruel and unusual punishments' is one of the most difficult to translate into judicially manageable terms. The widely divergent views of the Amendment expressed in today's opinions reveal the haze that surrounds this constitutional command. Yet it is essential to our role as a court that we not seize upon the enigmatic character of the guarantee as an invitation to enact our personal predilections into law.
295
Although the Eighth Amendment literally reads as prohibiting only those punishments that are both 'cruel' and 'unusual,' history compels the conclusion that the Constitution prohibits all punishments of extreme and barbarous cruelty, regardless of how frequently or infrequently imposed.
296
The most persuasive analysis of Parliament's adoption of the English Bill of Rights of 1989—the unquestioned source of the Eighth Amendment wording—suggests that the prohibition against 'cruel and unusual punishments' was included therein out of aversion to severe punishments not legally authorized and not within the jurisdiction of the courts to impose. To the extent that the term 'unusual' had any importance in the English version, it was apparently intended as a reference to illegal punishments.2
297
From every indication, the Framers of the Eighth Amendment intended to give the phrase a meaning far different from that of its English precursor. The records of the debates in several of the state conventions called to ratify the 1789 draft Constitution submitted prior to the addition of the Bill of Rights show that the Framers' exclusive concern was the absence of any ban on tortures.3 The later inclusion of the 'cruel and unusual punishment' clause was in response to these objections. There was no discussion of the interrelationship of the terms 'cruel' and 'unusual,' and there is nothing in the debates supporting the inference that the Founding Fathers would have been receptive to torturous or excessively cruel punishments even if usual in character or authorized by law.
298
The cases decided under the Eighth Amendment are consistent with the tone of the ratifying debates. In Wilkerson v. Utah, 99 U.S. 130, 25 L.Ed. 345 (1879), this Court held that execution by shooting was not a prohibited mode of carrying out a sentence of death. Speaking to the meaning of the Cruel and Unusual Punishments Clause, the Court stated,
299
'(I)t is safe to affirm that punishments of torture . . . and all others in the same line of unnecessary cruelty, are forbidden by that amendment to the Constitution.' Id., at 136.
300
The Court made no reference to the role of the term 'unusual' in the constitutional guarantee.
301
In the case of In re Kemmler, 136 U.S. 436, 10 S.Ct. 930, 34 L.Ed. 519 (1890), the Court held the Eighth Amendment inapplicable to the States and added the following dictum:
302
'So that, if the punishment prescribed for an offence against the laws of the state were manifestly cruel and unusual, as burning at the stake, crucifixion, breaking on the wheel, or the like, it would be the duty of the courts to adjudge such penalties to be within the . . . (prohibition of the New York constitution). And we think this equally true of the eighth amendment, in its application to congress.
303
'. . . Punishments are cruel when they involve torture or a lingering death; but the punishment of death is not cruel within the meaning of that word as used in the constitution. It implies there something inhuman and barbarous,—something more than the mere extinguishment of life.' Id., at 446—447, 10 S.Ct., at 933.
304
This language again reveals an exclusive concern with extreme cruelty. The Court made passing reference to the finding of the New York courts that electrocution was an 'unusual' punishment, but it saw no need to discuss the significance of that term as used in the Eighth Amendment.
305
Opinions in subsequent cases also speak of extreme cruelty as though that were the sum and substance of the constitutional prohibition. See O'Neil v. Vermont, 144 U.S. 323, 339—340, 12 S.Ct. 693, 699—700, 36 L.Ed. 450 (1892) (Field, J., dissenting); Weems v. United States, 217 U.S. 349, 372—373, 30 S.Ct. 544, 551, 54 L.Ed. 793 (1910); Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 464, 67 S.Ct. 374, 376, 91 L.Ed. 422 (1947). As summarized by Mr. Chief Justice Warren in the plurality opinion in Trop v. Dulles, 356 U.S. 86, 100 n. 32, 78 S.Ct. 590, 598 n. 32, 2 L.Ed.2d 630 (1958):
306
'Whether the word 'unusual' has any qualitative meaning different from 'cruel' is not clear. On the few occasions this Court has had to consider the meaning of the phrase, precise distinctions between cruelty and unusualness do not seem to have been drawn. See Weems v. United States, supra; O'Neil v. Vermont, supra; Wilkerson v. Utah, supra. These cases indicate that the Court simply examines the particular punishment involved in light of the basic prohibition against inhuman treatment, without regard to any subtleties of meaning that might be latent in the word 'unusual."
307
I do not suggest that the presence of the word 'unusual' in the Eighth Amendment is merely vestigial, having no relevance to the constitutionality of any punishment that might be devised. But where, as here, we consider a punishment well known to history, and clearly authorized by legislative enactment, it disregards the history of the Eighth Amendment and all the judicial comment that has followed to rely on the term 'unusual' as affecting the outcome of these cases. Instead, I view these cases as turning on the single question whether capital punishment is 'cruel' in the constitutional sense. The term 'unusual' cannot be read as limiting the ban on 'cruel' punishments or as somehow expanding the meaning of the term 'cruel.' For this reason I am unpersuaded by the facile argument that since capital punishment has always been cruel in the everyday sense of the word, and has become unusual due to decreased use, it is, therefore, now 'cruel and unusual.'
II
308
Counsel for petitioners properly concede that capital punishment was not impermissibly cruel at the time of the adoption of the Eighth Amendment. Not only do the records of the debates indicate that the Founding Fathers were limited in their concern to the prevention of torture, but it is also clear from the language of the Constitution itself that there was no thought whatever of the elimination of capital punishment. The opening sentence of the Fifth Amendment is a guarantee that the death penalty not be imposed 'unless on a presentment or indictment of a Grand Jury.' The Double Jeopardy Clause of the Fifth Amendment is a prohibition against being 'twice put in jeopardy of life' for the same offense. Similarly, the Due Process Clause commands 'due process of law' before an accused can be 'deprived of life, liberty, or property.' Thus, the explicit language of the Constitution affirmatively acknowledges the legal power to impose capital punishment; it does not expressly or by implication acknowledge the legal power to impose any of the various punishments that have been banned as cruel since 1791. Since the Eighth Amendment was adopted on the same day in 1791 as the Fifth Amendment, it hardly needs more to establish that the death penalty was not 'cruel' in the constitutional sense at that time.
309
In the 181 years since the enactment of the Eighth Amendment, not a single decision of this Court has cast the slightest shadow of a doubt on the constitutionality of capital punishment. In rejecting Eighth Amendment attacks on particular modes of execution, the Court has more than once implicitly denied that capital punishment is impermissibly 'cruel' in the constitutional sense. Wilkerson v. Utah, 99 U.S. 130, 25 L.Ed. 345 (1879); Louisiana ex rel. Francis v. Resweber, 329 U.S., at 464, 67 S.Ct., at 376. In re Kemmler, 136 U.S. 436, 10 S.Ct. 930, 34 L.Ed. 519 (1890) (dictum). It is only 14 years since Mr. Chief Justice Warren, speaking for four members of the Court, stated without equivocation:
310
'Whatever the arguments may be against capital punishment, both on moral grounds and in terms of accomplishing the purposes of punishment—and they are forceful—the death penalty has been employed throughout our history, and, in a day when it is still widely accepted, it cannot be said to violate the constitutional concept of cruelty.' Trop v. Dulles, 356 U.S., at 99, 78 S.Ct., at 597.
311
It is only one year since Mr. Justice Black made his fellings clear on the constitutional issue:
312
'The Eighth Amendment forbids 'cruel and unusual punishments.' In my view, these words cannot be read to outlaw capital punishment because that penalty was in common use and authorized by law here and in the countries from which our ancestors came at the time the Amendment was adopted. It is inconceivable to me that the framers intended to end capital punishment by the Amendment.' McGautha v. California, 402 U.S. 183, 226, 91 S.Ct. 1454, 1477, 28 L.Ed.2d 711 (1971) (separate opinion).
313
By limiting its grants of certiorari, the Court has refused even to hear argument on the Eighth Amendment claim on two occasions in the last four years. Witherspoon v. Illinois, cert. granted, 389 U.S. 1035, 88 S.Ct. 793, 19 L.Ed.2d 822, rev'd, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968); McGautha v. California, cert. granted, 398 U.S. 936, 90 S.Ct. 1846, 26 L.Ed.2d 267 (1970), aff'd, 402 U.S. 183, 91 S.Ct. 1454, 28 L.Ed.2d 711 (1971). In these cases the Court confined its attention to the procedural aspects of capital trials, it being implicit that the punishment itself could be constitutionally imposed. Nonetheless, the Court has now been asked to hold that a punishment clearly permissible under the Constitution at the time of its adoption and accepted as such by every member of the Court until today, is suddenly so cruel as to be incompatible with the Eighth Amendment.
314
Before recognizing such an instant evolution in the law, it seems fair to ask what factors have changed that capital punishment should now be 'cruel' in the constitutional sense as it has not been in the past. It is apparent that there has been no change of constitutional significance in the nature of the punishment itself. Twentieth century modes of execution surely involve no greater physical suffering than the means employed at the time of the Eighth Amendment's adoption. And although a man awaiting execution must inevitably exerience extraordinary mental anguish,4 no one suggests that this anguish is materially different from that experienced by condemned men in 1791, even though protracted appellate review processes have greatly increased the waiting time on 'death row.' To be sure, the ordeal of the condemned man may be thought cruel in the sense that all suffering is thought cruel. But if the Constitution proscribed every punishment producing severe emotional stress, then capital punishment would clearly have been impermissible in 1791.
315
However, the inquiry cannot end here. For reasons unrelated to any change in intrinsic cruelty, the Eighth Amendment prohibition cannot fairly be limited to those punishments thought excessively cruel and barbarous at the time of the adoption of the Eighth Amendment. A punishment is inordinately cruel, in the sense we must deal with it in these cases, chiefly as perceived by the society so characterizing it. The standard of extreme cruelty is not merely descriptive, but necessarily embodies a moral judgment. The standard itself remains the same, but its applicability must change as the basic mores of society change. This notion is not new to Eight Amendment adjudication. In Weems v. United States, 217 U.S. 349, 30 S.Ct. 544, 54 L.Ed. 793 (1910), the Court referred with apparent approval to the opinion of the commentators that '(t)he clause of the Constitution . . . may be therefore progressive, and is not fastened to the obsolete, but may acquire meaning as public opinion becomes enlightened by a humane justice.' 217 U.S., at 378, 30 S.Ct., at 553. Mr. Chief Justice Warren, writing the plurality opinion in Trop v. Dulles, supra, stated, 'The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.' 356 U.S., at 101, 78 S.Ct., at 598. Nevertheless, the Court up to now has never actually held that a punishment has become impermissibly cruel due to a shift in the weight of accepted social values; nor has the Court suggested judicially manageable criteria for measuring such a shift in moral consensus.
316
The Court's quiescence in this area can be attributed to the fact that in a democratic society legislatures, not courts, are constituted to respond to the will and consequently the moral values of the people. For this reason, early commentators suggested that the 'cruel and unusual punishments' clause was an unnecessary constitutional provision.5 As acknowledged in the principal brief for petitioners, 'both in constitutional contemplation and in fact, it is the legislature, not the Court, which responds to public opinion and immediately reflects the society's standards of decency.'6 Accordingly, punishments such as branding and the cutting off or ears, which were commonplace at the time of the adoption of the Constitution, passed from the penal scene without judicial intervention because they became basically offensive to the people and the legislatures responded to this sentiment.
317
Beyond any doubt, if we were today called upon to review such punishments, we would find them excessively cruel because we could say with complete assurance that contemporary society universally rejects such bizarre penalties. However, this speculation on the Court's probable reaction to such punishments is not of itself significant. The critical fact is that this Court has never had to hold that a mode of punishment authorized by a domestic legislature was so cruel as to be fundamentally at odds with our basic notions of decency. Cf. Weems v. United States, supra. Judicial findings of impermissible cruelty have been limited, for the most part, to offensive punishments devised without specific authority by prison officials, not by legislatures. See, e.g., Jackson v. Bishop, 404 F.2d 571 (CA8 1968); Wright v. McMann, 387 F.2d 519 (CA2 1967). The paucity of judicial decisions invalidating legislatively prescribed punishments is powerful evidence that in this country legislatures have in fact been responsive—albeit belatedly at times—to changes in social attitudes and moral values.
318
I do not suggest that the validity of legislatively authorized punishments presents no justiciable issue under the Eighth Amendment, but, rather, that the primacy of the legislative role narrowly confines the scope of judicial inquiry. Whether or not provable, and whether or not true at all times, in a democracy the legislative judgment is presumed to embody the basic standards of decency prevailing in the society. This presumption can only be negated by unambiguous and compelling evidence of legislative default.
III
319
There are no obvious indications that capital punishment offends the conscience of society to such a degree that our traditional deference to the legislative judgment must be abandoned. It is not a punishment such as burning at the stake that everyone would ineffably find to be repugnant to all civilized standards. Nor is it a punishment so roundly condemned that only a few aberrant legislatures have retained it on the statute books. Capital punishment is authorized by statute in 40 States, the District of Columbia, and in the federal courts for the commission of certain crimes.7 On four occasions in the last 11 years Congress has added to the list of federal crimes punishable by death.8 In looking for reliable indicia of contemporary attitude, none more trustworthy has been advanced.
320
One conceivable source of evidence that legislatures have abdicated their essentially barometric role with respect to community values would be public opinion polls, of which there have been many in the past decade addressed to the question of capital punishment. Without assessing the reliability of such polls, or intimating that any judicial reliance could ever be placed on them, it need only be noted that the reported results have shown nothing approximating the universal condemnation of capital punishment that might lead us to suspect that the legislatures in general have lost touch with current social values.9
321
Counsel for petitioners rely on a different body of empirical evidence. They argue, in effect, that the number of cases in which the death penalty is imposed, as compared with the number of cases in which it is statutorily available, reflects a general revulsion toward the penalty that would lead to its repeal if only it were more generally and widely enforced. It cannot be gainsaid that by the choice of juries—and sometimes judges10—the death penalty is imposed in far fewer than half the cases in which it is available.11 To go further and characterize the rate of imposition as 'freakishly rare,' as petitioners insist, is unwarranted hyperbole. And regardless of its characterization, the rate of imposition does not impel the conclusion that capital punishment is now regarded as intolerably cruel or uncivilized.
322
It is argued that in those capital cases where juries have recommended mercy, they have given expression to civilized values and effectively renounced the legislative authorization for capital punishment. At the same time it is argued that where juries have made the awesome decision to send men to their deaths, they have acted arbitrarily and without sensitivity to prevailing standards of decency. This explanation for the infrequency of imposition of capital punishment is unsupported by known facts, and is inconsistent in principle with everything this Court has ever said about the functioning of juries in capital cases.
323
In McGautha v. California, supra, decided only one year ago, the Court held that there was no mandate in the Due Process Clause of the Fourteenth Amendment that juries be given instructions as to when the death penalty should be imposed. After reviewing the autonomy that juries have traditionally exercised in capital cases and noting the practical difficulties of framing manageable instructions, this Court concluded that judicially articulated standards were not needed to insure a responsible decision as to penalty. Nothing in McGautha licenses capital juries to act arbitrarily or assumes that they have so acted in the past. On the contrary, the assumption underlying the McGautha ruling is that juries 'will act with due regard for the consequences of their decision.' 402 U.S., at 208, 91 S.Ct., at 1467.
324
The responsibility of juries deciding capital cases in our system of justice was nowhere better described than in Witherspoon v. Illinois, supra:
325
'(A) jury that must choose between life imprisonment and capital punishment, can do little more—and must do nothing less—than express the conscience of the community on the ultimate question of life or death.'
326
'And one of the most important functions any jury can perform in making such a selection is to maintain a link between contemporary community values and the penal system—a link without which the determination of punishment could hardly reflect 'the evolving standards of decency that mark the progress of a maturing society" 391 U.S., at 519 and n. 15, 88 S.Ct., at 1775 and n. 15 (emphasis added).
327
The selectivity of juries in imposing the punishment of death is properly viewed as a refinement on, rather than a repudiation of, the statutory authorization for that penalty. Legislatures prescribe the categories of crimes for which the death penalty should be available, and, acting as 'the conscience of the community,' juries are entrusted to determine in individual cases that the ultimate punishment is warranted. Juries are undoubtedly influenced in this judgment by myriad factors. The motive or lack of motive of the perpetrator, the degree of injury or suffering of the victim or victims, and the degree of brutality in the commission of the crime would seem to be prominent among these factors. Given the general awareness that death is no longer a routine punishment for the crimes for which it is made available, it is hardly surprising that juries have been increasingly meticulous in their imposition of the penalty. But to assume from the mere fact of relative infrequency that only a random assortment of pariahs are sentenced to death, is to cast grave doubt on the basic integrity of our jury system.
328
It would, of course, be unrealistic to assume that juries have been perfectly consistent in choosing the cases where the death penalty is to be imposed, for no human institution performs with perfect consistency. There are doubtless prisoners on death row who would not be there had they been tried before a different jury or in a different State. In this sense their fate has been controlled by a fortuitous circumstance. However, this element of fortuity does not stand as an indictment either of the general functioning of juries in capital cases or of the integrity of jury decisions in individual cases. There is no empirical basis for concluding that juries have generally failed to discharge in good faith the responsibility described in Witherspoon—that of choosing between life and death in individual cases according to the dictates of community values.12
329
The rate of imposition of death sentences falls far short of providing the requisite unambiguous evidence that the legislatures of 40 States and the Congress have turned their backs on current or evolving standards of decency in continuing to make the death penalty available. For, it selective imposition evidences a rejection of capital punishment in those cases where it is not imposed, it surely evidences a correlative affirmation of the penalty in those cases where it is imposed. Absent some clear indication that the continued imposition of the death penalty on a selective basis is violative of prevailing standards of civilized conduct, the Eighth Amendment cannot be said to interdict its use.
330
In two of these cases we have been asked to rule on the narrower question whether capital punishment offends the Eighth Amendment when imposed as the punishment for the crime of forcible rape.13 It is true that the death penalty is authorized for rape in fewer States than it is for murder,14 and that even in those States it is applied more sparingly for rape than for murder.15 But for the reasons aptly brought out in the opinion of Mr. Justice POWELL, post at 456—461, I do not believe these differences can be elevated to the level of an Eighth Amendment distinction. This blunt constitutional command cannot be sharpened to carve neat distinctions corresponding to the categories of crimes defined by the legislatures.
IV
331
Capital punishment has also been attacked as violative of the Eighth Amendment on the ground that it is not needed to achieve legitimate penal aims and is thus 'unnecessarily cruel.' As a pure policy matter, this approach has much to recommend it, but it seeks to give a dimension to the Eighth Amendment that it was never intended to have and promotes a line of inquiry that this Court has never before pursued.
332
The Eighth Amendment, as I have noted, was included in the Bill of Rights to guard against the use of torturous and inhuman punishments, not those of limited efficacy. One of the few to speak out against the adoption of the Eighth Amendment asserted that it is often necessary to use cruel punishments to deter crimes.16 But among those favoring the Amendment, no sentiment was expressed that a punishment of extreme cruelty could ever be justified by expediency. The dominant theme of the Eighth Amendment debates was that the ends of the criminal laws cannot justify the use of measures of extreme cruelty to achieve them. Cf. Rochin v. California, 342 U.S. 165, 172—173, 72 S.Ct. 205, 209—210, 96 L.Ed. 183 (1952).
333
The apparent seed of the 'unnecessary cruelty' argument is the following language, quoted earlier, found in Wilkerson v. Utah, supra:
334
'Difficulty would attend the effort to define with exactness the extent of the constitutional provision which provides that cruel and unusual punishments shall not be inflicted; but it is safe to affirm that punishments of torture . . . and all others in the same line of unnecessary cruelty, are forbidden by that amendment to the Constitution.' 99 U.S., at 135—136 (emphasis added).
335
To lift the italicized phrase from the context of the Wilkerson opinion and now view it as a mandate for assessing the value of punishments in achieving the aims of penology is a gross distortion; nowhere are such aims even mentioned in the Wilkerson opinion. The only fair reading of this phrase is that punishments similar to torture in their extreme cruelty are prohibited by the Eighth Amendment. In Louisiana ex rel. Francis v. Resweber, 329 U.S., at 463, 464, 67 S.Ct., at 376, the Court made reference to the Eighth Amendment's prohibition against the infliction of 'unnecessary pain' in carrying out an execution. The context makes abundantly clear that the Court was disapproving the wanton infliction of physical pain, and once again not advising pragmatic analysis of punishments approved by legislatures.17
336
Apart from these isolated uses of the word 'unnecessary,' nothing in the cases suggests that it is for the courts to make a determination of the efficacy of punishments. The decision in Weems v. United States, supra, is not to the contrary. In Weems the Court held that for the crime of falsifying public documents, the punishment imposed under the Philippine Code of 15 years' imprisonment at hard labor under shackles, followed by perpetual surveillance, loss of voting rights, loss of the right to hold public office, and loss of right to change domicile freely, was violative of the Eighth Amendment. The case is generally regarded as holding that a punishment may be excessively cruel within the meaning of the Eighth Amendment because it is grossly out of proportion to the severity of the crime;18 some view the decision of the Court primarily as a reaction to the mode of the punishment itself.19 Under any characterization of the holding, it is readily apparent that the decision grew out of the Court's overwhelming abhorrence of the imposition of the particular penalty for the particular crime; it was making an essentially moral judgment, not a dispassionate assessment of the need for the penalty. The Court specifically disclaimed 'the right to assert a judgment against that of the legislature of the expediency of the laws . . ..' 217 U.S., at 378, 30 S.Ct., at 553. Thus, apart from the fact that the Court in Weems concerned itself with the crime committed as well as the punishment imposed, the case marks no departure from the largely unarticulable standard of extreme cruelty. However intractable that standard may be, that is what the Eighth Amendment is all about. The constitutional provision is not addressed to social utility and does not command that enlightened principles of penology always be followed.
337
By pursuing the necessity approach, it becomes even more apparent that it involves matters outside the purview of the Eighth Amendment. Two of the several aims of punishment are generally associated with capital punishment—retribution and deterrence. It is argued that retribution can be discounted because that, after all, is what the Eighth Amendment seeks to eliminate. There is no authority suggesting that the Eighth Amendment was intended to purge the law of its retributive elements, and the Court has consistently assumed that retribution is a legitimate dimension of the punishment of crimes. See Williams v. New York, 337 U.S. 241, 248, 69 S.Ct. 1079, 1083, 93 L.Ed. 1337 (1949); United States v. Lovett, 328 U.S. 303, 324, 66 S.Ct. 1073, 1083, 90 L.Ed. 1252 (1946) (Frankfurter, J., concurring). Furthermore, responsible legal thinkers of widely varying persuasions have debated the sociological and philosophical aspects of the retribution question for generations, neither side being able to convince the other.20 It would be reading a great deal into the Eighth Amendment to hold that the punishments authorized by legislatures cannot constitutionally reflect a retributive purpose.
338
The less esoteric but no less controversial question is whether the death penalty acts as a superior deterrent. Those favoring abolition find no evidence that it does.21 Those favoring retention start from the intuitive notion that capital punishment should act as the most effective deterrent and note that there is no convincing evidence that it does not.22 Escape from this empirical stalemate is sought by placing the burden of proof on the States and concluding that they have failed to demonstrate that capital punishment is a more effective deterrent than life imprisonment. Numerous justifications have been advanced for shifting the burden, and they are not without their rhetorical appeal. However, these arguments are not descended from established constitutional principles, but are born of the urge to bypass an unresolved factual question.23 Comparative deterrence is not a matter that lends itself to precise measurement; to shift the burden to the States is to provide an illusory solution to an enormously complex problem. If it were proper to put the States to the test of demonstrating the deterrent value of capital punishment, we could just as well ask them to prove the need for life imprisonment or any other punishment. Yet I know of no convincing evidence that life imprisonment is a more effective deterrant than 20 years' imprisonment, or even that a $10 parking ticket is a more effective deterrent than a $5 parking ticket. In fact, there are some who go so far as to challenge the notion that any punishments deter crime.24 If the States are unable to adduce convincing proof rebutting such assertions, does it then follow that all punishments are suspect as being 'cruel and unusual' within the meaning of the Constitution? On the contrary, I submit that the questions raised by the necessity approach are beyond the pale of judicial inquiry under the Eighth Amendment.
V
339
Today the Court has not ruled that capital punishment is per se violative of the Eighth Amendment; nor has it ruled that the punishment is barred for any particular class or classes of crimes. The substantially similar concurring opinions of Mr. Justice STEWART and Mr. Justice WHITE, which are necessary to support the judgment setting aside petitioners' sentences, stop short of reaching the ultimate question. The actual scope of the Court's ruling, which I take to be embodied in these concurring opinions, is not entirely clear. This much, however, seems apparent: if the legislatures are to continue to authorize capital punishment for some crimes, juries and judges can no longer be permitted to make the sentencing determination in the same manner they have in the past.25 This approach—not urged in oral arguments or briefs—misconceives the nature of the constitutional command against 'cruel and unusual punishments,' disregards controlling case law, and demands a rigidity in capital cases which, if possible of achievement, cannot be regarded as a welcome change. Indeed the contrary seems to be the case.
340
As I have earlier stated, the Eighth Amendment forbids the imposition of punishments that are so cruel and inhumane as to violate society's standards of civilized conduct. The Amendment does not prohibit all punishments the States are unable to prove necessary to deter or control crime. The Amendment is not concerned with the process by which a State determines that a particular punishment is to be imposed in a particular case. And the Amendment most assuredly does not speak to the power of legislatures to confer sentencing discretion on juries, rather than to fix all sentences by statute.
341
The critical factor in the concurring opinions of both Mr. Justice STEWART and Mr. Justice WHITE is the infrequency with which the penalty is imposed. This factor is taken not as evidence of society's abhorrence of capital punishment—the inference that petitioners would have the Court draw—but as the earmark of a deteriorated system of sentencing. It is concluded that petitioners' sentences must be set aside, not because the punishment is impermissibly cruel, but because juries and judges have failed to exercise their sentencing discretion in acceptable fashion.
342
To be sure, there is a recitation cast in Eighth Amendment terms: petitioners' sentences are 'cruel' because they exceed that which the legislatures have deemed necessary for all cases;26 petitioners' sentences are 'unusual' because they exceed that which is imposed in most cases.27 This application of the words of the Eighth Amendment suggests that capital punishment can be made to satisfy Eighth Amendment values if its rate of imposition is somehow multiplied; it seemingly follows that the flexible sentencing system created by the legislatures, and carried out by juries and judges, has yielded more mercy than the Eighth Amendment can stand. The implications of this approach are mildly ironical. For example, by this measure of the Eighth Amendment, the elimination of death-qualified juries in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), can only be seen in retrospect as a setback to 'the evolving standards of decency that mark the progress of a maturing society.' Trop v. Dulles, 356 U.S., at 101, 78 S.Ct., at 598, 2 L.Ed.2d 630.
343
This novel formulation of Eighth Amendment principles—albeit necessary to satisfy the terms of our limited grant of certiorari does not lie at the heart of these concurring opinions. The decisive grievance of the opinions—not translated into Eighth Amendment terms—is that the present system of discretionary sentencing in capital cases has failed to produce evenhanded justice; the problem is not that too few have been sentenced to die, but that the selection process has followed no rational pattern.28 This claim of arbitrariness is not only lacking in empirical support,29 but also it manifestly fails to establish that the death penalty is a 'cruel and unusual' punishment. The Eighth Amendment was included in the Bill of Rights to assure that certain types of punishments would never be imposed, not to channelize the sentencing process. The approach of these concurring opinions has no antecedent in the Eighth Amendment cases. It is essentially and exclusively a procedural due process argument.
344
This ground of decision is plainly foreclosed as well as misplaced. Only one year ago, in McGautha v. California, the Court upheld the prevailing system of sentencing in capital cases. The Court concluded:
345
'In light of history, experience, and the present limitations of human knowledge, we find it quite impossible to say that committing to the untrammeled discretion of the jury the power to pronounce life or death in capital cases is offensive to anything in the Constitution.' 402 U.S., at 207, 91 S.Ct., at 1467.
346
In reaching this decision, the Court had the benefit of extensive briefing, full oral argument, and six months of careful deliberations. The Court's labors are documented by 130 pages of opinions in the United States Reports. All of the arguments and factual contentions accepted in the concurring opinions today were considered and rejected by the Court one year ago. McGautha was an exceedingly difficult case, and reasonable men could fairly disagree as to the result. But the Court entered its judgment, and if stare decisis means anything, that decision should be regarded as a controlling pronouncement of law.
347
Although the Court's decision in McGautha was technically confined to the dictates of the Due Process Clause of the Fourteenth Amendment, rather than the Eighth Amendment as made applicable to the States through the Due Process Clause of the Fourteenth Amendment, it would be disingenuous to suggest that today's ruling has done anything less than overrule McGautha in the guise of an Eighth Amendment adjudication. It may be thought appropriate to subordinate principles of stare decisis where the subject is as sensitive as capital punishment and the stakes are so high, but these external considerations were no less weighty last year. This pattern of decisionmaking will do little to inspire confidence in the stability of the law.
348
While I would not undertake to make a definitive statement as to the parameters of the Court's ruling, it is clear that if state legislatures and the Congress wish to maintain the availability of capital punishment, significant statutory changes will have to be made. Since the two pivotal concurring opinions turn on the assumption that the punishment of death is now meted out in a random and unpredictable manner, legislative bodies may seek to bring their laws into compliance with the Court's ruling by providing standards for juries and judges to follow in determining the sentence in capital cases or by more narrowly defining the crimes for which the penalty is to be imposed.30 If such standards can be devised or the crimes more meticulously defined, the result cannot be detrimental. However, Mr. Justice Harlan's opinion for the Court in McGautha convincingly demonstrates that all past efforts 'to identify before the fact' the cases in which the penalty is to be imposed have been 'uniformly unsuccessful.' 402 U.S., at 197, 91 S.Ct., at 1462. One problem is that 'the factors which determine whether the sentence of death is the appropriate penalty in particular cases are too complex to be compressed within the limits of a simple formula . . ..' Report of Royal Commission on Capital Punishment, 1949—1953, Cmd. 8932, 498, p. 174 (1953). As the Court stated in McGautha, '(t)he infinite variety of cases and facets to each case would make general standards either meaningless 'boiler-plate' or a statement of the obvious that no jury would need.' 402 U.S., at 208, 91 S.Ct., at 1468. But even assuming that suitable guidelines can be established, there is no assurance that sentencing patterns will change so long as juries are possessed of the power to determine the sentence or to bring in a verdict of guilt on a charge carrying a lesser sentence; juries have not been inhibited in the exercise of these powers in the past. Thus, unless the Court in McGautha misjudged the experience of history, there is little reason to believe that sentencing standards in any form will substantially alter the discretionary character of the prevailing system of sentencing in capital cases. That system may fall short of perfection, but it is yet to be shown that a different system would produce more satisfactory results.
349
Real change could clearly be brought about if legislatures provided mandatory death sentences in such a way as to deny juries the opportunity to bring in a verdict on a lesser charge; under such a system, the death sentence could only be avoided by a verdict of acquittal. If this is the only alternative that the legislatures can safely pursue under today's ruling, I would have preferred that the Court opt for total abolition.
350
It seems remarkable to me that with our basic trust in lay jurors as the keystone in our system of criminal justice, it should now be suggested that we take the most sensitive and important of all decisions away from them. I could more easily be persuaded that mandatory sentences of death, without the intervening and ameliorating impact of lay jurors, are so arbitrary and doctrinaire that they violate the Constitution. The very infrequency of death penalties imposed by jurors attests their cautious and discriminating reservation of that penalty for the most extreme cases. I had thought that nothing was clearer in history, as we noted in McGautha one year ago, than the American abhorrence of 'the common-law rule imposing a mandatory death sentence on all convicted murderers.' 402 U.S., at 198, 91 S.Ct., at 1462. As the concurring opinion of Mr. Justice MARSHALL shows, ante, at 339, the 19th century movement away from mandatory death sentences marked an enlightened introduction of flexibility into the sentencing process. It recognized that individual culpability is not always measured by the category of the crime committed. This change in sentencing practice was greeted by the Court as a humanizing development. See Winston v. United States, 172 U.S. 303, 19 S.Ct. 212, 43 L.Ed. 456 (1899); cf. Calton v. Utah, 130 U.S. 83, 9 S.Ct. 435, 32 L.Ed. 870 (1889). See also Andres v. United States, 333 U.S. 740, 753, 68 S.Ct. 880, 886, 92 L.Ed. 1055 (1948) (Frankfurter, J., concurring). I do not see how this history can be ignored and how it can be suggested that the Eighth Amendment demands the elimination of the most sensitive feature of the sentencing system.
351
As a general matter, the evolution of penal concepts in this country has not been marked by great progress, nor have the results up to now been crowned with significant success. If anywhere in the whole spectrum of criminal justice fresh ideas deserve sober analysis, the sentencing and correctional area ranks high on the list. But it has been widely accepted that mandatory sentences for crimes do not best serve the ends of the criminal justice system. Now, after the long process of drawing away from the blind imposition of uniform sentences for every person convicted of a particular offense, we are confronted with an argument perhaps implying that only the legislatures may determine that a sentence of death is appropriate, without the intervening evaluation of jurors or judges. This approach threatens to turn back the progress of penal reform, which has moved until recently at too slow a rate to absorb significant setbacks.
VI
352
Since there is no majority of the Court on the ultimate issue presented in these cases, the future of capital punishment in this country has been left in an uncertain limbo. Rather than providing a final and unambiguous answer on the basic constitutional question, the collective impact of the majority's ruling is to demand an undetermined measure of change from the various state legislatures and the Congress. While I cannot endorse the process of decisionmaking that has yielded today's result and the restraints that that result imposes on legislative action, I am not altogether displeased that legislative bodies have been given the opportunity, and indeed unavoidable responsibility, to make a thorough re-evaluation of the entire subject of capital punishment. If today's opinions demonstrate nothing else, they starkly show that this is an area where legislatures can act far more effectively than courts.
353
The legislatures are free to eliminate capital punishment for specific crimes or to carve out limited exceptions to a general abolition of the penalty, without adherence to the conceptual strictures of the Eighth Amendment. The legislatures can and should make an assessment of the deterrent influence of capital punishment, both generally and as affecting the commission of specific types of crimes. If legislatures come to doubt the efficacy of capital punishment, they can abolish it, either completely or on a selective hasis. If new evidence persuades them that they have acted unwisely, they can reverse their field and reinstate the penalty to the extent it is thought warranted. An Eighth Amendment ruling by judges cannot be made with such flexibility or discriminating precision.
354
The world-wide trend toward limiting the use of capital punishment, a phenomenon to which we have been urged to give great weight, hardly points the way to a judicial solution in this country under a written Constitution. Rather, the change has generally come about through legislative action, often on a trial basis and with the retention of the penalty for certain limited classes of crimes.31 Virtually nowhere has change been wrought by so crude a tool as the Eighth Amendment. The complete and unconditional abolition of capital punishment in this country by judicial fiat would have undermined the careful progress of the legislative trend and foreclosed further inquiry on many as yet unanswered questions in this area.
355
Quite apart from the limitations of the Eighth Amendment itself, the preference for legislative action is justified by the inability of the courts to participate in the debate at the level where the controversy is focused. The case against capital punishment is not the product of legal dialectic, but rests primarily on factual claims, the truth of which cannot be tested by conventional judicial processes. The five opinions in support of the judgments differ in many respects, but they share a willingness to make sweeping factual assertions, unsupported by empirical data, concerning the manner of imposition and effectiveness of capital punishment in this country. Legislatures will have the opportunity to make a more penetrating study of these claims with the familiar and effective tools available to them as they are not to us.
356
The highest judicial duty is to recognize the limits on judicial power and to permit the democratic processes to deal with matters falling outside of those limits. The 'hydraulic pressure(s)'32 that Holmes spoke of as being generated by cases of great import have propelled the Court to go beyond the limits of judicial power, while fortunately leaving some room for legislative judgment.
357
Mr. Justice BLACKMUN, dissenting.
358
I join the respective opinions of THE CHIEF JUSTICE, Mr. Justice POWELL, and Mr. Justice REHNQUIST, and add only the following, somewhat personal, comments.
359
1. Cases such as these provide for me an excruciating agony of the spirit. I yield to no one in the depth of my distaste, antipathy, and, indeed, abhorrence, for the death penalty, with all its aspects of physical distress and fear and of moral judgment exercised by finite minds. That distaste is buttressed by a belief that capital punishment serves no useful purpose that can be demonstrated. For me, it violates childhood's training and life's experiences, and is not compatible with the philosophical convictions I have been able to develop. It is antagonistic to any sense of 'reverence for life.' Were I a legislator, I would vote against the death penalty for the policy reasons argued by counsel for the respective petitioners and expressed and adopted in the several opinions filed by the Justices who vote to reverse these judgments.
360
2. Having lived for many years in a State that does not have the death penalty,1 that effectively abolished it in 1911,2 and that carried out its last execution on February 13, 19063, capital punishment had never been a part of life for me. In my State, it just did not exist. So far as I can determine, the State, purely from a statistical deterrence point of view, was neither the worse nor the better for its abolition, for, as the concurring opinions observe, the statistics prove little, if anything. But the State and its citizens accepted the fact that the death penalty was not to be in the arsenal of possible punishments for any crime.
361
3. I, perhaps alone among the present members of the Court, am on judicial record as to this. As a member of the United States Court of Appeals, I first struggled silently with the issue of capital punishment in Feguer v. United States, 302 F.2d 214 (CA8 1962), cert. denied, 371 U.S. 872, 83 S.Ct. 123, 9 L.Ed.2d 110 (1962). The defendant in that case may have been one of the last to be executed under federal auspices. I struggled again with the issue, and once more refrained from comment, in my writing for an en banc court in Pope v. United States, 372 F.2d 710 (CA8 1967), vacated (upon acknowledgment by the Solicitor General of error revealed by the subsequently decided United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968)) and remanded, Pope v. United States, 392 U.S. 651, 88 S.Ct. 2145, 20 L.Ed.2d 1317 (1968). Finally, in Maxwell v. Bishop, 398 F.2d 138 (CA8 1968), vacated and remanded, sua sponte, by the Court on grounds not raised below, 398 U.S. 262, 90 S.Ct. 1578, 26 L.Ed.2d 221 (1970), I revealed, solitarily and not for the panel, my distress and concern. 398 F.2d, at 153—154.4 And in Jackson v. Bishop, 404 F.2d 571 (CA8 1968), I had no hesitancy in writing a panel opinion that held the use of the strap by trusties upon fellow Arkansas prisoners to be a violation of the Eighth Amendment. That, however, was in-prison punishment imposed by inmate-foremen.
362
4. The several concurring opinions acknowledge, as they must, that until today capital punishment was accepted and assumed as not unconstitutional per se under the Eighth Amendment or the Fourteenth Amendment. This is either the flat or the implicit holding of a unanimous Court in Wilkerson v. Utah, 99 U.S. 130, 134—135, 25 L.Ed. 345, in 1879; of a unanimous Court in In re Kemmler, 136 U.S. 436, 447, 10 S.Ct. 930, 933, 34 L.Ed. 519, in 1890; of the Court in Weems v. United States, 217 U.S. 349, 30 S.Ct. 544, 54 L.Ed. 793, in 1910; of all those members of the Court, a majority, who addressed the issue in Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 463—464, 471—472, 67 S.Ct. 374, 376—380, 91 L.Ed. 422, in 1947; of Mr. Chief Justice Warren, speaking for himself and three others (Justices Black, Douglas, and Whittaker) in Trop v. Dulles, 356 U.S. 86, 99, 78 S.Ct. 590, 597, 2 L.Ed.2d 630, in 1958;5 in the denial of certiorari in Rudolph v. Alabama, 375 U.S. 889, 84 S.Ct. 155, 11 L.Ed.2d 119, in 1963 (where, however, Justices Douglas, Brennan, and Goldberg would have heard argument with respect to the imposition of the ultimate penalty on a convicted rapist who had 'neither taken nor endangered human life'); and of Mr. Justice Black in McGautha v. California, 402 U.S. 183, 226, 91 S.Ct. 1454, 1476, 28 L.Ed.2d 711, decided only last Term on May 3, 1971.6
363
Suddenly, however, the course of decision is now the opposite way, with the Court evidently persuaded that somehow the passage of time has taken us to a place of greater maturity and outlook. The argument, plausible and high-sounding as it may be, is not persuasive, for it is only one year since McGautha, only eight and one-half years since Rudolph, 14 years since Trop, and 25 years since Francis, and we have been presented with nothing that demonstrates a significant movement of any kind in these brief periods. The Court has just decided that it is time to strike down the death penalty. There would have been as much reason to do this when any of the cited cases were decided. But the Court refrained from that action on each of those occasions.
364
The Court has recognized, and I certainly subscribe to the proposition, that the Cruel and Unusual Punishments Clause 'may acquire meaning as public opinion becomes enlightened by a humane justice.' Weems v. United States, 217 U.S., at 378, 30 S.Ct., at 553. And Mr. Chief Justice Warren, for a plurality of the Court, referred to 'the evolving standards of decency that mark the progress of a maturing society.' Trop v. Dulles, 356 U.S., at 101, 78 S.Ct., at 598. Mr. Jefferson expressed the same thought well.7
365
My problem, however, as I have indicated, is the suddenness of the Court's perception of progress in the human attitude since decisions of only a short while ago.
366
5. To reverse the judgments in these cases is, of course, the easy choice. It is easier to strike the balance in favor of life and against death. It is comforting to relax in the thoughts perhaps the rationalizations—that this is the compassionate decision for a maturing society; that this is the moral and the 'right' thing to do; that thereby we convince ourselves that we are moving down the road toward human decency; that we value life even though that life has taken another or others or has grievously scarred another or others and their families; and that we are less barbaric than we were in 1879, or in 1890, or in 1910, or in 1947, or in 1958, or in 1963, or a year ago, in 1971, when Wilkerson, Kemmler, Weems, Francis, Trop, Rudolph, and McGautha were respectively decided.
367
This, for me, is good argument, and it makes some sense. But it is good argument and it makes sense only in a legislative and executive way and not as a judicial expedient. As I have said above, were I a legislator, I would do all I could to sponsor and to vote for legislation abolishing the death penalty. And were I the chief executive of a sovereign State, I would be sorely tempted to exercise executive clemency as Governor Rockefeller of Arkansas did recently just before he departed from office. There on the Legislative Branch of the State or Federal Government, and secondarily, on the Executive Branch—is where the authority and responsibility for this kind of action lies. The authority should not be taken over by the judiciary in the modern guise of an Eighth Amendment issue.
368
I do not sit on these cases, however, as a legislator, responsive, at least in part, to the will of constituents. Our task here, as must so frequently be emphasized and re-emphasized, is to pass upon the constitutionality of legislation that has been enacted and that is challenged. This is the sole task for judges. We should not allow our personal preferences as to the wisdom of legislative and congressional action, or our distaste for such action, to guide our judicial decision in cases such as these. The temptations to cross that policy line are very great. In fact, as today's decision reveals, they are almost irresistible.
369
6. The Court, in my view, is somewhat propelled toward its result by the interim decision of the California Supreme Court, with one justice dissenting, that the death penalty is violative of that State's constitution. People v. Anderson, 6 Cal.3d 628, 100 Cal.Rptr. 152, 493 P.2d 880 (Feb. 18, 1972). So far as I am aware, that was the first time the death penalty in its entirety has been nullified by judicial decision. Cf. Ralph v. Warden, 438 F.2d 786, 793 (CA4 1970), cert. denied, 408 U.S. 942, 92 S.Ct. 2869, 33 L.Ed.2d 766. California's moral problem was a profound one, for more prisoners were on death row there than in any other State. California, of course, has the right to construe its constitution as it will. Its construction, however, is hardly a precedent for federal adjudication.
370
7. I trust the Court fully appreciates what it is doing when it decides these cases the way it does today. Not only are the capital punishment laws of 39 States and the District of Columbia struck down, but also all those provisions of the federal statutory structure that permit the death penalty apparently are voided. No longer is capital punishment possible, I suspect, for, among other crimes, treason, 18 U.S.C. § 2381; or assassination of the President, the Vice President, or those who stand elected to those positions, 18 U.S.C. § 1751; or assassination of a Member or memberelect of Congress, 18 U.S.C. § 351; or espionage, 18 U.S.C. § 794; or rape within the special maritime jurisdiction, 18 U.S.C. § 2031; or aircraft or motor vehicle destruction where death occurs, 18 U.S.C. § 34; or explosives offenses where death results, 18 U.S.C. §§ 844(d) and (f); or train wrecking, 18 U.S.C. § 1992; or aircraft piracy, 49 U.S.C. § 1472(i). Also in jeopardy, perhaps, are the death penalty provisions in various Articles of the Uniform Code of Military Justice. 10 U.S.C. §§ 885, 890, 894, 899, 901, 904, 906, 913, 918, and 920. All these seem now to be discarded without a passing reference to the reasons, or the circumstances, that prompted their enactment, some very recent, and their retention in the face of efforts to repeal them.
371
8. It is of passing interest to note a few voting facts with respect to recent federal death penalty legislation:
372
A. The aircraft piracy statute, 49 U.S.C. § 1472(i), was enacted September 5, 1961. The Senate vote on August 10 was 92—0. It was announced that Senators Chavez, Fulbright, Neuberger, and Symington were absent but that, if present, all four would vote yea. It was also announced, on the other side of the aisle, that Senator Butler was ill and that Senators Beall, Carlson, and Morton were absent or detained, but that those four, if present, would vote in the affirmative. These announcements, therefore, indicate that the true vote was 100—0. 107 Cong.Rec. 15440. The House passed the bill without recorded vote. 107 Cong.Rec. 16849.
373
B. The presidential assassination statute, 18 U.S.C. § 1751, was approved August 28, 1965, without recorded votes. 111 Cong.Rec. 14103, 18026, and 20239.
374
C. The Omnibus Crime Control Act of 1970 was approved January 2, 1971. Title IV thereof added the congressional assassination statute that is now 18 U.S.C. § 351. The recorded House vote on October 7, 1970, was 341—26, with 63 not voting and 62 of those paired. 116 Cong.Rec. 35363—35364. The Senate vote on October 8 was 59—0, with 41 not voting, but with 21 of these announced as favoring the bill. 116 Cong.Rec. 35743. Final votes after conference were not recorded. 116 Cong.Rec. 42150, 42199.
375
It is impossible for me to believe that the many lawyer-members of the House and Senate—including, I might add, outstanding leaders and prominent candidates for higher office were callously unaware and insensitive of constitutional overtones in legislation of this type. The answer, of course, is that in 1961, in 1965, and in 1970 these elected representatives of the people—far more conscious of the temper of the times, of the maturing of society, and of the contemporary demands for man's dignity, than are we who sit cloistered on this Court—took it as settled that the death penalty then, as it always had been, was not in itself unconstitutional. Some of those Members of Congress, I suspect, will be surprised at this Court's giant stride today.
376
9. If the reservations expressed by my Brother Stewart (which, as I read his opinion, my Brother White shares) were to command support, namely, that capital punishment may not be unconstitutional so long as it be mandatorily imposed, the result, I fear, will be that statutes struck down today will be re-enacted by state legislatures to prescribe the death penalty for specified crimes without any alternative for the imposition of a lesser punishment in the discretion of the judge or jury, as the case may be. This approach, it seems to me, encourages legislation that is regressive and of an antique mold, for it eliminates the element of mercy in the imposition of punishment. I thought we had passed beyond that point in our criminology long ago.
377
10. It is not without interest, also, to note that, although the several concurring opinions acknowledge the heinous and atrocious character of the offenses committed by the petitioners, none of those opinions makes reference to the misery the petitioners' crimes occasioned to the victims, to the families of the victims, and to the communities where the offenses took place. The arguments for the respective petitioners, particularly the oral arguments, were similarly and curiously devoid of reference to the victims. There is risk, of course, in a comment such as this, for it opens one to the charge of emphasizing the retributive. But see Williams v. New York, 337 U.S. 241, 248, 69 S.Ct. 1079, 1083, 93 L.Ed. 1337 (1949). Nevertheless, these cases are here because offenses to innocent victims were perpetrated. This fact, and the terror that occasioned it, and the fear that stalks the streets of many of our cities today perhaps deserve not to be entirely overlooked. Let us hope that, with the Court's decision, the terror imposed will be forgotten by those upon whom it was visited, and that our society will reap the hoped-for benefits of magnanimity.
378
Although personally I may rejoice at the Court's result, I find it difficult to accept or to justify as a matter of history, of law, or of constitutional pronouncement. I fear the Court has overstepped. It has sought and has achieved an end.
379
Mr. Justice POWELL, with whom THE CHIEF JUSTICE, Mr. Justice BLACKMUN, and Mr. Justice REHNQUIST join, dissenting.
380
The Court granted certiorari in these cases to consider whether the death penalty is any longer a permissible form of punishment. 403 U.S. 952, 91 S.Ct. 2282, 29 L.Ed.2d 863 (1971). It is the judgment of five Justices that the death penalty, as customarily prescribed and implemented in this country today, offends the constitutional prohibition against cruel and unusual punishments. The reasons for that judgment are stated in five separate opinions, expressing as many separate rationales. In my view, none of these opinions provides a constitutionally adequate foundation for the Court's decision.
381
Mr. Justice DOUGLAS concludes that capital punishment is incompatible with notions of 'equal protection' that he finds to be 'implicit' in the Eighth Amendment. Ante, at 257. Mr. Justice BRENNAN bases his judgment primarily on the thesis that the penalty 'does not comport with human dignity.' Ante, at 270. Mr. Justice STEWART concludes that the penalty is applied in a 'wanton' and 'freakish' manner. Ante, at 310. For Mr. Justice WHITE it is the 'infrequency' with which the penalty is imposed that renders its use unconstitutional. Ante, at 313. Mr. Justice MARSHALL finds that capital punishment is an impermissible form of punishment because it is 'morally unacceptable' and 'excessive.' Ante, at 360, 358.
382
Although the central theme of petitioners' presentations in these cases is that the imposition of the death penalty is per se unconstitutional, only two of today's opinions explicitly conclude that so sweeping a determination is mandated by the Constitution. Both Mr. Justice BRENNAN and Mr. Justice MARSHALL call for the abolition of all existing state and federal capital punishment statutes. They intimate as well that no capital statute could be devised in the future that might comport wih the Eighth Amendment. While the practical consequences of the other three opinions are less certain, they at least do not purport to render impermissible every possible statutory scheme for the use of capital punishment that legislatures might hereafter devise.1 Insofar as these latter opinions fail, at least explicitly, to go as far as petitioners' contentions would carry them, their reservations are attributable to a willingness to accept only a portion of petitioners' thesis. For the reasons cogently set out in the CHIEF JUSTICE's dissenting opinion (ante, at 396—403) and for reasons stated elsewhere in this opinion, I find my Brothers' less-than-absolute-abolition judgments unpersuasive. Because those judgments are, for me, not dispositive, I shall focus primarily on the broader ground upon which the petitions in these cases are premised. The foundations of my disagreement with that broader thesis are equally applicable to each of the concurring opinions. I will, therefore, not endeavor to treat each one separately. Nor will I attempt to predict what forms of capital statutes, if any, may avoid condemnation inf the future under the variety of views expressed by the collective majority today. That difficult task, not performed in any of the controlling opinions, must go unanswered until other cases presenting these more limited inquiries arise.
383
Whatever uncertainties may hereafter surface, several of the consequences of today's decision are unmistakably clear. The decision is plainly one of the greatest importance. The Court's judgment removes the death sentences previously imposed on some 600 persons awaiting punishment in state and federal prisons throughout the country. At least for the present, it also bars the States and the Federal Government from seeking sentences of death for defendants awaiting trial on charges for which capital punishment was heretofore a potential alternative. The happy event for these countable few constitutes, however, only the most visible consequence of this decision. Less measurable, but certainly of no less significance, is the shattering effect this collection of views has on the root principles of stare decisis, federalism, judicial restraint and most importantly—separation of powers.
384
The Court rejects as not decisive the clearest evidence that the Framers of the Constitution and the authors of the Fourteenth Amendment believed that those documents posed no barrier to the death penalty. The Court also brushes aside an unbroken line of precedent reaffirming the heretofore virtually unquestioned constitutionality of capital punishment. Because of the pervasiveness of the constitutional ruling sought by petitioners, and accepted in varying degrees by five members of the Court, today's departure from established precedent invalidates a staggering number of state and federal laws. The capital punishment laws of no less than 39 States2 and the District of Columbia are nullified. In addition, numerous provisions of the Criminal Code of the United States and of the Uniform Code of Military Justice also are voided. The Court's judgment not only wipes out laws presently in existence, but denies to Congress and to the legislatures of the 50 States the power to adopt new policies contrary to the policy selected by the Court. Indeed, it is the view of two of my Brothers that the people of each State must be denied the prerogative to amend their constitutions to provide for capital punishment even selectively for the most heinous crime.
385
In terms of the constitutional role of this Court, the impact of the majority's ruling is all the greater because the decision encroaches upon an area squarely within the historic prerogative of the legislative branch—both state and federal—to protect the citizenry through the designation of penalties for prohibitable conduct. It is the very sort of judgment that the legislative branch is competent to make and for which the judiciary is ill-equipped. Throughout our history, Justices of this Court have emphasized the gravity of decisions invalidating legislative judgments, admonishing the nine men who sit on this bench of the duty of self-restraint, especially when called upon to apply the expansive due process and cruel and unusual punishment rubrics. I can recall no case in which, in the name of deciding constitutional questions, this Court has subordinated national and local democratic processes to such an extent. Before turning to address the thesis of petitioners' case against capital punishment a thesis that has proved, at least in large measure, persuasive to a majority of this Court—I first will set out the principles that counsel against the Court's sweeping decision.
386
* The Constitution itself poses the first obstacle to petitioners' argument that capital punishment is per se unconstitutional. The relevant provisions are the Fifth, Eighth, and Fourteenth Amendments. The first of these provides in part:
387
'No person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury . . .; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; . . . nor be deprived of life, liberty, or property, without due process of law . . .'
388
Thus, the Federal Government's power was restricted in order to guarantee those charged with crimes that the prosecution would have only a single opportunity to seek imposition of the death penalty and that the death penalty could not be exacted without due process and a grand jury indictment. The Fourteenth Amendment, adopted about 77 years after the Bill of Rights, imposed the due process limitation of the Fifth Amendment upon the States' power to authorize capital punishment.
389
The Eighth Amendment, adopted at the same time as the Fifth, proscribes 'cruel and unusual' punishments. In an effort to discern its meaning, much has been written about its history in the opinions of this Court and elsewhere.3 That history need not be restated here since, whatever punishments the Framers of the Constitution may have intended to prohibit under the 'cruel and unusual' language, there cannot be the slightest doubt that they intended no absolute bar on the Government's authority to impose the death penalty. McGautha v. California, 402 U.S. 183, 226, 91 S.Ct. 1454, 1476, 28 L.Ed.2d 711 (1971) (separate opinion of Black, J.). As much is made clear by the three references to capital punishment in the Fifth Amendment. Indeed, the same body that proposed the Eighth Amendment also provided, in the first Crimes Act of 1790, for the death penalty for a number of offenses. 1 Stat. 112.
390
Of course, the specific prohibitions within the Bill of Rights are limitations on the exercise of power; they are not an affirmative grant of power to the Government. I, therefore, do not read the several references to capital punishment as foreclosing this Court from considering whether the death penalty in a particular case offends the Eighth and Fourteenth Amendments. Nor are 'cruel and unusual punishments' and 'due process of law' static concepts whose meaning and scope were sealed at the time of their writing. They were designed to be dynamic and to gain meaning through application to specific circumstances, many of which were not contemplated by their authors. While flexibility in the application of these broad concepts is one of the hallmarks of our system of government, the Court is not free to read into the Constitution a meaning that is plainly at variance with its language. Both the language of the Fifth and Fourteenth Amendments and the history of the Eighth Amendment confirm beyond doubt that the death penalty was considered to be a constitutionally permissible punishment. it is, however, within the historic process of constitutional adjudication to challenge the imposition of the death penalty in some barbaric manner or as a penalty wholly disproportionate to a particular criminal act. And in making such a judgment in a case before it, a court may consider contemporary standards to the extent they are relevant. While this weighing of a punishment against the Eighth Amendment standard on a case-by-case basis is consonant with history and precedent, it is not what petitioners demand in these cases. They seek nothing less than the total abolition of capital punishment by judicial fiat.
II
391
Petitioners assert that the constitutional issue is an open one uncontrolled by prior decisions of this Court. They view the several cases decided under the Eighth Amendment as assuming the constitutionality of the death penalty without focusing squarely upon the issue. I do not believe that the case law can be so easily cast aside. The Court on numerous occasions has both assumed and asserted the constitutionality of capital punishment. In several cases that assumption provided a necessary foundation for the decision, as the issue was whether a particular means of carrying out a capital sentence would be allowed to stand. Each of those decisions necessarily was premised on the assumption that some method of exacting the penalty was permissible.
392
The issue in the first capital case in which the Eighth Amendment was invoked, Wilkerson v. Utah, 99 U.S. 130, 25 L.Ed. 345 (1879), was whether carrying out a death sentence by public shooting was cruel and unusual punishment. A unanimous Court upheld that form of execution, noting first that the punishment itself, as distinguished from the mode of its infliction, was 'not pretended by the counsel of the prisoner' (id., at 137, 25 L.Ed. 345) to be cruel and unusual. The Court went on to hold that:
393
'Cruel and unusual punishments are forbidden by the Constitution, but the authorities . . . are quite sufficient to show that the punishment of shooting as a mode of executing the death penalty for the crime of murder in the first degree is not included in that category . . .' Id., at 134—135, 25 L.Ed. 345.
394
Eleven years later, in In re Kemmler, 136 U.S. 436, 10 S.Ct. 930, 34 L.Ed. 519 (1890), the Court again faced a question involving the method of carrying out a capital sentence. On review of a denial of habeas corpus relief by the Supreme Court of New Yrok, this Court was called on to decide whether electrocution, which only very recently had been adopted by the New Yrok Legislature as a means of execution, was impermissibly cruel and unusual in violation of the Fourteenth Amendment.4 Chief Justice Fuller, speaking for the entire Court, ruled in favor of the State. Electrocution had been selected by the legislature, after careful investigation, as 'the most humane and practical method known to modern science of carrying into effect the sentence of death.' Id., at 444, 10 S.Ct., at 933. The Court drew a clear line between the penalty itself and the mode of its execution:
395
'Punishments are cruel when they involve torture or a lingering death; but the punishment of death is not cruel within the meaning of that word as used in the constitution. It implies there something inhuman and barbarous,—something more than the mere extinguishment of life.' Id., at 447, 10 S.Ct., at 933.
396
More than 50 years later, in Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 67 S.Ct. 674, 91 L.Ed. 422 (1947), the Court considered a case in which, due to a mechanical malfunction, Louisiana's initial attempt to electrocute a convicted murdered had failed. Petitioner sought to block a second attempt to execute the sentence on the ground that to do so would constitute cruel and unusual punishment. In the plurality opinion written by Mr. Justice Reed, concurred in by Chief Justice Vinson and Justices Black and Jackson, relief was denied. Again the Court focused on the manner of execution, never questioning the propriety of the death sentence itself.
397
'The case before us does not call for an examination into any punishments except that of death. . . . The traditional humanity of modern Anglo-American law forbids the infliction of unnecessary pain in the execution of the death sentence. . . .
398
'. . . The cruelty against which the Constitution protects a convicted man is cruelty inherent in the method of punishment, not the necessary suffering involved in any method employed to extinguish life humanely.' Id., at 463 464, 67 S.Ct., at 376.
399
Mr. Justice Frankfurter, unwilling to dispose of the case under the Eighth Amendment's specific prohibition approved the second execution attempt under the Due Process Clause. He concluded that 'a State may be found to deny a person due process by treating even one guilty of crime in a manner that violates standards of decency more or less universally accepted though not when it treats him by a mode about which opinion is fairly divided.' Id., at 469—470, 67 S.Ct., at 378—379.
400
The four dissenting Justices, although finding a second attempt at execution to be impermissibly cruel, expressly recognized the validity of capital punishment:
401
'In determining whether the proposed procedure is unconstitutional, we must measure it against a lawful electrocution. . . . Electrocution, when instantaneous, can be inflicted by a state in conformity with due process of law. . . .
402
'The all-important consideration is that the execution shall be so instantaneous and substantially painless that the punishment shall be reduced, as nearly as possible, to no more than that of death itself.' Id., at 474, 67 S.Ct., at 381. (original emphasis).
403
Each of these cases involved the affirmance of a death sentence where its validity was attacked as violating the Eighth Amendment. Five opinions were written in these three cases, expressing the views of 23 Justices. While in the narrowest sense it is correct to say that in none was there a frontal attack upon the constitutionality of the death penalty, each opinion went well beyond an unarticulated assumption of validity. The power of the States to impose capital punishment was repeatedly and expressly recognized.
404
In addition to these cases in which the constitutionality of the death penalty was a necessary foundation for the decision, those who today would have this Court undertake the absolute abolition of the death penalty also must reject the opinions of other cases stipulating or assuming the constitutionality of capital punishment. Trop v. Dulles, 356 U.S. 86, 99, 100, 78 S.Ct. 590, 597 (1958); Weems v. United States, 217 U.S. 349, 382, 409, 30 S.Ct. 544, 566, 54 L.Ed. 793 (1910) (White, J., joined by Holmes, J., dissenting).5 See also McGautha v. California, 402 U.S., at 226, 91 S.Ct., at 1476 (separate opinion of Black, J.); Robinson v. California, 370 U.S. 660, 676, 82 S.Ct. 1417, 1425, 8 L.Ed.2d 758 (1962) (DOUGLAS, J., concurring).
405
The plurality opinion in Trop v. Dulles, supra, is of special interest since it is this opinion, in large measure, that provides the foundation for the present attack on the death penalty.6 It is anomalous that the standard urged by petitioners—'evolving standards of decency that mark the progress of a maturing society' (356 U.S., at 101, 78 S.Ct., at 598)—should be derived from an opinion that so unqualifiedly rejects their arguments. Chief Justice Warren, joined by Justices Black, Douglas, and Whittaker, stated flatly:
406
'At the outset, let us put to one side the death penalty as an index of the constitutional limit on punishment. Whatever the arguments may be against capital punishment, both on moral grounds and in terms of accomplishing the purposes of punishment—and they are forceful—the death penalty has been employed throughout our history, and, in a day when it is still widely accepted, it cannot be said to violate the constitutional concept of cruelty.' Id., at 99, 78 S.Ct., at 597.
407
The issue in Trop was whether forfeiture of citizenship was a cruel and unusual punishment when imposed on a wartime deserter who had gone 'over the hill' for less than a day and had willingly surrendered. In examining the consequences of the relatively novel punishment of denationalization,7 Chief Justice Warren drew a line between 'traditional' and 'unusual' penalties:
408
'While the State has the power to punish, the (Eighth) Amendment stands to assure that this power be exercised within the limits of civilized standards. Fines, imprisonment and even execution may be imposed depending upon the enormity of the crime, but any technique outside the bounds of these traditional penalties is constitutionally suspect.' Id., at 100, 78 S.Ct., at 597.
409
The plurality's repeated disclaimers of any attack on capital punishment itself must be viewed as more than offhand dicta since theose views were written in direct response to the strong language in Mr. Justice Frankfurter's dissent arguing that denationalization could not be a disproportionate penalty for a concededly capital offense.8
410
The most recent precedents of this Court—Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), and McGautha v. California, supra—are also premised to a significant degree on the constitutionality of the death penalty. While the scope of review in both cases was limited to questions involving the procedures for selecting juries and regulating their deliberations in capital cases,9 those opinions were 'singularly academic exercise(s)'10 if the members of this Court were prepared at those times to find in the Constitution the complete prohibition of the death penalty. This is especially true of Mr. Justice Harlan's opinion for the Court in McGautha, in which, after a full review of the history of capital punishment, he concluded that 'we find it quite impossible to say that committing to the untrammeled discretion of the jury the power to pronounce life or death in capital cases is offensive to anything in the Constitution.' Id., at 207, 91 S.Ct., at 1467.11
411
Perhaps enough has been said to demonstrate the unswerving position that this Court has taken in opinions spanning the last hundred years. On virtually every occasion that any opinion has touched on the question of the constitutionality of the death penalty, it has been asserted affirmatively, or tacitly assumed, that the Constitution does not prohibit the penalty. No Justice of the Court, until today, has dissented from this consistent reading of the Constitution. The petitioners in these cases now before the Court cannot fairly avoid the weight of this substantial body of precedent merely by asserting that there is no prior decision precisely in point. Stare decisis, if it is a doctrine founded on principle, surely applies where there exists a long line of cases endorsing or necessarily assuming the validity of a particular matter of constitutional interpretation. Green v. United States, 356 U.S. 165, 189—193, 78 S.Ct. 632, 645—648, 2 L.Ed.2d 672 (1958) (Frankfurter, J., concurring). While these oft-repeated expressions of unchallenged belief in the constitutionality of capital punishment may not justify a summary disposition of the constitutional question before us, they are views expressed and joined in over the years by no less than 29 Justices of this Court and therefore merit the greatest respect.12 Those who now resolve to set those views aside indeed have a heavy burden.
III
412
Petitioners seek to avoid the authority of the foregoing cases, and the weight of express recognition in the Constitution itself, by reasoning which will not withstand analysis. The thesis of petitioners' case derives from several opinions in which members of this Court have recognized the dynamic nature of the prohibition against cruel and unusual punishments. The final meaning of those words was not set in 1791. Rather, to use the words of Chief Justice Warren speaking for a plurality of the Court in Trop v. Dulles, 356 U.S., at 100—101, 78 S.Ct., at 597—598, 2 L.Ed.2d 630:
413
'(T)he words of the Amendment are not precise, and . . . their scope is not static. The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.'
414
But this was not new doctrine. It was the approach to the Eighth Amendment taken by Mr. Justice McKenna in his opinion for the Court in Weems v. United States, 217 U.S. 349, 30 S.Ct. 544, 54 L.Ed. 793 (1910). Writing for four Justices sitting as the majority of the six-man Court deciding the case, he concluded that the clause must be 'progressive'; it is not 'fastened to the obsolete, but may acquire meaning as public opinion becomes enlightened by a humane justice.' Id., at 378, 30 S.Ct. at 553. The same test was offered by Mr. Justice Frankfurter in his separate concurrence in Louisiana ex rel. Francis v. Resweber, 329 U.S., at 469, 67 S.Ct. at 378, 91 L.Ed. 422. While he rejected the notion that the Fourteenth Amendment made the Eighth Amendment fully applicable to the States, he nonetheless found as a matter of due process that the States were prohibited from 'treating even one guilty of crime in a manner that violates standards of decency more or less universally accepted.'
415
Whether one views the question as one of due process or of cruel and unusual punishment, as I do for convenience in this case, the issue is essentially the same.13 The fundamental premise upon which either standard is based is that notions of what constitutes cruel and unusual punishment or due process do evolve. Neither the Congress nor any state legislature would today tolerate pillorying, branding, or cropping or nailing of the ears punishments that were in existence during our colonial era.14 Should, however, any such punishment be prescribed, the courts would certainly enjoin its execution. See Jackson v. Bishop, 404 F.2d 571 (CA8 1968). Likewise, no court would approve any method of implementation of the death sentence found to involve unnecessary cruelty in light of presently available alternatives. Similarly, there may well be a process of evolving attitude with respect to the application of the death sentence for particular crimes.15 See McGautha v. California, 402 U.S., at 242, 91 S.Ct. at 1484, 28 L.Ed.2d 711 (Douglas, J., dissenting).
416
But we are not asked to consider the permissibility of any of the several methods employed in carrying out the death sentence. Nor are we asked, at least as part of the core submission in these cases, to determine whether the penalty might be a grossly excessive punishment for some specific criminal conduct. Either inquiry would call for a discriminating evaluation of particular means, or of the relationship between particular conduct and its punishment. Petitioners' principal argument goes far beyond the traditional process of case-by-case inclusion and exclusion. Instead the argument insists on an unprecedented constitutional rule of absolute prohibition of capital punishment for any crime, regardless of its depravity and impact on society. In calling for a precipitate and final judicial end to this form of penalty as offensive to evolving standards of decency, petitioners would have this Court abandon the traditional and more refined approach consistently followed in its prior Eighth Amendment precedents. What they are saying, in effect, is that the evolutionary process has come suddenly to an end; that the ultimate wisdom as to the appropriateness of capital punishment under all circumstances, and for all future generations, has somehow been revealed.
417
The prior opinions of this Court point with great clarity to reasons why those of us who sit on this Court as a particular time should act with restraint before assuming, contrary to a century of precedent, that we now know the answer for all time to come. First, where as here, the language of the applicable provision provides great leeway and where the underlying social policies are felt to be of vital importance, the temptation to read personal preference into the Constitution is understandably great. It is too easy to propound our subjective standards of wise policy under the rubric of more or less universally held standards of decency. See Trop v. Dulles, 356 U.S., at 103, 78 S.Ct., at 599, 2 L.Ed.2d 630 (Warren, C.J.), id., at 119—120, 78 S.Ct., at 607—608 (Frankfurter, J., dissenting); Louisiana ex rel. Francis v. Resweber, 329 U.S., at 470—471, 67 S.Ct., at 379—380, 91 L.Ed. 422 (Frankfurter, J., concurring); Weems v. United States, 217 U.S., at 378—379, 30 S.Ct., at 553, 54 L.Ed. 793 (McKenna, J.).
418
The second consideration dictating judicial self-restraint arises from a proper recognition of the respective roles of the legislative and judicial branches. The designation of punishments for crimes is a matter peculiarly within the sphere of the state and federal legislative bodies. See, e.g., In re Kemmler, 136 U.S., at 447, 10 S.Ct., at 933, 34 L.Ed. 519; Trop v. Dulles, 356 U.S., at 103, 78 S.Ct., at 599, 2 L.Ed.2d 630. When asked to encroach on the legislative prerogative we are well counseled to proceed with the utmost reticence. The review of legislative choices, in the performance of our duty to enforce the Constitution, has been characterized most appropriately by Mr. Justice Holmes as 'the gravest and most delicate duty that this Court is called on to perform.' Blodgett v. Holden, 275 U.S. 142, 147—148, 48 S.Ct. 105, 106—107, 72 L.Ed. 206 (1927) (separate opinion).
419
How much graver is that duty when we are not asked to pass on the constitutionality of a single penalty under the facts of a single case but instead are urged to overturn the legislative judgments of 40 state legislatures as well as those of Congress. In so doing is the majority able to claim, as did the Court in Weems, that it appreciates 'to the fullest the wide range of power that the legislature possesses to adapt its penal laws to conditions as they may exist, and punish the crimes of men according to their forms and frequency'? 217 U.S., at 379, 30 S.Ct., at 554. I think not. No more eloquent statement of the essential separation of powers limitation on our prerogative can be found than the admonition of Mr. Justice Frankfurter, dissenting in Trop. His articulation of the traditional view takes on added significance where the Court undertakes to nullify the legislative judgments of the Congress and four-fifths of the States.
420
'What is always basic when the power of Congress to enact legislation is challenged is the appropriate approach to judicial review of congressional legislation . . .. When the power of Congress to pass a statute is challenged, the function of this Court is to determine whether legislative action lies clearly outside the constitutional grant of power to which it has been, or may fairly be, referred. In making this determination, the Court sits in judgment on the action of a co-ordinate branch of the Government while keeping into itself—as it must under our constitutional system—the final determination of its own power to act. . . .
421
'Rigorous observance of the difference between limits of power and wise exercise of power—between questions of authority and questions of prudence—requires the most alert appreciation of this decisive but subtle relationship of two concepts that too easily coalesce. No less does it require a disciplined will to adhere to the difference. It is not easy to stand aloof and allow want of wisdom to prevail, to disregard one's own strongly held view of what is wise in the conduct of affairs. But it is not the business of this Court to pronounce policy. It must observe a fastidious regard for limitations on its own power, and this precludes the Court's giving effect to its own notions of what is wise or politic. That self-restraint is of the essence in the observance of the judicial oath, for the Constitution has not authorized the judges to sit in judgment on the wisdom of what Congress and the Executive Branch do.' 356 U.S., at 119—120, 78 S.Ct., at 607—608. See also Mr. Justice White's dissenting opinion in Weems v. United States, 217 U.S., at 382, 30 S.Ct. at 555.
IV
422
Although determining the range of available punishments for a particular crime is a legislative function, the very presence of the Cruel and Unusual Punishments Clause within the Bill of Rights requires, in the context of a specific case, that courts decide whether particular acts of the Congress offend that Amendment. The Due Process Clause of the Fourteenth Amendment imposes on the judiciary a similar obligation to scrutinize state legislation. But the proper exercise of that constitutional obligation in the cases before us today must be founded on a full recognition of the several considerations set forth above—the affirmative references to capital punishment in the Constitution, the prevailing precedents of this Court, the limitations on the exercise of our power imposed by tested principles of judicial self-restraint, and the duty to avoid encroachment on the powers conferred upon state and federal legislatures. In the face of these considerations, only the most conclusive of objective demonstrations could warrant this Court in holding capital punishment per se unconstitutional. The burden of seeking so sweeping a decision against such formidable obstacles is almost insuperable. Viewed from this perspective, as I believe it must be, the case against the death penalty falls far short.
423
Petitioners' contentions are premised, as indicated above, on the long-accepted view that concepts embodied in the Eighth and Fourteenth Amendments evolve. They present, with skill and persistence, a list of 'objective indicators' which are said to demonstrate that prevailing standards of human decency have progressed to the final point of requiring the Court to hold, for all cases and for all time, that capital punishment is unconstitutional.
424
Briefly summarized, these proffered indicia of contemporary standards of decency include the following: (i) a worldwide trend toward the disuse of the death penalty;16 (ii) the reflection in the scholarly literature of a progressive rejection of capital punishment founded essentially on moral opposition to such treatment;17 (iii) the decreasing numbers of executions over the last 40 years and especially over the last decade;18 (iv) the small number of death sentences rendered in relation to the number of cases in which they might have been imposed;19 and (v) the indication of public abhorrence of the penalty reflected in the circumstance that executions are no longer public affairs.20 The foregoing is an incomplete summary but it touches the major bases of petitioners' presentation. Although they are not appropriate for consideration as objective evidence, petitioners strongly urge two additional propositions. They contend, first, that the penalty survives public condemnation only through the infrequency, arbitrariness, and discriminatory nature of its application, and, second, that there no longer exists any legitimate justification for the utilization of the ultimate penalty. These contentions, which have proved persuasive to several of the Justices constituting the majority, deserve separate consideration and will be considered in the ensuing sections. Before turning to those arguments, I first address the argument based on 'objective' factors.
425
Any attempt to discern contemporary standards of decency through the review of objective factors must take into account several overriding considerations which petitioners choose to discount or ignore. In a democracy the first indicator of the public's attitude must always be found in the legislative judgments of the people's chosen representatives. Mr. Justice MARSHALL's opinion today catalogues the salient statistics. Forty States,21 the District of Columbia, and the Federal Government still authorize the death penalty for a wide variety of crimes. That number has remained relatively static since the end of World War I. Ante, at 339—341. That does not mean, however, that capital punishment has become a forgotten issue in the legislative arena. As recently as January, 1971, Congress approved the death penalty for congressional assassination. 18 U.S.C. § 351. In 1965 Congress added the death penalty for presidential and vice presidential assassinations. 18 U.S.C. § 1751. Additionally, the aircraft piracy statute passed in 1961 also carries the death penalty. 49 U.S.C. § 1472(i). Mr. Justice BLACKMUN's dissenting opinion catalogues the impressive ease with which each of these statutes was approved. Ante, at 412 413. On the converse side, a bill proposing the abolition of capital punishment for all federal crimes was introduced in 1967 but failed to reach the Senate floor.22
426
At the state level, New York, among other States, has recently undertaken reconsideration of its capital crimes. A law passed in 1965 restricted the use of capital punishment to the crimes of murder of a police officer and murder by a person serving a sentence of life imprisonment. N.Y.Penal Code § 125.30 (1967).
427
I pause here to state that I am at a loss to understand how those urging this Court to pursue a course of absolute abolition as a matter of constitutional judgment can draw any support from the New York experience. As is also the case with respect to recent legislative activity in Canada23 and Great Britain,24 New York's decision to restrict the availability of the death penalty is a product of refined and discriminating legislative judgment, reflecting, not the total rejection of capital punishment as inherently cruel, but a desire to limit it to those circumstances in which legislative judgment deems retention to be in the public interest. No such legislative flexibility is permitted by the contrary course petitioners urge this Court to follow.25
428
In addition to the New York experience, a number of other States have undertaken reconsideration of capital punishment in recent years. In four States the penalty has been put to a vote of the people through public referenda—a means likely to supply objective evidence of community standards. In Oregon a referendum seeking abolition of capital punishment failed in 1958 but was subsequently approved in 1964.26 Two years later the penalty was approved in Colorado by a wide margin.27 In Massachusetts in 1968, in an advisory referendum, the voters there likewise recommended retention of the penalty. In 1970, approximately 64% of the voters in Illinois approved the penalty.28 In addition, the National Commission on Reform of Federal Criminal Laws reports that legislative committees in Massachusetts, Pennsylvania, and Maryland recommended abolition, while committees in New Jersey and Florida recommended retention.29 The legislative views of other States have been summarized by Professor Hugo Bedau in his compilation of sources on capital punishment entitled The Death Penalty in America:
429
'What our legislative representatives think in the two score states which still have the death penalty may be inferred from the fate of the bills to repeal or modify the death penalty filed during recent years in the legislatures of more than half of these states. In about a dozen instances, the bills emerged from committee for a vote. But in none except Delaware did they become law. In those states where these bills were brought to the floor of the legislatures, the vote in most instances wasn't even close.'30
430
This recent history of activity with respect to legislation concerning the death penalty abundantly refutes the abolitionist position.
431
The second and even more direct source of information reflecting the public's attitude toward capital punishment is the jury. In Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), Mr. Justice Stewart, joined by Justices Brennan and Marshall, characterized the jury's historic function in the sentencing process in the following terms:
432
'(T)he jury is given broad discretion to decide whether or not death is 'the proper penalty' in a given case, and a juror's general views about capital punishment play an inevitable role in any such decision.
433
'A man who opposes the death penalty, no less than one who favors it, can make the discretionary judgment entrusted to him by the State and can thus obey the oath he takes as a juror. . . . Guided by neither rule nor standard, . . . a jury that must choose between life imprisonment and capital punishment can do little more—and must do nothing less—than express the conscience of the community on the ultimate question of life or death.'
434
'(O)ne of the most important functions any jury can perform in making such a selection is to maintain a link between contemporary community values and the penal system—a link without which the determination of punishment could hardly reflect 'the evolving standards of decency that mark the progress of a maturing society.' Trop v. Dulles, . . .'31
435
Any attempt to discern, therefore, where the prevailing standards of decency lie must take careful account of the jury's response to the question of capital punishment. During the 1960's juries returned in excess of a thousand death sentences, a rate of approximately two per week. Whether it is true that death sentences were returned in less than 10% of the cases as petitioners estimate or whether some higher percentage is more accurate,32 these totals simply do not support petitioners' assertion at oral argument that 'the death penalty is virtually unanimously repudiated and condemned by the conscience of contemporary society.'33 It is also worthy of note that the annual rate of death sentences has remained relatively constant over the last 10 years and that the figure for 1970—127 sentences—is the highest annual total since 1961.34 It is true that the sentencing rate might be expected to rise, rather than remain constant, when the number of violent crimes increases as it has in this country.35 And it may be conceded that the constancy in these statistics indicates the unwillingness of juries to demand the ultimate penalty in many cases where it might be imposed. But these considerations fall short of indicating that juries are imposing the death penalty with such rarity as to justify this Court in reading into this circumstance a public rejection of capital punishment.36
436
One must conclude, contrary to petitioners' submission, that the indicators most likely to reflect the public's view legislative bodies, state referenda and the juries which have the actual responsibility—do not support the contention that evolving standards of decency require total abolition of capital punishment.37 Indeed, the weight of the evidence indicates that the public generally has not accepted either the morality or the social merit of the views so passionately advocated by the articulate spokesmen for abolition. But however one may assess the amorphous ebb and flow of public opinion generally on this volatile issue, this type of inquiry lies at the periphery—not the core—of the judicial process in constitutional cases. The assessment of popular opinion is essentially a legislative, not a judicial, function.
V
437
Petitioners seek to salvage their thesis by arguing that the infrequency and discriminatory nature of the actual resort to the ultimate penalty tend to diffuse public opposition. We are told that the penalty is imposed exclusively on uninfluential minorities—'the poor and powerless, personally ugly and socially unacceptable.'38 It is urged that this pattern of application assures that large segments of the public will be either uninformed or unconcerned and will have no reason to measure the punishment against prevailing moral standards.
438
Implicitly, this argument concedes the unsoundness of petitioners' contention, examined above under Part IV, that objective evidence shows a present and widespread community rejection of the death penalty. It is now said, in effect, not that capital punishment presently offends our citizenry, but that the public would be offended if the penalty were enforced in a nondiscriminatory manner against a significant percentage of those charge dwith capital crimes, and if the public were thereby made aware of the moral issues surrounding capital punishment. Rather than merely registering the objective indicators on a judicial balance, we are asked ultimately to rest a far-reaching constitutional determination on a prediction regarding the subjective judgments of the mass of our people under hypothetical assumptions that may or may not be realistic.
439
Apart from the impermissibility of basing a constitutional judgment of this magnitude on such speculative assumptions, the argument suffers from other defects. If, as petitioners urge, we are to engage in speculation, it is not at all certain that the public would experience deep-felt revulsion if the States were to execute as many sentenced capital offenders this year as they executed in the mid-1930's.39 It seems more likely that public reaction, rather than being characterized by undifferentiated rejection, would depend upon the facts and circumstances surrounding each particular case.
440
Members of this Court know, from the petitions and appeals that come before us regularly, that brutish and revolting murders continue to occur with disquieting frequency. Indeed, murders are so commonplace in our society that only the most sensational receive significant and sustained publicity. It could hardly be suggested that in any of these highly publicized murder cases—the several senseless assassinations or the too numerous shocking multiple murders that have stained this country's recent history—the public has exhibited any signs of 'revulsion' at the thought of executing the convicted murderers. The public outcry, as we all know, has been quite to the contrary. Furthermore, there is little reason to suspect that the public's reaction would differ significantly in response to other less publicized murders. It is certainly arguable that many such murders, because of their senselessness or barbarousness, would evoke a public demand for the death penalty rather than a public rejection of that alternative. Nor is there any rational basis for arguing that the public reaction to any of these crimes would be muted if the murderer were 'rich and powerful.' The demand for the ultimate sanction might well be greater, as a wealthy killer is hardly a sympathetic figure. While there might be specific cases in which capital punishment would be regarded as excessive and shocking to the conscience of the community, it can hardly be argued that the public's dissatisfaction with the penalty in particular cases would translate into a demand for absolute abolition.
441
In pursuing the foregoing speculation, I do not suggest that it is relevant to the appropriate disposition of these cases. The purpose of the digression is to indicate that judicial decisions cannot be founded on such speculations and assumptions, however appealing they may seem.
442
But the discrimination argument does not rest alone on a projection of the assumed effect on public opinion of more frequent executions. Much also is made of the undeniable fact that the death penalty has a greater impact on the lower economic strata of society, which include a relatively higher percentage of persons of minority racial and ethnic group backgrounds. The argument drawn from this fact is two-pronged. In part it is merely an extension of the speculative approach pursued by petitioners, i.e., that public revulsion is suppressed in callous apathy because the penalty does not affect persons from the white middle class which constitutes the majority in this country. This aspect, however, adds little to the infrequency rationalization for public apathy which I have found unpersuasive.
443
As Mr. Justice MARSHALL's opinion today demonstrates, the argument does have a more troubling aspect. It is his contention that if the average citizen were aware of the disproportionate burden of capital punishment borne by the 'poor, the ignorant, and the underprivileged,' he would find the penalty 'shocking to his conscience and sense of justice' and would not stand for its further use. Ante, at 365—366, 369. This argument, like the apathy rationale, calls for further speculation on the part of the Court. It also illuminates the quicksands upon which we are asked to base this decision. Indeed, the two contentions seem to require contradictory assumptions regarding the public's moral attitude toward capital punishment. The apathy argument is predicated on the assumption that the penalty is used against the less influential elements of society, that the public is fully aware of this, and that it tolerates use of capital punishment only because of a callous indifference to the offenders who are sentenced. Mr. Justice MARSHALL's argument, on the other hand, rests on the contrary assumption that the public does not know against whom the penalty is enforced and that if the public were educated to this fact it would find the punishment intolerable. Ante, at 369. Neither assumption can claim to be an entirely accurate portrayal of public attitude; for some acceptance of capital punishment might be a consequence of hardened apathy based on the knowledge of infrequent and uneven application, while for others acceptance may grow only out of ignorance. More significantly, however, neither supposition acknowledges what, for me, is a more basic flaw.
444
Certainly the claim is justified that this criminal sanction falls more heavily on the relatively impoverished and underprivileged elements of society. The 'have-nots' in every society always have been subject to greater pressure to commit crimes and to fewer constraints than their more affluent fellow citizens. This is, indeed, a tragic byproduct of social and economic deprivation, but it is not an argument of constitutional proportions under the Eighth or Fourteenth Amendment. The same discriminatory impact argument could be made with equal force and logic with respect to those sentenced to prison terms. The Due Process Clause admits of no distinction between the deprivation of 'life' and the deprivation of 'liberty.' If discriminatory impact renders capital punishment cruel and unusual, it likewise renders invalid most of the prescribed penalties for crimes of violence. The root causes of the higher incidence of criminal penalties on 'minorities and the poor' will not be cured by abolishing the system of penalties. Nor, indeed, could any society have a viable system of criminal justice if sanctions were abolished or ameliorated because most of those who commit crimes happen to be underprivileged. The basic problem results not from the penalties imposed for criminal conduct but from social and economic factors that have plagued humanity since the beginning of recorded history, frustrating all efforts to create in any country at any time the perfect society in which there are no 'poor,' no 'minorities' and no 'underprivileged.'40 The causes underlying this problem are unrelated to the constitutional issue before the Court.
445
Finally, yet another theory for abolishing the death penalty reflected in varying degrees in each of the concurring opinions today—is predicated on the discriminatory impact argument. Quite apart from measuring the public's acceptance or rejection of the death penalty under the 'standards of decency' rationale, Mr. Justice DOUGLAS finds the punishment cruel and unusual because it is 'arbitrarily' invoked. He finds that 'the basic theme of equal protection is implicit' in the Eighth Amendment, and that the Amendment is violated when jury sentencing may be characterized as arbitrary or discriminatory. Ante, at 249. While Mr. Justice STEWART does not purport to rely on notions of equal protection, he also rests primarily on what he views to be a history of arbitrariness. Ante, at 309—310.41 Whatever may be the facts with respect to jury sentencing, this argument calls for a reconsideration of the 'standards' aspects of the Court's decision in McGautha v. California, 402 U.S. 183, 91 S.Ct. 1454, 28 L.Ed.2d 711 (1971). Although that is the unmistakable thrust of these opinions today, I see no reason to reassess the standards question considered so carefully in Mr. Justice Harlan's opinion for the Court last Term. Having so recently reaffirmed our historic dedication to entrusting the sentencing function to the jury's 'untrammeled discretion' (id., at 207, 91 S.Ct., at 1467), it is difficult to see how the Court can now hold the entire process constitutionally defective under the Eighth Amendment. For all of these reasons I find little merit in the various discrimination arguments, at least in the several lights in which they have been cast in these cases.
446
Although not presented by any of the petitioners today, a different argument, premised on the Equal Protection Clause, might well be made. If a Negro defendant, for instance, could demonstrate that members of his race were being singled out for more severe punishment than others charged with the same offense, a constitutional violation might be established. This was the contention made in Maxwell v. Bishop, 398 F.2d 138 (CA8 1968), vacated and remanded on other grounds 398 U.S. 262, 90 S.Ct. 1578, 26 L.Ed.2d 221 (1970), in which the Eighth Circuit was asked to issue a writ of habeas corpus setting aside a death sentence imposed on a Negro defendant convicted of rape. In that case substantial statistical evidence was introduced tending to show a pronounced disproportion in the number of Negroes receiving death sentences for rape in parts of Arkansas and elsewhere in the South. That evidence was not excluded but was found to be insufficient to show discrimination in sentencing in Maxwell's trial. Mr. Justice Blackmun, then sitting on the Court of Appeals for the Eighth Circuit, concluded:
447
'The petitioner's argument is an interesting one and we are not disposed to say that it could not have some validity and weight in certain situations. Like the trial court, however . . . we feel that the argument does not have validity and pertinent application to Maxwell's case.
448
'We are not yet ready to condemn 'We are nto yet ready to condemn and upset the result reached in every case of a Negro rape defendant in the State of Arkansas on the basis of broad theories of social and statistical injustice. . . .
449
'We do not say that there is no ground for suspicion that the death penalty for rape may have been discriminatorily applied over the decades in that large area of states whose statutes provide for it. There are recognizable indicators of this. But . . . improper state practice of the past does not automatically invalidate a procedure of the present. . . .' Id., at 146—148.
450
I agree that discriminatory application of the death penalty in the past, admittedly indefensible, is no justification for holding today that capital punishment is invalid in all cases in which sentences were handed out to members of the class discriminated against. But Maxwell does point the way to a means of raising the equal protection challenge that is more consonant with precedent and the Constitution's mandates than the several courses pursued by today's concurring opinions.
451
A final comment on the racial discrimination problem seems appropriate. The possibility of racial bias in the trial and sentencing process has diminished in recent years. The segregation of our society in decades past, which contributed substantially to the severity of punishment for interracial crimes, is now no longer prevalent in this country. Likewise, the day is past when juries do not represent the minority group elements of the community. The assurance of fair trials for all citizens is greater today than at any previous time in our history. Because standards of criminal justice have 'evolved' in a manner favorable to the accused, discriminatory imposition of capital punishment is far less likely today than in the past.
VI
452
Petitioner in Branch v. Texas, 404 U.S. 1036, 92 S.Ct. 717, 30 L.Ed.2d 727, and to a lesser extent the petitioners in the other cases before us today, urge that capital punishment is cruel and unusual because it no longer serves any rational legislative interests. Before turning to consider whether any of the traditional aims of punishment justify the death penalty, I should make clear the context in which I approach this aspect of the cases.
453
First, I find no support—in the language of the Constitution, in its history, or in the cases arising under it—for the view that this Court may invalidate a category of penalties because we deem less severe penalties adequate to serve the ends of penology. While the cases affirm our authority to prohibit punishments that are cruelly inhumane (e.g., Wilkerson v. Utah, 99 U.S., at 135 136, 25 L.Ed. 345; In re Kemmler, 136 U.S., at 447, 10 S.Ct., at 933, 34 L.Ed. 519), and punishments that are cruelly excessive in that they are disproportionate to particular crimes (see Part VII, infra), the precedents of this Court afford no basis for striking down a particular form of punishment because we may be persuaded that means less stringent would be equally efficacious.
454
Secondly, if we were free to question the justifications for the use of capital punishment, a heavy burden would rest on those who attack the legislatures' judgments to prove the lack of rational justifications. This Court has long held that legislative decisions in this area, which lie within the special competency of that branch, are entitled to a presumption of validity. See, e.g., Trop v. Dulles, 356 U.S., at 103, 78 S.Ct., at 599; Louisiana ex rel. Francis v. Resweber, 329 U.S., at 470, 67 S.Ct., at 379 (Frankfurter, J., concurring); Weems v. United States, 217 U.S., at 378—379, 30 S.Ct., at 553—554; In re Kemmler, 136 U.S., at 449, 10 S.Ct., at 934.
455
I come now to consider, subject to the reservations above expressed, the two justifications most often cited for the retention of capital punishment. The concept of retribution—though popular for centuries—is now criticized as unworthy of a civilized people. Yet this Court has acknowledged the existence of a retributive element in criminal sanctions and has never heretofore found it impermissible. In Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949), Mr. Justice Black stated that,
456
'Retribution is no longer the dominant objective of the criminal law. Reformation and rehabilitation of offenders have become important goals of criminal jurisprudence.' Id., at 248, 69 S.Ct., at 1084.
457
It is clear, however, that the Court did not reject retribution altogether. The record in that case indicated that one of the reasons why the trial judge imposed the death penalty was his sense of revulsion at the 'shocking details of the crime.' Id., at 244, 69 S.Ct., at 1081. Although his motivation was clearly retributive, the Court upheld the trial judge's sentence.42 Similarly, Mr. Justice Marshall noted in his plurality opinion in Powell v. Texas, 392 U.S. 514, 530, 88 S.Ct. 2145, 2153, 20 L.Ed.2d 1254 (1968), that this Court 'has never held that anything in the Constitution requires that penal sanctions be designed solely to achieve therapeutic or rehabilitative effects.'43
458
While retribution alone may seem an unworthy justification in a moral sense, its utility in a system of criminal justice requiring public support has long been recognized. Lord Justice Denning, now Master of the Rolls of the Court of Appeal in England, testified on this subject before the British Royal Commission on Capital Punishment:
459
'Many are inclined to test the efficacy of punishment solely by its value as a deterrent: but this is too narrow a view. Punishment is the way in which society expresses its denunciation of wrong doing; and, in order to maintain respect for law, it is essential that the punishment inflicted for grave crimes should adequately reflect the revulsion felt by the great majority of citizens for them. It is a mistake to consider the objects of punishment as being deterrent or reformative or preventive and nothing else. If this were so, we should not send to prison a man who was guilty of motor manslaughter, but only disqualify him from driving; but would public opinion be content with this? The truth is that some crimes are so outrageous that society insists on adequate punishment, because the wrong-doer deserves it, irrespective of whether it is a deterrent or not.'44
460
The view expressed by Lord Denning was cited approvingly in the Royal Commission's Report, recognizing 'a strong and widespread demand for retribution.'45 Mr. Justice STEWART makes much the same point in his opinion today when he concludes that expression of man's retributive instincts in the sentencing process 'serves an important purpose in promoting the stability of a society governed by law.' Ante, at 308. The view, moreover, is not without respectable support in the jurisprudential literature in this country,46 despite a substantial body of opinion to the contrary.47 And it is conceded on all sides that, not infrequently, cases arise that are so shocking or offensive that the public demands the ultimate penalty for the transgressor.
461
Deterrence is a more appealing justification, although opinions again differ widely. Indeed, the deterrence issue lies at the heart of much of the debate between the abolitionists and retentionists.48 Statistical studies based primarily on trends in States that have abolished the penalty, tend to support the view that the death penalty has not been proved to be a superior deterrent.49 Some dispute the validity of this conclusion,50 pointing out that the studies do not show that the death penalty has no deterrent effect on any categories of crimes. On the basis of available, I find myself in agreement available, I find myself in a agreement with the conclusions drawn by the Royal Commission following its exhaustive study of this issue:
462
'The general conclusion which we reach, after careful review of all the evidence we have been able to obtain as to the deterrent effect of capital punishment, may be stated as follows. Prima facie the penalty of death is likely to have a stronger effect as a deterrent to normal human beings than any other form of punishment, and there is some evidence (though no convincing statistical evidence) that this is in fact so. But this effect does not operate universally or uniformly, not operate universally or uniformly, and there are many offenders on whom it is limited and may often be negligible. It is accordingly important to view this question in a just perspective and not base a penal policy in relation to murder on exaggerated estimates of the uniquely deterrent force of the death penalty.'51
463
Only recently this Court was called on to consider the deterrence argument in relation to punishment by fines for public drunkenness. Powell v. Texas, 392 U.S. 514, 88 S.Ct. 2145, 20 L.Ed.2d 1254 (1968). The Court was unwilling to strike down the Texas statute on grounds that it lacked a rational foundation. What Mr. Justice Marshall said there would seem to have equal applicability in this case:
464
'The long-standing and still raging debate over the validity of the deterrence justification for penal sanctions has not reached any sufficiently clear conclusions to permit it to be said that such sanctions are ineffective in any particular context or for any particular group of people who are able to appreciate the consequences of their acts. . . .' Id., at 531, 88 S.Ct., at 2153.
465
As I noted at the outset of this section, legislative judgments as to the efficacy of particular punishments are presumptively rational and may not be struck down under the Eighth Amendment because this Court may think that some alternative sanction would be more appropriate. Even if such judgments were within the judicial prerogative, petitioners have failed to show that there exist no justifications for the legislative enactments challenged in these cases.52 While the evidence and arguments advanced by petitioners might have proved profoundly persuasive if addressed to a legislative body, they do not approach the showing traditionally required before a court declares that the legislature has acted irrationally.
VII
466
In two of the cases before us today juries imposed sentences of death after convictions for rape.53 In these cases we are urged to hold that even if capital punishment is permissible for some crimes, it is a cruel and unusual punishment for this crime. Petitioners in these cases rely on the Court's opinions holding that the Eighth Amendment, in addition to prohibiting punishments deemed barbarous and inhumane, also condemns punishments that are greatly disproportionate to the crime charged. This reading of the Amendment was first expressed by Mr. Justice Field in his dissenting opinion in O'Neil v. Vermont, 144 U.S. 323, 337, 12 S.Ct. 693, 698, 36 L.Ed. 450 (1892), a case in which a defendant charged with a large number of violations of Vermont's liquor laws received a fine in excess of $6,6000, or a 54-year jail sentence if the fine was not paid. The majority refused to consider the question on the ground that the Eighth Amendment did not apply to the States. The dissent, after carefully examining the history of that Amendment and the Fourteenth, concluded that its prohibition was binding on Vermont and that it was directed against 'all punishments which by their excessive length or severity are greatly disproportionate to the offences charged.' Id., at 339 340, 12 S.Ct., at 699.54
467
The Court, in Weems v. United States, 217 U.S. 349, 30 S.Ct. 544, 54 L.Ed. 793 (1910), adopted Mr. Justice Field's view. The defendant, in Weems, charged with falsifying Government documents, had been sentenced to serve 15 years in cadena temporal, a punishment which included carrying chains at the wrists and ankles and the perpetual loss of the right to vote and hold office. Finding the sentence grossly excessive in length and condition of imprisonment, the Court struck it down. This notion of disproportionality—that particular sentences may be cruelly excessive for particular crimes—has been cited with approval in more recent decisions of this Court. See Robinson v. California, 370 U.S., at 667, 82 S.Ct., at 1420; Trop v. Dulles, 356 U.S., at 100, 78 S.Ct., at 597; see also Howard v. Fleming, 191 U.S. 126, 135—136, 24 S.Ct. 49, 50, 48 L.Ed. 121 (1903).
468
These cases, while providing a rationale for gauging the constitutionality of capital sentences imposed for rape, also indicate the existence of necessary limitations on the judicial function. The use of limiting terms in the various expressions of this test found in the opinions—grossly excessive, greatly disproportionate—emphasizes that the Court's power to strike down punishments as excessive must be exercised with the greatest circumspection. As I have noted earlier, nothing in the history of the Cruel and Unusual Punishments Clause indicates that it may properly be utilized by the judiciary to strike down punishments—authorized by legislatures and imposed by juries—in any but the extraordinary case. This Court is not empowered to sit as a court of sentencing review, implementing the personal views of its members on the proper role of penology. To do so is to usurp a function committed to the Legislative Branch and beyond the power and competency of this Court.
469
Operating within these narrow limits, I find it quite impossible to declare the death sentence grossly excessive for all rapes. Rape is widely recognized as among the most serious of violent crimes, as witnessed by the very fact that it is punishable by death in 16 States and by life imprisonment in most other States.55 The several reasons why rape stands so high on the list of serious crimes are well known: It is widely viewed as the most atrocious of intrusions upon the privacy and dignity of the victim; never is the crime committed accidentally; rarely can it be said to be unpremeditated; often the victim suffers serious physical injury; the psychological impact can often be as great as the physical consequences; in a real sense, the threat of both types of injury is always present.56 For these reasons, and for the reasons arguing against abolition of the death penalty altogether, the excessiveness rationale provides no basis for rejection of the penalty for rape in all cases.
470
The argument that the death penalty for rape lacks rational justification because less severe punishments might be viewed as accomplishing the proper goals of penology is as inapposite here as it was in considering per se abolition. See Part VI supra. The state of knowledge with respect to the deterrent value of the sentence for this crime is inconclusive.57 Moreover, what has been said about the concept of retribution applies with equal force where the crime is rape. There are many cases in which the sordid, heinous nature of a particular crime, demeaning, humiliating, and often physically or psychologically traumatic, will call for public condemnation. In a period in our country's history when the frequency of this crime is increasing alarmingly,58 it is indeed a grave event for the Court to take from the States whatever deterrent and retributive weight the death penalty retains.
471
Other less sweeping applications of the disproportionality concept have been suggested. Recently the Fourth Circuit struck down a death sentence in Ralph v. Warden, 438 F.2d 786 (1970), holding that the death penalty was an appropriate punishment for rape only where life is 'endangered.' Chief Judge Haynsworth, who joined in the panel's opinion, wrote separately in denying the State of Maryland's petition for rehearing in order to make clear the basis for his joinder. He stated that, for him, the appropriate test was not whether life was endangered, but whether the victim in fact suffered 'grievous physical or psychological harm.' Id., at 794. See Rudolph v. Alabama, 375 U.S. 889, 84 S.Ct. 155, 11 L.Ed.2d 119 (1963) (dissent from the denial of certiorari).
472
It seems to me that both of these tests depart from established principles and also raise serious practical problems. How are those cases in which the victim's life is endangered to be distinguished from those in which no danger is found? The threat of serious injury is implicit in the definition of rape; the victim is either forced into submission by physical violence or by the threat of violence. Certainly that test would provide little comfort for either of the rape defendants in the cases presently before us. Both criminal acts were accomplished only after a violent struggle. Petitioner Jackson held a scissors blade against his victim's neck. Petitioner Branch had less difficulty subduing his 65-year-old victim. Both assailants threatened to kill their victims. See Mr. Justice DOUGLAS' opinion, ante, at 252—253. The alternate test, limiting the penalty to cases in which the victim suffers physical or emotional harm, might present even greater problems of application. While most physical effects may be seen and objectively measured, the emotional impact may be impossible to gauge at any particular point in time. The extent and duration of psychological trauma may not be known or ascertainable prior to the date of trial.
473
While I reject each of these attempts to establish specific categories of cases in which the death penalty may be deemed excessive, I view them as groping toward what is for me the appropriate application of the Eighth Amendment. While in my view the disproportionality test may not be used either to strike down the death penalty for rape altogether or to install the Court as a tribunal for sentencing review, that test may find its application in the peculiar circumstances of specific cases. Its utilization should be limited to the rare case in which the death penalty is rendered for a crime technically falling within the legislatively defined class but factually falling outside the likely legislative intent in creating the category. Specific rape cases (and specific homicides as well) can be imagined in which the conduct of the accused would render the ultimate penalty a grossly excessive punishment. Although this case-by-case approach may seem painfully slow and inadequate to those who wish the Court to assume an activist legislative role in reforming criminal punishments, it is the approach dictated both by our prior opinions and by a due recognition of the limitations of judicial power. This approach, rather than the majority's more pervasive and less refined judgment, marks for me the appropriate course under the Eighth Amendment.
VIII
474
I now return to the overriding question in these cases: whether this Court, acting in conformity with the Constitution, can justify its judgment to abolish capital punishment as heretofore known in this country. It is important to keep in focus the enormity of the step undertaken by the Court today. Not only does it invalidate hundreds of state and federal laws, it deprives those jurisdictions of the power to legislate with respect to capital punishment in the future, except in a manner consistent with the cloudily outlined views of those Justices who do not purport to undertake total abolition. Nothing short of an amendment to the United States Constitution can reverse the Court's judgments. Meanwhile, all flexibility is foreclosed. The normal democratic process, as well as the opportunities for the several States to respond to the will of their people expressed through ballot referenda (as in Massachusetts, Illinois, and Colorado),59 is now shut off.
475
The sobering disadvantage of constitutional adjudication of this magnitude is the universality and permanence of the judgment. The enduring merit of legislative action is its responsiveness to the democratic process, and to revision and change: mistaken judgments may be corrected and refinements perfected. In England60 and Canada61 critical choices were made after studies canvassing all competing views, and in those countries revisions may be made in light of experience.62
476
As recently as 1967 a presidential commission did consider, as part of an overall study of crime in this country, whether the death penalty should be abolished. The commission's unanimous recommendation was as follows:
477
'The question whether capital punishment is an appropriate sanction is a policy decision to be made by each State. Where it is retained, the types of offenses for which it is available should be strictly limited, and the law should be enforced in an even-handed and nondiscriminatory manner, with procedures for review of death sentences that are fair and expeditious. When a State finds that it cannot administer the penalty in such a manner, or that the death penalty is being imposed but not carried into effect, the penalty should be abandoned.'63
478
The thrust of the Commission's recommendation, as presently relevant, is that this question 'is a policy decision to be made by each State.' There is no hint that this decision could or should be made by the judicial branch.
479
The National Commission on Reform of Federal Criminal Laws also considered the capital punishment issue. The introductory commentary of its final report states that 'a sharp division (existed) within the Commission on the subject of capital punishment,' although a majority favored its abolition.64 Again, consideration of the question was directed to the propriety of retention or abolition as a legislative matter. There was no suggestion that the difference of opinion existing among commission members, and generally across the country, could or should be resolved in one stroke by a decision of this Court.65 Similar activity was, before today, evident at the state level with re-evaluation having been undertaken by special legislative committees in some States and by public ballot in others.66
480
With deference and respect for the views of the Justices who differ, it seems to me that all these studies—both in this country and elsewhere—suggest that, as a matter of policy and precedent, this is a classic case for the exercise of our oft-announced allegiance to judicial restraint. I know of no case in which greater gravity and delicacy have attached to the duty that this Court is called on to perform whenever legislation—state or federal—is challenged on constitutional grounds.67 It seems to me that the sweeping judicial action undertaken today reflects a basic lack of faith and confidence in the democratic process. Many may regret, as I do, the failure of some legislative bodies to address the capital punishment issue with greater frankness or effectiveness. Many might decry their failure either to abolish the penalty entirely or selectively, or to establish standards for its enforcement. But impatience with the slowness, and even the unresponsiveness, of legislatures is no justification for judicial intrusion upon their historic powers. Rarely has there been a more appropriate opportunity for this Court to heed the philosophy of Mr. Justice Oliver Wendell Holmes. As Mr. Justice Frankfurter reminded the Court in Trop:
481
'(T)he whole of (Mr. Justice Holmes') work during his thirty years of service on this Court should be a constant reminder that the power to invalidate legislation must not be exercised as if either in constitutional theory or in the art of government, it stood as the sole bulwark against unwisdom or excesses of the moment.' 356 U.S., at 128, 78 S.Ct., at 612.
482
Mr. Justice REHNQUIST, with whom THE CHIEF JUSTICE, Mr. Justice BLACKMUN, and Mr. Justice POWELL join, dissenting.
483
The Court's judgments today strike down a penalty that our Nation's legislators have thought necessary since our country was founded. My Brothers DOUGLAS, BRENNAN, and MARSHALL would at one fell swoop invalidate laws enacted by Congress and 40 of the 50 state legislatures, and would consign to the limbo of unconstitutionality under a single rubric penalties for offenses as varied and unique as murder, piracy, mutiny, highjacking, and desertion in the face of the enemy. By Brothers STEWART and WHITE, asserting reliance on a more limited rationale—the reluctance of judges and juries actually to impose the death penalty in the majority of capital cases—join in the judgments in these cases. Whatever its precise rationale, today's holding necessarily brings into sharp relief the fundamental question of the role of judicial review in a democratic society. How can government by the elected representatives of the people co-exist with the power of the federal judiciary, whose members are constitutionally insulated from responsiveness to the popular will, to declare invalid laws duly enacted by the popular branches of government?
484
The answer, of course, is found in Hamilton's Federalist Paper No. 78 and in Chief Justice Marshall's classic opinion in Marbury v. Madison, 1 Cranch 137, 2 L.Ed. 60 (1803). An oft-told story since then, it bears summarization once more. Sovereignty resides ultimately in the people as a whole and, by adopting through their States a written Constitution for the Nation and subsequently adding amendments to that instrument, they have both granted certain powers to the National Government, and denied other powers to the National and the State Governments. Courts are exercising no more than the judicial function conferred upon them by Art. III of the Constitution when they assess, in a case before them, whether or not a particular legislative enactment is within the authority granted by the Constitution to the enacting body, and whether it runs afoul of some limitation placed by the Constitution on the authority of that body. For the theory is that the people themselves have spoken in the Constitution, and therefore its commands are superior to the commands of the legislature, which is merely an agent of the people.
485
The Founding Fathers thus wisely sought to have the best of both worlds, the undeniable benefits of both democratic self-government and individual rights protected against possible excesses of that form of government.
486
The courts in cases properly before them have been entrusted under the Constitution with the last word, short of constitutional amendment, as to whether a law passed by the legislature conforms to the Constitution. But just because courts in general, and this Court in particular, do have the last word, the admonition of Mr. Justice Stone dissenting in United States v. Butler must be constantly borne in mind:
487
'(W)hile unconstitutional exercise of power by the executive and legislative branches of the government is subject to judicial restraint, the only check upon our own exercise of power is our own sense of self-restraint.' 297 U.S. 1, 78—79, 56 S.Ct. 312, 325, 80 L.Ed. 477 (1936).
488
Rigorous attention to the limits of this Court's authority is likewise enjoined because of the natural desire that beguiles judges along with other human beings into imposing their own views of goodness, truth, and justice upon others. Judges differ only in that they have the power, if not the authority, to enforce their desires. This is doubtless why nearly two centuries of judicial precedent from this Court counsel the sparing use of that power. The most expansive reading of the leading constitutional cases does not remotely suggest that this Court has been granted a roving commission, either by the Founding Fathers or by the framers of the Fourteenth Amendment, to strike down laws that are based upon notions of policy or morality suddenly found unacceptable by a majority of this Court. The Framers of the Constitution would doubtless have agreed with the great English political philosopher John Stuart Mill when he observed:
489
'The disposition of mankind, whether as rulers or as fellow-citizens, to impose their own opinions and inclinations as a rule of conduct on others, is so energetically supported by some of the best and by some of the worst feelings incident to human nature, that it is hardly ever kept under restraint by anything but want of power.' On Liberty 28 (1885).
490
A separate reason for deference to the legislative judgment is the consequence of human error on the part of the judiciary with respect to the constitutional issue before it. Human error there is bound to be, judges being men and women, and men and women being what they are. But an error in mistakenly sustaining the constitutionality of a particular enactment, while wrongfully depriving the individual of a right secured to him by the Constitution, nonetheless does so by simply letting stand a duly enacted law of a democratically chosen legislative body. The error resulting from a mistaken upholding of an individual's constitutional claim against the validity of a legislative enactment is a good deal more serious. For the result in such a case is not to leave standing a law duly enacted by a representative assembly, but to impose upon the Nation the judicial fiat of a majority of a court of judges whose connection with the popular will is remote at best.
491
The task of judging constitutional cases imposed by Art. III cannot for this reason be avoided, but it must surely be approached with the deepest humility and genuine deference to legislative judgment. Today's decision to invalidate capital punishment is, I respectfully submit, significantly lacking in those attributes. For the reasons well stated in the opinions of THE CHIEF JUSTICE, Mr. Justice BLACKMUN, and Mr. Justice POWELL, I conclude that this decision holding unconstitutional capital punishment is not an act of judgment, but rather an act of will. It completely ignores the strictures of Mr. Justice Holmes, writing more than 40 years ago in Baldwin v. Missouri:
492
'I have not yet adequately expressed the more than anxiety that I feel at the ever increasing scope given to the Fourteenth Amendment in cutting down what I believe 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 happen 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 reason 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 literal meaning have no application to this case; and while it is too late to deny that they have been given a much more extended and artificial signification, still we ought to remember the great caution shown by the Constitution in limiting the power of the States, and should be slow to construe the clause in the Fourteenth Amendment as committing to the Court, with no guide but the Court's own discretion, the validity of whatever laws the States may pass.' 281 U.S. 586, 595, 50 S.Ct. 436, 439, 74 L.Ed. 1056 (1930) (dissenting opinion).
493
More than 20 years ago, Justice Jackson made a similar observation with respect to this Court's restriction of the States in the enforcement of their own criminal laws:
494
'The use of the due process clause to disable the states in protection of society from crime is quite as dangerous and delicate a use of federal judicial power as to use it to disable them from social or economic experimentation.' Ashcraft v. Tennessee, 322 U.S. 143, 174, 64 S.Ct. 921, 935, 88 L.Ed. 1192 (1944) (dissenting opinion).
495
If there can be said to be one dominant theme in the Constitution, perhaps more fully articulated in the Federalist Papers than in the instrument itself, it is the notion of checks and balances. The Framers were well aware of the natural desire of office holders as well as others to seek to expand the scope and authority of their particular office at the expense of others. They sought to provide against success in such efforts by erecting adequate checks and balances in the form of grants of authority to each branch of the government in order to counteract and prevent usurpation on the part of the others.
496
This philosophy of the Framers is best described by one of the ablest and greatest of their number, James Madison, in Federalist No. 51:
497
'In framing a government which is to be administered by men over men, the great difficulty lies in this: You must first enable the government to controul the governed; and in the next place, oblige it to controul itself.'
498
Madison's observation applies to the Judicial Branch with at least as much force as to the Legislative and Executive Branches. While overreaching by the Legislative and Executive Branches may result in the sacrifice of individual protections that the Constiution was designed to secure against action of the State, judicial overreaching may result in sacrifice of the equally important right of the people to govern themselves. The Due Process and Equal Protection Clauses of the Fourteenth Amendment were 'never intended to destroy the States' power to govern themselves.' Black, J., in Oregon v. Mitchell, 400 U.S. 112, 126, 91 S.Ct. 260, 265, 27 L.Ed.2d 272 (1970).
499
The very nature of judicial review, as pointed out by Justice Stone in his dissent in the Butler case, makes the courts the least subject to Madisonian check in the event that they shall, for the best of motives, expand judicial authority beyond the limits contemplated by the Framers. It is for this reason that judicial self-restraint is surely an implied, if not an expressed, condition of the grant of authority of judicial review. The Court's holding in these cases has been reached, I believe, in complete disregard of that implied condition.
1
The opinion of the Supreme Court of Georgia affirming Furman's conviction of murder and sentence of death is reported in 225 Ga. 253, 167 S.E.2d 628, and its opinion affirming Jackson's conviction of rape and sentence of death is reported in 225 Ga. 790, 171 S.E.2d 501. The conviction of Branch of rape and the sentence of death were affirmed by the Court of Criminal Appeals of Texas and reported in 447 S.W.2d 932.
2
Granucci, 'Nor Cruel and Unusual Punishments Inflicted:' The Original Meaning, 57 Calif.L.Rev. 839, 845—846 (1969).
3
1 W. & M., Sess. 2, c. 2; 8 English Historical Documents, 1660—1714, p. 122 (A. Browning ed. 1953).
4
7 F. Thorpe, Federal & State Constitutions 3813 (1909).
5
Delaware, Maryland, New Hampshire, North Carolina, Massachusetts, Pennsylvania, and South Carolina. 1 Thorpe, supra, n. 4, at 569; 3 id., at 1688, 1892; 4 id., at 2457; 5 id., at 2788, 3101; 6 id., at 3264.
6
Set out in 1 U.S.C. XXXIX—XLI.
7
1 Annals of Cong. 754 (1789).
8
'When in respect of any class of offenses the difficulty of obtaining convictions is at all general in England, we may hold it as an axiom, that the law requires amendment. Such conduct in juries is the silent protest of the people against its undue severity. This was strongly exemplified in the case of prosecutions for the forgery of bank-notes, when it was a capital felony. It was in vain that the charge was proved. Juries would not condemn men to the gallows for an offense of which the punishment was out of all proportion to the crime; and as they could not mitigate the sentence they brought in verdicts of Not Guilty. The consequence was, that the the law was changed; and when secondary punishments were substituted for the penalty of death, a forger had no better chance of an acquittal than any other criminal. Thus it is that the power which juries possess of refusing to put the law in force has, in the words of Lord John Russell, 'been the cause of amending many bad laws which the judges would have administered with professional bigotry, and above all, it has this important and useful consequence, that laws totally repugnant to the feelings of the community for which they are made, can not long prevail in England." W. Forsyth, History of Trial by Jury 367—368 (2d ed. 1971).
9
This trend was not universally applauded. In the early 1800's, England had a law that made it possible to impose the death sentence for stealing five shillings or more. 3 W. & M., c. 9, § 1. When a bill for abolishing that penalty (finally enacted in 1827, 7 & 8 Geo. 4, c. 27) was before the House of Lords in 1813, Lord Ellenborough said:
'If your Lordships look to the particular measure now under consideration, can it, I ask, be seriously maintained, that the most exemplary punishment, and the best suited to prevent the commission of this crime, ought not to be a punishment which might in some cases be inflicted? How, but by the enactments of the law now sought to be repealed, are the cottages of industrious poverty protected? What other security has a poor peasant, when he and his wife leave their home for their daily labours, that on their return their few articles of furniture or of clothes which they possess besides those which they carry on their backs, will be safe? . . . (B)y the enacting of the punishment of death, and leaving it to the discretion of the Crown to inflict that punishment or not, as the circumstances of the case may require, I am satisfied, and I am much mistaken if your Lordships are not satisfied, that this object is attained with the least possible expenditure. That the law is, as it has been termed, a bloody law, I can by no means admit. Can there be a better test than by a consideration of the number of persons who have been executed for offences of the description contained in the present Bill? Your Lordships are told, what is extremely true, that this number is very small; and this very circumstance is urged as a reason for a repeal of the law; but, before your Lordships are induced to consent to such repeal, I beg to call to your consideration the number of innocent persons who might have been plundered of their property or destroyed by midnight murderers, if the law now sought to be repealed had not been in existence:—a law upon which all the retail trade of this commercial country depends; and which I for one will not consent to be put in jeopardy.' Debate in House of Lords, Apr. 2, 1813, pp. 23—24 (Longman, Hurst, Rees, Orme, & Brown, Paternoster-Row, London 1816).
10
H.R. 3243, 92d Cong., 1st Sess., introduced by Cong.Celler, would abolish all executions by the United States or by any State.
H.R. 8414, 92d Cong., 1st Sess., introduced by Cong.Celler, would provide an interim stay of all executions by the United States or by any State and contains the following proposed finding:
'Congress hereby finds that there exists serious question—
'(a) whether the infliction of the death penalty amounts to cruel and unusual punishment in violation of the eighth and fourteenth amendments to the Constitution; and
'(b) whether the death penalty is inflicted discriminatorily upon members of racial minorities, in violation of the fourteenth amendment to the Constitution,
'and, in either case, whether Congress should exercise its authority under section 5 of the fourteenth amendment to prohibit the use of the death penalty.'
There is the naive view that capital punishment as 'meted out in our courts, is the antithesis of barbarism.' See Henry Paolucci, New York Times, May 27, 1972, p. 29, col. 1. But the Leopolds and Loebs, the Harry Thaws, the Dr. Sheppards and the Dr. Finchs of our society are never executed, only those in the lower strata, only those who are members of an unpopular minority or the poor and despised.
11
The tension between our decision today and McGautha highlights, in my view, the correctness of Mr. Justice Brennan's dissent in that case, which I joined. 402 U.S., at 248, 91 S.Ct., at 1487. I should think that if the Eighth and Fourteenth Amendments prohibit the imposition of the death penalty on petitioners because they are 'among a capriciously selected random handful upon whom the sentence of death has in fact been imposed,' opinion of Mr. Justice Stewart, post, at 309—310, or because 'there is no meaningful basis for distinguishing the few cases in which (the death penalty) is imposed from the many cases in which it is not,' opinion of Mr. Justice White, post, at 313, statements with which I am in complete agreement—then the Due Process Clause of the Fourteenth Amendment would render unconstitutional 'capital sentencing procedures that are purposely constructed to allow the maximum possible variation from one case to the next, and (that) provide no mechanism to prevent that consciously maximized variation from reflecting merely random or arbitrary choice.' McGautha v. California, 402 U.S. 183, 248, 91 S.Ct. 1454, 1488, 28 L.Ed.2d 711 (Brennan, J., dissenting).
12
Goldberg & Dershowitz, Declaring the Death Penalty Unconstitutional, 83 Harv.L.Rev. 1773, 1790.
13
Id., at 1792.
14
The Challenge of Crime in a Free Society 143 (1967).
15
Koeninger, Capital Punishment in Texas, 1924—1968, 15 Crime & Delin. 132, 141 (1969).
In H. Bedau, The Death Penalty in America 474 (1967 rev. ed.), it is stated:
RACE OF THE OFFENDER BY FINAL DISPOSITION
Final Negro White Total
Disposition N % N % N %
Executed 130 88.4 210 79.8 340 82.9
Commuted 17 11.6 53 20.2 70 17.1
Total 147 100.0 263 100.0 410 100.0
X2 = 4.33; P less than'.05. (For discussion of
statistical symbols, see Bedau, supra, at
469).
'Although there may be a host of factors other than race involved in this frequency distribution, something more than chance has operated over the years to produce this racial difference. On the basis of this study it is not possible to indict the judicial and other public processes prior to the death row as responsible for the association between Negroes and higher frequency of executions; nor is it entirely correct to assume that from the time of their appearance on death row Negroes are discriminated against by the Pardon Board. Too many unknown or presently immeasurable factors prevent our making definitive statements about the relationship. Nevertheless, because the Negro/high-execution association is statistically present, some suspicion of racial discrimination can hardly be avoided. If such a relationship had not appeared, this kind of suspicion could have been allayed; the existence of the relationship, although not 'proving' differential bias by the Pardon Boards over the years since 1914, strongly suggests that such bias has existed.'
The latter was a study in Pennsylvania of people on death row between 1914 & 1958, made by Wolfgang, Kelly, and Nolde and printed in 53 J.Crim.L.C. & P.S. 301 (1962). And see Hartung, Trends in the Use of Capital Punishment, 284 Annals 8, 14—17 (1952).
16
Life and Death in Sing Sing 155—160 (1928).
17
Crime in America 335 (1970).
18
See Johnson, The Negro and Crime, 217 Annals 93 (1941).
19
See J. Spellman, Political Theory of Ancient India 112 (1964).
20
C. Drekmeirer, Kingship and Community in early India 233 (1962).
21
Cf. B. Prettyman, Jr., Death and The Supreme Court 296 297 (1961).
'The disparity of representation in capital cases raises doubts about capital punishment itself, which has been abolished in only nine states. If a James Avery (345 U.S. 559, 73 S.Ct. 891, 97 L.Ed. 1244) can be saved from electrocution because his attorney made timely objection to the selection of a jury by the use of yellow and white tickets, while an Aubry Williams (349 U.S. 375, 75 S.Ct. 814, 99 L.Ed. 1161) can be sent to his death by a jury selected in precisely the same manner, we are imposing our most extreme penalty in an uneven fashion.
'The problem of proper representation is not a problem of money, as some have claimed, but of a lawyer's ability, and it is not true that only the rich have able lawyers. Both the rich and the poor usually are well represented—the poor because more often than not the best attorneys are appointed to defend them. It is the middle class defendant, who can afford to hire an attorney but not a very good one, who is at a disadvantage. Certainly William Fikes (352 U.S. 191, 77 S.Ct. 281, 1 L.Ed.2d 246), despite the anomalous position in which he finds himself today, received as effective and intelligent a defense from his court-appointed attorneys as he would have received from an attorney his family had scraped together enough money to hire.
'And it is not only a matter of ability. An attorney must be found who is prepared to spend precious hours—the basic commodity he has to sell—on a case that seldom fully compensates him and often brings him no fee at all. The public has no conception of the time and effort devoted by attorneys to indigent cases. And in a first-degree case, the added responsibility of having a man's life depend upon the outcome exacts a heavy toll.'
1
The Eighth Amendment provides: 'Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.' (Emphasis added.) The Cruel and Unusual Punishments Clause is fully applicable to the States through the Due Process Clause of the Fourteenth Amendment. Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962); Gideon v. Wainwright, 372 U.S. 335, 342, 83 S.Ct. 792, 795, 9 L.Ed.2d 799 (1963); Malloy v. Hogan, 378 U.S. 1, 6 n. 6, 84 S.Ct. 1489, 1492, 12 L.Ed.2d 653 (1964); Powell v. Texas, 392 U.S. 514, 88 S.Ct. 2145, 20 L.Ed.2d 1254 (1968).
2
Henry continued:
'But Congress may introduce the practice of the civil law, in preference to that of the common law. They may introduce the practice of France, Spain, and Germany—of torturing, to extort a confession of the crime. They will say that they might as well draw examples from those countries as from Great Britain, and they will tell you that there is such a necessity of strengthening the arm of government, that they must have a criminal equity, and extort confession by torture, in order to punish with still more relentless severity. We are then lost and undone.' 3 J. Elliot's Debates 447—448 (2d ed. 1876).
Although these remarks have been cited as evidence that the Framers considered only torturous punishments to be 'cruel and unusual,' it is obvious that Henry was referring to the use of torture for the purpose of eliciting confessions from suspected criminals. Indeed, in the ensuing colloquy, see n. 3, infra, George Mason responded that the use of torture was prohibited by the right against self-incrimination contained in the Virginia Bill of Rights.
3
It is significant that the response to Henry's plea, by George Nicholas, was simply that a Bill of Rights would be ineffective as a means of restraining the legislative power to prescribe punishments:
'But the gentleman says that, by this Constitution, they have power to make laws to define crimes and prescribe punishments; and that, consequently, we are not free from torture. . . . If we had no security against torture but our (Virginia) declaration of rights, we might be tortured to-morrow; for it has been repeatedly infringed and disregarded.' 3 J. Elliot's Debates, supra, at 451.
George Mason misinterpreted Nicholas' response to Henry:
'Mr. GEORGE MASON replied that the worthy gentleman was mistaken in his assertion that the (Virginia) bill of rights did not prohibit torture; for that one clause expressly provided that no man can give evidence against himself; and that the worthy gentleman must know that, in those countries where torture is used, evidence was extorted from the criminal himself. Another clause of the bill of rights provided that no cruel and unusual punishments shall be inflicted; therefore, torture was included in the prohibition.' Id., at 452.
Nicholas concluded the colloquy by making his point again:
'Mr. NICHOLAS acknowledged the (Virginia) bill of rights to contain that prohibition, and that the gentleman was right with respect to the practice of extorting confession from the criminal in those countries where torture is used; but still he saw no security arising from the bill of rights as separate from the Constitution, for that it had been frequently violated with impunity.' Ibid.
There was thus no denial that the legislative power should be restrained: the dispute was whether a Bill of Rights would provide a realistic restraint. The Framers, obviously, believed it would.
4
We have not been referred to any mention of the Cruel and Unusual Punishments Clause in the debates of the state legislatures on ratification of the Bill of Rights.
5
The elided portion of Livermore's remarks reads: 'What is meant by the term excessive bail? Who are to be the judges? What is understood by excessive fines? It lies with the court to determine.' Since Livermore did not ask similar rhetorical questions about the Cruel and Unusual Punishments Clause, it is unclear whether he included the Clause in his objection that the Eighth Amendment 'seems to have no meaning in it.'
6
Indeed, the first federal criminal statute, enacted by the First Congress, prescribed 39 lashes for larceny and for receiving stolen goods, and one hour in the pillory for perjury. Act of Apr. 30, 1790, §§ 16—18, 1 Stat. 116.
7
Many of the state courts, 'feeling constrained thereto by the incidences of history,' Weems v. United States, 217 U.S. 349, 376, 30 S.Ct. 544, 552, 54 L.Ed. 793 (1910), were apparently taking the same position. One court 'expressed the opinion that the provision did not apply to punishment by 'fine or imprisonment or both, but such as that inflicted at the whipping post, in the pillory, burning at the stake, breaking on the wheel' etc.' Ibid. Another court 'said that ordinarily the terms imply something inhuman and barbarous—torture and the like. . . . Other cases . . . selected certain tyrannical acts of the English monarchs as illustrating the meaning of the clause and the extent of its prohibition.' Id., at 368, 30 S.Ct., at 549.
8
The Court had earlier emphasized this point in In re Kemmler, 136 U.S. 436, 10 S.Ct., 930, 34 L.Ed. 519 (1890), even while stating the narrow, 'historical' interpretation of the Clause:
'This (English) declaration of rights had reference to the acts of the executive and judicial departments of the government of England; but the language in question, as used in the constitution of the state of New York, was intended particularly to operate upon the legislature of the state, to whose control the punishment of crime was almost wholly confided. So that, if the punishment prescribed for an offense against the laws of the state were manifestly cruel and unusual, . . . it would be the duty of the courts to adjudge such penalties to be within the constitutional prohibition. And we think this equally true of the (Clause), in its application to Congress.' Id., at 446—447, 10 S.Ct., at 933 (emphasis added).
9
Indeed, the Court in Weems refused even to comment upon some decisions from state courts because they were 'based upon sentences of courts, not upon the constitutional validity of laws.' 217 U.S., at 377, 30 S.Ct., at 553.
10
The Clause 'may be therefore progressive, and is not fastened to the obsolete, but may acquire meaning as public opinion becomes enlightened by a humane justice.' Weems v. United States, 217 U.S., at 378, 30 S.Ct., at 553.
11
'It may be that even the cruelty of pain is not omitted. He must bear a chain night and day. He is condemned to painful as well as hard labor. What painful labor may mean we have no exact measure. It must be something more than hard labor. It may be hard labor pressed to the point of pain.'
12
'His prison bars and chains are removed, it is true, after twelve years, but he goes from them to a perpetual limitation of his liberty. He is forever kept under the shadow of his crime, forever kept within voice and view of the criminal magistrate, not being able to change his domicil without giving notice to the 'authority immediately in charge of his surveillance,' and without permission in writing. He may not seek, even in other scenes and among other people, the retrieve his fall from rectitude. Even that hope is taken from him, and he is subject to tormenting regulations that, if not so tangible as iron bars and stone walls, oppress as much by their continuity, and deprive of essential liberty.'
13
'This punishment is offensive to cardinal principles for which the Constitution stands. It subjects the individual to a fate of ever-increasing fear and distress. He knows not what discriminations may be established against him, what proscriptions may be directed against him, and when and for what cause his existence in his native land may be terminated. He may be subject to banishment, a fate universally decried by civilized people. He is stateless, a condition deplored in the international community of democracies. It is no answer to suggest that all the disastrous consequences of this fate may not be brought to bear on a stateless person. The threat makes the punishment obnoxious.' Trop v. Dulles, 356 U.S. 86, 102, 78 S.Ct. 590, 598, 2 L.Ed.2d 630 (1958). Cf. id., at 110—111, 78 S.Ct., at 603 (Brennan, J., concurring):
'(I)t can be supposed that the consequences of greatest weight, in terms of ultimate impact on the petitioner, are unknown and unknowable. Indeed, in truth, he may live out his life with but minor inconvenience. . . . Nevertheless it cannot be denied that the impact of expatriation—especially where statelessness is the upshot—may be severe. Expatriation, in this respect, constitutes an especially demoralizing sanction. The uncertainty, and the consequent psychological hurt, which must accompany one who becomes an outcast in his own land must be reckoned a substantial factor in the ultimate judgment.'
14
'It is cruel in its excess of imprisonment and that which accompanies and follows imprisonment. It is unusual in its character. Its punishments come under the condemnation of the Bill of Rights, both on account of their degree and kind.' Weems v. United States, 217 U.S., at 377, 30 S.Ct., at 553.
15
'There may be involved no physical mistreatment, no primitive torture. There is instead the total destruction of the individual's status in organized society. It is a form of punishment more primitive than torture, for it destroys for the individual the political existence that was centuries in the development. The punishment strips the citizen of his status in the national and international political community. His very existence is at the sufferance of the country in which he happens to find himself. While any one country may accord him some rights, and presumably as long as he remained in this country he would enjoy the limited rights of an alien, no country need do so because he is stateless. Furthermore, his enjoyment of even the limited rights of an alien might be subject to termination at any time by reason of deportation. In short, the expatriate has lost the right to have rights.' Trop v. Dulles, 356 U.S., at 101—102, 78 S.Ct., at 598.
16
'The phrase in our Constitution was taken directly from the English Declaration of Rights of (1689) . . ..' Id., at 100, 78 S.Ct., at 597.
17
The specific incident giving rise to the provision was the perjury trial of Titus Oates in 1685. 'None of the punishments inflicted upon Oates amounted to torture. . . . In the context of the Oates' case, 'cruel and unusual' seems to have meant a severe punishment unauthorized by statute and not within the jurisdiction of the court to impose.' Granucci, 'Nor Cruel and Unusual Punishments Inflicted:' The Original Meaning, 57 Calif.L.Rev. 839, 859 (1969). Thus, '(t)he irregularity and anomaly of Oates' treatment was extreme.' Goldberg & Dershowitz, Declaring the Death Penalty Unconstitutional, 83 Harv.L.Rev. 1773, 1789 n. 74 (1970). Although the English provision was intended to restrain the judicial and executive power, see n. 8, supra, the principle is, of course, fully applicable under our Clause, which is primarily a restraint upon the legislative power.
18
In a case from the Philippine Territory, the Court struck down a punishment that 'ha(d) no fellow in American legislation.' Weems v. United States, 217 U.S., at 377, 30 S.Ct., at 553. After examining the punishments imposed, under both United States and Philippine law, for similar as well as more serious crimes, id., at 380—381, 30 S.Ct., at 554—555, the Court declared that the 'contrast' 'exhibit(ed) a difference between unrestrained power and that which is exercised under the spirit of constitutional limitations formed to establish justice,' id., at 381, 30 S.Ct., at 554. And in Trop v. Dulles, supra, in which a law of Congress punishing wartime desertion by expatriation was held unconstitutional, it was emphasized that '(t)he civilized nations of the world are in virtual unanimity that statelessness is not to be imposed as punishment for crime.' Id., at 102, 78 S.Ct., at 599. When a severe punishment is not inflicted elsewhere, or when more serious crimes are punished less severely, there is a strong inference that the State is exercising arbitrary, 'unrestrained power.'
19
In Weems v. United States, supra, 217 U.S., at 369—370, 30 S.Ct., at 550, the Court summarized the holding of Wilkerson v. Utah, 99 U.S. 130, 25 L.Ed. 345 (1879), as follows:
'The court pointed out that death was an usual punishment for murder, that it prevailed in the territory for many years, and was inflicted by shooting; also that that mode of execution was usual under military law. It was hence concluded that it was not forbidden by the Constitution of the United States as cruel or unusual.'
20
It was said in Trop v. Dulles, supra, 356 U.S., at 100 101, n. 32, 78 S.Ct., at 598, that '(o)n the few occasions this Court has had to consider the meaning of the (Clause), precise distinctions between cruelty and unusualness do not seem to have been drawn. . .. If the word 'unusual' is to have any meaning apart from the word 'cruel,' however, the meaning should be the ordinary one, signifying something different from that which is generally done.' There are other statements in prior cases indicating that the word 'unusual' has a distinct meaning:
'We preceive nothing . . . unusual in this (punishment).' Pervear v. Commonwealth, 5 Wall. 475, 480, 18 L.Ed. 608 (1867). '(T)he judgment of mankind would be that the punishment was not only an unusual, but a cruel, one . . ..' O'Neil v. Vermont, 144 U.S. 323, 340, 12 S.Ct. 693, 700, 36 L.Ed. 450 (1892) (Field, J., dissenting). 'It is unusual in its character.' Weems v. United States, supra, 217 U.S., at 377, 30 S.Ct., at 553. 'And the punishment inflicted . . . is certainly unusual.' United States ex rel. Milwaukee Social Democratic Pub. Co. v. Burleson, 255 U.S. 407, 430, 41 S.Ct. 352, 360, 65 L.Ed. 704 (1921) (Brandeis, J., dissenting). 'The punishment inflicted is not only unusual in character; it is, so far as known, unprecedented in American legal history.' Id., at 435, 41 S.Ct., at 362. 'There is no precedent for it. What then is it, if it be not cruel, unusual and unlawful?' Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 479, 67 S.Ct. 374, 384, 91 L.Ed. 422 (1947) (Burton, J., dissenting). 'To be sure, imprisonment for ninety days is not, in the abstract, a punishment which is either cruel or unusual.' Robinson v. California, 370 U.S., at 667, 82 S.Ct., at 1421.
It is fair to conclude from these statements that '(w)hether the word 'unusual' has any qualitative meaning different from 'cruel' is not clear.' Trop v. Dulles, supra, 356 U.S., at 100 n. 32, 78 S.Ct., at 598. The question, in any event, is of minor significance; this Court has never attempted to explicate the meaning of the Clause simply by parsing its words.
21
The danger of subjective judgment is acute if the question posed is whether a punishment 'shocks the most fundamental instincts of civilized man,' Louisiana ex rel. Francis v. Resweber, supra, 329 U.S. at 473, 67 S.Ct., at 381 (Burton, J., dissenting), or whether 'any man of right feeling and heart can refrain from shuddering,' O'Neil v. Vermont, supra, 144 U.S., at 340, 12 S.Ct., at 700 (Field, J., dissenting), or whether 'a cry of horror would rise from every civilized and Christian community of the country,' ibid. Mr. Justice Frankfurter's concurring opinion in Louisiana ex rel. Francis v. Resweber, supra, is instructive. He warned 'against finding in personal disapproval a reflection of more or less prevailing condemnation' and against 'enforcing . . . private view(s) rather than that consensus of society's opinion which, for purposes of due process, is the standard enjoined by the Constitution.' Id., at 471, 67 S.Ct., at 380. His conclusions were as follows: 'I cannot bring myself to believe that (the State's procedure) . . . offends a principle of justice 'Rooted in the traditions and conscience of our people." Id., at 470, 67 S.Ct., at 379 '. . . I cannot say that it would be 'repugnant to the conscience of mankind." Id., at 471, 67 S.Ct., at 380. Yet nowhere in the opinion is there any explanation of how he arrived at those conclusions.
22
Cf. Louisiana ex rel. Francis v. Resweber, supra, at 463, 67 S.Ct., at 376: 'The traditional humanity of modern Anglo-American law forbids the infliction of unnecessary pain in the execution of the death sentence.'
23
It may, in fact, have appeared earlier. In Pervear v. Commonwealth, 5 Wall., at 480, the Court stated:
'We perceive nothing excessive, or cruel, or unusual in this (punishment). The object of the law was to protect the community against the manifold evils of intemperance. The mode adopted, of prohibiting under penalties the sale and keeping for sale of intoxicating liquors, without license, is the usual mode adopted in many, perhaps, all of the States. It is wholly within the discretion of State legislatures.'
This discussion suggests that the Court viewed the punishment as reasonably related to the purposes for which it was inflicted.
24
Mr. Justice Field apparently based his conclusion upon an intuitive sense that the punishment was disproportionate to the criminal's moral guilt, although he also observed that 'the punishment was greatly beyond anything required by any humane law for the offenses,' O'Neil v. Vermont, 144 U.S., at 340, 12 S.Ct., at 700. Cf. Trop v. Dulles, 356 U.S., at 99, 78 S.Ct., at 597: 'Since wartime desertion is puishable by death, there can be no argument that the penalty of denationalization is excessive in relation to the gravity of the crime.'
25
'The state thereby suffers nothing and loses no power. The purpose of punishment is fulfilled, crime is repressed by penalties of just, not tormenting, severity, its repetition is prevented, and hope is given for the reformation of the criminal.' Weems v. United States, 217 U.S., at 381, 30 S.Ct., at 554.
26
The principle that a severe punishment must not be excessive does not, of course, mean that a severe punishment is constitutional merely because it is necessary. A State could not now, for example, inflict a punishment condemned by history, for any such punishment, no matter how necessary, would be intolerably offense to human dignity. The point is simply that the unnecessary infliction of suffering is also offensive to narcotics addiction). Each punishment,
27
The Fifth Amendment provides: 'No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury . . .; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; . . . nor be deprived of life, liberty, or property, without due process of law . . ..' (Emphasis added.)
28
No one, of course, now contends that the reference in the Fifth Amendment to 'jeopardy of . . . limb' provides perpetual constitutional sanction for such corporal punishments as branding and earcropping, which were common punishments when the Bill of Rights was adopted. But cf. n. 29, infra. As the California Supreme Court pointed out with respect to the California Constitution:
'The Constitution expressly proscribes cruel or unusual punishments. It would be mere speculation and conjecture to ascribe to the framers an intent to exempt capital punishment from the compass of that provision solely because at a time when the death penalty was commonly accepted they provided elsewhere in the Constitution for special safeguards in its application.' People v. Anderson, 6 Cal.3d 628, 639, 100 Cal.Rptr. 152, 159, 493 P.2d 880, 887 (1972).
29
Cf. McGautha v. California, 402 U.S. 183, 226, 91 S.Ct. 1454, 1477, 28 L.Ed.2d 711 (1971) (separate opinion of Black, J.):
'The (Clause) forbids 'cruel and unusual punishments.' In my view, these words cannot be read to outlaw capital punishment because that penalty was in common use and authorized by law here and in the countries from which our ancestors came at the time the (Clause) was adopted. It is inconceivable to me that the framers intended to end capital punishment by the (Clause).'
Under this view, of course, any punishment that was in common use in 1791 is forever exempt from the Clause.
30
The Court expressly noted that the constitutionality of the punishment itself was not challenged. Wilkerson v. Utah, 99 U.S., at 136—137. Indeed, it may be that the only contention made was that, in the absence of statutory sanction, the sentencing 'court possessed no authority to prescribe the mode of execution.' Id., at 137.
31
Cf. McElvaine v. Brush, 142 U.S. 155, 158—159, 12 S.Ct. 156, 158, 35 L.Ed. 971 (1891):
'We held in the Case of Kemmler . . . that as the legislature of the state of New York had determined that (electrocution) did not inflict cruel and unusual punishment, and its courts had sustained that determination, we were unable to perceive that the state had thereby abridged the privileges or immunities of petitioner, or deprived him of due process of law.'
32
It was also asserted that the Constitution prohibits 'cruelty inherent in the method of punishment,' but does not prohibit 'the necessary suffering involved in any method employed to extinguish life humanely.' 329 U.S., at 464, 67 S.Ct., at 376. No authority was cited for this assertion, and, in any event, the distinction drawn appears to be meaningless.
33
In a nondeath case, Trop v. Dulles, it was said that 'in a day when it is still widely accepted, (death) cannot be said to violate the constitutional concept of cruelty.' 356 U.S., at 99, 78 S.Ct., at 597 (emphasis added). This statement, of course, left open the future constitutionality of the punishment.
34
'That life is at stake is of course another important factor in creating the extraordinary situation. The difference between capital and non-capital offenses is the basis of differentiation in law in diverse ways in which the distinction becomes relevant.' Williams v. Georgia, 349 U.S. 375, 391, 75 S.Ct. 814, —-, 99 L.Ed. 1161 (1955) (Frankfurter, J.). 'When the penaity is death, we, like state court judges, are tempted to strain the evidence and even, in close cases, the law in order to give a doubtfully condemned man another chance.' Stein v. New York, 346 U.S. 156, 196, 73 S.Ct. 1077, 1099, 97 L.Ed. 1522 (1953) (Jackson, J.). 'In death cases doubts such as those presented here should be resolved in favor of the accused.' Andres v. United States, 333 U.S. 740, 752, 68 S.Ct. 880, 886, 92 L.Ed. 1055 (1948) (Reed, J.). Mr. Justice Harlan expressed the point strongly: 'I do not concede that whatever process is 'due' an offender faced with a fine or a prison sentence necessarily satisfies the requirements of the Constitution in a capital case. The distinction is by no means novel, . . . nor is it negligible, being literally that between life and death.' Reid v. Covert, 354 U.S. 1, 77, 77 S.Ct. 1222, 1262, 1 L.Ed.2d 1148 (1957) (concurring in result). And, of course, for many years this Court distinguished death cases from all others for purposes of the constitutional right to counsel. See Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932); Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595 (1942); Bute v. Illinois, 333 U.S. 640, 68 S.Ct. 763, 92 L.Ed. 986 (1948).
35
See Report of Royal Commission on Capital Punishment 1949 1953, 700—789, pp. 246—273 (1953); Hearings on S. 1760 before the Subcommittee on Criminal Laws and Procedures of the Senate Committee on the Judiciary, 90th Cong., 2d Sess., 19—21 (1968) (testimony of Clinton Duffy); H. Barnes & N. Teeters, New Horizons in Criminology 306—309 (3d ed. 1959); C. Chessman, Trial by Ordeal 195—202 (1955); M. DiSalle, The Power of Life and Death 84—85 (1965); C. Duffy & A. Hirschberg, 88 Men and 2 Women 13—14 (1962); B. Eshelman, Death Row Chaplain 26—29, 101—104, 159—164 (1962); R. Hammer, Between Life and Death 208—212 (1969); K. Lamott, Chronicles of San Quentin 228—231 (1961); L. Lawes, Life and Death in Sing Sing 170—171 (1928); Rubin, The Supreme Court, Cruel and Unusual Punishment, and the Death Penalty, 15 Crime & Delin. 121, 128—129 (1969); Comment, The Death Penalty Cases, 56 Calif.L.Rev. 1268, 1338—1341 (1968); Brief amici curiae filed by James V. Bennett, Clinton T. Duffy, Robert G. Sarver, Harry C. Tinsley, and Lawrence E. Wilson 12—14.
36
See Barnes & Teeters, supra, at 309—311 (3d ed. 1959); Camus, Reflections on the Guillotine, in A. Camus, Resistance, Rebellion, and Death 131, 151—156 (1960); C. Duffy & A. Hirschberg, 68—70, 254 (1962); Hammer, supra, at 222—235, 244—250, 269—272 (1969); S. Rubin, The Law of Criminal Correction 340 (1963); Bluestone & McGahee, Reaction to Extreme Stress: Impending Death by Execution, 119 Amer.J.Psychiatry 393 (1962); Gottlieb, Capital Punishment, 15 Crime & Delin. 1, 8—10 (1969); West, Medicine and Capital Punishment, in Hearings on S. 1760 before the Subcommittee on Criminal Laws and Procedures of the Senate Committee on the Judiciary, 90th Cong., 2d Sess., 124 (1968); Ziferstein, Crime and Punishment, The Center Magazine 84 (Jan. 1968); Comment, The Death Penalty Cases, 56 Calif.L.Rev. 1268, 1342 (1968); Note, Mental Suffering under Sentence of Death: A Cruel and Unusual Punishment, 57 Iowa L.Rev. 814 (1972).
37
The State, of course, does not purposely impose the lengthy waiting period in order to inflict further suffering. The impact upon the individual is not the less severe on that account. It is no answer to assert that long delays exist only because condemned criminals avail themselves of their full panoply of legal rights. The right not to be subjected to inhuman treatment cannot, of course, be played off against the right to pursue due process of law, but, apart from that, the plain truth is that it is society that demands, even against the wishes of the criminal, that all legal avenues be explored before the execution is finally carried out.
38
It was recognized in Trop itself that expatriation is a 'punishment short of death.' 356 U.S., at 99, 78 S.Ct., at 597. Death, however, was distinguished on the ground that it was 'still widely accepted.' Ibid.
39
Stephen, Capital Punishments, 69 Fraser's Magazine 753, 763 (1864).
40
From 1930 to 1939: 155, 153, 140, 160, 168, 199, 195, 147, 190, 160. From 1940 to 1949: 124, 123, 147, 131, 120, 117 131, 153, 119, 119. From 1950 to 1959: 82, 105, 83, 62, 81, 76, 65, 65, 49, 49. From 1960 to 1967: 56, 42, 47, 21, 15, 7, 1, 2. Department of Justice, National Prisoner Statistics No. 46, Capital Punishment 1930—1970, p. 8 (Aug. 1971). The last execution in the United States took place on June 2, 1967. Id., at 4.
41
1961—140; 1962—103; 1963—93; 1964—106; 1965—86; 1966—118; 1967—85; 1968—102; 1969—97; 1970—127. Id., at 9.
42
Commutations averaged about 18 per year. 1961—17; 1962 27; 1963—16; 1964—9; 1965—19; 1966—17; 1967—13; 1968—16; 1969—20; 1970—29. Ibid.
43
Transfers to mental institutions averaged about three per year. 1961—3; 1962—4; 1963—1; 1964—3; 1965—4; 1966—3; 1967—3; 1968 2; 1969—1; 1970—5. Ibid.
44
These four methods of disposition averaged about 44 per year. 1961—31; 1962—30; 1963—32; 1964—58; 1965—39; 1966—33; 1967 53; 1968—59; 1969—64; 1970—42. Ibid. Specific figures are available starting with 1967. Resentences: 1967—7; 1968—18; 1969 12; 1970—14. Grants of new trials and orders for resentencing: 1967—31; 1968—21; 1969—13; 1970—9. Dismissals of indictments and reversals of convictions: 1967—12; 1968—19; 1969—33; 1970—17. Deaths by suicide and natural causes: 1967—2; 1968—1; 1969—5; 1970 2. National Prisoner Statistics No. 42, Executions 1930—1967, p. 13 (June 1968); National Prisoner Statistics No. 45, Capital Punishment 1930—1968, p. 12 (Aug. 1969); National Prisoner Statistics, supra, n. 40, at 14—15.
45
Id., at 9.
46
During that 10-year period, 1,177 prisoners entered death row, including 120 who were returned following new trials or treatment at mental institutions. There were 653 dispositions other than by execution, leaving 524 prisoners who might have been executed of whom 135 actually were. Ibid.
47
Id., at 8.
48
The victim surprised Furman in the act of burglarizing the victim's home in the middle of the night. While escaping, Furman killed the victim with one pistol shot fired through the closed kitchen door from the outside. At the trial, Furman gave his version of the killing:
'They got me charged with murder and I admit, I admit going to these folks' home and they did caught me in there and I was coming back out, backing up and there was a wire down there on the floor. I was coming out backwards and fell back and I didn't intend to kill nobody. I didn't know they was behind the door. The gun went off and I didn't know nothing about no murder until they arrested me, and when the gun went off I was down on the floor and I got up and ran. That's all to it.' App. 54—55.
The Georgia Supreme Court accepted that version:
'The admission in open court by the accused . . . that during the period in which he was involved in the commission of a criminal act at the home of the deceased, he accidentally tripped over a wire in leaving the premises causing the gun to go off, together with other facts and circumstances surrounding the death of the deceased by violent means, was sufficient to support the verdict of guilty of murder . . ..' Furman v. State, 225 Ga. 253, 254, 167 S.E.2d 628, 629 (1969).
About Furman himself, the jury knew only that he was black and that, according to his statement at trial, he was 26 years old and worked at 'Superior Upholstery.' App. 54. It took the jury one hour and 35 minutes to return a verdict of guilt and a sentence of death. Id., at 64—65.
49
T. Sellin, The Death Penalty, A Report for the Model Penal Code Project of the American Law Institute 15 (1959).
50
Eight States still employ hanging as the method of execution, and one, Utah, also employs shooting. These nine States have accounted for less than 3% of the executions in the United States since 1930. National Prisoner Statistics, supra, n. 40, at 10—11.
51
Id., at 8.
52
Alaska, Hawaii, Iowa, Maine, Michigan, Minnesota, Oregon, West Virginia, and Wisconsin have abolished death as a punishment for crimes. Id., at 50. In addition, the California Supreme Court held the punishment unconstitutional under the state counterpart of the Cruel and Unusual Punishments Clause. People v. Anderson, 6 Cal.3d 628, 493 P.2d 880, 100 Cal.Rptr. 152 (1972).
53
New Mexico, New York, North Dakota, Rhode Island, and Vermont have almost totally abolished death as a punishment for crimes. National Prisoner Statistics, supra, n. 40, at 50. Indeed, these five States might well be considered de facto abolition States. North Dakota and Rhode Island, which restricted the punishment in 1915 and 1852 respectively, have not carried out an execution since at least 1930, id., at 10; nor have there been any executions in New York, Vermont, or New Mexico since they restricted the punishment in 1965, 1965, and 1969 respectively, id., at 10—11. As of January 1, 1971, none of the five States had even a single prisoner under sentence of death. Id., at 18—19.
In addition, six States, while retaining the punishment on the books in generally applicable form, have made virually no use of it. Since 1930, Idaho, Montana, Nebraska, New Hampshire, South Dakota, and Wyoming have carried out a total of 22 executions. Id., at 10—11. As of January 1, 1971, these six States had a total of three prisoners under sentences of death. Id., at 18—19. Hence, assuming 25 executions in 42 years, each State averaged about one execution every 10 years.
54
There is also the more limited argument that death is a necessary punishment when criminals are already serving or subject to a sentence of life imprisonment. If the only punishment available is further imprisonment, it is said, those criminals will have nothing to lose by committing further crimes, and accordingly the threat of death is the sole deterrent. But 'life' imprisonment is a misnomer today. Rarely, if ever, do crimes carry a mandatory life sentence without possibility of parole. That possibility ensures that criminals do not reach the point where further crimes are free of consequences. Moreover, if this argument is simply an assention that the threat of death is a more effective deterrent than the threat of increased imprisonment by denial of release on parole, then, as noted above, there is simply no evidence to support it.
1
See dissenting opinion of THE CHIEF JUSTICE, post, at 376 379; concurring opinion of Mr. Justice DOUGLAS, ante, at 242—244; concurring opinion of Mr. Justice BRENNAN, ante, at 258—269; concurring opinion of Mr. Justice MARSHALL, post, at 316—328; dissenting opinion of Mr. Justice BLACKMUN, post, at 407—409; dissenting opinion of Mr. Justice POWELL, post, at 421—427.
2
See dissenting opinion of THE CHIEF JUSTICE, post, at 380; concurring opinion of Mr. Justice BRENNAN, ante, at 282—285; concurring opinion of Mr. Justice MARSHALL, post, at 333—341; dissenting opinion of Mr. Justice POWELL, post, at 421—424.
3
10 U.S.C. § 906.
4
R.I.Gen.Laws Ann. § 11—23—2.
5
Mass.Gen.Laws Ann., c. 265, § 2.
6
Ohio Rev.Code Ann., Tit. 29, §§ 2901.09 and 2901.10.
7
Many statistical studies—comparing crime rates in jurisdictions with and without capital punishment and in jurisdictions before and after abolition of capital punishment have indicated that there is little, if any, measurable deterrent effect. See H. Bedau, The Death Penalty in America 258—332 (1967 rev.ed.). There remains uncertainty, however, because of the difficulty of identifying and holding constant all other relevant variables. See Comment, The Death Penalty Cases, 56 Calif.L.Rev. 1268, 1275—1292. See also dissenting opinion of THE CHIEF JUSTICE, post, at 395; concurring opinion of Mr. Justice MARSHALL, post, at 346—354.
8
Georgia law, at the time of the conviction and sentencing of the petitioner in No. 69—5030, left the jury a choice between the death penalty, life imprisonment, or 'imprisonment and labor in the penitentiary for not less than one year nor more than 20 years.' Ga.Code Ann. § 26—1302 (Supp.1971) (effective prior to July 1, 1969). The current Georgia provision for the punishment of forcible rape continues to leave the same broad sentencing leeway. Ga.Crim.Code § 26—2001 (1971 rev.) (effective July 1, 1969). Texas law, under which the petitioner in No. 69—5031 was sentenced, provides that a 'person guilty of rape shall be punished by death or by confinement in the penitentiary for life, or for any term of years not less than five.' Texas Penal Code, Art. 1189.
9
Georgia law, under which the petitioner in No. 69—5003, was sentenced, left the jury a choice between the death penalty and life imprisonment. Ga.Code Ann. § 26—1005 (Supp.1971) (effective prior to July 1, 1969). Current Georgia law provides for similar sentencing leeway. Ga.Crim.Code § 26—1101 (1971 rev.) (effective July 1, 1969).
10
See dissenting opinion of THE CHIEF JUSTICE, post, at 386 387 n. 11; concurring opinion of Mr. Justice BRENNAN, ante, at 291 293.
11
Petitioner Branch was sentenced to death in a Texas court on July 26, 1967. Petitioner Furman was sentenced to death in a Georgia court on September 20, 1968. Petitioner Jackson was sentenced to death in a Georgia court on December 10, 1968.
12
A former United States Attorney General has testified before the Congress that only a 'small and capricious selection of offenders have been put to death. Most persons convicted of the same crimes have been imprisoned.' Statement by Attorney General Clark in Hearings on S. 1760 before the Subcommittee on Criminal Laws and Procedures of the Senate Committee on the Judiciary, 90th Cong., 2d Sess., 93.
In McGautha v. California, 402 U.S. 183, 91 S.Ct. 1454, 28 L.Ed.2d 711, the Court dealt with claims under the Due Process and Equal Protection Clauses of the Fourteenth Amendment. We expressly declined in that case to consider claims under the constitutional guarantee against cruel and unusual punishments. See 398 U.S. 936, 90 S.Ct. 1846, 26 L.Ed.2d 267 (limited grant of certiorari).
13
See concurring opinion of Mr. Justice DOUGLAS, ante, at 249—251; concurring opinion of Mr. Justice MARSHALL, post, at 366 n. 155.
14
Cf. Note, A Study of the California Penalty Jury in First-Degree Murder Cases, 21 Stan.L.Rev. 1297 (1969); dissenting opinion of THE CHIEF JUSTICE, post, at 389—390 n. 12.
1
Certiorari was also granted in a fourth case, Aikens v. California, No. 68—5027, but the writ was dismissed after the California Supreme Court, 70 Cal.2d 369, 74 Cal.Rptr. 882, 450 P.2d 258, held that capital punishment violates the State Constitution. 406 U.S. 813, 92 S.Ct. 1931, 32 L.Ed.2d 511. See People v. Anderson, 6 Cal.3d 628, 100 Cal.Rptr. 152, 493 P.2d 88, cert. denied, 406 U.S. 958, 92 S.Ct. 2060, 32 L.Ed.2d 344 (1972). The California decision reduced by slightly more than 100 the number of persons currently awaiting execution.
2
2 Parl.Deb., H.L.(5th ser.) 703 (1965) (Lord Chancellor Gardiner).
3
Compare, e.g., Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 470, 67 S.Ct. 374, 379, 91 L.Ed. 422 (1947) (Frankfurter, J., concurring), with F. Frankfurter, Of Law and Men 81 (1956). See In re Anderson, 69 Cal.2d 613, 634—635, 173 Cal.Rptr. 21, 447 P.2d 117, 131—132 (1968) (Mosk, J., concurring); cf. McGautha v. California, 402 U.S. 183, 226, 91 S.Ct. 1454, 1476, 1477, 28 L.Ed.2d 711 (1971) (separate opinion of Black, J.); Witherspoon v. Illinois, 391 U.S. 510, 542, 88 S.Ct. 1770, 1787, 20 L.Ed.2d 776 (1968) (White, J., dissenting).
4
See generally Frankel, Book Review, 85 Harv.L.Rev. 354, 362 (1971).
5
Granucci, 'Nor Cruel and Unusual Punishments Inflicted:' The Original Meaning, 57 Calif.L.Rev. 839, 848 (1969).
6
Ibid. Beale's views were conveyed from England to America and were first written into American law by the Reverend Nathaniel Ward who wrote the Body of Liberties for the Massachusetts Bay Colony. Clause 46 of that work read: 'For bodilie punishments we allow amongst us none that are inhumane, Barbarous or cruel.' 1 B. Schwartz, The Bill of Rights: A Documentary History 71, 77 (1971).
7
4 W. Blackstone, Commentaries *376—377. See also 1 J. Chitty, The Criminal Law 785—786 (5th ed. 1847); Sherman, '. . . Nor Cruel and Unusual Punishments Inflicted,' 14 Crime & Delin. 73, 74 (1968).
8
Not content with capital punishment as a means of retribution for crimes, the English also provided for attainder ('dead in law') as the immediate and inseparable concomitant of the death sentence. The consequences of attainder were forfeiture of real and personal estates and corruption of blood. An attainted person could not inherit land or other hereditaments, nor retain those he possessed, nor transmit them by descent to any heir. Descents were also obstructed whenever posterity derived a title through one who was attainted. 4 W. Blackstone, Commentaries *380 381.
9
E.g., 2 J. Story, On the Constitution § 1903, p. 650 (5th ed. 1891).
10
2 G. Trevelyan, History of England 467 (1952 reissue).
11
Granucci, supra, n. 5, at 854.
12
Id., at 855.
13
Id., at 860. In reaching this conclusion, Professor Granucci relies primarily on the trial of Titus Oates as the impetus behind the adoption of the clause. Oates was a minister of the Church of England who proclaimed the existence of a plot to assassinate King Charles II. He was tried for perjury, convicted, and sentenced to a fine of 2,000 marks, life imprisonment, whippings, pillorying four times a year, and defrocking. Oates petitioned both the House of Commons and the House of Lords for release from judgment. The House of Lords rejected his petition, but a minority of its members concluded that the King's Bench had no jurisdiction to compel defrocking and that the other punishments were barbarous, inhumane, unchristian, and unauthorized by law. The House of Commons agreed with the dissenting Lords. Id., at 857—859.
The author also relies on the dictionary definition of 'cruel,' which meant 'severe' or 'hard' in the 17th century, to support his conclusion. Ibid.
14
Most historians reach this conclusion by reading the history of the Cruel and Unusual Punishments Clause as indicating that it was a reaction to inhumane punishments. Professor Granucci reaches the same conclusion by finding that the draftsmen of the Constitution misread the British history and erroneously relied on Blackstone. Granucci, supra, n. 5, at 862—865. It is clear, however, that prior to the adoption of the Amendment there was some feeling that a safeguard against cruelty was needed and that this feeling had support in past practices. See n. 6, supra, and accompanying text.
15
Granucci, supra, n. 5, at 840; 1 Schwartz, supra, n. 6, at 276, 278.
16
See, e.g., Delaware Declaration of Rights (1776), Maryland Declaration of Rights (1776), Massachusetts Declaration of Rights (1780), and New Hampshire Bill of Rights (1783). 1 Schwartz, supra, n. 6, at 276, 278; 279, 281; 337, 343; 374, 379.
17
See 2 J. Elliot's Debates 111 (2d ed. 1876); 3 id., at 447—481. See also, 2 Schwartz, supra, n. 6, at 629, 674, 762, 852, 968.
18
3 Elliot, supra, n. 17, at 446—448. A comment by george Mason which misinterprets a criticism leveled at himself and Patrick Henry is further evidence of the intention to prohibit torture and the like by prohibiting cruel and unusual punishments. Id., at 452.
19
1 Annuals of Cong. 782—783 (1789). There is some recognition of the fact that a prohibition against cruel and unusual punishments is a flexible prohibition that may change in meaning as the mores of a society change, and that may eventually bar certain punishments not barred when the Constitution was adopted. Ibid. (remarks of Mr. Livermore of New Hampshire). There is also evidence that the general opinion at the time the Eighth Amendment was adopted was that it prohibited every punishment that was not 'evidently necessary.' W. Bradford, An Enquiry How Far the Punishment of Death is Necessary in Pennsylvania (1793), reprinted in 12 Am.J.Legal Hist. 122, 127 (1968).
20
The New York Court of Appeals had recognized the unusual nature of the execution, but attributed it to a legislative desire to minimize the pain of persons executed.
21
The prohibition against cruel and unusual punishments relevant to Weems was that found in the Philippine Bill of Rights. It was, however, borrowed from the Eighth Amendment to the United States Constitution and had the same meaning. 217 U.S., at 367, 30 S.Ct., at 549.
22
Id., at 373, 30 S.Ct., at 551.
23
Ibid.
24
Ibid.
25
Id., at 381, 30 S.Ct., at 554—555.
26
Id., at 389—413, 30 S.Ct., at 558—568. Mr. Justice Black expressed a similar point of view in his separate opinion in McGautha v. California, 402 U.S., at 226, 91 S.Ct., at 1476—1477.
27
Badders was found guilty on seven counts of using the mails as part of a scheme to defraud. He was sentenced to concurrent five-year sentences and to a $1,000 fine on each count. The Court summarily rejected his claim that the sentence was a cruel and unusual punishment. In United States ex rel. Milwaukee Social Democratic Publishing Co. v. Burleson, 255 U.S. 407, 41 S.Ct. 352, 65 L.Ed. 704 (1921), the Court upheld the denial of second-class mailing privileges to a newspaper that had allegedly printed articles conveying false reports of United States conduct during the First World War with intent to cause disloyalty. Mr. Justice Brandeis dissented and indicated his belief that the 'punishment' was unusual and possibly excessive under Weems v. United States, 217 U.S. 349, 30 S.Ct. 544, 54 L.Ed. 793 (1910). There is nothing in either of these cases demonstrating a departure from the approach used in Weems, or adding anything to it.
28
Mr. Justice Frankfurter was the only member of the Court unwilling to make this assumption. However, like Chief Justice Fuller in In re Kemmler, 136 U.S. 436, 10 S.Ct. 930, 34 L.Ed. 519 (1890), he examined the propriety of the punishment under the Due Process Clause of the Fourteenth Amendment. 329 U.S., at 471, 67 S.Ct., at 380. As Mr. Justice POWELL makes clear, Mr. Justice Frankfurter's analysis was different only in form from that of his Brethren; in substance, his test was fundamentally identical to that used by the rest of the Court.
29
Id., at 463, 67 S.Ct., at 376.
30
English law required a second attempt at execution if the first attempt failed. L. Radzinowicz, A History of English Criminal Law 185—186 (1948).
31
Mr. Justice Brennan concurred and concluded that the statute authorizing deprivations of citizenship exceeded Congress' legislative powers. 356 U.S., at 114, 78 S.Ct., at 605.
32
Id., at 101, 78 S.Ct., at 598.
33
370 U.S., at 666, 82 S.Ct., at 1420.
34
Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962), removes any lingering doubts as to whether the Eighth Amendment's prohibition against cruel and unusual punishments is binding on the States. See also Powell v. Texas, 392 U.S. 514, 88 S.Ct. 2145, 20 L.Ed.2d 1254 (1968).
35
Trop v. Dulles, 356 U.S. 86, 101, 78 S.Ct. 590, 598 (1958). See also Weems v. United States, 217 U.S., at 373, 30 S.Ct., at 551; Robinson v. California, 370 U.S., at 666, 82 S.Ct., at 1420. See also n. 19, supra.
36
E.g., McGautha v. California, 402 U.S. at 226, 91 S.Ct., at 1476—1477 (separate opinion of Black, J.); Trop v. Dulles, supra, 356 U.S., at 99, 78 S.Ct., at 597 (Warren, C.J.), id., at 125, 78 S.Ct., at 610 (Frankfurter, J., dissenting).
37
See, e.g., Louisiana ex rel. Francis v. Resweber, 329 U.S., at 474, 67 S.Ct., at 381 (Burton, J., dissenting); Trop v. Dulles, supra, 356 U.S., at 99, 78 S.Ct., at 597 (Warren, C.J.): Rudolph v. Alabama, 375 U.S. 889, 84 S.Ct. 155, 11 L.Ed.2d 119 (1963) (Goldberg, J., dissenting from denial of certiorari); F. Frankfurter, Of Law and Men 81 (1956).
There is no violation of the principle of stare decisis in a decision that capital punishment now violates the Eighth Amendment. The last case that implied that capital punishment was still permissible was Trop v. Dulles, supra, 356 U.S., at 99, 78 S.Ct., at 597. Not only was the implication purely dictum, but it was also made in the context of a flexible analysis that recognized that as public opinion changed, the validity of the penalty would have to be re-examined. Trop v. Dulles is nearly 15 years old now, and 15 years change many minds about many things. Mr. Justice POWELL suggests, however, that our recent decisions in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), and McGautha v. California, 402 U.S. 183, 91 S.Ct. 1454, 28 L.Ed.2d 711 (1971), imply that capital punishment is constitutionally permissible, because if they are viewed any other way they amount to little more than an academic exercise. In my view, this distorts the 'rule of four' by which this Court decides which cases and which issues it will consider, and in what order. See United States v. Generes, 405 U.S. 93, 113, 92 S.Ct. 827, 838, 31 L.Ed.2d 62 (1972) (Douglas, J., dissenting). There are many reasons why four members of the Court might have wanted to consider the issues presented in those cases before considering the difficult question that is now before us. While I do not intend to catalogue these reasons here, it should suffice to note that I do not believe that those decisions can, in any way, fairly be used to support any inference whatever that the instant cases have already been disposed of sub silentio.
38
Ancel, The Problem of the Death Penalty, in Capital Punishment 4—5 (T. Sellin ed. 1967); G. Scott, The History of Capital Punishment 1 (1950).
39
Scott, supra, n. 38, at 1.
40
Id., at 2; Ancel, supra, n. 38, at 4—5.
41
The Code of Hammurabi is one of the first known laws to have recognized the concept of an 'eye for an eye,' and consequently to have accepted death as an appropriate punishment for homicide. E. Block, And May God Have Mercy . . . 13—14 (1962).
42
Scott, supra, n. 38, at 19—33.
43
Id., at 5. Prior to this time, the laws of Alfred (871 901) provided that one who willfully slayed another should die, at least under certain circumstances. 3 J. Stephen, History of the Criminal Law of England 24 (1883). But, punishment was apparently left largely to private enforcement.
44
T. Plucknett, A Concise History of the Common Law 424—454 (5th ed. 1956).
45
Introduction in H. Bedau, The Death Penalty in America 1 (1967 rev. ed.).
46
Ibid.
47
4 W. Blackstone, Commentaries*377. How many persons were actually executed for committing capital offenses is not known. See Bedau, supra, n. 45, at 3; L. Radzinowicz, A History of English Criminal Law 151, 153 (1948); Sellin, Two Myths in the History of Capital Punishment, 50 J.Crim.L.C. & P.S. 114 (1959). 'Benefit of clergy' mitigated the harshness of the law somewhat. This concept arose from the struggle between church and state and originally provided that members of the clergy should be tried in ecclesiastical courts. Eventually all first offenders were entitled to 'benefit of clergy.' Bedau, supra, at 4.
48
G. Haskins, The Capitall Lawes of New-England, Harv.L.Sch.Bull. 10—11 (Feb. 1956).
49
Compare Haskins, supra, n. 48, with E. Powers, Crime and Punishment in Early Massachusetts, 1620—1692 (1966). See also Bedau, supra, n. 45, at 5.
50
Id., at 6.
51
Filler, Movements to Abolish the Death Penalty in the United States, 284 Annals Am.Acad.Pol. & Soc.Sci. 124 (1952).
52
Ibid.
53
Ibid. (footnotes omitted).
54
Ibid.; Bedau, supra, n. 45, at 6.
55
For an unknown reason, Pennsylvania adopted the harsher penal code of England upon William Penn's death in 1718. There was no evidence, however of an increase in crime between 1682 and 1718. Filler, supra, n. 51, at 124. In 1794, Pennsylvania eliminated capital punishment except for 'murder of the first degree,' which included all 'willful, deliberate or premeditated' killings. The death penalty was mandatory for this crime. Pa.Stat.1794, c. 1777. Virginia followed Pennsylvania's lead and enacted similar legislation. Other States followed suit.
56
Filler, supra, n. 51, at 124.
57
Id., at 124—125.
58
Reprinted in 12 Am.J.Legal Hist. 122 (1968).
59
His advice was in large measure followed. See n. 55, supra.
60
One scholar has noted that the early abolition movement in the United States lacked the leadership of major public figures. Bedau, supra, n. 45, at 8.
61
Ibid.; Filler, supra, n. 51, at 126—127.
62
See Scott, supra, n. 38, at 114—116.
63
Filler, supra, n. 51, at 127.
64
Davis, The Movement to Abolish Capital Punishment in America, 1787—1861, 63 Am.Hist.Rev. 23, 33 (1957).
65
Filler, supra, n. 51, at 128. Capital punishment was abolished for all crimes but treason. The law was enacted in 1846, but did not go into effect until 1847.
66
Davis, supra, n. 64, at 29—30.
67
Filler, supra, n. 51, at 129.
68
Id., at 130.
69
Ibid.
70
Bedau, supra, n. 45, at 10.
71
Davis, supra, n. 64, at 46.
72
Kansas restored it in 1935. See Appendix I to this opinion, infra, at 372.
73
See McGautha v. California, 402 U.S., at 199, 91 S.Ct., at 199.
74
Filler, supra, n. 51, at 133. See also Winston v. United States, 172 U.S. 303, 19 S.Ct. 212, 43 L.Ed. 456 (1899). More than 90% of the executions since 1930 in this country have been for offenses with a discretionary death penalty. Bedau, The Courts, the Constitution, and Capital Punishment, 1968 Utah L. Rev. 201, 204.
75
See n. 72, supra.
76
Filler, supra, n. 51, at 134.
77
Sellin, Executions in the United States, in Capital Punishment 35 (T. Sellin ed. 1967); United Nations, Department of Economic and Social Affairs, Capital Punishment, Pt. II, 82—85, pp. 101—102 (1968).
78
New York authorizes the death penalty only for murder of a police officer or for murder by a life term prisoner. N.Y.Penal Code § 125.30 (McKinney's Consol.Laws, c. 40, 1967).
79
See generally Bedau, supra, n. 74. Nine States do not authorize capital punishment under any circumstances: Alaska, Hawaii, Iowa, Maine, Michigan, Minnesota, Oregon, West Virginia, and Wisconsin. Puerto Rico and the Virgin Islands also have no provision for capital punishment. Bedau, supra, n. 45, at 39. Those States that severely restrict the imposition of the death penalty are: New Mexico, N.M.Stat.Ann. § 40A—29—2.1 (1972); New York, N.Y.Penal Code § 125.30 (1967); North Dakota, N.D.Cent.Code §§ 12—07—01, 12—27—13 (1960); Rhode Island, R.I.Gen.Laws § 11—23—2 (1970); Vermont, Vt.Stat.Ann., Tit. 13, § 2303 (Supp.1971). California is the only State in which the judiciary has declared capital punishment to be invalid. See n. 1, supra.
80
See generally Hearings on S. 1760 before the Subcommittee on Criminal Laws and Procedures of the Senate Committee on the Judiciary, 90th Cong., 2d Sess. (1968).
81
Extensive compilations of the capital crimes in particular States can be found in Bedau, supra, n. 45, at 39—52 and in the Brief for the Petitioner in No. 68—5027, App. G (Aikens v. California, 406 U.S. 813, 92 S.Ct. 1931, 32 L.Ed.2d 511 (1972)). An attempt is made to break down capital offenses into categories in Finkel, A Survey of Capital Offenses, in Capital Punishment 22 (T. Sellin ed. 1967).
82
Bedau, supra, n. 45, at 43.
83
Ibid. See also Ralth v. Warden, 438 F.2d 786, 791—792 (CA4 1970).
84
See Hart, Murder and the Principles of Punishment: England and the United States, 52 Nw.U.L.Rev. 433, 448 (1957); Report of Royal Commission on Capital Punishment, 1949—1953, Cmd. 8932, 52—53, pp. 17—18 (1953). See generally, Reichert, Capital Punishment Reconsidered, 47 Ky.L.J. 397, 399 (1959).
85
See, e.g., C. Beccaria, On Crimes and Punishment (tr. by H. Paolucci 1963); 1 Archhold, on the Practice, Pleading, and Evidence in Criminal Cases §§ 11—17, pp. XV—XIX (T. Waterman 7th ed. 1860).
86
See, e.g., Rudolph v. Alabama, 375 U.S. 889, 84 S.Ct. 155, 11 L.Ed.2d 119 (1963) (Goldberg, J., dissenting from denial of certiorari); Trop v. Dulles, 356 U.S., at 97, 78 S.Ct., at 596 (Warren, C.J.), id., at 113, 78 S.Ct., at 604 (Brennan, J., concurring); Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952); Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949). In Powell v. Texas, 392 U.S., at 530, 88 S.Ct., at 2153, we said: 'This Court has never held that anything in the Constitution requires that penal sanctions by designed solely to achieve therapeutic or rehabilitative effects . . .' This is, of course, correct, since deterrence and isolation are clearly recognized as proper. E.g., Trop v. Dulles, supra, 356 U.S., at 111, 78 S.Ct., at 603 (Brennan, J., concurring). There is absolutely nothing in the language, the rationale, or the holding of Powell v. Texas that implies that retribution for its own sake is a proper legislative aim in punishing.
87
See, e.g., Vellenga, Christianity and The Death Penalty, in Bedau, supra, n. 45, at 123—130; Hook, The Death Sentence, in Bedau, supra, at 146—154. See also Ehrenzweig, A Psychoanalysis of the Insanity Plea—Clues to the Problems of Criminal Responsibility and Insanity in the Death Cell, 73 Yale L.J. 425, 433—439 (1964).
88
2 J. Story, On the Constitution § 1903, p. 650 (5th ed. 1891).
89
Note, The Death Penalty Cases, 56 Calif.L.Rev. 1268, 1275 (1968); Note, Justice or Revenge?, 60 Dick.L.Rev. 342, 343 (1956); Royal Commission, supra, n. 84, 55, at 18.
90
Barzun, In Favor of Capital Punishment, in Bedau, supra, n. 45, at 154, 163; Hook, supra, n. 87, at 152.
91
See Commonwealth v. Elliott, 371 Pa. 70, 78, 89 A.2d 782, 786 (1952) (Musmanno, J., dissenting); F. Frankfurter, of Law and Men 101 (1956). The assertion that life imprisonment may somehow be more cruel than death is usually rejected as frivolous. Hence, I confess to surprise at finding the assertion being made in various ways in today's opinions. If there were any merit to the contention, it would do much to undercut even the retributive motive for imposing capital punishment. In any event, there is no better response to such an assertion than that of former Pennsylvania Supreme Court Justice Musmanno in his dissent in Commonwealth v. Elliott, supra, at 79—80, 89 A.2d, at 787:
'One of the judges of the lower court indicated from the bench that a sentence of life imprisonment is not to be regarded as a lesser penalty than that of death. I challenge that statement categorically. It can be stated as a universal truth stretching from nadir to zenith that regardless of circumstances, no one wants to die. Some person may, in an instant of spiritual or physical agony express a desire for death as an anodyne from intolerable pain, but that desire is never full-hearted because there is aways the reserve of realization that the silken cord of life is not broken by a mere wishing. There is no person in the actual extremity of dropping from the precipice of life who does not desperately reach for a crag of time to which to cling even for a moment against the awful eternity of silence below. With all its 'slings and arrows of outrageous fortune,' life is yet sweet and death is always cruel.'
Attention should also be given to the hypothesis of Sir James Stephen, quoted in the text, infra, at 347—348.
92
See Bedau, Deterrence and the Death Penalty: A Reconsideration, 61 J.Crim.L.C. & P.S. 539, 542 (1970).
93
Royal Commission, supra, n. 84, 59, at 20.
94
United Nations, supra, n. 77, 134, at 117. The great advantage that this country has is that it can compare abolitionist and retentionist States with geographic, economic, and cultural similarities.
95
Reprinted in Royal Commission, supra, n. 84, 57, at 19.
96
United Nations, supra, n. 77, 139, at 118.
97
See Bedau, supra, n. 45, at 43.
98
T. Sellin, The Death Penalty, A Report for the Model Penal Code Project of the American Law Institute (ALI) 5 (1959); Morris, Thoughts on Capital Punishment, 35 Wash.L.Rev. & St.Bar J. 335, 340 (1960).
99
Sellin, supra, n. 98, at 21.
100
Such crimes might include lesser forms of homicide or homicide by a child or a lunatic, Id., at 22; The Laws, The Crimes, and The Executions, in Bedau, supra, n. 45, at 32, 61.
101
Sutherland, Murder and the Death Penalty, 15 J.Crim.L. & Crim. 522 (1925); ALI, supra, n. 98, at 22; Bedau, supra, n. 45, at 73.
102
Executions were chosen for purposes of comparison because whatever impact capital punishment had would surely be most forcefully felt where punishment was actually imposed.
103
See Appendix II to this opinion, infra, at 373.
104
See Appendix III to this opinion, infra, at 374.
105
United Nations, supra, n. 77, 134, at 117.
106
Royal Commission, supra, n. 84, at 349—351. Accord, Vold, Extent and Trend of Capital Crimes in United States, 284 Annals Am.Acad.Pol. & Soc.Sci. 1, 4 (1952).
107
Sellin, supra, n. 98, at 34.
108
See, e.g., Guillot, Abolition and Restoration of the Death Penalty in Missouri, in Bedau, supra, n. 45, at 351, 358 359; Cobin, Abolition and Restoration of the Death Penalty in Delaware, in Bedau, supra, at 359, 371—372.
109
Sellin, supra, n. 98, at 38—39; Royal Commission, supra, n. 84, at 353; United Nations, supra, n. 77, 130—136, at 116—118.
110
One problem is that the statistics for the 19th century are especially suspect; another is that de jure abolition may have been preceded by de facto abolition which would have distorted the figures. It should also be noted that the figures for several States reflect homicide convictions rather than homicide rates.
111
Royal Commission, supra, n. 84, 65, at 23; 346—349; United Nations, supra, n. 77, 132, at 117.
112
Hayner & Cranor, The Death Penalty in Washington State, 284 Annals Am.Acad.Pol. & Soc.Sci. 101 (1952); Graves, A Doctor Looks at Capital Punishment, 10 Med.Arts & Sci. 137 (1956); Dann, The Deterrent Effect of Capital Punishment, Bull. 29, Friends Social Service Series, Committee on Philanthropic Labor and Philadelphia Yearly Meeting of Friends (1935); Savitz, A Study in Capital Punishment, 49 J.Crim.L.C. & P.S. 338 (1958); United Nations, supra, n. 77, 135, at 118.
113
Graves, supra, n. 112; Hearings, supra, n. 80, at 23 (testimony of C. Duffy), 126 (statement of Dr. West); T. Reik, The Compulsion to Confess 474 (1959); McCafferty, Major Trends in the Use of Capital Punishment, 25 Fed.Prob., No. 3, p. 15 (Sept. 1961). Capital punishment may provide an outlet for suicidal impulses or a means of achieving notoriety, for example.
114
See, e.g., Gerstein, A Prosecutor Looks at Capital Punishment, 51 J.Crim.L.C. & P.S. 252 (1960); Hoover, Statements in Favor of the Death Penalty, in Bedau, supra, n. 45, at 130; Younger, Capital Punishment: A Sharp Medicine Reconsidered, 42 A.B.A.J. 113 (1956). But see, Symposium on Capital Punishment, District Attorneys' Assn. of State of New York, Jan. 27, 1961, 7 N.Y.L.F. 249, 267 (1961) (statement of A. Herman, head of the homicide bureau of the New York City District Attorney's office).
115
Sellin, supra, n. 98, at 56—58; Koeninger, Capital Punishment in Texas, 1924—1968, 15 Crime & Delin. 132 (1969); Sellin, Does the Death Penalty Protect Municipal Police, in Bedau, supra, n. 45, at 284; United Nations, supra, n. 77, 136, at 118.
116
L. Lawes, Life and Death in Sing Sing 150 (1928); McGee, Capital Punishment as Seen by a Correctional Administrator, 28 Fed.Prob., No. 2, p. 11 (June 1964); 1950 Survey of the International Penal and Penitentiary Commission, cited in Sellin, supra, n. 98, at 70—72; Sellin, Prison Homicides, in Capital Punishment 154 (T. Sellin ed. 1967); cf. Akman, Homicides and Assaults in Canadian Prisons, in Capital Punishment, supra, at 161 168. The argument can be made that the reason for the good record of murderers is that those who are likely to be recidivists are executed. There is, however, no evidence to show that in choosing between life and death sentences juries select the lesser penalties for those persons they believe are unlikely to commit future crimes.
117
E.g., United Nations, supra, n. 77, 144, at 119; B. Eshelman & F. Riley, Death Row Chaplain 224 (1962). This is supported also by overwhelming statistics showing an extremely low rate of recidivism for convicted murderers who are released from prison. Royal Commission, supra, n. 84, App. 15, at 486—491; Sellin, supra, n. 98, at 72—79; United Nations, supra, n. 77, 144, at 119.
118
See, e.g., The Question of Deterrence, in Bedau, supra, n. 45, at 267.
119
Ibid. and n. 11; Note, The Death Penalty Cases, 56 Calif.L.Rev. 1268, 1282—1283 (1968).
120
See n. 113, supra.
121
United Nations, supra, n. 77, 159, at 123.
122
See nn. 58 and 59, supra, and accompanying text.
123
See n. 62, supra, and accompanying text.
124
Graves, A Doctor Looks at Capital Punishment, 10 Med.Arts. & Sci. 137 (1956); Royal Commission, supra, n. 84, 60, at 20—21; Schuessler, The Deterrent Influence of the Death Penalty, 284 Annals Am.Acad.Pol. & Soc.Sci. 54 (1952); United Nations, supra, n. 77, 142, at 119; M. Wolfgang, Patterns in Criminal Homicide (1958).
One would assume that if deterrence were enhanced by capital punishment, the increased deterrence would be most effective with respect to the premeditating murderer or the hired killer who plots his crime before committing it. But, such people rarely expect to be caught and usually assume that if they are caught they will either be acquitted or sentenced to prison. This is a fairly dependable assumption since a reliable estimate is that one person is executed for every 100 capital murders known to the police. Hart, Murder and the Principles of Punishment: England and the United States, 52 Nw.U.L.Rev. 433, 444—445 (1957). For capital punishment to deter anybody it must be a certain result of a criminal act, cf. Ex parte Medley, 134 U.S. 160, 10 S.Ct. 384, 33 L.Ed. 835 (1890), and it is not. It must also follow swiftly upon completion of the offense and it cannot in our complicated due process system of justice. See, e.g., The Question of Deterrence, in Bedau, supra, n. 45, at 258, 271—272; DiSalle, Trends in the Abolition of Capital Punishment, 1969 U. Toledo L.Rey. 1, 4. It is ironic that those persons whom we would like to deter the most have the least to fear from the death penalty and recognize that fact. Sellin, Address for Canadian. Society for Abolition of the Death Penalty, Feb. 7, 1965, in 8 Crim.L.Q. 36, 48 (1966); Proceedings of the Section of Criminal Law of the ABA, Aug. 24, 1959, p. 7 (M. DiSalle).
125
In reaching this conclusion, I maintain agreement with that portion of Stephen's hypothesis that suggests that convicted criminals fear death more than they fear life imprisonment. As I stated earlier, the death penalty is a more severe sanction. The error in the hypothesis lies in its assumption that because men fear death more than imprisonment after they are convicted, they necessarily must weigh potential penalties prior to committing criminal acts and that they will conform their behavior so as to insure that, if caught they will receive the lesser penalty. It is extremely unlikely that much thought is given to penalties before the act is committed, and even if it were, the preceding footnote explains why such thought would not lead to deterrence.
126
See n. 117, supra.
127
See, e.g., Royal Commission, supra, n. 84, App. 15, at 486—491.
128
Jackson applies to the States under the criteria articulated in Duncan v. Louisiana, 391 U.S. 145, 149, 88 S.Ct. 1444, 1447, 20 L.Ed.2d 491 (1968).
129
See e.g., Barzun, In Favor of Capital Punishment, in Bedau, supra, n. 45, at 154.
130
See, e.g., Death as a Punishment, in Bedau, supra, at 214, 226—228; Caldwell, Why is the Death Penalty Retained?, 284 Annals Am.Acad.Pol. & Soc.Sci. 45, 50 (1952); Johnson, Selective Factors in Capital Punishment, 36 Social Forces 165, 169 (1957); Sellin, Capital Punishment, 25 Fed.Prob., No. 3, p. 3 (Sept. 1961). We should not be surprised at the lack of merit in the eugenic arguments. There simply is no evidence that mentally ill persons who commit capital offenses constitute a psychiatric entity distinct from other metally disordered patients or that they do not respond as readily to treatment. Cruvant & Waldrop, The Murderer in the Mental Institution, 284 Annals Am.Acad.Pol. & Soc.Sci. 35, 43 (1952).
131
Caldwell, supra, n. 130, at 48; McGee, supra, n. 116.
132
McGee, supra, at 13—14; Bailey, Rehabilitation on Death Row, in Bedau, supra, n. 45, at 556.
133
T. Thomas, This Life We Take 20 (3d ed. 1965).
134
Stein v. New York, 346 U.S. 156, 196, 73 S.Ct. 1077, 1098, 97 L.Ed. 1522 (1953) (Jackson, J.); cf. Reid v. Covert, 354 U.S. 1, 77, 77 S.Ct. 1222, 1261—1262, 1 L.Ed.2d 1148 (1957) (Harlan, J., concurring in result).
135
See, e.g., Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968).
136
Slovenko, And the Penalty is (Sometimes) Death, 24 Antioch Review 351 (1964).
137
See, e.g., Caritativo v. California, 357 U.S. 549, 78 S.Ct. 1263, 2 L.Ed.2d 1531 (1958).
138
To others, as well as to the author of this opinion, this practice has seemed a strange way to spend money. See, e.g., T. Arnold, The Symbols of Government 10—13 (1935).
139
Slovenko, supra, n. 136, at 363.
140
B. Eshelman & F. Riley, Death Row Chaplain 226 (1962); Caldwell, supra, n. 130, at 48; McGee, supra, n. 116, at 13; Sellin, supra, n. 130, at 3.
141
This analysis parallels in some ways the analysis used in striking down legislation on the ground that it violates Fourteenth Amendment concepts of substantive due process. See Packer, Making the Punishment Fit the Crime, 77 Harv.L.Rev. 1071, 1074 (1964). There is one difference, however. Capital punishment is unconstitutional because it is excessive and unnecessary punishment, not because it is irrational.
The concepts of cruel and unusual punishment and substantive due process become so close as to merge when the substantive due process argument is stated in the following manner: because capital punishment deprives an individual of a fundamental right (i.e., the right to life), Johnson v. Zerbst, 304 U.S. 458, 462, 58 S.Ct. 1019, 1022, 82 L.Ed. 1461 (1938), the State needs a compelling interest to justify it. See Note, The Death Penalty Cases, 56 U.Calif.L.Rev. 1268, 1324—1354 (1968). Thus stated the substantive due process argument reiterates what is essentially the primary purpose of the Cruel and Unusual Punishments Clause of the Eighth Amendment—i.e., punishment may not be more severe than is necessary to serve the legitimate interests of the State.
THE CHIEF JUSTICE asserts that if we hold that capital punishment is unconstitutional because it is excessive, we will next have to determine whether a 10-year prison sentence rather than a five-year sentence is also excessive, or whether a $5 fine would not do equally well as a $10 fine. He may be correct that such determinations will have to be made, but, as in these cases, those persons challenging the penalty will bear a heavy burden of demonstrating that it is excessive. These cases arise after 200 years of inquiry, 200 years of public debate and 200 years of marshaling evidence. The burden placed on those challenging capital punishment could not have been greater. I am convinced that they have met their burden. Whether a similar burden will prove too great in future cases is a question that we can resolve in time.
142
United States v. Rosenberg, 195 F.2d 583, 608 (CA2) (Frank, J.), cert. denied, 344 U.S. 838, 73 S.Ct. 20, 97 L.Ed. 652 (1952). See also Kasper v. Brittain, 245 F.2d 92, 96 (CA6), cert. denied, 355 U.S. 834, 78 S.Ct. 54, 2 L.Ed.2d 46 (1957) ('shocking to the sense of justice'); People v. Morris, 80 Mich. 634, 639, 45 N.W. 591, 592 (1890) ('shock the moral sense of the people'). In Repouille v. United States, 165 F.2d 152 (CA2 1947), and Schmidt v. United States, 177 F.2d 450, 451 (CA2 1949), Judge Learned Hand wrote that the standard of 'good moral character' in the Nationality Act was to be judged by 'the generally accepted moral conventions at the time.' 165 F.2d, at 153. Judge Frank, who was later to author the Rosenberg opinion, which a similar standard was adopted dissented in Repouille and urged that the correct standard was the 'attitude of our ethical leaders.' 165 F.2d, at 154. In light of Rosenberg, it is apparent that Judge Frank would require a much broader based moral approbation before striking down a punishment as cruel and unusual than he would for merely holding that conduct was evidence of bad moral character under a legislative act.
143
United States v. Rosenberg, supra, 195 F.2d, at 608.
144
See Repouille v. United States, supra, 165 F.2d, at 153. In Witherspoon v. Illinois, 391 U.S., at 520, 88 S.Ct., at 1776, the Court cited a public opinion poll that showed that 42% of the American people favored capital punishment, while 47% opposed it. But the polls have shown great fluctuation. See What Do Americans Think of the Death Penalty?, in Bedau, supra, n. 45, at 231—241.
145
The fact that the constitutionality of capital punishment turns on the opinion of an informed citizenry undercuts the argument that since the legislature is the voice of the people, its retention of capital punishment must represent the will of the people. So few people have been executed in the past decade that capital punishment is a subject only rarely brought to the attention of the average American. Lack of exposure to the problem is likely to lead to indifference, and indifference and ignorance result in preservation of the status quo, whether or not that is desirable, or desired.
It might be argued that in choosing to remain indifferent and uninformed, citizens reflect their judgment that capital punishment is really a question of utility, not morality, and not one, therefore, of great concern. As attractive as this is on its face, it cannot be correct, because such an argument requires that the choice to remain ignorant or indifferent be a viable one. That, in turn, requires that it be a knowledgeable choice. It is therefore imperative for constitutional purposes to attempt to discern the probable opinion of an informed electorate.
146
Cf. Packer, Making the Punishment Fit the Crime, 77 Harv.L.Rev. 1071, 1076 (1964).
147
E.g., Gold, A Psychiatric Review of Capital Punishment, 6 J.Forensic Sci. 465, 466 (1961); A. Koestler, Reflections on Hanging 164 (1957); cf. C. Duffy & A. Hirshberg, 88 Men and 2 Women 257—258 (1962).
148
Hearings, supra, n. 80, at 11 (statement of M. DiSalle).
149
National Prisoner Statistics No. 45, Capital Punishment 1930—1968, p. 7 (Aug. 1969).
150
Ibid.
151
Ibid.
152
Alexander, The Abolition of Capital Punishment, Proceedings of the 96th Congress of Correction of the American Correctional Association, Baltimore, Md., 57 (1966); Criminal Justice: The General Aspects, in Bedau, supra, n. 45, at 405, 411 414; Bedau, Death Sentences in New Jersey, 1907—1960, 19 Rutgers L.Rev. 1, 18—21, 52—53 (1964); R. Clark, Crime in America 335 (1970); Hochkammer, The Capital Punishment Controversy, 60 J.Crim.L.C. & P.S. 360, 361—362 (1969); Johnson, The Negro and Crime, 217 Annals Am.Acad.Pol. & Soc.Sci. 93, 95, 99 (1941); Johnson, Selective Factors in Capital Punishment, 36 Social Forces 165 (195); United Nations, supra, n. 77, 69, at 98; Williams, The Death Penalty and the Negro, 67 Crisis 501, 511 (1960); M. Wolfgang & B. Cohen, Crime and Race: Conceptions and Misconceptions 77, 80—81, 85—86 (1970); Wolfgang, Kelly, & Nolde, Comparison of the Executed and the Commuted Among Admissions to Death Row, 53 J.Crim.L.C. & P.S. 301 (1962). Mr. Justice Douglas explores the discriminatory application of the death penalty at great length, ante, at 249—257.
153
National Prisoner Statistics No. 45, Capital Punishment 1930—1968, p. 28 (Aug. 1969).
154
Men kill between four and five times more frequently than women. See Wolfgang, A Sociological Analysis of Criminal Homicide, in Bedau, supra, n. 45, at 74, 75. Hence, it would not be irregular to see four or five times as many men executed as women. The statistics show a startlingly greater disparity, however. United Nations, supra, n. 77, 67, at 97—98.
155
Criminal Justice: The General Aspects, in Bedau, supra, at 405, 411; Bedau, Capital Punishment in Oregon, 1903—64, 45 Ore.L.Rev. 1 (1965); Bedau, Death Sentences in New Jersey, 1907 1960, 19 Rutgers L.Rev. 1 (1964); R.Clark, Crime in America 335 (1970); C. Duffy & A. Hirshberg, 88 Men and 2 Women 256—257 (1962); Carter & Smith, The Death Penalty in California; A Statistical and Composite Portrait, 15 Crime & Delin. 62 (1969); Hearings, supra, n. 80, at 124—125 (statement of Dr. West); Koeninger, Capital Punishment in Texas, 1924—1968, 15 Crime & Delin. 132 (1969); McGee, supra, n. 116, at 11—12.
156
See, e.g., E. Borchard, Convicting the Innocent (1932); J. Frank & B. Frank, Not Guilty (1957); E. Gardner, Court of Last Resort (1952). These three books examine cases in which innocent persons were sentenced to die. None of the innocents was actually executed, however. Bedau has abstracted 74 cases occurring in the United States since 1893 in which a wrongful conviction for murder was alleged and usually proved 'beyond doubt.' In almost every case, the convictions were sustained on appeal. Bedau seriously contends that innocent persons were actually executed. Murder, Errors of Justice, and Capital Punishment, in Bedau, supra, n. 45, at 434, 438. See also Black, The Crisis in Capital Punishment, 31 Md.L.Rev. 289 (1971); Hirschberg, Wrongful Convictions, 13 Rocky Mt.L.Rev. 20 (1940); Pollak, The Errors of Justice, 284 Annals Am.Acad.Pol. & Soc.Sci. 115 (1952).
157
E. Gardner, Court of Last Resort 178 (1952).
158
Mr. Justice Douglas recognized this fact when he wrote:
'One who reviews the records of criminal trials need not look long to find an instance where the issue of guilt or innocence hangs in delicate balance. A judge who denies a stay of execution in a capital case often wonders if an innocent man is going to his death. . . .
'Those doubts exist because our system of criminal justice does not work with the efficiency of a machine—errors are made and innocent as well as guilty people are sometimes punished. . . .
'. . . We believe that it is better for ten guilty people to be set free than for one innocent man to be unjustly imprisoned.
'Yet the sad truth is that a cog in the machine often slips: memories fails; mistaken identifications are made; those whose wield the power of life and death itself—the police officer, the witness, the prosecutor, the juror, and even the judge—become overzealous in their concern that criminals be brought to justice. And at times there is a venal combination between the police and a witness.' Foreword, J. Frank & B. Frank, Not Guilty 11—12 (1957).
There has been an 'incredible lag' between the development of modern scientific methods of investigation and their application to criminal cases. When modern methodology is available, prosecutors have the resources to utilize it, whereas defense counsel often may not. Lassers, Proof of Guilt in Capital Cases—An Unscience, 58 J.Crim.L.C. & P.S. 310 (1967). This increases the chances of error.
159
Ehrmann, The Death Penalty and the Administration of Justice, 284 Annals Am.Acad.Pol. & Soc.Sci. 73, 83 (1952).
160
F. Frankfurter, Of Law and Men 81 (1956).
161
B. Eshelman & F. Riley, Death Row Chaplain 222 (1962).
162
McCafferty, Major Trends in the Use of Capital Punishment, 25 Fed.Prob., No. 3, pp. 15, 21 (Sept. 1961) (quoting Dr. S. Glueck of Harvard University).
163
Mr. Justice POWELL suggests that this conclusion is speculative, and he is certainly correct. But the mere recognition of this truth does not undercut the validity of the conclusion. Mr. Justice POWELL himself concedes that judges somehow know that certain punishments are no longer acceptable in our society; for example, he refers to branding and pillorying. Whence comes this knowledge? The answer is that it comes from our intuition as human beings that our fellow human beings no longer will tolerate such punishments.
I agree wholeheartedly with the implication in my Brother POWELL's opinion that judges are not free to strike down penalties that they find personally offensive. But, I disagree with his suggestion that it is improper for judges to ask themselves whether a specific punishment is morally acceptable to the American public. Contrary to some current thought, judges have not lived lives isolated from a broad range of human experience. They have come into contact with many people, many ways of life, and many philosophies. They have learned to share with their fellow human beings common views of morality. If, after drawing on this experience and considering the vast range of people and views that they have encountered, judges conclude that these people would not
knowingly tolerate a specific penalty in light of its costs, then this conclusion is entitled to weight. See Frankel, Book Review, 85 Harv.L.Rev. 354 (1971). Judges can find assistance in determining whether they are being objective, rather than subjective, by referring to the attitudes of the persons whom most citizens consider our 'ethical leaders.' See Repouille v. United States, 165 F.2d, at 154 (Frank, J., dissenting).
I must also admit that I am confused as to the point that my Brother POWELL seeks to make regarding the underprivileged members of our society. if he is stating that this Court cannot solve all of their problems in the context of this case, or even many of them, I would agree with him. But if he is opining that it is only the poor, the ignorant, the racial minorities, and the hapless in our society who are executed; that they are executed for no real reason other than to satisfy some vague notion of society's cry for vengeance; and that knowing these things, the people of this country would not care, then I most urgently disagree.
There is too much crime, too much killing, too much hatred in this country. If the legislatures could eradicate these elements from our lives by utilizing capital punishment, then there would be a valid purpose for the sanction and the public would surely accept it. It would be constitutional. As THE CHIEF JUSTICE and Mr. Justice POWELL point out, however, capital punishment has been with us a long time. What purpose has it served? The evidence is that it has served none. I cannot agree that the American people have been so hardened, so embittered that they want to take the life of one who performs even the basest criminal act knowing that the execution is nothing more than bloodlust. This has not been my experience with my fellow citizens. Rather, I have found that they earnestly desire their system of punishments to make sense in order that it can be a morally justifiable system. See generally Arnold, The Criminal Trial As a Symbol of Public Morality, in Criminal Justice In Our Time 137 (A. Howard ed. 1967).
164
R. Clark, Crime in America 336 (1970).
165
Some jurisdictions have de facto abolition; others have de jure. Id., at 330; Hearings, supra, n. 80, at 9—10 (statement of M. DiSalle). See generally Patrick, The Status of Capital Punishment: A World Perspective, 56 J.Crim.L.C. & P.S. 397 (1965); United Nations, supra, n. 77, 10—17, 63—65, at 83—85, 96—97; Brief for Petitioner in No. 68—5027, App. E (Aikens v. California, 406 U.S. 813, 92 S.Ct. 1931, 32 L.Ed.2d 511 (1972)).
1
Death penalty retained for persons found guilty of killing a peace officer who is acting in line of duty, and for prisoners under a life sentence who murder a guard or inmate while in confinement or while escaping from confinement.
2
Death penalty retained for persons convicted of first-degree murder who commit a second "unrelated" murder and for the first-degree murder of any law enforcement officer or prison employee who is in the performance of the duties of his office.
3
Death penalty retained for treason. Partial abolition was voted in 1846, but was not put into effect until 1847.
4
Death penalty retained for rape.
5
Death penalty retained for treason.
6
Death penalty retained for treason, and for first-degree murder committed by a prisoner who is serving a life sentence for first-degree murder.
7
Death penalty retained for persons convicted of committing murder while serving a life sentence for any offense.
Based on National Prisoner Statistics No. 45, Capital Punishment 1930-1968, p. 30 (Aug. 1969).
*
Maine has totally abolished the death penalty, and Rhode Island has severely limited its imposition. Based on ALI, supra, n. 98, at. 25.
Page 374
APPENDIX III TO OPINION OF MARSHALL, J., CONCURRING
CRUDE HOMICIDE DEATH RATES, PER 100,000 POPULATION, AND NUMBER OF
EXECUTIONS IN CERTAIN AMERICAN STATES: 1920—1955
Mich.* Ohio Ind. Minn.* Iowa Wis.* N.D.* S.D. Neb.
Year... Rate Ex. Rate Ex. Rate Ex. Rate Ex. Rate Ex.
1920..... 5.5 6.9 3 4.7 2 3.1 ** 1.7 ** ** *** 4.2
1921..... 4.7 7.9 10 6.4 4.4 2.2 4.9
1922..... 4.3 7.3 12 5.7 2 3.6 3 1.8 4.5
1923..... 6.1 7.8 10 6.1 2.9 2.1 2 2.2 4.1
1924..... 7.1 6.9 10 7.3 3.2 2.7 1 1.8 2.1 4.4
1925..... 7.4 8.1 13 6.6 1 3.8 2.7 2 2.3 2.0 4.0
1926.....10.4 8.6 7 5.8 3 2.2 2.3 2.6 1.8 2.7
1927..... 8.2 8.6 8 6.3 1 2.6 2.4 2.6 1.6 3.5
1928..... 7.0 8.2 7 7.0 1 2.8 2.3 2.1 1.0 3.7
1929..... 8.2 8.3 5 7.0 1 2.2 2.6 2.3 1.2 3.0
1930..... 6.7 9.3 8 6.4 1 3.8 3.2 3.1 3.5 1.9 3.5
1931..... 6.2 9.0 10 6.5 1 2.9 2.5 1 3.6 2.0 2.3 3.6
1932..... 5.7 8.1 7 6.7 2 2.9 2.9 2.8 1.2 1.6 3.7
1933..... 5.1 8.2 11 5.6 3 3.5 2.9 1.9 1.2 1.7 3.2
1934..... 4.2 7.7 7. 7.1 4 3.4 2.3 2.4 1.6 3.0 4.4
1935..... 4.2 7.1 10 4.4 2 2.6 2.0 3 1.4 2.3 2.0 3.4
1936..... 4.0 6.6 6 5.2 2 2.3 1.8 1.7 2.0 1.2 2.5
1937..... 4.6 5.7 1 4.7 5 1.6 2.2 2.2 1.6 .1 2.0
1938..... 3.4 5.1 12 4.4 8 1.6 1.4 4 2.0 2.4 .9 1.6
1939..... 3.1 4.8 10 3.8 3 1.6 1.8 1.4 1.2 2.8 2.1
1940..... 3.0 4.6 2 3.3 1.2 1.3 1 1.3 1.4 2.2 1.0
1941..... 3.2 4.2 4 3.1 1 1.7 1.3 1 1.4 2.3 1.0 2.1
1942..... 3.2 4.6 2 3.2 1 1.7 1.2 1.6 1.4 .9 1.8
1943..... 3.3 4.4 5 2.8 1.2 1.0 1.1 .6 1.4 2.4
1944..... 3.3 3.9 2 2.8 1.4 1.7 1 .9 .9 1.6 1.3
1945..... 3.7 4.9 7 4.0 1 1.9 1.6 1 1.6 1.0 2.0 1.2. 1
1946..... 3.2 5.2 2 3.9 1 1.6 1.8 2 .9 1.5 1.1 2.1
1947..... 3.8 4.9 5 3.8 1.2 1.9 1.4 .4 1.0 1 2.2
1948..... 3.4 4.5 7 4.2 1.9 1.4 .9 .9 2.0 2.5 1
1949..... 3.5 4.4 15 3.2 3 1.1 .9 1 1.3 .7 2.3 1.8
1950..... 3.9 4.1 4 3.6 1 1.2 1.3 1.1 .5 1.1 2.9
1951..... 3.7 3.8 4 3.9 1 1.3 1.5 1.1 .5 .9 1.0
1952..... 3.3 4.0 4 3.8 1.3 1.5 1 1.6 .8 2.3 1.6 1
1953..... 4.6 3.6 4 4.0 1.5 1.1 1.2 1.1 1.1 2.0
1954..... 3.3 3.4 4 3.2 1.0 1.0 1.1 .5 1.5 2.3
1955..... 3.3 3.1 3.1 1.1 1.2 1.1 .8 1.8 1.3
*
Michigan, Minnesota, and Wisconsin have completely abolished capital punishment. North Dakota has severely restricted its use.
**
Iowa, North Dakota, and South Dakota were not admitted to the national death registration area until 1923, 1924, and 1930 respectively.
***
South Dakota introduced the death penalty in 1939.
Based on ALI, supra, n. 98, at 28. See also id., at 32-34.
1
See n. 25, infra.
2
See Granucci, 'Nor Cruel and Unusual Punishments Inflicted:' The Original Meaning, 57 Calif.L.Rev. 839, 852—860 (1969). Earlier drafts of the Bill of Rights used the phrase 'cruel and illegal.' It is thought that the change to the 'cruel and unusual' wording was inadvertent and not intended to work any change in meaning. Ibid. The historical background of the English Bill of Rights is set forth in the opinion of Mr. Justice MARSHALL, ante, at 316—318.
It is intimated in the opinion of Mr. Justice DOUGLAS, ante, at 242—245, that the term 'unusual' was included in the English Bill of Rights as a protest against the discriminatory application of punishments to minorities. However, the history of capital punishment in England dramatically reveals that no premium was placed on equal justice for all, either before or after the Bill of Rights of 1689. From the time of Richard I until 1826 the death penalty was authorized in England for treason and all felonies except larceny and mayhem, with the further exception that persons entitled to benefit of clergy were subject to no penalty or at most a very lenient penalty upon the commission of a felony. Benefit of clergy grew out of the exemption of the clergy from the jurisdiction of the lay courts. The exemption expanded to include assistants to clergymen, and by 1689, any male who could read. Although by 1689 numerous felonies had been deemed 'nonclergyable,' the disparity in punishments imposed on the educated and uneducated remained for most felonies until the early 18th century. See 1 J. Stephen, History of the Criminal Law of England 458 et seq. (1883).
3
See 2 J. Elliot's Debates 111 (2d ed. 1876); 3 id., at 447 448, 451—452.
4
But see Bluestone & McGahee, Reaction to Extreme Stress: Impending Death by Execution, 119 Am.J.Psychiatry 393 (1962).
5
See 2 J. Story, On the Constitution § 1903 (5th ed. 1891); 1 T. Cooley, Constitutional Limitations 694 (8th ed. 1927). See also Joseph Story on Capital Punishment (ed. by J. Hogan) 43 Calif.L.Rev. 76 (1955).
6
Brief for Petitioner in Aikens v. California, No. 68—5027, p. 19 (cert. dismissed, 1972, 406 U.S. 813, 92 S.Ct. 1931, 32 L.Ed.2d 511 (1972)). See post, at 443 n. 38. This, plainly, was the foundation of Mr. Justice Black's strong views on this subject expressed most recently in McGautha v. California, 402 U.S. 183, 226, 91 S.Ct. 1454, 1476, 28 L.Ed.2d 711 (1971) (separate opinion).
7
See Department of Justice, National Prisoner Statistics No. 46, Capital Punishment 1930—1970, p. 50 (Aug. 1971). Since the publication of the Department of Justice report, capital punishment has been judicially abolished in California, People v. Anderson, 6 Cal.3d 628, 100 Cal.Rptr. 152, 493 P.2d 880, cert. denied, 406 U.S. 958, 92 S.Ct. 2060, 32 L.Ed.2d 344 (1972). The States where capital punishment is no longer authorized are Alaska, California, Hawaii, Iowa, Maine, Michigan, Minnesota, Oregon, West Virginia, and Wisconsin.
8
See Act of Jan. 2, 1971, Pub.L. 91—644, Tit. IV, § 15, 84 Stat. 1891, 18 U.S.C. § 351; Act of Oct. 15, 1970, Pub.L. 91—452, Tit. XI, § 1102(a), 84 Stat. 956, 18 U.S.C. § 844(f)(i); Act of Aug. 28, 1965, 79 Stat. 580, 18 U.S.C. § 1751; Act of Sept. 5, 1961, § 1, 75 Stat. 466, 49 U.S.C. § 1472(i). See also opinion of Mr. Justice BLACKMUN, post, at 412—413.
9
A 1966 poll indicated that 42% of those polled favored capital punishment while 47% opposed it, and 11% had no opinion. A 1969 poll found 51% in favor, 40% opposed, and 9% with no opinion. See Erskine, The Polls: Capital Punishment, 34 Public Opinion Quarterly 290 (1970).
10
The jury plays the predominant role in sentencing in capital cases in this country. Available evidence indicates that where the judge determines the sentence, the death penalty is imposed with a slightly greater frequency than where the jury makes the determination. H. Kalven & H. Zeisel, The American Jury 436 (1966).
11
In the decade from 1961—1970, an average of 106 persons per year received the death sentence in the United States, ranging from a low of 85 in 1967 to a high of 140 in 1961; 127 persons received the death sentence in 1970. Department of Justice, National Prisoner Statistics No. 46, Capital Punishment 1930—1970, p. 9. See also Bedau, The Death Penalty in America, 35 Fed.Prob., No. 2, p. 32 (1971). Although accurate figures are difficult to obtain, it is thought that from 15% to 20% of those convicted of murder are sentenced to death in States where it is authorized. See, e.g., McGee, Capital Punishment as Seen by a Correctional Administrator, 28 Fed.Prob., No. 2, pp. 11, 12 (1964); Bedau, Death Sentences in New Jersey 1907—1960, 19 Rutgers L.Rev. 1, 30 (1964); Florida Division of Corrections, Seventh Biennial Report (July 1, 1968, to June 30, 1970) 82 (1970); H. Kalven & H. Zeisel, The American Jury 435—436 (1966). The rate of imposition for rape and the few other crimes made punishable by death in certain States is considerably lower. See, e.g., Florida Division of Corrections, Seventh Biennial Report, supra, at 83; Partington, The Incidence of the Death Penalty for Rape in Virginia, 22 Wash. & Lee L.Rev. 43—44, 71—73 (1965).
12
Counsel for petitioners make the conclusory statement that '(t)hose who are selected to die are the poor and powerless, personally ugly and socially unacceptable.' Brief for Petitioner in No. 68—5027, p. 51. However, the sources cited contain no empirical findings to undermine the general premise that juries imposed the death penalty in the most extreme cases. One study has discerned a statistically noticeable difference between the rate of imposition on blue collar and white collar defendants; the study otherwise concludes that juries do follow rational patterns in imposing the sentence of death. Note, A Study of the California Penalty Jury in First-Degree-Murder Cases, 21 Stan.L.Rev. 1297 (1969). See also H. Kalven & H. Zeisel, The American Jury 434—449 (1966).
Statistics are also cited to show that the death penalty has been imposed in a racially discriminatory manner. Such statistics suggest, at least as a historical matter, that Negroes have been sentenced to death with greater frequency than whites in several States, particularly for the crime of interracial rape. See, e.g., Koeninger, Capital Punishment in Texas, 1924—1968, 15 Crime & Delin. 132 (1969);
Note, Capital Punishment in Virginia, 58 Va.L.Rev. 97 (1972). If a statute that authorizes the discretionary imposition of a particular penalty for a particular crime is used primarily against defendants of a certain race, and if the pattern of use can be fairly explained only by reference to the race of the defendants, the Equal Protection Clause of the Fourteenth Amendment forbids continued enforcement of that statute in its existing form. Cf. Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886); Gomillion v. Lightfoot, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110 (1960).
To establish that the statutory authorization for a particular penalty is inconsistent with the dictates of the Equal Protection Clause, it is not enough to show how it was applied in the distant past. The statistics that have been referred to us cover periods when Negroes were systematically excluded from jury service and when racial segregation was the official policy in many States. Data of more recent vintage are essential. See Maxwell v. Bishop, 398 F.2d 138, 148 (CA8 1968), vacated, 398 U.S. 262, 90 S.Ct. 1578, 26 L.Ed.2d 221 (1970). While no statistical survey could be expected to bring forth absolute and irrefutable proof of a discriminatory pattern of imposition, a strong showing would have to be made, taking all relevant factors into account.
It must be noted that any equal protection claim is totally distinct from the Eighth Amendment question to which our grant of certiorari was limited in these cases. Evidence of a discriminatory pattern of enforcement does not imply that any use of a particular punishment is so morally repugnant as to violate the Eighth Amendment.
13
Jackson v. Georgia, No. 69—5030; Branch v. Texas, No. 69 5031.
14
Rape is punishable by death in 16 States and in the federal courts when committed within the special maritime and territorial jurisdiction of the United States. 18 U.S.C. § 2031. The States authorizing capital punishment for rape are Alabma, Arkansas, Florida, Georgia, Kentucky, Louisiana, Maryland, Mississippi, Missouri, Nevada, North Carolina, Oklahoma, South Carolina, Tennessee, Texas, and Virginia.
15
See n. 11, supra.
16
1 Annals of Cong. 754 (1789) (remarks of Rep. Livermore).
17
Petitioner Francis had been sentenced to be electrocuted for the crime of murder. He was placed in the electric chair, and the executioner threw the switch. Due to a mechanical difficulty, death did not result. A new death warrant was issued fixing a second date for execution. The Court held that the proposed execution would not constitute cruel and unusual punishment or double jeopardy.
18
There is no serious claim of disproportionality presented in these cases. Murder and forcible rape have always been regarded as among the most serious crimes. It cannot be said that the punishment of death is out of all proportion to the severity of these crimes.
The Court's decision in Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962), can be viewed as an extension of the disproportionality doctrine of the Eighth Amendment. The Court held that a statute making it a crime punishable by imprisonment to be a narcotics addict violated the Eighth Amendment. The Court in effect ruled that the status of being an addict is not a criminal act, and that any criminal punishment imposed for addition exceeds the penal power of the States. The Court made no analysis of the necessity of imprisonment as a means of curbing addiction.
19
See Packer, Making the Punishment Fit the Crime, 77 Harv.L.Rev. 1071, 1075 (1964).
20
See Hart, The Aims of the Criminal Law, 23 Law & Contem.Prob. 401 (1958); H. Packer, The Limits of the Criminal Sanction 37—39 (1968); M. Cohen, Reason and Law 41—44 (1950); Report of Royal Commission on Capital Punishment, 1949—1953, Cmd. 8932, 52, pp. 17—18 (1953); Hart, Murder and the Principles of Punishment: England and the United States, 52 Nw.U.L.Rev. 433, 446 455 (1957); H.L.A. Hart, Law, Liberty and Morality 60—69 (1963).
21
See, e.g., Sellin, Homicides in Retentionist and Abolitionist States, in Capital Punishment 135 et seq. (T. Sellin ed. 1967); Schuessler, The Deterrent Influence of the Death Penalty, 284 Annals 54 (1952).
22
See, e.g., Hoover, Statements in Favor of the Death Penalty, in H. Bedau, The Death Penalty in America 130 (1967 rev. ed.); Allen, Capital Punishment; Your Protection and Mine, in The Death Penalty in America, supra, at 135. See also Hart, supra, at 457; Bedau, The Death Penalty in America, supra, at 265—266.
23
See Powell v. Texas, 392 U.S. 514, 531, 88 S.Ct. 2145, 2153, 20 L.Ed.2d 1254 (1968) (Marshall, J.) (plurality opinion).
24
See, e.g., K. Menninger, The Crime of Punishment 206—208 (1968).
25
Much in the concurring opinion of Mr. Justice DOUGLAS similarly suggests that it is the sentencing system rather than the puunishment itself that is constitutionally infirm. However, the opinion also indicates that in the wake of the Court's decision in McGautha v. California, 402 U.S. 183, 91 S.Ct. 1454, 28 L.Ed.2d 711 (1971), the validity of the sentencing process is no longer open to question.
26
See concurring opinion of Mr. Justice STEWART, ante, at 309—310; concurring opinion of Mr. Justice WHITE, ante, at 312.
27
See concurring opinion of Mr. Justice STEWART, ante, at 309—310; cf. concurring opinion of Mr. Justice WHITE, ante at 312.
28
This point is more heavily emphasized in the opinion of Mr. Justice STEWART than in that of Mr. Justice WHITE. However, since Mr. Justice WHITE allows for statutes providing a mandatory death penalty for 'more narrowly defined categories' of crimes, it appears that he, too, is more concerned with a regularized sentencing process, than with the aggregate number of death sentences imposed for all crimes.
29
See n. 12, supra.
30
It was pointed out in the Court's opinion in McGautha that these two alternatives are substantially equivalent. 402 U.S., at 206 n. 16, 91 S.Ct., at 1466 n. 16.
31
See Patrick, The Status of Capital Punishment: A World Perspective, 56 J.Crim.L.C. & P.S. 397 (1965). In England, for example, 1957 legislation limited capital punishment to murder, treason, piracy with violence, dockyards arson and some military offenses. The Murder (Abolition of Death Penalty) Act 1965 eliminated the penalty for murder on a five-year trial basis. 2 Pub.Gen. Acts, c. 71, p. 1577 (Nov. 8, 1965). This abolition was made permanent in 1969. See 793 Parl.Deb., H.C. (5th ser.) 1294 1298 (1969); 306 Parl.Deb., H.L. (5th ser.) 1317—1322 (1969). Canada has also undertaken limited abolition on a five-year experimental basis. Stats. of Canada 1967—1968, 16 & 17 Eliz. 2, c. 15, p. 145.
32
Northern Securities Co. v. United States, 193 U.S. 197, 401, 24 S.Ct. 436, 487, 48 L.Ed. 679 (1904) (dissenting opinion).
1
Minn.Stat. § 609.10 (1971).
2
Minn.Laws 1911, c. 387.
3
See W. Trenerry, Murder in Minnesota 163—167 (1962).
4
'It is obvious, we think, that the efforts on behalf of Maxwell would not thus be continuing, and his case reappearing in this court were it not for the fact that it is the death penalty, rather than life imprisonment, which he received on his rape conviction. This fact makes the decisional process in a case of this kind particularly excruciating for the author of this opinion11 who is not personally convinced of the rightness of capital punishment and who questions it as an effective deterrent. But the advisability of capital punishment is a policy matter ordinarily to be resolved by the legislature or through executive clemency and not by the judiciary. We note, for what that notice may be worth, that the death penalty for rape remains available under federal statutes. 18 U.S.C. § 2031; 10 U.S.C. § 920(a).' The designated footnote observed that my fellow judges did not join in my comment.
5
'At the outset, let us put to one side the death penalty as an index of the constitutional limit on punishment. Whatever the arguments may be against capital punishment, both on moral grounds and in terms of accomplishing the purposes of punishment and they are forceful—the death penalty has been employed throughout our history, and, in a day when it is still widely accepted, it cannot be said to violate the constitutional concept of cruelty. . . .'
6
'The Eighth Amendment forbids 'cruel and unusual punishments.' In my view, these words cannot be read to outlaw capital punishment because that penalty was in common use and authorized by law here and in the countries from which our ancestors came at the time the Amendment was adopted. It is inconceivable to me that the framers intended to end capital punishment by the Amendment. Although some people have urged that this Court should amend the Constitution by interpretation to keep it abreast of modern ideas, I have never believed that lifetime judges in our system have any such legislative power.'
7
'Some men look at constitutions with sanctimonious reverence, and deem them like the ark of the covenant, too sacred to be touched. They ascribe to the men of the preceding age a wisdom more than human, and suppose what they did to be beyond amendment. I knew that age well; I belonged to it, and labored with it. It deserved well of its country. It was very like the present, but without the experience of the present; and forty years of experience in government is worth a century of book-reading; and this they would say themselves, were they to rise from the dead. . . . I know . . . that laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy, as civilized society to remain ever under the regimen of their barbarous ancestors. . . . Let us follow no such examples, nor weakly believe that one generation is not as capable as another of taking care of itself, and of ordering its own affairs. Let us, as our sister States have done, avail ourselves of our reason and experience, to correct the crude essays of our first and unexperienced, although wise, virtuous, and well-meaning councils. And lastly, let us provide in our Constitution for its revision at stated periods.' Letter to Samuel Kercheval, July 12, 1816, 15 The Writings of Thomas Jefferson 40—42 (Memorial ed. 1904).
1
Mr. Justice DOUGLAS holds only that 'the Eighth Amendment (requires) legislatures to write penal laws that are evenhanded, nonselective, and nonarbitrary, and (requires) judges to see to it that general laws are not applied sparsely, selectively, and spottily to unpopular groups.' Ante, at 256. The import of this rationale is that while all existing laws must fall, it remains theoretically possible for a State or Congress to devise a statute capable of withstanding a claim of discriminatory application. Mr. Justice STEWART, in addition to reserving judgment on at least four presently existing statutes (ante, at 307), indicates that statutes making capital punishment mandatory for any category of crime, or providing some other means of assuring against 'wanton' and 'freakish' application (ante, at 310), would present a difficult question that he does not reach today. Mr. Justice WHITE, for somewhat different reasons, appears to come to the conclusion that a mandatory system of punishment might prove acceptable. Ante, p. 310.
The brief and selective references, in my opinion above and in this note, to the opinions of other Justices obviously do not adequately summarize the thoughtful and scholarly views set forth in their full opinions. I have tried merely to select what seem to me to be the respective points of primary emphasis in each of the majority's opinions.
2
While statutes in 40 States permit capital punishment for a variety of crimes, the constitutionality of a very few mandatory statutes remains undecided. See concurring opinions by Mr. Justice STEWART and Mr. Justice WHITE. Since Rhode Island's only capital statute—murder by a life term prisoner—is mandatory, no law in that State is struck down by virtue of the Court's decision today.
3
For a thorough presentation of the history of the Cruel and Unusual Punishment Clause see Mr. Justice MARSHALL's opinion today, ante, at 316—328. See also Weems v. United States, 217 U.S. 349, 389—409, 30 S.Ct. 544, 558—566, 54 L.Ed. 793 (1910) (White, J., dissenting); O'Neil v. Vermont, 144 U.S. 323, 337, 12 S.Ct. 693, 698, 36 L.Ed. 450 (1892) (Field, J., dissenting); Granucci, 'Nor Cruel and Unusual Punishments Inflicted:' The Original Meaning, 57 Calif.L.Rev. 839 (1969).
4
The Court pointed out that the Eighth Amendment applied only to the Federal Government and not to the States. The Court's power in relation to state action was limited to protecting privileges and immunities and to assuring due process of law, both within the Fourteenth Amendment. The standard—for purposes of due process—was held to be whether the State had exerted its authority, 'within the limits of those fundamental principles of liberty and justice which lie at the base of all our civil and political institution.' 136 U.S., at 448, 10 S.Ct. at 934. The State of Georgia, in No. 69—5003 and No. 69—5030, has placed great emphasis on this discussion in In re Kemmler, 136 U.S. 436, 10 S.Ct. 930, 34 L.Ed. 519 (1890), and has urged that the instant cases should all be decided under the more expansive tests of due process rather than under th Cruel and Unusual Punishments Clause per se. Irrespective whether the decisions of this Court are viewed as 'incorporating' the Eighth Amendment (see Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962); Powell v. Texas, 392 U.S. 514, 88 S.Ct. 2145, 20 L.Ed.2d 1254 (1968)), it seems clear that the tests for applying these two provisions are fundamentally identical. Compare Mr. Justice Frankfurter's test in Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 470, 67 S.Ct. 374, 379, 91 L.Ed. 422 (1947) (concurring opinion), with Mr. Chief Justice Warren's test in Trop v. Dulles, 356 U.S. 86, 100—101, 78 S.Ct. 590, 597—598, 2 L.Ed.2d 630 (1958).
5
Mr. Justice White stated:
'Death was a well-known method of punishment, prescribed by law, and it was, of course, painful, and in that sense was cruel. But the infliction of this punishment was clearly not prohibited by the word 'cruel,' although that word manifestly was intended to forbid the resort to barbarous and unnecessary methods of bodily torture, in executing even the penalty of death.' 217 U.S., at 409, 30 S.Ct., at 566.
6
See Part III, infra.
7
In footnote 32, at 100—101, 78 S.Ct., at 597—598, the plurality opinion indicates that denationalization 'was never explicitly sanctioned by this Government until 1940 and never tested against the Constitution until this day.'
8
'It seems scarcely arguable that loss of citizenship is within the Eighth Amendment's prohibition because disproportionate to an offense that is capital and has been so from the first year of Independence. . . . Is constitutional dialectic so empty of reason that it can be seriously urged that loss of citizenship is a fate worse than death?' Id., at 125, 78 S.Ct., at 611.
9
398 U.S. 936, 90 S.Ct. 1846, 26 L.Ed.2d 267 (1970); 402 U.S., at 306, 91 S.Ct., at 1517 (Brennan, J., dissenting). While the constitutionality per se of capital punishment has been assumed almost without question, recently members of this Court have expressed the desire to consider the constitutionality of the death penalty with respect to its imposition for specific crimes. Rudolph v. Alabama, 375 U.S. 889, 84 S.Ct. 155, 11 L.Ed.2d 119 (1963) (dissent from the denial of certiorari).
10
Brief for Respondent in Branch v. Texas, No. 69—5031, p. 6.
11
While the implicit assumption in McGautha v. California, 402 U.S. 183, 91 S.Ct. 1454, 28 L.Ed.2d 711 (1971), of the acceptability of death as a form of punishment must prove troublesome for those who urge total abolition, it presents an even more severe problem of state decisis for those Justices who treat the Eighth Amendment essentially as a process prohibition. Mr. Justice DOUGLAS, while stating that the Court is 'now imprisoned in . . . McGautha' (ante, at 248), concludes that capital punishment is unacceptable precisely because the procedure governing its imposition is arbitrary and discriminatory. Mr. Justice STEWART, taking a not dissimilar tack on the merits, disposes of McGautha in a footnote reference indicating that it is not applicable because the question there arose under the Due Process Clause. Ante, at 310 n. 12. Mr. Justice White, who also finds the death penalty intolerable because of the process for its implementation, makes no attempt to distinguish McGautha's clear holding. For the reasons expressed in the CHIEF JUSTICE's opinion, McGautha simply cannot be distinguished. Ante, at 399—403. These various opinions would, in fact, overrule that recent precedent.
12
This number includes all the Justices who participated in Wilkerson v. Utah, 99 U.S. 130, 25 L.Ed. 345 (1879), Kemmler, and Louisiana ex rel. Francis as well as those who joined in the plurality and dissenting opinions in Trop and the dissenting opinion in Weems.
13
See n. 4, supra.
14
See, e.g., Ex parte Wilson, 114 U.S. 417, 427—428, 5 S.Ct. 935, 940, 29 L.Ed. 89 (1885).
15
See Part VII, infra.
16
See, e.g., T. Sellin, The Death Penalty, A Report for the Model Penal Code Project of the American Law Institute (1959); United Nations, Department of Economic and Social Affairs, Capital Punishment (1968); 2 National Commission on Reform of Federal Criminal Laws, Working Papers, 1351 n. 13 (1970).
17
The literature on the moral question is legion. Representative collections of the strongly held views on both sides may be found in H. Bedau, The Death Penalty in America (1967 rev. ed.), and in Royal Commission on Capital Punishment, Minutes of Evidence (1949—1953).
18
Department of Justice, National Prisoner Statistics No. 46, Capital Punishment 1930—1970 (Aug. 1971) (191 executions during the 1960's; no executions since June 2, 1967); President's Commission on Law Enforcement and Administration of Justice, The Challenge of Crime in a Free Society 143 (1967) ('(t)he most salient characteristic of capital punishment is that it is infrequently applied').
Petitioners concede, as they must, that little weight can be given to the lack of executions in recent years. A de facto moratorium has existed for five years now while cases challenging the procedures for implementing the capital sentence have been re-examined by this Court. McGautha v. California, 402 U.S. 183, 91 S.Ct. 1454, 28 L.Ed.2d 711 (1971); Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). The infrequency of executions during the years before the moratorium became fully effective may be attributable in part to decisions of this Court giving expanded scope to the criminal procedural protections of the Bill of Rights, especially under the Fourth and Fifth Amendments. E.g., Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). Additionally, decisions of the early 1960's amplifying the scope of the federal habeas corpus remedy also may help account for a reduction in the number of executions. E.g., Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963); Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963). The major effect of either expanded procedural protections or extended collateral remedies may well have been simply to postpone the date of execution for some capital offenders, thereby leaving them ultimately in the moratorium limbo.
19
An exact figure for the number of death sentences imposed by the sentencing authorities—judge or jury—in the various jurisdictions is difficult to determine. But the National Prisoner Statistics (hereafter NPS) show the numbers of persons received at the state and federal prisons under sentence of death. This number, however, does not account for those who may have been sentenced and retained in local facilities during the pendency of their appeals. Accepting with this reservation the NPS figures as a minimum, the most recent statistics show that at least 1,057 persons were sentenced to death during the decade of the 1960's. NPS, supra, n. 18, at 9.
No fully reliable statistics are available on the nationwide ratio of death sentences to cases in which death was a statutorily permissible punishment. At oral argument, counsel for petitioner in No. 69—5003 estimated that the ratio is 12 or 13 to one. Tr. of Oral Arg. in Furman v. Georgia, No. 69—5003, p. 11. Others have found a higher correlation. See McGee, Capital Punishment as Seen by a Correctional Administrator, 28 Fed.Prob., No. 2, pp. 11, 12 (1964) (one out of every five, or 20%, of persons convicted of murder received the death penalty in California); Bedau, Death Sentences in New Jersey 1907—1960, 19 Rutgers L.Rev. 1 (1964) (between 1916 and 1955, 157 out of 652 persons charged with murder received the death sentence in New Jersey—about 20%; between 1956 and 1960, 13 out of 61 received the death sentence—also about 20%); H. Kalven & H. Ziesel, The American Jury 435—436 (1966) (21 of 111 murder cases resulted in death sentences during three representative years during the mid-1950's); see also Koeninger, Capital Punishment in Texas, 1924—1968, 15 Crime & Delin. 132 (1969).
20
See, e.g., People v. Anderson, 6 Cal.3d 628, 100 Cal.Rptr. 152, 493 P.2d 880, cert. denied, 406 U.S. 958, 92 S.Ct. 2060, 32 L.Ed.2d 344 (1972); Goldberg & Dershowitz, Declaring the Death Penalty Unconstitutional, 83 Harv.L.Rev. 1773, 1783 (1970). But see F. Frankfurter, Of Law and Men 97—98 (1956) (reprint of testimony before the Royal Commission on Capital Punishment).
21
Nine States have abolished capital punishment without resort to the courts. See H. Bedau, supra, n. 17, at 39. California has been the only State to abolish capital punishment judicially. People v. Anderson, supra.
22
Hearing on S. 1760 before the Subcommittee on Criminal Laws and Procedures of the Senate Committee on the Judiciary, 90th Cong., 2d Sess. (1968).
23
Canada has recently undertaken a five-year experiment similar to that conducted in England—abolishing the death penalty for most crimes. Stats. of Canada 1967—1968, 16 & 17 Eliz. 2, c. 15, p. 145. However, capital punishment is still prescribed for some crimes, including murder of a police officer or corrections official, treason, and piracy.
24
Great Britain, after many years of controversy over the death penalty, undertook a five-year experiment in abolition in 1965. Murder (Abolition of Death Penalty) Act 1965, 2 Pub.Gen.Acts, c. 71, p. 1577. Although abolition for murder became final in 1969, the penalty was retained for several crimes, including treason, piracy, and dockyards arson.
25
See n. 62, infra.
26
See Bedau, supra, n. 17, at 233.
27
Ibid. (approximately 65% of the voters approved the death penalty).
28
See Bedau, The Death Penalty in America, 35 Fed.Prob., No. 2, pp. 32, 34 (1971).
29
National Commission, supra, n. 16, at 1365.
30
Bedau, supra, n. 17, at 232. See, e.g., State v. Davis, 158 Conn. 341, 356—359, 260 A.2d 587, 595—596 (1969), in which the Connecticut Supreme Court pointed out that the state legislature had considered the question of abolition during the 1961, 1963, 1965, 1967, and 1969 sessions and had 'specifically declined to abolish the death penalty' every time.
31
391 U.S., at 519 and n. 15, 88 S.Ct., at 1775. See also McGautha v. California, 402 U.S., at 201—202, 91 S.Ct., at 1464, 28 L.Ed.2d 711; Williams v. New York, 337 U.S. 241, 253, 69 S.Ct. 1079, 1086, 93 L.Ed. 1337 (1949) (Murphy, J., dissenting) ('(i)n our criminal courts the jury sits as the representative of the community'); W. Douglas, We the Judges 389 (1956); Holmes, Law in Science and Science in Law, 12 Harv.L.Rev. 443, 460 (1899).
32
See n. 19, supra.
33
Tr. of Oral Arg. in Aikens v. California, No. 68—5027, p. 21. Although the petition for certiorari in this case was dismissed after oral argument, Aikens v. California, 406 U.S. 813, 92 S.Ct. 1931, 32 L.Ed.2d 511 (1972), the same counsel argued both this case and Furman. He stated at the outset that his argument was equally applicable to each case.
34
National Prisoner Statistics, supra, n. 18.
35
FBI, Uniform Crime Reports—1970, pp. 7—14 (1971).
36
Public opinion polls, while of little probative relevance, corroborate substantially the conclusion derived from examining legislative activity and jury sentencing—opinion on capital punishment is 'fairly divided.' Louisiana ex rel. Francis v. Resweber, 329 U.S., at 470, 67 S.Ct., at 379 (Frankfurter, J., concurring). See, e.g., Witherspoon v. Illinois, 391 U.S., at 520 n. 16, 88 S.Ct., at 1776 (1966 poll finding 42% in favor of the death penalty and 47% opposed); Goldberg & Dershowitz, supra, n. 20, at 1781 n. 39 (1969 poll shows 51% in favor of retention—the same percentage as in 1960); H. Bedau, The Death Penalty in America 231—241 (1967 rev. ed.); Bedau, The Death Penalty in America, 35 Fed.Prob., No. 2, pp. 32, 34—35 (1971).
37
If, as petitioners suggest, the judicial branch itself reflects the prevailing standards of human decency in our society, it may be relevant to note the conclusion reached by state courts in recent years on the question of the acceptability of capital punishment. In the last five years alone, since the de facto 'moratorium' on executions began (see n. 18, supra), the appellate courts of 26 States have passed on the constitutionality of the death penalty under the Eighth Amendment and under similar provisions of most state constitutions. Every court, except the California Supreme Court (People v. Anderson, 6 Cal.3d 628, 100 Cal.Rptr. 152, 493 P.2d 880 (1972), cert. denied, 406 U.S. 958, 92 S.Ct. 2060, 32 L.Ed.2d 344 (1972), has found the penalty to be constitutional. Those States, and the year of the most recent decision on the issue, are: Alabama (1971); Arizona (1969); Colorado (1967); Connecticut (1969); Delaware (1971); Florida (1969); Georgia (1971); Illinois (1970); Kansas (1968); Kentucky (1971); Louisiana (1971); Maryland (1971); Missouri (1971); Nebraska (1967); Nevada (1970); New Jersey (1971); New Mexico (1969); North Carolina (1972); Ohio (1971); Oklahoma (1971); South Carolina (1970); Texas (1971); Utah (1969); Virginia (1971); Washington (1971). While the majority of these state court opinions do not give the issue more than summary exposition, many have considered the question at some length, and, indeed, some have considered the issue under the 'evolving standards' rubric. See, e.g., State v. Davis, 158 Conn. 341, 356—359, 260 A.2d 587, 595—596 (1969); State v. Crook, 253 La. 961, 967—970, 221 So.2d 473, 475—476 (1969); Bartholomey v. State, 260 Md. 504, 273 A.2d 164 (1971); State v. Alvarez, 182 Neb. 358, 366—367, 154 N.W.2d 746, 751—752 (1967); State v. Pace, 80 N.M. 364, 371—372, 456 P.2d 197, 204—205 (1969). Every federal court that has passed on the issue has ruled that the death penalty is not per se unconstitutional. See e.g., Ralph v. Warden, 438 F.2d 786, 793 (CA4 1970); Jackson v. Dickson, 325 F.2d 573, 575 (CA9 1963), cert. denied, 377 U.S. 957, 84 S.Ct. 1637, 12 L.Ed.2d 501 (1964).
38
Brief for Petitioner in No. 68—5027, p. 51. Although the Aikens case is no longer before us (see n. 33, supra), the petitioners in Furman and Jackson have incorporated petitioner's brief in Aikens by reference. See Brief for Petitioner in No. 69 5003, pp. 11—12; Brief for Petitioner in No. 69—5030, pp. 11—12.
39
In 1935 available statistics indicate that 184 convicted murderers were executed. That is the highest annual total for any year since statistics have become available. NPS, supra, n. 18. The year 1935 is chosen by petitioners in stating their thesis:
'If, in fact, 184 murderers were to be executed in this year 1971, we submit it is palpable that the public conscience of the Nation would be profoundly and fundamentally revolted, and that the death penalty for murder would be abolished forthwith as the atavistic horror that it is.' Brief for Petitioner in No. 68—5027, p. 26 (see n. 38, supra).
40
Not all murders, and certainly not all crimes, are committed by persons classifiable as 'underprivileged.' Many crimes of violence are committed by professional criminals who willingly choose to prey upon society as an easy and remunerative way of life. Moreover, the terms 'underprivileged,' the 'poor' and the 'powerless' are relative and inexact, often conveying subjective connotations which vary widely depending upon the viewpoint and purpose of the user.
41
Similarly, Mr. Justice WHITE exhibits concern for a lack of any 'meaningful basis for distinguishing the few cases in which (the death penalty) is imposed from the many cases in which it is not.' Ante, at 313, Mr. Justice BRENNAN Ante, at 313. Mr. Justice BRENNAN arbitrariness question in the same manner that it is handled by petitioners—as an element of the approach calling for total abolition.
42
In Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952), Mr. Justice Jackson spoke of the 'tardy and unfinished substitution of deterrence and reformation in place of retaliation and vengeance as the motivation for public prosecution.' Id., at 251, 72 S.Ct., at 243. He also noted that the penalties for invasions of the rights of property are high as a consequence of the 'public demand for retribution.' Id., at 260, 72 S.Ct., at 248.
43
See also Massiah v. United States, 377 U.S. 201, 207, 84 S.Ct. 1199, 1203, 12 L.Ed.2d 246 (1964) (White, J., dissenting) (noting the existence of a 'profound dispute about whether we should punish, deter, rehabilitate or cure'); Robinson v. California, 370 U.S. 660, at 674, 82 S.Ct. 1417, at 1424, 8 L.Ed.2d 758 (1962) (Douglas, J., concurring); Louisiana ex rel. Francis v. Resweber, 329 U.S., at 470—471, 67 S.Ct., at 380, 91 L.Ed. 422 (Mr. Justice Frankfurter's admonition that the Court is not empowered to act simply because of a 'feeling of revulsion against the State's insistence on its pound of flesh'); United States v. Lovett, 328 U.S. 303, 324, 66 S.Ct. 1073, 1083, 106 Ct.Cl. 856, 90 L.Ed. 1252 (1946) (Frankfurter, J., concurring) ('(p)unishment presupposes an offense, not necessarily an act previously declared criminal, but an act for which retribution is exacted').
44
Royal Commission on Capital Punishment, Minutes of Evidence 207 (1949—1953).
45
Report of Royal Commission on Capital Punishment, 1949 1953, Cmd. 8932, 53, p. 18.
46
M. Cohen, Reason and Law 50 (1950); H. Packer, The Limits of the Criminal Sanction 11—12 (1968); Hart, The Aims of the Criminal Law, 23 Law & Contemp.Prob. 401 (1958).
47
The authorities are collected in Comment, The Death Penalty Cases, 56 Calif.L.Rev. 1268, 1297—1301 (1968). The competing contentions are summarized in the Working Papers of the National Commission on Reform of Federal Criminal Laws, supra, n. 16, at 1358—1359. See also the persuasive treatment of this issue by Dr. Karl Menninger in The Crime of Punishment 190—218 (1966).
48
See, e.g., H. Bedau, The Death Penalty in America 260 (1967 rev. ed.); National Commission, supra, n. 16, at 1352.
49
See Sellin, supra, n. 16, at 19—52.
50
The countervailing considerations, tending to undercut the force of Professor Sellin's statistical studies, are collected in National Commission, supra, n. 16, at 1354; Bedau, supra, n. 48, at 265—266; Hart, Murder and the Principles of Punishment; England and the United States, 52 Nw.U.L.Rev. 433, 455—460 (1957).
51
Report of the Royal Commission, supra, n. 45, 68, at 24.
52
It is worthy of note that the heart of the argument here that there are no legitimate justifications—was impliedly repudiated last Term by both the majority and dissenting opinions in McGautha v. California, 402 U.S. 183, 91 S.Ct. 1454, 28 L.Ed.2d 711 (1971). The argument in that case centered on the proposition that due process requires that the standards governing the jury's exercise of its sentencing function be elucidated. As Mr. Justice Brennan's dissent made clear, whatever standards might be thought to exist arise out of the list of justifications for the death penalty—retribution, deterrence, etc. Id., at 284, 91 S.Ct., at 1506. If no such standards exist, the controversy last Term was a hollow one indeed.
53
Jackson v. Georgia, No. 69—5030; Branch v. Texas, No. 69 5031.
54
Mr. Justice Harlan, joined by Mr. Justice Brewer, dissented separately but agreed that the State had inflicted a cruel and unusual punishment. Id., at 371, 30 S.Ct., at 550.
55
In addition to the States in which rape is a capital offense, statutes in 28 States prescribe life imprisonment as a permissible punishment for at least some category of rape. Also indicative of the seriousness with which the crime of rape is viewed, is the fact that in nine of the 10 States that have abolished death as a punishment for any crime, the maximum term of years for rape is the same as for first-degree murder. Statistical studies have shown that the average prison term served by rapists is longer than for any category of offense other than murder. J. MacDonald, Rape—Offenders and Their Victims 298 (1971).
56
Id., at 63—64; Packer, Making the Punishment Fit the Crime, 77 Harv.L.Rev. 1071, 1077 (1964).
57
See MacDonald, supra, n. 55, at 314; Chambliss, Types of Deviance and the Effectiveness of Legal Sanctions, 1967 Wis.L.Rev. 703.
58
FBI, Uniform Crime Reports—1970, p. 14 (1971) (during the 1960's the incidence of rape rose 121%).
59
See text accompanying nn. 27 & 28, supra.
60
See n. 24, supra.
61
See n. 23, supra.
62
Recent legislative activity in New York State serves to underline the preferability of legislative action over constitutional adjudication. New York abolished the death penalty for murder in 1965, leaving only a few crimes for which the penalty is still available. See text accompanying n. 25, supra. On April 27, 1972, a bill that would have restored the death penalty was considered by the State Assembly. After several hours of heated debate, the bill was narrowly defeated by a vote of 65 to 59. N.Y. Times, Apr. 28, 1972, p. 1, col. 1. After seven years of disuse of the death penalty the representatives of the people in that State had not come finally to rest on the question of capital punishment. Because the 1965 decision had been the product of the popular will it could have been undone by an exercise of the same democratic process. No such flexibility is permitted when abolition, even though not absolute, flows from constitutional adjudication.
63
President's Commission on Law Enforcement and Administration of Justice, The Challenge of Crime in a Free Society 143 (1967) (chaired by Nicholas Katzenbach, then Attorney General of the United States). The text of the Report stated, among other things, that the abolition of the death penalty 'is being widely debated in the States'; that it is 'impossible to say with certainty whether capital punishment significantly reduces the incidence of heinous crimes'; that '(w)hatever views one may have on the efficacy of the death penalty as a deterrent, it clearly has an undesirable impact on the administration of criminal justice'; and that '(a)ll members of the Commission agree that the present situation in the administration of the death penalty in many States is intolerable.' Ibid. As a member of this Presidential Commission I subscribed then, and do now, to the recommendations and views above quoted.
64
Final Report of the National Commission on Reform of Federal Criminal Laws 310 (1971).
65
The American Law Institute, after years of study, decided not to take an official position on the question of capital punishment, although the Advisory Committee favored abolition by a vote of 18—2. The Council was more evenly divided but all were in agreement that many States would undoubtedly retain the punishment and that, therefore, the Institute's efforts should be directed toward providing standards for its implementation. ALI Model Penal Code 65 (Tent. draft No. 9, 1959).
66
See text accompanying nn. 26 through 30, supra.
67
Blodgett v. Holden, 275 U.S. 142, 148, 48 S.Ct. 105, 107, 72 L.Ed. 206 (1927) (separate opinion of Holmes, J.). See also Trop v. Dulles, 356 U.S., at 128, 78 S.Ct., at 612 (Frankfurter, J., dissenting):
'The awesome power of this Court to invalidate . . . legislation, because in practice it is bounded only by our own prudence in discerning the limits of the Court's constitutional function, must be exercised with the utmost restraint.'
| 01
|
408 U.S. 811
92 S.Ct. 2513
33 L.Ed.2d 723
PORT OF PORTLAND et al., Appellants,v.UNITED STATES et al.
No. 70—31.
Argued Oct. 20, 1971.
Decided June 29, 1972.
Syllabus
The Spokane, Portland & Seattle Railway Co. (SP&S), a subsidiary of Burlington Northern, and the Union Pacific (UP), sought Interstate Commerce Commission (ICC) approval under § 5(2) of the Interstate Commerce Act of a joint acquisition of control of the Peninsula Terminal Co. (Peninsula), whose tracks provide an access route to Rivergate, an industrial complex being developed by the Port of Portland, Oregon. Peninsula would continue to operate as a separate carrier. The Milwaukee and the Southern Pacific (SP), the two other line-haul carriers serving Portland, sought inclusion as joint purchasers of Peninsula, and trackage rights linking their lines with Peninsula, under § 5(2) (b), (c), and (d) of the Act. SP, by a separate proceeding, also sought trackage linking its lines with Peninsula, under § 3(5). The ICC (subject to conditions to protect the traffic of the other railroads) approved the purchase of Peninsula by Burlington Northern and UP, but denied the Milwaukee and SP petitions. It concluded that the adverse effects on SP&S and UP of the proposed four-railroad ownership of Peninsula and accompanying trackage rights would outweigh the advantages to SP, Milwaukee, and the Rivergate industries. Milwaukee contends that Condition 24(a) to the Northern Lines merger, which gave Milwaukee access to the Portland area over the Burlington Northern-SP&S tracks, required that Milwaukee be included in the purchase of Peninsula. Held:
1. On the record in this case (which is ambiguous with regard to many factual and procedural issues) it has not been shown that the ICC's order authorizing UP and Burlington Northern alone to acquire Peninsula met the 'public interest' standard of § 5(2). Pp. 834—842.
(a) In stressing the small share in Peninsula's traffic that Milwaukee had before the Northern Lines merger, the ICC ignored any possible increase in that share after Condition 24(a) took effect. Pp. 839—840.
(b) In announcing a principle of preserving the market shares of the two railroads currently connecting with Peninsula, the ICC failed to explain why it was not taking into account the potentially enormous traffic over Peninsula, should Peninsula become the northern route into Rivergate. Pp. 840—841.
(c) The ICC's denial of inclusion of SP and Milwaukee because their gain would work a corresponding loss to Burlington Northern and UP is not a proper approach under § 5(2), given the principle that the anticompetitive effects of any § 5(2) transaction must be explicitly considered. McLean Trucking Co. v. United States, 321 U.S. 67, 83—87, 64 S.Ct. 370, 378—381, 88 L.Ed. 544. Pp. 841—842.
(d) In view of uncertainties about the northern access to Rivergate—given the physical limitations of Peninsula's present facilities—and the apparent fact that physical operation over Peninsula into Rivergate was not at issue here, approval of the ICC order, with its protective conditions, may still be in the public interest, but the announced grounds for the ICC decision do not comport with the applicable legal principles. See SEC v. Chenery Corp., 318 U.S. 80, 87—88, 63 S.Ct. 454, 459—460, 87 L.Ed. 626. P. 842.
2. The denial of trackage rights to SP (on the ground that SP was 'not entitled to serve Peninsula or Rivergate') should be reconsidered by the ICC in conjunction with the reappraisal of the § 5(2) issues. Pp. 834—844.
Reversed and remanded.
Lofton L. Tatum, Portland, Or., for appellants.
Fritz R. Kahn, Washington, D.C., for appellees.
Mr. Justice BLACKMUN delivered the opinion of the Court.
1
This case involves an order of the Interstate Commerce Commission, issued under § 5(2) of the Interstate Commerce Act, as amended, 54 Stat. 905, 49 U.S.C. § 5(2), authorizing the joint acquisition of a heretofore independent switching railroad at Portland, Oregon, by two of the four line-haul railroads serving that city. Spokane, P. & S.R. Co. and Union Pacific R. Co., 334 I.C.C. 419 (1969). The switching railroad, Peninsula Terminal Co., is of current interest to the carriers because it provides an entrance route to the Rivergate Industrial District, a modern industrial and port complex being developed by the appellant, Port of Portland.
2
The two railroads authorized to acquire Peninsula are the Union Pacific Railway Co. (UP) and the Great Northern Pacific & Burlington Lines, Inc. (Burlington Northern), through its subsidiary, the Spokane, Portland & Seattle Railway Co. (SP&S).1 The two other linehaul carriers now serving Portland—the Chicago, Milwaukee, St. Paul & Pacific Railroad Co. (Milwaukee) and the Southern Pacific Transportation Co. (SP)—sought to be included as joint purchasers of Peninsula under § 5(2)(b), (c), and (d) of the Act, 49 U.S.C. § 5(2)(b), (c), and (d), and sought trackage rights linking their lines with Peninsula. This appeal arises out of the Commission's denial—in disagreement with its hearing examiner's recommendations of the petitions of Milwaukee and SP. Together with these two railroads, the Port of Portland and the Public Utility Commissioner of Oregon appeal from the decision of the three-judge District Court affirming, without opinion, the Commission's order. The United States joins the appellants in urging that the judgment below be reversed, while the Commission joins Burlington Northern and UP in urging affirmance. Probable jurisdiction was noted. 401 U.S. 906, 91 S.Ct. 865, 27 L.Ed.2d 804 (1971).
3
The question whether the Commission applied the correct legal standards is presented against the background of a complex factual situation—though this is not unusual in the case of railway mergers and acquisitions—and we find it necessary to go into detail concerning the facts and the proceedings prior to the submission of the case here.
4
* A. The Rivergate Area and Peninsula's Relation to It
5
The developing Rivergate Industrial District occupies nearly 3,000 acres at the tip of the peninsula formed by the confluence of the Columbia and Williamette Rivers. Rivergate's six miles of waterfront will provide docksites for direct deepwater access to the Pacific Ocean. The Port of Portland has expended more than five million dollars of public funds for planning, construction, and development, and it is estimated that ultimate public and private investment in industrial and port facilities at Rivergate will exceed 500 million dollars.
6
As conceived by its public developers, the Rivergate complex will be served by a domestic transportation network capable of providing efficient and economical service to and from points throughout the Nation. To achieve this goal, the Port's consultants recommended construction by the Port of an internal rail loop that would connect with existing carriers at the southwestern and eastern corners of Rivergate, thus providing Rivergate industries with direct access to all line haul carriers serving Portland. At full development—estimated to be 15 years in the future—rail traffic generated by these industries is expected to reach between 500 and 600 cars per day, with a projected annual volume of five million tons of freight.
7
At present eight industries2 occupy about one-tenth of the Rivergate area. Seven of these are located on the west, or Willamette River, side of Rivergate, and are served by tracks owned by the Port of Portland. Outside rail access to this part of Rivergate is provided by tracks extending from UP's Barnes Yard (point 9 on the schematic map appended to this opinion) and connecting with the Port of Portland tracks. Over these external tracks, jointly owned by UP and Burlington Northern, UP provides switching service to the line-haul carriers serving Portland. It is expected that this Barnes Yard route will remain the southwest entrance to Rivergate.
8
The one other Rivergate industry—the poleyard of the Crown Zellerbach Corporation (Point E on the map)—is located at the easternmost edge of Rivergate, on the Columbia River. Outside rail access is presently provided by Peninsula, which serves, in addition, 13 industries located just southeast of the Rivergate boundary. Peninsula, organized in 1918 to serve a packinghouse facility long since closed, has a main track extending for only 8,000 feet along the Columbia River. At its easternmost end is the North Portland interchange (point 7 on the map), where Peninsula connects with lines owned by Burlington Northern and UP. Since the lines of these two line-haul carriers do not connect directly with Rivergate in this area, access to the eastern end of the Rivergate District is, at present, solely over Peninsula tracks.
9
Whether Peninsula tracks will remain the sole access to the eastern end of Rivergate is by no means certain. Peninsula suffers from certain physical limitations—its tracks are laid upon sand, its clearances are limited, and the main line is impeded by heavy curvature. Furthermore, the North Portland interchange tracks may have insufficient capacity for the expected Rivergate traffic. Accordingly, an alternate access route to the eastern end of Rivergate is under consideration, that is, a new spur leading directly to Rivergate from the Burlington Northern main north-south tracks.3
10
All outstanding capital stock of Peninsula is owned by the United Stockyards Corporation. Stockyards R. Co. Control, 254 I.C.C. 207 (1943). United is not itself a carrier and has no interest in continuing to operate a railroad independent of its stockyard operation. It has been willing to sell Peninsula at the appraised value of its capital stock, and it has no preference as to the purchaser. On February 28, 1967, United entered into an agreement to sell Peninsula to SP&S and UP.4
11
By joint application filed with the Interstate Commerce Commission on July 25, 1967, SP&S and UP sought approval, under § 5(2) of the Interstate Commerce Act,5 of their contracted purchase of Peninsula from United Stockyards. The application pointed out that the acquisition would enable the applicants to provide rail service to the adjacent Rivergate area over the Peninsula tracks. Peninsula, however, would continue to operate as a separate carrier. No major changes in traffic or revenues were anticipated in the immediate future, though it was anticipated that 'within the foreseeable future substantial new traffic and revenues' would be derived from the developing Rivergate area.
12
In response to the above application, Milwaukee and SP filed petitions seeking inclusion in the acquisition of Peninsula as joint and equal owners, pursuant to § 5(2)(b)(c), and (d) of the Act; in addition, they sought the right to use tracks necessary to connect their own lines with Peninsula. The Commission's action on these petitions is the subject of the present appeal. The competing contentions are closely related to the facts of the interconnections between the four line-haul carriers near Rivergate, and to these we now turn. C. Carrier Interconnections and Switching Arrangements
13
(1) The North Portland Interchange
14
At the North Portland interchange (point 7 on the map), where Peninsula connects with Burlington Northern and UP, are four interchange tracks. Two of these are jointly owned by Burlington Northern and UP; the remaining two are owned half by Peninsula, and the other half jointly by Burlington Northern and UP. Only one of these four tracks—one of the two jointly owned by Burlington Northern and UP—connects directly to the Burlington Northern double main-line tracks, running to the north across the Columbia River. In addition, the interchange tracks connect to a single UP track, which extends south through a mile-long tunnel to the UP's Albina Yard (point 6 on the map), a distance of 5.2 miles.6
15
At the time of the hearing in this case, about 30 cars were handled daily at the North Portland interchange. About 61% of this traffic involved switching between the predecessors of Burlington Northern on the one hand and UP and its subsidiaries on the other. Only the remaining 39% involved switching cars designated to or from industries served by Peninsula.7 As the only two line-haul carriers connecting directly with Peninsula at North Portland, Burlington Northern and UP provide reciprocal switching to any other line-haul carrier whose card are designated to or from industries served by Peninsula.8
16
Although SP is a line-haul carrier serving Portland, its tracts terminate in East Portland (point 5) and at the Hoyt Street Yard on the other side of the Willamette River (point 3). SP cars designated for industries served by Peninsula are generally switched to UP trains at the latter's Albina Yard (point 6) and moved thence to the North Portland interchange, where they are switched by Peninsula itself to their ultimate destination. Alternatively, the cars may be switched to SP&S trains at the Hoyt Street Yard and moved to North Portland over the SP&S main-line. In either case, SP must pay a switching charge to Burlington Northern or to UP (whichever is the switching carrier), and then pay a 'rate division' to Peninsula for its switching service.9 The Peninsula rate division is absorbed by any line-haul carrier subject to it and is thus not passed on to the shipper. The SP&S and UP switching charges may be absorbed by a line-haul carrier if a minimum line-haul revenue per car is exceeded, and SP has done so, except on certain low-rated noncompetitive traffic. SP shared in about 20% of Peninsula's traffic in 1966, and in about 17% in 1967.
17
Throughout the proceedings below, Milwaukee was not a line-haul carrier serving Portland. Its own tracks terminate at Longview, Washington, 46 miles north of Portland, and through arrangements with SP&S it shared in only one percent of Peninsula's traffic in 1966 and 1967. However, a basic condition of the Commission's approval of the merger of the Great Northern Railway Co., the Northern Pacific Railway Company, and their affiliates, including SP&S, was that Milwaukee be made an effectively competitive transcontinental carrier by being permitted to enter Portland over the lines of the new company, Burlington Northern.10 Condition 24(a) of the merger required that Burlington Northern
18
'shall grant to the Milwaukee, upon such fair and reasonable terms as the parties may agree or as determined by this Commission in the event of their inability to agree, trackage rights to operate freight trains over (Burlington Northern) lines between Longview Junction and Portland, including the right to serve on an equal basis all present and future industries at Portland and intermediate points and the use of (Burlington Northern) facilities at Portland necessary for the switching of traffic to other railroads and industries. (Burlington Northern) shall maintain Portland as an open gateway on a reciprocal basis with the Milwaukee to the same extent as with other connecting carriers. . . .' 331 I.C.C. 228, 357.
19
Pursuant to Condition 24(a), Milwaukee commenced service to Portland on March 22, 1971.11 Since that date, it has published rates reflecting single-line service to Portland industries, including those served by Peninsula, by absorbing the relevant switching charges. It has operated its own locomotives over Burlington Northern lines as far south as the Hoyt Street Yard on the western side of the Willamette River (point 3). If Milwaukee is not allowed to switch cars directly to Peninsula at the North Portland interchange, Milwaukee cars designated for industries on Peninsula will be switched to Burlington Northern trains at Vancouver, on the north side of the Columbia (point 8), at the Hoyt Street Yard (point 3), or at the Guild's Lake Yard (point 2), and moved thence to Peninsula.12
20
By petition filed August 23, 1967, Milwaukee sought inclusion in the proposed purchase of Peninsula by Burlington Northern (then SP&S) and UP. Section 5(2) (d) of the Interstate Commerce Act authorizes the Commission to require such inclusion as a prerequisite to its approval of the purchase 'upon a finding that such inclusion is consistent with the public interest.' After first setting out its impending access to Portland over SP&S lines because of the Northern Lines merger, Milwaukee alleged:
21
'The instant transaction, if approved by the Commission without inclusion of Milwaukee upon the terms stated below, would have the effect of foreclosing Milwaukee direct service to all the industries now or in the future to be located on the lines of Peninsula Terminal Company. With fifty per cent of Peninsula Terminal Company stock in the hands of Union Pacific Railroad Company, not a party to the contract referred to above, Milwaukee will not have any right similar to that sought by applicants herein . . . to operate over or obtain trackage rights in the lines of Peninsula Terminal Company. Industries on the lines of Peninsula Terminal Company will thus be denied the single-line service of Milwaukee to such points as (various western and midwestern rail centers served by Milwaukee), contrary to the public interest.'13 App. 165.
22
Accordingly, the Milwaukee sought equal inclusion with SP&S and UP in the purchase of Peninsula and, in addition, asked
23
'(t)hat Milwaukee be granted the right to acquire trackage rights over intervening connecting trackage jointly owned by applicants, from SP&S main line to Peninsula Terminal Company's lines upon such reasonable terms and conditions, and for such considerations, as Milwaukee and applicants may negotiate, or, failing such negotiations, upon such terms and conditions and for such consideration as the Commission may find just and reasonable.'14 App. 166.
24
On December 29, 1967, SP&S and the UP filed replies, arguing, inter alia: (1) that even if Condition 24(a) were implemented, Milwaukee would still not connect with Peninsula because of the intervening North Portland interchange tracks, jointly owned by SP&S, UP, and Peninsula, and trackage rights over these tracks could not be granted to the Milwaukee in this proceeding; and (2) that joint ownership of Peninsula with the Milwaukee could 'lead to a cumbersome, confused and divided management with resulting policy stalemates and serious deterioration of service.'
25
Milwaukee thereupon filed a supplement to its petition for inclusion, stating that
26
'in light of the replies of applicants herein to the Milwaukee's petition for inclusion, the Milwaukee alleges that the joint application herein is for the purpose of bottling up the Milwaukee at Portland and impair (sic) its ability to provide a competitive service to industries served or to be served by Peninsula Terminal Company contrary to the public interest and the plain intent of the Commission's (report and order in the Northern Lines Merger case).' App. 182.
27
Accordingly, the Milwaukee added to its earlier petition by requesting:
28
'That applicants be required to grant Milwaukee trackage rights over intervening trackage at North Portland connecting with the yards of Peninsula Terminal Company, both as a condition to participation in ownership of Peninsula Terminal Company and also under Section 3(5) of the Interstate Commerce Act.' App. 183. (Emphasis added.)
29
Whether intentionally or not, by requesting trackage rights under § 3(5), the text of which appears in the margin,15 Milwaukee divorced the question of access to Peninsula from the question of inclusion in the ownership of Peninsula. Any trackage rights granted in connection with the petition for inclusion under § 5(2) would be contingent upon SP&S' and UP's deciding to consummate the purchase; trackage rights granted under § 3(5), however, would be independent of the purchase.
30
In the meantime, by an amended petition filed November 29, 1967, SP joined with the Milwaukee in seeking inclusion under § 5(2)(d) as an equal owner of Peninsula. It further requested that UP
31
'be required to grant petitioner bridge trackage rights over (the Union Pacific) main line and terminal trackage between Peninsula Terminal Company and the Southern Pacific-Union Pacific track connection at East Portland, Ore.'16 App. 168.
32
In response to replies that trackage rights to East Portland could not be granted in a § 5(2) proceeding, SP, unlike Milwaukee, initiated separate proceedings under § 3(5) (Dec. 19, 1967). It sought orders requiring SP&S and UP to allow the 'common use of Peninsula Terminal Company,' together with bridge trackage rights over UP lines to East Portland; additionally (or, presumably, alternatively), it sought the 'common use of the terminal facilities of Union Pacific between Peninsula Terminal Company and . . . East Portland, Oregon.'17
E. Proceedings Before the Hearing Examiner
33
The applications, petitions, and replies of the four line-haul carriers were referred to an examiner for hearing upon a consolidated record. The Port of Portland, the Portland Commission of Public Docks, the Public Utility Commissioner of Oregon, and Crown Zellerbach Corporation intervened in favor of Milwaukee and the SP.18 At the hearings in February and March of 1968, evidence was taken from five shippers in addition to Crown Zellerbach, as well as officers and consultants of the parties and intervenors.
34
On September 9, 1968, nearly a year after the Commission had approved the Northern Lines merger, the hearing examiner issued his report. In the § 5(2) proceeding, he recommended approval of the purchase of Peninsula by Burlington Northern and UP, on condition (1) that SP be included as an equal owner and (2) that Milwaukee be included as an equal owner upon consummation of the Northern Lines merger and upon Milwaukee's commencing operations into Portland.19 The examiner further recommended that if the purchase were consummated on the above conditions, SP and Milwaukee be granted
35
'the right of access . . . to Peninsula Terminal Company trackage over intervening North Portland interchange tracks, at North Portland, Oreg., presently owned individually or jointly by (Peninsula, SP&S and Northern Pacific, and UP), upon such terms and compensation for use of such intervening trackage mutually agreeable to the interested carriers, or in the event of failure to agree, as the Commission may fix as just and reasonable, to be ascertained in accordance with the provisions of section 3(5) . . ..' App. 128—129.
36
The examiner found that this right of access 'is practicable and would not substantially impair the ability of the owning carriers to handle their business.'20 App. 129.
37
In the separate § 3(5) proceedings initiated by SP, the examiner ordered common use by SP of the tracks and facilities of UP for operation between the connection at East Portland and the tracks of Peninsula at North Portland, conditioned, again, upon compensation to be agreed upon by the parties or 'just and reasonable' as fixed by the Commission.
38
In his discussion of the issues, the hearing examiner first announced that he would treat the entire area involved as 'one transportation terminal entity.' On the subject of inclusion in the purchase of Peninsula, he announced:
39
'Existing disparity in charges and treatment of traffic within the Portland switching area is convincing evidence that the greatest economic advantage for equality of shippers and carriers can be accomplished best by equal access and ownership. The most economical and functionally modern transportation facilities are essential to development of Rivergate and the Port of Portland. Limitation of direct access there to two railroads barring on-line solicitation and the direct development interests of the other railroads serving the Portland area is contrary to an environment of unencumbered development and the establishment of a sound transportation system. . . . (D)irect access to all the carriers will enable shippers to deal directly with originating carriers providing on-line service to many points in areas not served by the two initial applicants. Shippers would benefit from elimination of switching charges assessed on non-competitive traffic where one of the applicants now acts as a switching carrier.' App. 120—121.
40
On the subject of the SP's § 3(5) applications, the examiner found that the evidence warranted a conclusion that common use by SP of UP trackage between the North Portland interchange and East Portland was 'in the public interest, practicable, and would not substantially impair UP's ability to handle its own business.' He noted the 'almost incredible 30-hour average transit time required for car movements between Albina Yard and Peninsula, a round-trip distance of about 10.4 miles, including engine changes, car inspection, and car classification at Albina Yard.' With respect to the developing Rivergate complex, the examiner was convinced
41
'that access thereto by other line-haul carriers will create greater incentive for improvement of railroad facilities and for elimination of present unsatisfactory conditions in the involved area.' App. 124.
42
Nor did the examiner think that joint ownership and access by the four line-haul railroads in Peninsula and the proposed trackage rights to SP would curtail competition.
43
'To the contrary, shippers in the involved area would be afforded free direct access to all the line-haul carriers' services. Among other things, it would place traffic movements between the Portland area, on the one hand, and, on the other, on-line points of carriers in California and States east thereof, on a more competitive basis with movements between those points over the lines of UP and (Burington Northern) . . .. Also, Milwaukee would become more competitive with UP and (Burlington Northern) and their connections in providing service to the north and east of Portland. The authorizations, generally, would result in improved competitive service and the fostering of sound transportation in the involved area.' App. 125.
44
Finally, the examiner did not grant SP's apparent application, pursuant to § 3(5), for trackage rights over Peninsula itself. He concluded his discussion with the words:
45
'In event the parties elect not to consummate the purchase (of Peninsula) recommended herein further petitions by these carriers requesting access to and operation over trackage of Peninsula pursuant to section 3(5) of the Act may be filed. Jurisdiction will be retained for that purpose.'21 App. 127.
46
Burlington Northern and UP filed exceptions to the hearing examiner's recommendations. They contended, inter alia, (1) that undue emphasis was placed on the future development of Rivergate, (2) that the hearing examiner erroneously held the Portland terminal area to constitute one terminal entity, (3) that the evidence does not support a four-way ownership of Peninsula, either from a general public or a shipper standpoint, (4) that Condition 24(a) did not grant Milwaukee access to Peninsula, and (5) that neither use of the North Portland interchange tracks by Milwaukee and SP, nor common use by the SP of UP trackage between North Portland and East Portland, was in the public interest.22
47
On June 6, 1969, Division 3 of the Interstate Commerce Commission issued its opinion. 334 I.C.C. 419. Though it approved the acquisition of Peninsula by SP&S and UP, it otherwise rejected the hearing examiner's recommendations and denied the petitions and applications filed by Milwaukee and SP. The following conditions were imposed upon the acquisition, 'to protect the present routings and interchanges' of Peninsula:
48
'1. Under the control of SP&S and UP, Peninsula shall maintain and keep open all routes and channels of trade via existing junctions and gateways, unless and until otherwise authorized by the Commission;
49
'2. The present neutrality of handling inbound and outbound traffic to and from Peninsula by SP&S and UP shall be continued so as to permit equal opportunity for service to and from all lines reaching Peninsula through SP&S and UP without discrimination as to routing or movement of traffic, and without discrimination in the arrangements of schedules or otherwise;
50
'3. The present traffic and operating relationships existing between Peninsula, on the one hand, and, all lines reaching Peninsula through the lines of SP&S and UP, on the other, shall be continued insofar as such matters are within the control of SP&S and UP;
51
'4. Peninsula, SP&S and/or UP shall accept, handle, and deliver all cars inbound, loaded and empty, without discrimination in promptness or frequency of service irrespective of destination or route of movement;
52
'5. Peninsula, SP&S and/or UP shall not do anything to restrain or curtail the right of industries, now located on Peninsula, to route traffic over any and all existing routes and gateways; '6. Peninsula, SP&S and/or UP shall refrain from closing any existing route or channel of trade with SP or Milwaukee on account of the (authorized purchase of Peninsula), unless and until authorized by this Commission;
53
'7. Consummation of (the authorized purchase of Peninsula) shall constitute assent by the corporate parents of SP&S, the members of their respective systems, and any carrier resulting from consummation of the Northern Lines case, to be bound by these conditions to the same extent that SP&S is bound by these conditions; and
54
'8. Any party or person having an interest in the subject matter may at any future time make application for such modification of the above-stated conditions, or any of them, as may be required in the public interest, and jurisdiction will be retained to reopen the proceeding on our own motion for the same purpose.' 334 I.C.C., at 436—437.
II
55
A. 'Direct Access'
56
As a reading of Part I reveals, there seems to have been a certain amount of confusion below as to whether or not actual operation over the main tracks of Peninsula by any of the four line-haul carriers was at issue in this case. Early in the Commission's discussion of the merits, for example, it said:
57
'(W)e find that since neither SP nor Milwaukee now connect with Peninsula, and have never connected with it in the past, their direc service to Peninsula's industries over the objections of SP&S and UP would constitute a new operation and an invasion of the joint applicant's territory' 334 I.C.C., at 433 (emphasis added).
58
Laying aside the substantive policy involved in this statement, we do not see how the italicized words can refer to anything but physical operation over tracks wholly owned by Peninsula. Yet, as we have already seen supra, at 828—829, and n. 20, and 832 n. 21, the hearing examiner did not recommend the granting of such trackage rights to Milwaukee and SP; and neither of these two railroads filed exceptions to the hearing examiner's report requesting such rights. As for Burlington Northern and UP, the third condition which the Commission imposed on their purchase of Peninsula (quoted supra, at 833) seems to acknowledge that Peninsula will continue to operate as a separate railroad, handling all the switching from industries located upon its lines to the North Portland interchange tracks.
59
This matter was not resolved before this Court. The briefs filed by the appellants and by the United States contain many references to 'direct access' by the line-haul carriers to Peninsula and Rivergate, again strongly suggesting physical operation over Peninsula tracks. The Commission argues that physical operation on the part of Burlington Northern and UP is not at issue, because ownership alone—all that these two railroads seek—gives no right to operate over the tracks of the purchased railroad. Brief for Interstate Commerce Commission 23 n. 15; Tr. of Oral Arg. 30. Milwaukee denies that it ever sought 'to switch cars to Peninsula industries with its own engines and crews,' Supplemental Brief for Appellant Milwaukee 34, but no similarly direct statement has been forthcoming from SP.
60
We have set forth but one of the confusions—factual and procedural—that plague this case. Such confusions might have been resolved before the case reached us had the three-judge court that initially reviewed these orders written an opinion. B. The Petitions for Inclusion
61
(1) Condition 24(a)
62
Milwaukee and the United States argued at length before this Court that Condition 24(a) of the Northern Lines merger by itself requires that Milwaukee be included in the purchase of Peninsula. The Commission considered this point at the very start of its discussion of the merits and stated that Milwaukee's petition for inclusion could not be viewed
63
'as part of the general realignment of western railroad competition resulting from the Commission's approval of the Northern Lines merger. Condition No. 24 . . . is applicable only to Northern Lines trackage and territory. The condition is silent with respect to trackage and territory in which other carriers, such as UP, have a joint interest and the effect of the condition upon such joint trackage and territory was not presented to, nor considered by, the Commission. Furthermore, . . . the purchase of Peninsula by the joint applicants was not within the contemplation of the Commission at the time condition No. 24 was imposed. . . . Accordingly, we consider the petition of Milwaukee under the same public interest criteria as the petition and applications of SP, rather than as a petition to carry out the provisions of condition No. 24.10' 334 I.C.C., at 432.
64
In its footnote 10, however, the Commission said:
65
'Upon completion of litigation in the Northern Lines case and consummation of that merger, Milwaukee may wish to seek relief from the Commission in that proceeding to determine the relationship of condition No. 24, if any, to Peninsula's tracks which would at that time be partially owned by the Northern Lines.' Ibid.
66
This suggestion that the Commission might consider anew the effect of Condition 24(a) upon jointly owned tracks leaves us in doubt whether at this point it has made a final determination on the applicability of the condition, or simply a determination that the question should be raised in a different proceeding. We do not find it necessary, however, to resolve this doubt and to rule upon the narrow question whether Condition 24(a) alone requires that Milwaukee be included in the purchase of Peninsula. No one disputes that the condition had one clear meaning—that Milwaukee would be permitted to run its trains into Portland over Burlington Northern-SP&S tracks. The Commission took this as its starting point and went on to discuss the merits of both Milwaukee's and SP's petitions for inclusion. We find, for the reasons that will appear below, that the Commission took too narrow a view of the 'public interest' and we are in disagreement with its § 5(2) order.
67
(2) Evaluating the Public Interest
68
As an initial matter, the Commission limited its attention to Peninsula alone, rather than considering the 'entire Portland area' as 'one transportation terminal entity,' as the hearing examiner had. Appellants contend that this very first step was error, but we think it wiser to evaluate the Commission's approach as a whole.
69
A fair summary of the Commission's analysis appears in the last paragraph of its discussion of the petitions for inclusion. There it concludes:
70
'The adverse effect on SP&S and UP, and the shippers dependent upon them for service, of admitting SP and Milwaukee into ownership and control of Peninsula, would outweigh any advantage accruing to SP, Milwaukee, and the Rivergate industries of four-railroad ownership. We cannot find, therefore, that inclusion of SP and Milwaukee in the title proceeding would constitute a just and reasonable term, condition, or modification of the authority requested by the joint applicants.' 334 I.C.C., at 435.
71
In the preceding paragraphs, the Commission had summarized the evidence presented by the three shippers located in Rivergate that had supported SP's petition and application; it concluded that this evidence failed to establish that benefits would accrue from four-railroad ownership of Peninsula. No mention was made of evidence that tended to establish that 'shippers dependent upon' SP&S and UP would suffer from such ownership. It is apparent, therefore, that the dominant factor in the Commission's analysis, outweighing any advantage accruing to SP and Milwaukee from four-railroad ownership, was the 'adverse effect on SP&S and UP'; we must examine now the manner in which the Commission characterized this 'adverse effect.'
First, the Commission said:
72
'(W)e find that since neither SP nor Milwaukee now connect with Peninsula, and have never connected with it in the past, their direct service to Peninsula's industries over the objections of SP&S and UP would constitute a new operation and an invasion of the joint applicant(s') territory.' Id., at 433.
73
We have already observed that this passage suggests direct physical operation over the main track of Peninsula, a matter that appears not to be directly at issue in this case. But it may also refer to the trackage rights sought by Milwaukee and SP, as a condition to the purchase, which would permit them to connect directly with Peninsula, so the Commission's further treatment of this point is relevant:
74
'In the past, the Commission has usually held that sound economic conditions in the transportation industry require that a railroad now serving a particular territory should normally be accorded the right to transport all traffic therein which it can handle adequately, efficiently, and economically, before a new operation should be authorized. This conclusion is applicable not only with respect to existing traffic but also with respect to potential traffic . . .. See Minneapolis, St. P. & S.S.M.R. Co. Acquisition, 295 I.C.C. 787, 802 (1958), and cases cited therein.' Ibid.
75
This passage appears to announce the principle that in considering petitions for inclusion in proposed purchases or mergers under § 5(2), with accompanying trackage rights, the dominant policy is preservation of the market shares of the railroads already serving the location in question, so long as those railroads provide reasonably adequate switching service to other carriers in the area. Whatever doubts we might have, either as to the principle itself or its application to this case, are removed by the critical paragraph that immediately follows the sentences just quoted:
76
'As shown in the appendix, SP shared, through connections and use of joint rates and routes, in only about 20 percent of Peninsula's traffic during 1966, and only about 17 percent during 1967. Milwaukee's share, also via connections and joint rates and routes, amounted to only 1 percent during those years. Permitting SP and Milwaukee to acquire access to, and equal ownership of, Peninsula and therefore participate in its existing traffic on a direct haul basis will, of course, allow those two railroads to increase their share of Peninsula's declining traffic (3,640 loaded cars handled in 1966 and 2,748 handled in 1967). These increased shares of SP and Milwaukee could only be at the expense of the joint applicants and the railway employees whose jobs would be eliminated by the direct service planned by SP and Milwaukee.' Ibid.
77
This discussion strikes us as initially misdirected because it ignores the prospective presence of Milwaukee in this area. In 1966 and 1967, Milwaukee trains were still running no closer to Portland than Longview, Washington, 46 miles away. All through the Commission proceedings, however, it was assumed by all concerned that pursuant to Condition 24(a) of the Northern Lines merger, Milwaukee would soon be operating directly into Portland over Burlington Northern tracks, as it is today. Granted that Milwaukee had only 1% of Peninsula's traffic in 1966 and 1967, the Commission pointed to no evidence that the Milwaukee share would continue to be this small after affirmance of the Northern Lines merger.
78
The next difficulty with the Commission's approach relates to the potential growth of Peninsula traffic. The raison d'e tre of this litigation has been the possibility that Peninsula would become the northern access to Rivergate. As we have already noted, this possibility may be remote, given the physical limitations of Peninsula's present facilities. But the Commission nowhere states that the possibility is too speculative to be considered in this litigation. The paragraph we have just quoted, then, reads strangely indeed; for if Peninsula becomes the northern route into Rivergate, the estimates we have been given indicate that daily traffic over its line would increase from the 1967 rate of 30 cars per day to over 300 cars per day, assuming that a roughly equal number of cars go out over each of the northern and southern routes from Rivergate. Yet according to the principle announced by the Commission, the public interest requires that Burlington Northern's and UP's 80% share of this potentially enormous traffic be protected.
79
Such an approach seems to us to fly in the face of the well-settled principle that the Commission is obligated to consider the anticompetitive effects of any § 5(2) transaction. McLean Trucking Co. v. United States, 321 U.S. 67, 83—87, 64 S.Ct. 370, 378—381, 88 L.Ed. 544 (1944); Northern Lines Merger Cases, 396 U.S. 491, 511—516, 90 S.Ct. 708, 717—720, 24 L.Ed.2d 700 (1970). It is not necessary to invoke the precise terms of Condition 24(a) and decide their applicability to this case, to take cognizance of the fact that prior to the Northern Lines merger, Milwaukee was a weak carrier in the Northern Tier of States. Northern Lines Merger Cases, 396 U.S., at 504, 514—516, 90 S.Ct., at 714, 719—720, 24 L.Ed.2d 700. Condition 24(a) was not intended to foreclose consideration of Milwaukee's competitive position vis-a -vis Burlington Northern in any other proceeding. Both Milwaukee and SP were entitled to explicit consideration of their economic positions as compared with that of Burlington Northern and UP or, at least, a clear statement why such an inquiry was not appropriate.
80
Even the one case cited by the Commission in support of its general principle, Minneapolis, St. P. & S.S.M.R. Co. Acquisition, 295 I.C.C. 787, 802 (1958), undercuts the Commission's reasoning. There, the Commission denied applications of other lines for permission to acquire tracks and to undertake new construction in territory traditionally served by the Chicago & North Western Railway Co.; the latter's economic vulnerability made preservation of its exclusive territory important to the public interest.
81
There is no indication in the present case that Burlington Northern and UP are economically vulnerable, or that they in any way need their present share of Peninsula traffic to serve the public interest. We are confronted with two railroads that already control one actual route into Rivergate (via Barnes Yard) and one potential route (any spur leading off the Burlington Northern-SP& § main-line tracks), and that now seek to acquire, for themselves alone, the one remaining route. The Commission's entire discussion of the anticompetitive aspects of this acquisition can be summed up as follows: to the extent that SP and Milwaukee may gain by four-railroad ownership of Peninsula, Burlington Northern and UP will lose; therefore the petitions for inclusion are denied. We do not approve this approach to the case.
82
Despite what we have said about the Commission's apparent reasoning, it does not necessarily follow that the result it reached was incorrect. Given the uncertainty about the northern access to Rivergate, and given the apparent fact that physical operation over Peninsula and into Rivergate was not at issue, approval of the purchase by Burlington Northern and UP alone, with the eight attached conditions, may be the result most in the public interest at the present time. We note that the Commission retained jurisdiction over the proceedings.
83
But it is not the role of this Court to arrive at its own determination of the public interest on the facts of this case. Our appellate function in administrative cases is limited to considering whether the announced grounds for the agency decision comport with the applicable legal principles. SEC v. Chenery Corp., 318 U.S. 80, 87—88, 63 S.Ct. 454, 459—460, 87 L.Ed. 626 (1943). In this proceeding—where the record is already confused by ambiguities over what was thought to be at issue—we cannot say that the grounds for the agency decision are consistent with the 'public interest' standard found in the Interstate Commerce Act. We must reverse and remand for further proceedings. C. Southern Pacific's § 3(5) Applications
84
We turn to SP's applications for trackage rights which would permit it to run trains directly to Peninsula from East Portland. According to the Commission:
85
'The intent of Congress in enacting section 3(5) was to provide a method of avoiding the necessity for incurring unnecessary expense in duplicating existing terminal facilities by a railroad entitled to serve a particular territory.' 334 I.C.C., at 435.
86
Since SP was 'not entitled to serve Peninsula or Rivergate,' it went on,
87
'we need not reach the questions of whether common use of the facilities involved would be practicable or would substantially impair the ability of Peninsula and UP to handle their own business.' Id., 436.
88
According to the rule applied here, if a railroad is not 'entitled to serve' a particular territory, the Commission conclusively presumes that granting § 3(5) rights would not be in the 'public interest.' Whether or not such a per se rule is permissible under § 3(5) strikes us as a substantial question of statutory construction. For the following reasons, however, we decline to decide this question in the instant case and include these § 3(5) proceedings in our remand to the Commission.
89
First, we note that the two cases cited by the Commission in support of its announced rule, Use of Northern Pacific Tracks at Seattle by Great Northern, 161 I.C.C. 699 (1930), and Seaboard Air Line R. Co.—Use of Terminal Facilities of Florida East Coast R. Co., 327 I.C.C. 1 (1965), do not directly present the question at issue, since in each case the Commission decided that the applying railroad was entitled to serve the area and went on to grant the requested trackage rights.
90
Second, we note that the Commission's brief now defends the ruling below on broader grounds than those that were announced. This leads us to doubt the extent to which the Commission's announced rule is settled ICC law.
91
Third, the question of § 3(5) relief may become moot if the Commission, on remand of the § 5(2) petitions for inclusion, reverses itself and requires trackage rights for SP as a condition for approval of the purchase of Peninsula, and if the purchase is then consummated.
92
Fourth, the § 3(5) applications were considered in close connection with the § 5(2) petitions for inclusion by both the Commission and the hearing examiner. We cannot say with assurance that the Commission would approach the § 3(5) applications in the same way after reconsidering the petitions for inclusion in light of Parts II(A) and (B) of this opinion.
93
The judgment of the District Court is reversed. The case is remanded to the District Court with instructions that it remand to the Interstate Commerce Commission for further proceedings consistent with this opinion.
94
Mr. Justice POWELL and Mr. Justice REHNQUIST took no part in the consideration or decision of this case.
APPENDIX
95
[NOTE: MATERIAL SET AT THIS POINT IS NOT DISPLAYABLE (GRAPHIC OR TABULAR MATERIAL)]
1
SP&S was formerly owned by the Great Northern Railway Co. and the Northern Pacific Railway Co. These two roads merged to become Burlington Northern. See Northern Lines Merger Cases (United States v. Interstate Commerce Commission), 396 U.S. 491, 90 S.Ct. 708, 24 L.Ed.2d 700 (1970). SP&S now operates as an integral part of that railroad. Reference to Burlington Northern in this opinion will include its SP&S operation, but SP&S often will be referred to in connection with the proceedings below, where it was the named party.
2
When the record closed below, the number of industries in Rivergate was five, four of which were located on the Willamette River side of Rivergate. App. 81. By the time the case had reached the Commission, another industry had located on the Willamette River side. According to the Brief for the Interstate Commerce Commission, p. 38, which no one has contradicted, two additional industries have now located on the Willamette River side.
3
SP&S and UP had already provided for joint ownership of such a spur in their May 26, 1967, contract for the joint ownership of the line between Barnes Yard and the southwestern part of Rivergate. See Art. XI of this agreement, App. 313.
B. The Proposed Purchase of Peninsula
4
The agreed purchase price is $299,405 for all outstanding shares of common stock of Peninsula plus the sum of $70,000 to reimburse United for two switch engines sold by United to Peninsula, and representing an unsecured account payable to United. Peninsula's properties consist of 13.17 acres of land, none suitable for industrial development, and a total of 3.79 miles of main line and secondary and spur track laid on treated ties in sand with no rock ballast. Besides the two above-noted locomotives, including tools and parts for their operation and maintenance, Peninsula owns tools for track maintenance, conveyance for workmen, a heated engine house for both locomotives, a yard office, and a sand house.
5
Section 5(2) of the Act, 49 U.S.C. § 5(2), provides in pertinent part:
'(a) It shall be lawful, with the approval and authorization of the Commission, as provided in subdivision (b) of this paragraph—
'(i) for . . . two or more carriers jointly, to acquire control of another through ownership of its stock or otherwise . . .
'(b) Whenever a transaction is proposed under subdivision (a) of this paragraph, the carrier or carriers or person seeking authority therefor shall present an application to the Commission, and thereupon the Commission . . . shall afford reasonable opportunity for interested parties to be heard. . . . (A) public hearing shall be held in all cases where carriers by railroad are involved unless the Commission determines that a public hearing is not necessary in the public interest. If the Commission finds that, subject to such terms and conditions and such modifications as it shall find to be just and reasonable, the proposed transaction is within the scope of subdivision (a) of this paragraph and will be consistent with the public interest, it shall enter an order approving and authorizing such transaction, upon the terms and conditions, and with the modifications, so found to be just and reasonable . . ..
'(c) In passing upon any proposed transaction under the provisions of this paragraph, the Commission shall give weight to the following considerations, among others: (1) The effect of the proposed transaction upon adequate transportation service to the public ; (2) the effect upon the public interest of the inclusion, or failure to include, other railroads in the territory involved in the proposed transaction; (3) the total fixed charges resulting from the proposed transaction; and (4) the interest of the carrier employees affected.
'(d) The Commission shall have authority in the case of a proposed transaction under this paragraph involving a railroad or railroads, as a prerequisite to its approval of the proposed transaction, to require, upon equitable terms, the inclusion of another railroad or other railroads in the territory involved, upon petition by such railroad or railroads requesting such inclusion, and upon a finding that such inclusion is consistent with the public interest.'
6
Although the map reproduced in the Appendix does not make this clear, trains coming north on the UP track from Albina Yard may enter directly upon the Burlington Northern double main-line tracks just south of North Portland, without passing through the North Portland interchange.
7
These percentages are based on the figures for loaded or partly loaded cars interchanged at Peninsula during 1967: 2,748 cars designated to or from Peninsula industries; 4,300 interchanged between UP and the predecessors of Burlington Northern. It is not clear from the record how the total figure of 7,048 cars is translated into 30 cars per day—perhaps empty cars are included—but none of the parties disputed the daily or annual figures.
8
In Switching Charges and Absorption Thereof at Shreveport, La., 339 I.C.C. 65, 70 (1971), the Commission has explained 'reciprocal switching' as follows:
'It has long been a common practice among the railroads to participate at commonly served terminal areas in what is called reciprocal switching. In practice this means that one line-haul carrier operating within the terminal area will act only as a switching carrier in placing cars at industries on its own trackage for loading or unloading, as an incident of the line-haul movement of those cars over another carrier whose trackage in that terminal area does not extend to the serviced industry. The carriers reciprocate in their roles as switching and line-haul carriers at this terminal in accordance with the flow of traffic to and from industries on their respective trackage. In theory the carriers mutually exchange their switching services in these terminal areas, with the effect of extending the lines of each carrier to the other's industries—even on traffic for which they may be directly competitive as line-haul carriers. The scope of these reciprocal switching services is, of course, defined in the carriers' respective tariffs, either by definition of a specific area of trackage, or by identification of the particular industries for which reciprocal siwtching is held out. Frequently, the siwtching charges made applicable by each carrier for reciprocal switching are constructed without regard to the actual cost of the service, on the theory that these mutually incurred costs balance out each other. In many instances the line-haul carrier absorbs the reciprocal switching charge, thus placing the off-line industries within a given terminal area on an identical rate basis with its own on-line industries in that terminal area.'
(2) The Southern Pacific Connection
9
In other words, Peninsula is compensated for its switching service in these cases by a flat division of the line-haul rates. At the time of hearing below, the charge generally amounted to $29.25 per car when the car revenue exceeded $60. App. 79.
(3) Milwaukee's Presence in Portland
10
The Commission approved the merger on November 30, 1967. Great Northern Pacific & Burlington Line, Inc.—Merger, etc.—Great Northern R. Co., et al., 331 I.C.C. 228, modified Apr. 11, 1968, 331 I.C.C. 869. This Court ultimately affirmed. Northern Lines Merger Cases, 396 U.S. 491, 90 S.Ct. 708, 24 L.Ed.2d 700 (1970).
Why direct access to Portland was critical to the Milwaukee is made clear by the following quotation from the three-judge District Court opinion in what became the Northern Lines Merger Cases:
'Neither Great Northern nor Northern Pacific would interchange traffic with Milwaukee (at Longview, Washington) except in circumstances which gave Northern Lines the longest possible haul over their own roads. This privilege of Northern Lines not to 'shorthaul' themselves means that traffic originating on the Milwaukee east of the Twin Cities and destined for Portland or California was required to be turned over to one of the merging lines at the Twin Cities. As a consequence, Milwaukee was precluded from being a true transcontinental competitor and was unable to make full use of its extensive trackage ending only a few miles short of Portland. Moreover, Milwaukee was completely precluded from the extensive North-South traffic on the West Coast.' 296 F.Supp. 853, 865 (DC 1968).
11
Since the instant case was litigated below on the express assumption that the Northern Lines merger, and the accompanying condition, would ultimately be affirmed, the Milwaukee's current operation does not constitute a 'change in circumstances' so much as a realization of the assumption.
12
The briefs do not clearly reflect under what arrangements Milwaukee cars have been reaching Peninsula since March 22, 1971, though it is plain that Milwaukee trains have not been moving directly to the North Portland interchange.
D. Milwaukee and Southern Pacific Pleadings Before the Commission
13
The contract here referred to is a 1966 agreement between Milwaukee and the Northern Lines, the terms of which were incorporated in large part into the Commission's conditions accompanying the approval of the Northern Lines merger. In particular, the agreement provided that Milwaukee could operate over SP&S lines as far south as the Hoyt St. Yard, and that SP&S would provide switching of Milwaukee cars at Vancouver and Portland 'to or from industries and connecting carriers to the extent such service is performed by (Burlington Northern) or SP&S for itself or any other carrier.' These provisions were the direct predecessors of the vaguer Condition 24(a), quoted above.
14
A source of confusion in this case has been the extent to which various carriers either would possess or sought to possess trackage rights over Peninsula's main track (as opposed to the interchange tracks at North Portland), so the reader is alerted to tread carefully through the descriptions of the pleadings and the opinions below.
15
Section 3(5) of the Act, 49 U.S.C. § 3(5), provides in pertinent part:
'If the Commission finds it to be in the public interest and to be practicable, without substantially impairing the ability of a common carrier by railroad owning or entitled to the enjoyment of terminal facilities to handle its own business, it shall have power by order to require the use of any such terminal facilities, including mainline track or tracks for a reasonable distance outside of such terminal, of any common carrier by railroad, by another such carrier or other such carriers, on such terms and for such compensation as the carriers affected may agree upon, or, in the event of a failure to agree, as the Commission may fix as just and reasonable for the use so required, to be ascertained on the principle controlling compensation in condemnation proceedings. . . .'
16
We are told that 'bridge trackage rights,' permitting SP only to haul cars from one end of the line to the other, are to be contrasted with 'full user rights' or 'common use,' which would permit SP to serve any industries located along the UP track. See Brief for Appellees SP&S and UP 27.
17
Like Milwaukee, SP had mentioned § 3(5) in connection with its § 5(2) petition for inclusion, asking for
'trackage rights between East Portland and the yards of Peninsula Terminal Company, both as a condition to participation in ownership of Peninsula Terminal Company, and also under section 3(5) . . ., independently of the request for participation in ownership.' App. 169. The hearing examiner and the Commission treated this § 3(5) request as having been superseded by SP's separate § 3(5) proceedings, which, if anything, sought broader relief. We do likewise.
18
Eight railway employee organizations opposed the petitions and applications of Milwaukee and SP. None of their contentions are before us now.
19
In return for inclusion in the purchase of Peninsula, SP and Milwaukee were to be required to make equal contribution to the cost of the shares of capital stock and the locomotive equipment of Peninsula.
Milwaukee's inclusion in the purchase was made contingent, not only on ultimate approval of the Northern Lines merger, but also upon Milwaukee's filing a § 1(18) request for a 'certificate of convenience and necessity authorizing railroad operation between Longview Junction, Wash., and Portland, Oreg.' Given Condition 24(a), the Commission rejected the proposition that a § 1(18) certificate would be necessary before Milwaukee could begin operating in Portland, and the question is not before us on appeal.
20
Did this § 5(2) order grant SP the trackage rights it sought from the Albina Yard? SP contended below that it did, arguing that the only individually owned track in the area that was relevant to the issue was the UP track from North Portland to the Albina Yard, and that the examiner did seem to have in mind all intervening tracks. To protect itself on this point, however, SP filed an exception to the hearing examiner's recommendations, arguing that he should have granted the requested trackage rights under § 5(2).
As for Milwaukee's apparent effort to claim a § 3(5) right to trackage over the North Portland interchange tracks, see Milwaukee's Supplement to Petition for Inclusion, quoted supra, we can only say that it was handled very ambiguously by the hearing examiner. The best explanation of his action is that he deemed it unnecessary to grant trackage rights to Milwaukee under § 3(5), since he was granting them under § 5(2). Alternatively, he may have thought that Condition 24(a) gave Milwaukee trackage rights over the North Portland interchange. Milwaukee did not file an exception on this issue and has not pressed it on this appeal. Cf. Brief for Appellants 34.
21
Whether or not SP had in fact sought, under § 3(5), the right to operate over Peninsula's main track was the subject of strenuous dispute before the hearing examiner. Counsel were unable to agree on the meaning of 'common use,' so the result of the interchange is not perfectly clear, but SP's counsel appeared to concede that his client sought no more than the right to operate to the North Portland interchange and to connect there with Peninsula (in addition, of course, to equal owenrship in the stock of Peninsula). In any event, it is clear that the hearing examiner did not recommend granting any right to operate over the Peninsula main track, and we note that SP did not file an exception on this matter.
F. The Decision of the Interstate Commerce Commission
22
SP&S and UP contended, in addition, that SP and Milwaukee are not 'railroads in the territory involved' within the meaning of § 5(2)(d), and that the Commission, accordingly, did not have jurisdiction to include these two lines in the purchase of Peninsula. The Commission squarely rejected this contention, and since SP&S and UP do not raise it in their briefs here, we assume that the Commission decided the question correctly and discuss it no further.
| 78
|
409 U.S. 1
92 S.Ct. 2718
34 L.Ed.2d 1
Lawrence O'BRIEN et al., Petitioners,v.Willie BROWN et al.
No. ____.
Thomas E. KEANE et al., Petitioners,
v.
NATIONAL DEMOCRATIC PARTY et al.
Application Nos. A—23 and A—24 (In re Case Nos. 72—34 and 72—35) (At July 7 Special Term, 1972).
Decided July 7, 1972.
PER CURIAM.
1
Yesterday, July 6, 1972, the petitioners filed petitions for writs of certiorari to review judgments of the United States Court of Appeals for the District of Columbia Circuit in actions challenging the recommendations of the Credentials Committee of the 1972 Democratic National Convention regarding the seating of certain delegates to the convention that will meet three days hence.
2
In No. 72—35, the Credentials Committee recommended unseating 59 uncommitted delegates from Illinois on the ground, among others, that they had been elected in violation of the 'slatemaking' guideline adopted by the Democratic party in 1971. A complaint challenging the Credentials Committee action was dismissed by the District Court. The Court of Appeals on review rejected the contentions of the unseated delegates that the action of the Committee violated their rights under the Constitution of the United States.
3
In No. 72—34, the Credentials Committee recommended unseating 151 of 271 delegates from California committed by California law to Senator George McGovern under that State's 'winner-take-all' primary system. The Committee concluded that the winner-take-all system violated the mandate of the 1968 Democratic National Convention calling for reform in the party delegate selection process, even though such primaries had not been explicitly prohibited by the rules adopted by the party in 1971 to implement that mandate. A complaint challenging the Credentials Committee action was dismissed by the District Court. On review the Court of Appeals concluded that the action of the Credentials Committee in this case violated the Constitution of the United States.
4
Accompanying the petitions for certiorari were applications to stay the judgments of the Court of Appeals pending disposition of the petitions.
5
The petitions for certiorari present novel questions of importance to the litigants and to the political system under which national political parties nominate candidates for office and vote on their policies and programs. The particular actions of the Credentials Committee on which the Court of Appeals ruled are recommendations that have yet to be submitted to the National Convention of the Democratic Party. Absent judicial intervention, the Convention could decide to accept to reject, or accept with modification, the proposals of its Credentials Committee.
6
This Court is now asked to review these novel and important questions and to resolve them within the remaining days prior to the opening sessions of the convention now scheduled to be convened Monday, July 10, 1972.
7
The Court concludes it cannot in this limited time give to these issues the consideration warranted for final decision on the merits; we therefore take no action on the petitions for certiorari at this time.
8
The applications to stay the judgments of the Court of Appeals call for a weighing of three basic factors: (a) whether irreparable injury may occur absent a stay; (b) the probability that the Court of Appeals was in error in holding that the merits of these controversies were appropriate for decision by federal courts; and (c) the public interests that may be affected by the operation of the judgments of the Court of Appeals.
9
Absent a stay, the mandate of the Court of Appeals denies to the Democratic National Convention its traditional power to pass on the credentials of the California delegates in question. The grant of a stay, on the other hand, will not foreclose the Convention's giving the respective litigants in both cases the relief they sought in federal courts.
10
We must also consider the absence of authority supporting the action of the Court of Appeals in intervening in the internal determinations of a national political party, on the eve of its convention, regarding the seating of delegates.1 No case is cited to us in which any federal court has undertaken to interject itself into the deliberative processes of a national political convention; no holding of this Court up to now gives support for judicial intervention in the circumstances presented here, involving as they do, relationships of great delicacy that are essentially political in nature. Cf. Luther v. Borden, 7 How. 1, 12 L.Ed. 581 (1849). Judicial intervention in this area traditionally has been approached with great caution and restraint. See Irish v. Democratic-Farmer-Labor Party of Minnesota, 399 F.2d 119 (CA8 1968), affirming 287 F.Supp. 794 (D.C.Minn.1968), and cases cited; Lynch v. Torquato, 343 F.2d 370 (CA3 1965); Smith v. State Exec. Comm. of Dem. Party of Ga., 288 F.Supp. 371 (N.D.Ga.1968). Cf. Ray v. Blair, 343 U.S. 214, 72 S.Ct. 654, 96 L.Ed. 894 (1952). It has been understood since our national political parties first came into being as voluntary associations of individuals that the convention itself is the proper forum for determining intra-party disputes as to which delegates shall be seated. Thus, these cases involve claims of the power of the federal judiciary to review actions heretofore thought to lie in the control of political parties. Highly important questions are presented concerning justiciability, whether the action of the Credentials Committee is state action, and if so the reach of the Due Process Clause in this unique context. Vital rights of association guaranteed by the Constitution are also involved. While the Court is unwilling to undertake final resolution of the important constitutional questions presented without full briefing and argument and adequate opportunity for deliberation, we entertain grave doubts as to the action taken by the Court of Appeals.
11
In light of the availability of the convention as a forum to review the recommendations of the Credentials Committee, in which process the complaining parties might obtain the relief they have sought from the federal courts, the lack of precedent to support the extraordinary relief granted by the Court of Appeals, and the large public interest in allowing the political processes to function free from judicial supervision, we conclude the judgments of the Court of Appeals must be stayed.
12
We recognize that a stay of the Court of Appeals judgments may well preclude any judicial review of the final action of the Democratic National Convention on the recommendation of its Credentials Committee. But, for nearly a century and a half the national political parties themselves have determined controversies regarding the seating of delegates to their conventions. If this system is to be altered by federal courts in the exercise of their extraordinary equity powers, it should not be done under the circumstances and time pressures surrounding the actions brought in the District Court, and the expedited review in the Court of Appeals and in this Court.2
13
The applications for stays of the judgments of the Court of Appeals are granted.
14
Applications granted.
15
Mr. Justice BRENNAN is of the view that in the limited time available the Court cannot give these difficult and important questions consideration adequate for their proper resolution. He therefore concurs in the grant of the stays pending action by the Court on the petitions for certiorari.
16
Mr. Justice WHITE would deny the applications for stays.
17
Mr. Justice DOUGLAS, dissenting.
18
I would deny the stays and deny the petitions for certiorari. The grant of the stays is, with all respect, an abuse of the power to grant one. The petitions for certiorari will not be voted on until October, at which time everyone knows the cases will be moot. So the action granting the stays is an oblique and covert way of deciding the merits. If the merits are to be decided, the cases should be put down for argument. As Mr. Justice MARSHALL has shown, the questions are by no means frivolous. The lateness of the hour before the Convention and the apparently appropriate action by the Court of Appeals on the issues combine to make a denial of the stays and a denial of the petitions the only responsible action we should take without oral argument.
19
Mr. Justice MARSHALL, with whom Mr. Justice DOUGLAS joins, dissenting.
20
These two separate actions challenge the exclusion from the Democratic National Convention by the party's Credentials Committee of 151 delegates from the State of California and 59 delegates from the State of Illinois, all of whom were selected as delegates as a result of primary elections in their respective States. The excluded delegates allege, in essence, that the refusal of the party to accept them as delegates denies them due process, and denies the voters who elected them their right to full participation in the electoral process as guaranteed by the United States Constitution.1
21
Two assertions are central to the challenge made by the delegates from California. First, they contend that under California's winner-take-all primary election law, which the Democratic Party explicitly approved prior to the 1972 primary election,2 and which the California voters relied on in casting their ballots, they are validly elected delegates committed to the presidential candidacy of Senator George McGovern. Second, they claim that after all of the presidential candidates who were on the ballot in California had planned and carried out their campaigns relying on the validity of the State's election laws, and after all votes had been cast in the expectation that the winner of the primary would command the entire California delegation, the Credentials Committee changed the party's rules and reneged on the party's earlier approval of the California electoral system. The delegates contend that, in so doing, the committee and the party impaired the rights of both voters and duly elected delegates in violation of the Fourteenth Amendment.3
22
The Illinois delegates contend that they were excluded on the ground that they were 'selected outside the arena of public participation by, and given the massive support and endorsement of, the Democratic organization in Chicago and specifically and clearly identifiable as the party apparatus in (certain districts), to the exclusion of other candidates not favored by the organization, and this without written and publicized rules and with no notice to the public such as would permit interested Democratic electors to participate.'4 They argue that the restrictions placed by the rules on party officials violate their rights under the First and Fourteenth Amendments. It is also suggested that another reason why the delegates were excluded was that their delegation had an insufficient number of Negroes, women, and representatives of certain other identifiable classes of persons. This is alleged to be establishment of a 'quota' system in violation of the Fourteenth Amendment.5
23
The United States District Court for the District of Columbia denied both sets of plaintiffs relief on the ground that there was no justiciable question before it.6 The United States Court of Appeals reversed the District Court and held that the questions presented in both suits were justiciable. It unanimously rejected the challenge made by the Illinois delegates, and by a 2—1 vote upheld the claim of the delegates from California that the belated change in the rules constituted a denial of due process of law.
24
The losing parties in the Court of Appeals seek review, and today this Court grants partial relief in the form of a stay of the judgments of the Court of Appeals. The Court holds, in effect, that even if the District Court was incorrect in ruling that the issues before it were 'political questions' not properly justiciable in a court of law, the posture and timing of these cases require that federal courts defer to the Democratic National Convention for resolution of the underlying disputes. I cannot agree.
25
In each of these cases, the claim is made that the Credentials Committee has impaired the right of Democratic voters to have their votes counted in a presidential primary election. The related claim is also made that the committee has deprived the delegates themselves of their right to participate in the convention, by methods that deny them due process of law. Both these claims are entitled to judicial resolution, and now is the most appropriate time for them to be heard.
26
If these cases present justiciable controversies, then we are faced with a decision as to the most appropriate time to resolve them. There would appear to be three available choices: now; after the Credentials Committee's report is either accepted or rejected by the national convention; or after the convention is over.
27
There can be no doubt, in my view, that there is, at the present time, a live controversy between the excluded delegates and the Democratic National Committee. Nevertheless, because this controversy may vanish at the national convention, it is suggested that judicial intervention is premature at this point. This may be correct with respect to a decision on whether to grant injunctive relief, but not with respect to the appropriateness of a declaratory judgment.
28
Should this Court, or a lower federal court, be compelled to wait until the national convention makes a final decision on whether it will seat the delegates excluded by the Credentials Committee, it may never again be practicable to consider the important constitutional issues presented. Once the convention rules, we will be faced with the Hobson's choice between refusing to hear the federal questions at all, or hearing them and possibly stopping the Democratic convention in midstream. This would be a far more serious intrusion into the democratic process than any we are asked to make at this time.
29
If we wait even longer—until the national convention is over and ultimately sustain the delegates' claims on the merits, we would have no choice but to declare the convention null and void and to require that it be repeated. The dispute in these cases concerns the right to participate in the machinery to elect the President of the United States. If participation is denied, there is no possible way for the underlying disputes to become moot. The drastic remedy that delay might require should be avoided at all costs.
30
It is, therefore, obvious to me that now is the time for us to act. It is significant in this regard that the delegates request declaratory, as well as injunctive, relief. A declaratory judgment is a milder remedy than an injunction, cf. Perez v. Ledesma, 401 U.S. 82, 111, 91 S.Ct. 674, 690, 27 L.Ed.2d 701 (1971) (Brennan, J., concurring in part and dissenting in part). It is a particularly appropriate remedy under these circumstances, because it can protect any constitutional rights that may be threatened at the same time that the premature issuance of an injunction is avoided. Hence, I believe that we should consider the prayer for declaratory relief and that we should do so now.
31
In granting the stays, then, the Court seems to rely at least in part on the view that the claims are not yet ripe for decision, a view which I cannot accept for the reasons stated above. In addition, the Court suggests that judicial relief will be inappropriate even after the full convention has ruled on these claims. The point appears to be that, quite apart from the mere matter of timing, the cases present a 'political question,' or is otherwise nonjusticiable, because it concerns the internal decisionmaking of a political party. That argument misconceives the nature and the purpose of the doctrine. Half a century ago, Mr. Justice Holmes, writing for a unanimous Court, made it clear that a question is not 'political,' in the jurisdictional sense, merely because it involves the operations of a political party:
32
'The objection that the subject-matter of the suit is political is little more than a play upon words. Of course the petition concerns political action but it alleges and seeks to recover for private damage. That private damage may be caused by such political action and may be recovered for in a suit at law hardly has been doubted for over two hundred years, since Ashby v. White, 2 Ld.Raym. 938, 3 Ld.Raym. 320, and has been recognized by this Court. Wiley v. Sinkler, 179 U.S. 58, 64, 65, 21 S.Ct. 17, 45 L.Ed. 84; Giles v. Harris, 189 U.S. 475, 485, 23 S.Ct. 639, 47 L.Ed. 909. See also Judicial Code, § 24(11), (12), (14); Act of March 3, 1911, c. 231; 36 Stat. 1087, 1092 (Comp.St. § 991). If the defendants' conduct was a wrong to the plaintiff the same reasons that allow a recovery for denying the plaintiff a vote at a final election allow it for denying a vote at the primary election that may determine the final result.' Nixon v. Herndon, 273 U.S. 536, 540, 47 S.Ct. 446, 71 L.Ed. 759 (1927).
33
The doctrine of 'political questions' was fashioned to deal with a very different problem, which has nothing to do with this case. As the Court said in Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962), the basic characteristic of a political question is that its resolution would lead a court into conflict with one or more of the coordinate branches of government; courts decline to decide political questions out of deference to the separation of powers. 369 U.S., at 217, 82 S.Ct., at 710; see Powell v. McCormack, 395 U.S. 486, 518—549, 89 S.Ct. 1944, 1962, 1979, 23 L.Ed.2d 491 (1969). Neither the Executive nor the Legislative Branch of Government purports to have jurisdiction over the claims asserted in these cases. Apart from the judicial forum, only one other forum has been suggested—the full convention of the National Democratic Party—and that is most assuredly not a coordinate branch of government to which the federal courts owe deference within the meaning of the separation of powers or the political-question doctrine.
34
Moreover, it cannot be said that 'judicially manageable standards' are lacking for the determinations required by these cases, 369 U.S., at 217, 82 S.Ct., at 710. The Illinois challenge requires the Court to determine whether certain rules adopted by the National Party for the selection of delegates violate the First and Fourteenth Amendment rights of Illinois voters and, if the rules are valid, whether they were correctly applied to the facts of the case. The California challenge requires the Court to determine whether the votes of party members were counted in accordance with the rules announced prior to the election and, if not, whether a change in the rules after the election violates the constitutional rights of the voters or the candidates. Both these determinations are well within the range of questions regularly presented to courts for decision, and capable of judicial resolution.
35
A second threshold objection, however, has been raised as an obstacle to judicial determination of these claims. Even if the actions of a political party are not inherently nonjusticiable, it is suggested that the Constitution places few, if any, restrictions on the actions of a political party, and none of those restrictions are even arguably implicated by any of the allegations here. On this view, then, the plaintiffs below failed to state a claim on which relief can be granted. I disagree.
36
1. First, I agree with the Court of Appeals that the action of the Party in these cases was governmental action, and therefore subject to the requirements of due process. The primary election was, by state law, the first step in a process designed to select a Democratic candidate for President; the State will include electors pledged to that candidate on the ballot in the general election. The State is intertwined in the process at every step, not only authorizing the primary but conducting it, and adopting its result for use in the general election. In these circumstances, the primary must be regarded as an integral part of the general election, see United States v. Classic, 313 U.S. 299, 61 S.Ct., 1031, 85 L.Ed. 1368 (1941), quoted infra, at 15—16, and the rules that regulate the primary must be held to the standards of elementary due process.
37
It is suggested that California, at least, cannot be charged with responsibility for the rules that are challenged here, because California by law sought (albeit unsuccessfully) to prohibit the Party from adopting those rules. That argument is somewhat disingenuous, however, unless it can seriously be contended that California will decline to recognize on its ballot in the general election the nominee of the Democratic convention. For so long as the State recognizes and adopts the fruits of the primary as it was actually conducted, then the State has made that primary an integral part of the election process, and infused the primary with state action, no matter how vociferously it may protest. A State cannot render the action of officials 'private' and strip it of its character as state action, merely by disapproving that action. Monroe v. Pape, 365 U.S. 167, 172—187, 81 S.Ct., 473, 476—484, 5 L.Ed.2d 492 (1961).
38
Thus, when the Party deprived the candidates of their status as delegates, it was obliged to do so in a manner consistent with the demands of due process. Because the Court does not reach the question, I likewise refrain from expressing my views on the merits of the due process challenge in either case. It is sufficient to say that beyond all doubt, these claimants are entitled to a judicial resolution of their claim.
39
2. Even if the action of the Credentials Committee did not deny the delegates due process, petitioners in these cases claim that it impaired the federally protected right of voters to vote, and to have their votes counted, in the presidential primary election.7
40
It is, of course, well established that the Constitution protects the right to vote in federal or state elections without impairment on the basis of race or color, Const.Amdt. XV, or on the basis of any other invidious classification, e.g., Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962); Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972). With respect to federal elections, however, the right to vote enjoys a broader constitutional protection. In Oregon v. Mitchell, 400 U.S. 112, 91 S.Ct. 260, 27 L.Ed.2d 272 (1970), Mr. Justice Black cited a long line of precedents for the proposition that Congress has ultimate supervisory power over all congressional elections, based on Art. I, § 4, of the Constitution. E.g., Ex parte Siebold, 100 U.S. 371, 25 L.Ed. 717 (1880); Ex parte Yarbrough, 110 U.S. 651, 4 S.Ct. 152, 28 L.Ed. 274 (1884); United States v. Mosley, 238 U.S. 383, 35 S.Ct. 904, 59 L.Ed. 1355 (1915); United States v. Classic, 313 U.S. 299, 61 S.Ct. 1031, 85 L.Ed. 1368 (1941). On the basis of these precedents, it is beyond dispute that the right to vote in congressional election is a federally secured right.
41
Mr. Justice Black went on to argue that presidential elections have the same constitutional status: 'It cannot be seriously contended that Congress has less power over the conduct of presidential elections than it has over congressional elections.' 400 U.S., at 124, 91 S.Ct., at 264. To support this conclusion, he relied on Art. II, § 1, and its judicial interpretation in Burroughs v. United States, 290 U.S. 534, 54 S.Ct. 287, 78 L.Ed. 484 (1934), and also on 'the very concept of a supreme national government with national officers.' 400 U.S., at 124 n. 7, 91 S.Ct., at 264. On the basis of Oregon v. Mitchell, then, in which Mr. Justice Black's analysis was decisive, the right to vote in national elections, both congressional and presidential, is secured by the Federal Constitution.
42
Moreover, federal protection of the right to vote in federal elections extends not only to the general election, but to the primary election as well. In United States v. Classic, 313 U.S. 299, 61 S.Ct. 1031, 85 L.Ed. 1368 (1941), this Court sustained an indictment charging a conspiracy 'to injure and oppress citizens in the free exercise and enjoyment of rights and privileges secured to them by the Constitution and Laws of the United States, namely, (1) the right of qualified voters who cast their ballots in the primary election to have their ballots counted as cast for the candidate of their choice, and (2) the right of the candidates to run for the office of Congressman and to have the votes in favor of their nomination counted as cast.' Id., at 308, 61 S.Ct., at 1034. It was critical to the decision to hold, first, that the Constitution protects the right to vote in federal congressional elections, and, second, that the right to vote in the general election includes the right to vote in the primary.
43
'Where the state law has made the primary an integral part of the procedure of choice, or where in fact the primary effectively controls the choice, the right of the elector to have his ballot counted at the primary, is likewise included in the right protected by Article I, § 2. And this right of participation is protected just as is the right to vote at the election, where the primary is by law made an integral part of the election machinery, whether the voter exercises his right in a party primary which invariably, sometimes or never determines the ultimate choice of the representative.' Id., at 318, 61 S.Ct., at 1039.
44
That reasoning has equal force in the case of a presidential election. Where the primary is by law made an integral part of the election machinery, then the right to vote at that primary is protected just as is the right to vote at the election. In the cases before this Court, it is claimed that the presidential primary is an integral part of the election machinery, and that the right to vote in the presidential primary has been impaired. That claim should be heard and decided on its merits, certainly not by the use of the stay mechanism in lieu of granting certiorari and plenary consideration.
45
It is unfortunate that cases like these must be decided quickly or not at all, but sometimes that cannot be avoided. Where there are no substantial facts in dispute, and where the allegation is made that a right as fundamental as the right to participate in the process leading to the election of the President of the United States is threatened, I believe that our duty lies in making decisions, not avoiding them.
46
I would therefore deny the applications for stays.
1
This is not a case in which claims are made that injury arises from invidious discrimination based on race in a primary contest within a single State. Cf. Terry v. Adams, 345 U.S. 461, 73 S.Ct. 809, 97 L.Ed. 1152 (1953); Smith v. Allwright, 321 U.S. 649, 64 S.Ct. 757, 88 L.Ed. 987 (1944).
2
Argument was had and the case decided in the District Court on July 3; the Court of Appeals entered its judgment July 5. Papers were filed here July 6.
1
While the delegates couch their arguments in various ways, all of the arguments boil down to these two: i.e., they have been denied due process and the voters who elected them have been denied an opportunity to vote for the candidate or delegate of their choice.
2
This approval was given in the form of a written communication from the Commission on Party Structure and Delegate Selection to the Democratic National Committeeman from California.
3
A hearing officer found merit in the delegates' claims, but he was reversed by the Credentials Committee.
4
Report of Hearing Officer 2, adopted by Credentials Committee, June 30, 1972.
5
See Report of Hearing Officer 3—4.
6
The District Court Judge indicated that, in his view, a quota system would raise serious constitutional questions. Two judges of the Court of Appeals found that the rules did not require any quotas. Judge MacKinnon disagreed, believing that the rules did establish a quota and that they were, therefore, unconstitutional.
7
The alleged impairment of that right may be regarded as state action, as above, and hence subject to challenge under 42 U.S.C. § 1983. Alternatively, it may be regarded as the action of the Federal Government, on the theory that Congress has the ultimate authority over presidential elections, and has acquiesced in the administration of the primary election process by the national political parties; in that case it may be subject to challenge on the theory of an implied remedy for a federal deprivation of constitutional rights, see Bivens v. Six Unknown Named Agents etc., 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). Finally, it may be regarded as private action that interferes with a federally protected right; in that case the existence of a right of action may depend on the question whether the claims can be brought within the terms of 42 U.S.C. § 1985(3), which protects certain federal rights against certain kinds of private interference, see Griffin v. Breckenridge, 403 U.S. 88, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971).
| 89
|
409 U.S. 17
93 S.Ct. 1478
34 L.Ed.2d 705
UNITED STATESv.LOUISIANA et al. (Louisiana Boundary Case).
No. 9, Orig.
Supreme Court of the United States
Decided May 31, 1960.
Final Decree Entered Dec. 12, 1960.
Supplemental Decree
October 16, 1972
1
For the purpose of giving effect to the conclusions of this Court as stated in its opinion, announced May 31, 1960, 363 U.S. 1, 80 S.Ct. 961, 4 L.Ed.2d 1025, and other opinions or decrees entered by this Court on December 12, 1960, 364 U.S. 502, 81 S.Ct. 258, 5 L.Ed.2d 247; on December 13, 1965, 382 U.S. 288, 86 S.Ct. 419, 15 L.Ed.2d 331; on March 3, 1969, 394 U.S. 11, 89 S.Ct. 773, 22 L.Ed.2d 44; and on December 20, 1971, No. 9, Original, 404 U.S. 388, 92 S.Ct. 544, 30 L.Ed.2d 525.
It is ordered, adjudged and decreed:
2
1. With the exceptions provided by § 5 of the Submerged Lands Act, 67 Stat. 32, 43 U.S.C. § 1313 (1964 ed.), the State of Louisiana is entitled, as against the United States, to all the lands, minerals and other natural resources lying more than one foot landward of the lines described in paragraph 2 hereof and seaward of the ordinary low-water mark on the Louisiana shore, provided that the United States is not hereby required to relinquish any monies presently held by it for off-set purposes solely in connection with accounting problems which have heretofore been deferred by the parties pending resolution of the larger disputes between them, without prejudice to the right of the State of Louisiana to contest either the substance of the United States' offset claims or its right to withhold monies in connection with them.
3
2. The lines referred to in paragraph 1 hereof are described by coordinates in the Louisiana Plane Coordinate System, South Zone, in two segments, as follows:
SEGMENT I
4
South and west of the Mississippi-Louisiana border to grid line Y = 158695, north of West Bay.
5
X Y
BEGINNING AT... 2769357. .. 575650.
BY STRAIGHT LINE TO. 2790258.. . 526390.
BY ARC CENTERED AT. 2779032... . 512013.
TO............. 2791385. .. 525434.
BY STRAIGHT LINE TO. 2793119.. . 523838.
BY ARC CENTERED AT. 2780766... . 510417.
TO............. 2794594. .. 522313.
BY STRAIGHT LINE TO. 2795887.. . 520810.
BY ARC CENTERED AT. 2782059... . 508914.
TO............. 2796579. .. 519954.
BY STRAIGHT LINE TO. 2799209.. . 516495.
BY ARC CENTERED AT. 2784689... . 505455.
TO............. 2800441. .. 514653.
BY STRAIGHT LINE TO. 2804270.. . 508096.
BY ARC CENTERED AT. 2788518... . 498898.
TO............. 2804495. .. 507699.
BY STRAIGHT LINE TO. 2806028.. . 504916.
BY ARC CENTERED AT. 2790051... . 496115.
TO............. 2807014. .. 502822.
BY STRAIGHT LINE TO. 2808653.. . 498677.
BY ARC CENTERED AT. 2791690... . 491970.
TO............. 2809151. .. 497245.
Page 19
6
BY STRAIGHT LINE TO. 2812250.. . 486987.
BY ARC CENTERED AT. 2794789... . 481712.
TO............. 2812519. .. 485996.
BY STRAIGHT LINE TO. 2813932.. . 480148.
BY ARC CENTERED AT. 2796202... . 475864.
TO............. 2814262. .. 478425.
BY STRAIGHT LINE TO. 2815269.. . 471324.
BY ARC CENTERED AT. 2797209... . 468763.
TO............. 2815426. .. 469688.
BY STRAIGHT LINE TO. 2815673.. . 464823.
BY ARC CENTERED AT. 2797456... . 463898.
TO............. 2815697. .. 463895.
BY STRAIGHT LINE. 2815696..... . 458116.
BY ARC CENTERED AT. 2797455... . 458119.
TO............. 2815657. .. 456928.
BY STRAIGHT LINE TO. 2815269.. . 450999.
BY ARC CENTERED AT. 2797067... . 452190.
TO............. 2815171. .. 449960.
BY STRAIGHT LINE TO. 2813957.. . 440103.
BY ARC CENTERED AT. 2795853... . 442333.
TO............. 2813809. .. 439123.
BY STRAIGHT LINE TO. 2812678.. . 432796.
BY ARC CENTERED AT. 2794722... . 436006.
TO............. 2812419. .. 431584.
BY STRAIGHT LINE TO. 2810957.. . 425733.
BY ARC CENTERED AT. 2793260... . 430155.
TO............. 2810699. .. 424807.
BY STRAIGHT LINE TO. 2807854.. . 415530.
BY ARC CENTERED AT. 2790415... . 420878.
TO............. 2807572. .. 414684.
BY STRAIGHT LINE TO. 2805322.. . 408452.
BY ARC CENTERED AT. 2788165... . 414646.
TO............. 2805227. .. 408196.
BY STRAIGHT LINE TO. 2803786.. . 404384.
BY ARC CENTERED AT. 2786724... . 410834.
TO............. 2803319. .. 403263.
BY STRAIGHT LINE TO. 2799845.. . 395648.
BY ARC CENTERED AT. 2783250... . 403219.
TO............. 2798971. .. 393968.
BY STRAIGHT LINE TO. 2795394.. . 387889.
BY ARC CENTERED AT. 2779673... . 397140.
TO............. 2795311. .. 387750.
BY STRAIGHT LINE TO. 2793560.. . 384834.
BY ARC CENTERED AT. 2777922... . 394224.
TO............. 2792249. .. 382934.
BY STRAIGHT LINE TO. 2790814.. . 381113.
BY ARC CENTERED AT. 2776487... . 392403.
TO............. 2789360. .. 379480.
Page 20
7
BY ARC CENTERED AT. 2774670... . 390293.
TO............. 2788262. .. 378129.
BY STRAIGHT LINE TO. 2786553.. . 375045.
BY ARC CENTERED AT. 2770599... . 383887.
TO............. 2785045. .. 372750.
BY STRAIGHT LINE TO. 2783942.. . 371319.
BY STRAIGHT LINE TO. 2783792.. . 371062.
BY ARC CENTERED AT. 2768031... . 380244.
TO............. 2780548. .. 366976.
BY STRAIGHT LINE TO. 2775735.. . 360553.
BY ARC CENTERED AT. 2761138... . 371491.
TO............. 2775111. .. 359766.
BY STRAIGHT LINE TO. 2773031.. . 357287.
BY ARC CENTERED AT. 2757465... . 366796.
TO............. 2771721. .. 355417.
BY STRAIGHT LINE TO. 2770633.. . 354054.
BY STRAIGHT LINE TO. 2770505.. . 353847.
BY ARC CENTERED AT. 2755015... . 363480.
TO............. 2767788. .. 350458.
TO............. 2767788. .. 350458.
BY STRAIGHT LINE TO. 2761994.. . 344775.
BY ARC CENTERED AT. 2749221... . 357797.
TO............. 2760703. .. 343624.
BY STRAIGHT LINE TO. 2757791.. . 341265.
BY ARC CENTERED AT. 2746309... . 355438.
TO............. 2756022. .. 339999.
BY STRAIGHT LINE TO. 2754136.. . 338812.
BY STRAIGHT LINE TO. 2742173.. . 323079.
BY ARC CENTERED AT. 2727653... . 334120.
TO............. 2741983. .. 322834.
BY STRAIGHT LINE TO. 2741182.. . 321817.
BY ARC CENTERED AT. 2726852... . 333103.
TO............. 2738042. .. 318698.
BY STRAIGHT LINE TO. 2736381.. . 317408.
BY STRAIGHT LINE TO. 2736060.. . 316935.
BY STRAIGHT LINE TO. 2732627.. . 311249.
BY ARC CENTERED AT. 2717012... . 320677.
TO............. 2731416. .. 309486.
BY STRAIGHT LINE TO. 2729640.. . 307200.
BY ARC CENTERED AT. 2715236... . 318391.
TO............. 2728702. .. 306088.
BY STRAIGHT LINE TO. 2728099.. . 305428.
BY ARC CENTERED AT. 2714633... . 317731.
TO............. 2725197. .. 302861.
BY STRAIGHT LINE TO. 2723888.. . 301931.
BY ARC CENTERED AT. 2713324... . 316801.
TO............. 2720770. .. 300149.
BY STRAIGHT LINE TO. 2719218.. . 299455.
BY ARC CENTERED AT. 2711772... . 316107.
Page 21
8
TO............. 2714238. .. 298034.
BY STRAIGHT LINE TO. 2704480.. . 294684.
BY STRAIGHT LINE TO. 2704099.. . 293666.
BY ARC CENTERED AT. 2687014... . 300054.
TO............. 2701338. .. 288761.
BY STRAIGHT LINE TO. 2699382.. . 386280.
BY ARC CENTERED AT. 2685058... . 297573.
TO............. 2697436. .. 284175.
BY STRAIGHT LINE TO. 2699302.. . 266715.
BY ARC CENTERED AT. 2688235... . 252215.
TO............. 2704468. .. 260534.
BY ARC CENTERED AT. 2689305... . 250395.
TO............. 2707507. .. 251577.
BY ARC CENTERED AT. 2700735... . 234640.
TO............. 2717908. .. 240788.
BY ARC CENTERED AT. 2701500... . 232820.
TO............. 2719022. .. 237890.
BY ARC CENTERED AT. 2707635... . 223640.
TO............. 2721632. .. 235337.
BY STRAIGHT LINE TO. 2736873.. . 228413.
BY ARC CENTERED AT. 2738320... . 210230.
TO............. 2745585. .. 226961.
BY ARC CENTERED AT. 2738938... . 209975.
TO............. 2749646. .. 224742.
BY ARC CENTERED AT. 2750755... . 206535.
TO............. 2759837. .. 222354.
BY ARC CENTERED AT. 2755325... . 204680.
TO............. 2773229. .. 201192.
BY ARC CENTERED AT. 2755178... . 203815.
TO............. 2770763. .. 194337.
BY ARC CENTERED AT. 2754100... . 186915.
TO............. 2771780. .. 191404.
BY ARC CENTERED AT. 2754263... . 186316.
TO............. 2772100. .. 182502.
BY ARC CENTERED AT. 2753885... . 183460.
TO............. 2765449. .. 169354.
BY ARC CENTERED AT. 2752470... . 182170.
TO............. 2761213. .. 166161.
BY ARC CENTERED AT. 2751045... . 181305.
TO............. 2752202. .. 163101.
BY ARC CENTERED AT. 2750586... . 181270.
TO............. 2749611. .. 163055.
BY ARC CENTERED AT. 2736662... . 175902.
TO............. 2748316. .. 161869.
BY ARC CENTERED AT. 2734720... . 174030.
TO............. 2747824. .. 161341.
BY STRAIGHT LINE TO. 2746249.. . 159715.
BY ARC CENTERED AT. 2728153... . 162005.
Page 22
9
TO............. 2746094. .. 158715.
BY STRAIGHT LINE TO. 2745156.. . 153600.
BY ARC CENTERED AT. 2727215... . 156890.
TO............. 2745054. .. 153083.
BY ARC CENTERED AT. 2726951... . 150846.
TO............. 2743622. .. 143444.
BY ARC CENTERED AT. 2726105... . 148530.
TO............. 2731258. .. 131033.
BY STRAIGHT LINE TO. 2716731.. . 112786.
BY ARC CENTERED AT. 2702461... . 124148.
TO............. 2716719. .. 112772.
BY ARC CENTERED AT. 2699435... . 118600.
TO............. 2710698. .. 104252.
BY ARC CENTERED AT. 2697850... . 117200.
TO............. 2683320. .. 106173.
BY STRAIGHT LINE TO. 2682980.. . 106621.
BY ARC CENTERED AT. 2697510... . 117648.
TO............. 2679799. .. 113283.
BY STRAIGHT LINE TO. 2679589.. . 114135.
BY ARC CENTERED AT. 2697300... . 118500.
TO............. 2679155. .. 116635.
BY ARC CENTERED AT. 2685325... . 133800.
TO............. 2670977. .. 122536.
BY STRAIGHT LINE TO. 2670552.. . 122781.
BY STRAIGHT LINE TO. 2666743.. . 124295.
BY ARC CENTERED AT. 2673482... . 141245.
TO............. 2665719. .. 124739.
BY ARC CENTERED AT. 2672315... . 141745.
TO............. 2661428. .. 127109.
BY ARC CENTERED AT. 2644940... . 134910.
TO............. 2660589. .. 125539.
BY STRAIGHT LINE TO. 2657484.. . 120354.
BY ARC CENTERED AT. 2641835... . 129725.
TO............. 2656150. .. 118421.
BY STRAIGHT LINE TO. 2653860.. . 115521.
BY ARC CENTERED AT. 2639545... . 126825.
TO............. 2648682. .. 111038.
BY STRAIGHT LINE TO. 2648610.. . 110974.
BY STRAIGHT LINE TO. 2648531.. . 110887.
BY STRAIGHT LINE TO. 2646419.. . 107265.
BY ARC CENTERED AT. 2630660... . 116450.
TO............. 2646250. .. 106981.
BY STRAIGHT LINE TO. 2644270.. . 103721.
BY ARC CENTERED AT. 2628680... . 113190.
TO............. 2642494. .. 101278.
BY STRAIGHT LINE TO. 2640182.. . 98597.
BY ARC CENTERED AT. 2624995... . 108700.
TO............. 2638408. .. 96339.
Page 23
10
BY STRAIGHT LINE TO. 2638210.. . 96123.
BY STRAIGHT LINE TO. 2637530.. . 95377.
BY ARC CENTERED AT. 2624045... . 107660.
TO............. 2637471. .. 95312.
BY STRAIGHT LINE TO. 2635351.. . 93007.
BY ARC CENTERED AT. 2621925... . 105355.
TO............. 2634923. .. 92558.
BY STRAIGHT LINE TO. 2633653.. . 91268.
BY ARC CENTERED AT. 2620655... . 104065.
TO............. 2631973. .. 89760.
BY STRAIGHT LINE TO. 2631344.. . 89262.
BY STRAIGHT LINE TO. 2630156.. . 87770.
BY ARC CENTERED AT. 2615885... . 99131.
TO............. 2630068. .. 87661.
BY STRAIGHT LINE TO. 2629389.. . 86821.
BY STRAIGHT LINE TO. 2626027.. . 82661.
BY STRAIGHT LINE TO. 2624340.. . 80576.
BY ARC CENTERED AT. 2610160... . 92050.
TO............. 2621555. .. 77806.
BY STRAIGHT LINE TO. 2621180.. . 77506.
BY ARC CENTERED AT. 2609785... . 91750.
TO............. 2617996. .. 75462.
BY STRAIGHT LINE TO. 2617391.. . 75157.
BY ARC CENTERED AT. 2609180... . 91445.
TO............. 2597416. .. 77505.
BY STRAIGHT LINE TO. 2595526.. . 79100.
BY ARC CENTERED AT. 2607290... . 93040.
TO............. 2589664. .. 97736.
BY ARC CENTERED AT. 2607455... . 93710.
TO............. 2591541. .. 102625.
BY STRAIGHT LINE TO. 2592751.. . 104785.
BY ARC CENTERED AT. 2608665... . 95870.
TO............. 2593838. .. 106495.
BY STRAIGHT LINE TO. 2595167.. . 108350.
BY STRAIGHT LINE TO. 2596041.. . 109955.
BY ARC CENTERED AT. 2614270... . 110615.
TO............. 2597233. .. 117130.
BY STRAIGHT LINE TO. 2597210.. . 155899.
BY ARC CENTERED AT. 2614790... . 160765.
TO............. 2596949. .. 156969.
BY STRAIGHT LINE TO. 2596342.. . 158695.
BY STRAIGHT LINE TO SHORE AT. 2615450. . 157770
SEGMENT II
11
From the vicinity of Bayou Goreau to the vicinity of Sabine Pass, west of grid line X = 2082361 and east of the Texas-Louisiana border.
12
X Y
BEGINNING AT... 2082361. . 169358.
BY STRAIGHT LINE TO. 2081470. . 169553.
BY ARC CENTERED AT. 2085370. . 187372.
TO............. 2076984. . 171174.
BY ARC CENTERED AT. 2077417. . 189409.
TO............. 2071846. . 172040.
BY STRAIGHT LINE TO. 2070630. . 172430.
BY ARC CENTERED AT. 2076201. . 189799.
TO............. 2064747. . 175603.
BY STRAIGHT LINE TO. 2063841. . 176334.
BY ARC CENTERED AT. 2075295. . 190530.
TO............. 2059951. . 180668.
BY ARC CENTERED AT. 2071131. . 195080.
TO............. 2058843. . 181599.
BY ARC CENTERED AT. 2062055. . 199555.
TO............. 2057134. . 181991.
BY STRAIGHT LINE TO. 2053779. . 182931.
BY ARC CENTERED AT. 2058700. . 200495.
TO............. 2053474. . 183019.
BY STRAIGHT LINE TO. 2052967. . 183053.
BY STRAIGHT LINE TO. 2051871. . 183006.
BY ARC CENTERED AT. 2051090. . 201230.
TO............. 2050845. . 182991.
BY STRAIGHT LINE TO. 2048985. . 183016.
BY ARC CENTERED AT. 2049230. . 201255.
TO............. 2048033. . 183054.
BY STRAIGHT LINE TO. 2044865. . 183262.
BY STRAIGHT LINE TO. 2041482. . 183446.
BY ARC CENTERED AT. 2042475. . 201660.
TO............. 2037472. . 184119.
BY STRAIGHT LINE TO. 2033139. . 185355.
BY STRAIGHT LINE TO. 2032934. . 185387.
BY ARC CENTERED AT. 2035775. . 203405.
TO............. 2029791. . 186174.
BY STRAIGHT LINE TO. 2027401. . 187004.
BY ARC CENTERED AT. 2033385. . 204235.
TO............. 2026834. . 187211.
BY STRAIGHT LINE TO. 2023510. . 188491.
BY STRAIGHT LINE TO. 2020959. . 189327.
BY ARC CENTERED AT. 2026640. . 206660.
TO............. 2019190. . 190010.
BY STRAIGHT LINE TO. 2016613. . 191163.
BY STRAIGHT LINE TO. 2015796. . 191414.
BY ARC CENTERED AT. 2021155. . 208850.
Page 25
13
TO............. 2013823. . 192148.
BY STRAIGHT LINE TO. 2010121. . 193773.
BY ARC CENTERED AT. 2017453. . 210475.
TO............. 2007660. . 195086.
BY STRAIGHT LINE TO. 2006450. . 195856.
BY ARC CENTERED AT. 2016243. . 211245.
TO............. 2002812. . 198903.
BY STRAIGHT LINE TO. 2001329. . 200516.
BY STRAIGHT LINE TO. 1998627. . 203119.
BY STRAIGHT LINE TO. 1996877. . 204647.
BY ARC CENTERED AT. 2008873. . 218388.
TO............. 1994484. . 207177.
BY STRAIGHT LINE TO. 1993669. . 208223.
BY ARC CENTERED AT. 2008058. . 219434.
TO............. 1992024. . 210737.
BY STRAIGHT LINE TO. 1991723. . 211291.
BY STRAIGHT LINE TO. 1991392. . 211653.
BY STRAIGHT LINE TO. 1987527. . 215292.
BY ARC CENTERED AT. 2000030. . 228573.
TO............. 1985881. . 217061.
BY STRAIGHT LINE TO. 1984419. . 218858.
BY ARC CENTERED AT. 1998568. . 230370.
TO............. 1982726. . 221329.
BY STRAIGHT LINE TO. 1981279. . 223864.
BY ARC CENTERED AT. 1987818. . 204892.
TO............. 1975782. . 227186.
BY ARC CENTERED AT. 1987371. . 241272.
TO............. 1972054. . 231367.
BY STRAIGHT LINE TO. 1937446. . 246505.
BY ARC CENTERED AT. 1933172. . 264238.
TO............. 1920501. . 251117.
BY ARC CENTERED AT. 1924399. . 268936.
TO............. 1916888. . 252314.
BY ARC CENTERED AT. 1914373. . 270380.
TO............. 1900989. . 257987.
BY ARC CENTERED AT. 1896827. . 275747.
TO............. 1895100. . 257588.
BY ARC CENTERED AT. 1882306. . 270590.
TO............. 1867537. . 259884.
BY ARC CENTERED AT. 1872418. . 277460.
TO............. 1858534. . 265630.
BY ARC CENTERED AT. 1843467. . 275912.
TO............. 1848729. . 258447.
BY ARC CENTERED AT. 1835344. . 270839.
TO............. 1841538. . 253682.
BY ARC CENTERED AT. 1834019. . 270301.
TO............. 1817077. . 263541.
BY ARC CENTERED AT. 1833527. . 271423.
Page 26
14
TO............. 1815531. . 274401.
BY ARC CENTERED AT. 1820994. . 291804.
TO............. 1808997. . 278064.
BY ARC CENTERED AT. 1809845. . 296285.
TO............. 1792971. . 289357.
BY ARC CENTERED AT. 1791584. . 307545.
TO............. 1773422. . 305849.
BY ARC CENTERED AT. 1783067. . 321331.
TO............. 1771284. . 307407.
BY ARC CENTERED AT. 1782391. . 321876.
TO............. 1769317. . 309156.
BY ARC CENTERED AT. 1778769. . 324757.
TO............. 1763172. . 315299.
BY ARC CENTERED AT. 1763190. . 333540.
TO............. 1762008. . 315338.
BY STRAIGHT LINE TO. 1761238. . 315388.
BY ARC CENTERED AT. 1762420. . 333590.
TO............. 1761004. . 315404.
BY ARC CENTERED AT. 1758630. . 333490.
TO............. 1751585. . 316665.
BY STRAIGHT LINE TO. 1749527. . 316597.
BY STRAIGHT LINE TO. 1745678. . 216238.
BY STRAIGHT LINE TO. 1741757. . 315745.
BY STRAIGHT LINE TO. 1738098. . 314155.
BY ARC CENTERED AT. 1730831. . 330886.
TO............. 1737269. . 313819.
BY STRAIGHT LINE TO. 1733962. . 312572.
BY STRAIGHT LINE TO. 1733065. . 312110.
BY ARC CENTERED AT. 1724713. . 328326.
TO............. 1729983. . 310863.
BY STRAIGHT LINE TO. 1729557. . 310735.
BY STRAIGHT LINE TO. 1727510. . 309315.
BY ARC CENTERED AT. 1717114. . 324303.
TO............. 1726647. . 308752.
BY STRAIGHT LINE TO. 1721463. . 305574.
BY STRAIGHT LINE TO. 1721351. . 305467.
BY ARC CENTERED AT. 1708756. . 318661.
TO............. 1715565. . 301739.
BY STRAIGHT LINE TO. 1713599. . 300948.
BY ARC CENTERED AT. 1706790. . 317870.
TO............. 1711471. . 300240.
BY STRAIGHT LINE TO. 1707761. . 299255.
BY ARC CENTERED AT. 1703080. . 316885.
TO............. 1706765. . 299020.
BY STRAIGHT LINE TO. 1704365. . 298525.
BY ARC CENTERED AT. 1700680. . 316390.
TO............. 1702465. . 298237.
BY STRAIGHT LINE TO. 1698144. . 297812.
Page 27
15
BY ARC CENTERED AT. 1696359. . 315965.
TO............. 1696239. . 297725.
BY STRAIGHT LINE TO. 1692448. . 297750.
BY ARC CENTERED AT. 1692568. . 315990.
TO............. 1691302. . 297793.
BY STRAIGHT LINE TO. 1688714. . 297973.
BY ARC CENTERED AT. 1689980. . 316170.
TO............. 1687709. . 298071.
BY STRAIGHT LINE TO. 1684999. . 298411.
BY ARC CENTERED AT. 1687270. . 316510.
TO............. 1683393. . 298686.
BY STRAIGHT LINE TO. 1674668. . 300584.
BY ARC CENTERED AT. 1678545. . 318408.
TO............. 1674182. . 300697.
BY STRAIGHT LINE TO. 1670983. . 301485.
BY ARC CENTERED AT. 1675346. . 319196.
TO............. 1670472. . 301619.
BY STRAIGHT LINE TO. 1666144. . 302819.
BY ARC CENTERED AT. 1671018. . 320396.
TO............. 1665216. . 303103.
BY STRAIGHT LINE TO. 1663698. . 303612.
BY STRAIGHT LINE TO. 1662427. . 303960.
BY STRAIGHT LINE TO. 1661678. . 304151.
BY STRAIGHT LINE TO. 1659494. . 304616.
BY ARC CENTERED AT. 1663290. . 322457.
TO............. 1659476. . 304620.
BY STRAIGHT LINE TO. 1658120. . 304910.
BY ARC CENTERED AT. 1658887. . 323134.
TO............. 1656354. . 305070.
BY ARC CENTERED AT. 1655896. . 323305.
TO............. 1652650. . 305356.
BY STRAIGHT LINE TO. 1650184. . 305802.
BY ARC CENTERED AT. 1653430. . 323751.
TO............. 1648635. . 306152.
BY STRAIGHT LINE TO. 1647051. . 306584.
BY ARC CENTERED AT. 1649308. . 324684.
TO............. 1643681. . 307333.
BY STRAIGHT LINE TO. 1636292. . 308607.
BY STRAIGHT LINE TO. 1627130. . 309807.
BY STRAIGHT LINE TO. 1620757. . 310390.
BY ARC CENTERED AT. 1622420. . 328555.
TO............. 1619895. . 310490.
BY STRAIGHT LINE TO. 1614565. . 311235.
BY ARC CENTERED AT. 1617090. . 329300.
TO............. 1613148. . 311491.
BY STRAIGHT LINE TO. 1611814. . 311591.
BY ARC CENTERED AT. 1613190. . 329780.
TO............. 1609960. . 311828.
Page 28
16
BY STRAIGHT LINE TO. 1606070. . 312528.
BY ARC CENTERED AT. 1609300. . 330480.
TO............. 1604702. . 312829.
BY STRAIGHT LINE TO. 1604290. . 312866.
BY ARC CENTERED AT. 1605965. . 331030.
TO............. 1601325. . 313389.
BY STRAIGHT LINE TO. 1601195. . 313403.
BY ARC CENTERED AT. 1603140. . 331540.
TO............. 1598672. . 313855.
BY STRAIGHT LINE TO. 1596370. . 314437.
BY STRAIGHT LINE TO. 1596179. . 314483.
BY STRAIGHT LINE TO. 1592424. . 315063.
BY ARC CENTERED AT. 1595210. . 333090.
TO............. 1591479. . 315235.
BY ARC CENTERED AT. 1594075. . 333290.
TO............. 1589694. . 315583.
BY ARC CENTERED AT. 1593010. . 333520.
TO............. 1589433. . 315634.
BY STRAIGHT LINE TO. 1588108. . 315899.
BY ARC CENTERED AT. 1591685. . 333785.
TO............. 1585928. . 316477.
BY STRAIGHT LINE TO. 1584286. . 317023.
BY STRAIGHT LINE TO. 1582201. . 317563.
BY ARC CENTERED AT. 1586780. . 335220.
TO............. 1581596. . 317732.
BY STRAIGHT LINE TO. 1576266. . 319312.
BY ARC CENTERED AT. 1581450. . 336800.
TO............. 1575360. . 319606.
BY STRAIGHT LINE TO. 1570080. . 321476.
BY ARC CENTERED AT. 1576170. . 338670.
TO............. 1569889. . 321545.
BY STRAIGHT LINE TO. 1565349. . 323210.
BY ARC CENTERED AT. 1571630. . 340335.
TO............. 1563529. . 323992.
BY STRAIGHT LINE TO. 1563104. . 324202.
BY STRAIGHT LINE TO. 1561073. . 324994.
BY ARC CENTERED AT. 1567695. . 341990.
TO............. 1558882. . 326020.
BY STRAIGHT LINE TO. 1558879. . 326021.
BY ARC CENTERED AT. 1564160. . 343480.
TO............. 1556225. . 327056.
BY STRAIGHT LINE TO. 1556066. . 327133.
BY STRAIGHT LINE TO. 1553511. . 327894.
BY ARC CENTERED AT. 1558720. . 345375.
TO............. 1551769. . 328511.
BY STRAIGHT LINE TO. 1549575. . 329415.
BY ARC CENTERED AT. 1553840. . 347150.
TO............. 1546081. . 330642.
Page 29
17
BY STRAIGHT LINE TO. 1543911. . 331662.
BY ARC CENTERED AT. 1551670. . 348170.
TO............. 1541402. . 333094.
BY STRAIGHT LINE TO. 1540011. . 333646.
BY ARC CENTERED AT. 1546740. . 350600.
TO............. 1537927. . 334630.
BY STRAIGHT LINE TO. 1531757. . 337418.
BY ARC CENTERED AT. 1539270. . 354040.
TO............. 1530263. . 338178.
BY STRAIGHT LINE TO. 1527498. . 339748.
BY ARC CENTERED AT. 1536505. . 355610.
TO............. 1526511. . 340351.
BY STRAIGHT LINE TO. 1526495. . 340356.
BY ARC CENTERED AT. 1532515. . 357575.
TO............. 1523959. . 341466.
BY ARC CENTERED AT. 1531240. . 358190.
TO............. 1522813. . 342013.
BY STRAIGHT LINE TO. 1516478. . 345313.
BY STRAIGHT LINE TO. 1505572. . 350398.
BY ARC CENTERED AT. 1513280. . 366930.
TO............. 1504778. . 350792.
BY STRAIGHT LINE TO. 1493968. . 356487.
BY ARC CENTERED AT. 1502470. . 372625.
TO............. 1493740. . 356609.
BY STRAIGHT LINE TO. 1488240. . 359607.
BY STRAIGHT LINE TO. 1483855. . 361809.
BY ARC CENTERED AT. 1492040. . 378110.
TO............. 1483320. . 362089.
BY STRAIGHT LINE TO. 1481464. . 363099.
BY STRAIGHT LINE TO. 1472522. . 367321.
BY STRAIGHT LINE TO. 1464632. . 370389.
BY ARC CENTERED AT. 1471240. . 387390.
TO............. 1464433. . 370467.
BY STRAIGHT LINE TO. 1461367. . 371700.
BY STRAIGHT LINE TO. 1455041. . 373829.
BY STRAIGHT LINE TO. 1449142. . 375498.
BY ARC CENTERED AT. 1454105. . 393050.
TO............. 1447394. . 376089.
BY STRAIGHT LINE TO. 1443224. . 377739.
BY ARC CENTERED AT. 1449935. . 394700.
TO............. 1442769. . 377926.
BY STRAIGHT LINE TO. 1437906. . 380003.
BY STRAIGHT LINE TO. 1435142. . 381048.
BY STRAIGHT LINE TO. 1431147. . 382502.
BY ARC CENTERED AT. 1431465. . 400740.
TO............. 1426148. . 383291.
BY STRAIGHT LINE TO. 1423703. . 384036.
BY ARC CENTERED AT. 1429020. . 401485.
Page 30
18
TO............. 1421665. . 384793.
BY STRAIGHT LINE TO. 1421218. . 384903.
BY ARC CENTERED AT. 1425600. . 402610.
TO............. 1417428. . 386302.
BY STRAIGHT LINE TO. 1411695. . 388054.
BY STRAIGHT LINE TO. 1406675. . 389181.
BY STRAIGHT LINE TO. 1400158. . 390267.
BY STRAIGHT LINE TO. 1395815. . 390681.
BY STRAIGHT LINE TO. 1390919. . 390971.
BY ARC CENTERED AT. 1392000. . 409180.
TO............. 1390575. . 390995.
BY STRAIGHT LINE TO. 1386958. . 390977.
BY STRAIGHT LINE TO. 1385797. . 390942.
BY STRAIGHT LINE TO. 1383281. . 390516.
BY ARC CENTERED AT. 1380235. . 408500.
TO............. 1382827. . 390444.
BY STRAIGHT LINE TO. 1380530. . 390115.
BY STRAIGHT LINE TO. 1379793. . 389887.
BY ARC CENTERED AT. 1363392. . 397870.
TO............. 1364288. . 379651.
BY STRAIGHT LINE TO. 1363312. . 379603.
BY ARC CENTERED AT. 1362416. . 397822.
TO............. 1348021. . 386619.
BY STRAIGHT LINE TO. 1347740. . 386685.
BY STRAIGHT LINE TO. 1339580. . 387874.
BY STRAIGHT LINE TO. 1332311. . 388694.
BY STRAIGHT LINE TO. 1328041. . 388886.
BY STRAIGHT LINE TO. 1323345. . 388897.
BY STRAIGHT LINE TO. 1318624. . 388814.
BY STRAIGHT LINE TO. 1313961. . 388548.
BY STRAIGHT LINE TO. 1309176. . 388114.
BY STRAIGHT LINE TO. 1299212. . 386972.
BY STRAIGHT LINE TO. 1294264. . 386189.
BY ARC CENTERED AT. 1291413. . 404205.
TO............. 1293948. . 386141.
BY STRAIGHT LINE TO. 1288689. . 385403.
BY ARC CENTERED AT. 1286154. . 403467.
TO............. 1288273. . 385350.
BY STRAIGHT LINE TO. 1282879. . 384719.
BY ARC CENTERED AT. 1280760. . 402836.
TO............. 1282343. . 384664.
BY STRAIGHT LINE TO. 1277050. . 384203.
BY ARC CENTERED AT. 1275467. . 402375.
TO............. 1276974. . 384197.
BY STRAIGHT LINE TO. 1266567. . 383334.
BY STRAIGHT LINE TO. 1261754. . 382855.
BY STRAIGHT LINE TO. 1256845. . 382176.
BY STRAIGHT LINE TO. 1252082. . 381444.
Page 31
19
BY STRAIGHT LINE TO. 1247120. . 380489.
BY ARC CENTERED AT. 1243670. . 398400.
TO............. 1246626. . 380401.
BY STRAIGHT LINE TO. 1243866. . 379947.
BY STRAIGHT LINE TO. 1240511. . 379144.
BY STRAIGHT LINE TO. 1238894. . 378640.
BY STRAIGHT LINE TO. 1234692. . 377218.
BY ARC CENTERED AT. 1228846. . 394497.
TO............. 1233981. . 376994.
BY ARC CENTERED AT. 1225768. . 393281.
TO............. 1230677. . 375713.
BY STRAIGHT LINE TO. 1229077. . 374980.
BY ARC CENTERED AT. 1219065. . 390227.
TO............. 1227371. . 373987.
BY STRAIGHT LINE TO. 1226185. . 373381.
BY STRAIGHT LINE TO. 1227214. . 367277.
BY ARC CENTERED AT. 1209227. . 364245.
TO............. 1214918. . 346915.
BY STRAIGHT LINE TO. 1213304. . 346385.
20
3. The United States is not entitled, as against the State of Louisiana, to any interest in the lands, minerals or natural resources described in paragraph 1 hereof, with the exceptions provided by Section 5 of the Submerged Lands Act, 67 Stat. 32, 43 U.S.C. Sec. 1313.
21
4. Pending further order of the Court or agreement of the parties, leases of lands lying partly within the area above described and partly seaward of that area shall be in no way affected by anything contained in this decree, and revenues derived from such leases shall remain subject to impoundment under the Interim Agreement of October 12, 1956, as amended, in the same manner as heretofore.
22
5. All sums now held impounded by the State of Louisiana or the United States under the Interim Agreement of October 12, 1956, as amended, derived from leases of lands wholly within areas referred to in paragraph 1 hereof are hereby released to the State of Louisiana absolutely, and the State of Louisiana is relieved of any obligation under said agreement to impound any sums hereafter received by it from leases of lands lying wholly within said area and the State of Louisiana is and shall be entitled to lease lands wholly within said areas and to directly receive any sums hereafter derivable therefrom.
23
6. Nothing in this decree or the proceedings leading to it shall prejudice any rights, claims or defenses of the United States or the State of Louisiana with respect to the remainder of the disputed area or past or future payments derived therefrom or attributable thereto or the operation of the Interim Agreement of October 12, 1956, as amended, with respect to such remaining disputed area and payments. Nor shall anything in this decree nor in the proceedings leading to it prejudice any rights, claims or defenses of the State of Louisiana as to its maritime lateral boundaries with the States of Mississippi and Texas, which boundaries are not at issue in this litigation.
24
7. The Court retains jurisdiction to entertain such further proceedings, enter such orders and issue such writs as may from time to time be deemed necessary or advisable to give proper force and effect to its previous orders or decrees herein or to this decree or to effectuate the rights of the parties in the premises.
| 910
|
409 U.S. 38
93 S.Ct. 30
34 L.Ed.2d 47
Woodie ROBINSONv.Edward V. HANRAHAN, States Attorney of Cook County.
No. 71 - 6918.
Oct. 24, 1972.
PER CURIAM.
1
On June 16, 1970, appellant was arrested on a charge of armed robbery and, immediately thereafter, the State of Illinois instituted forfeiture proceedings against appellant's automobile pursuant to the Illinois vehicle forfeiture statute, Ill.Rev.Stat., c. 38, § 36—1 et seq. (1969). Appellant was held in custody in the Cook County jail from June 16, 1970, to October 7, 1970, awaiting trial. Nevertheless, the State mailed notice of the pending forfeiture proceedings, not to the jail facility, but to appellant's home address as listed in the records of the Secretary of State.1 It is undisputed that appellant, who remained in custody throughout the forfeiture proceedings, did not receive such notice until his release.2 After an ex parte hearing on August 19, 1970, the circuit court of Cook County ordered the forfeiture and sale of appellant's vehicle.
2
Upon learning of the forfeiture after his release, appellant filed a motion for rehearing, requesting that the order of forfeiture be set aside because the manner of notice did not comport with the requirements of the Due Process Clause of the Fourteenth Amendment. The circuit court of Cook County denied the motion. On appeal, the Supreme Court of Illinois, three justices dissenting, held that, in light of the in rem nature of the proceedings, substituted service as utilized by the State did not deny appellant due process of law. People ex rel. Hanrahan v. One 1965 Oldsmobile, 52 Ill.2d 37, 284 N.E.2d 646 (1972). We cannot agree.
3
In Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950), after commenting on the vagueness of the classifications 'in rem or more indefinitely quasi in rem, or more vaguely still, 'in the nature of a proceeding in rem", this Court held that 'the requirements of the Fourteenth Amendment to the Federal Constitution do not depend upon a classification for which the standards are so elusive and confused generally and which, being primarily for state courts to define, may and do vary from state to state.' Id., at 312, 70 S.Ct., at 656. 'An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.' Id., at 314, 70 S.Ct., at 657. More specifically, Mullane held that notice by publication is not sufficient with respect to an individual whose name and address are known or easily ascertainable. Similarly, in Covey v. Town of Somers, 351 U.S. 141, 76 S.Ct. 724, 100 L.Ed. 1021 (1956), we held that, in the context of a foreclosure action by the town, notice by mailing, posting, and publication was inadequate where the individual involved was known by the town to be an incompetent without the protection of a guardian. See also Schroeder v. New York, 371 U.S. 208, 83 S.Ct. 279, 9 L.Ed.2d 255 (1962); Walker v. City of Hutchinson, 352 U.S. 112, 77 S.Ct. 200, 1 L.Ed.2d 178 (1956); City of New York v. New York, N.H. & H.R. Co., 344 U.S. 293, 73 S.Ct. 299, 97 L.Ed. 333 (1953).
4
In the instant case, the State knew that appellant was not at the address to which the notice was mailed and, moreover, knew also that appellant could not get to that address since he was at that very time confined in the Cook County jail. Under these circumstances, it cannot be said that the State made any effort to provide notice which was 'reasonably calculated' to apprise appellant of the pendency of the forfeiture proceedings.3 Accordingly, we grant the motion for leave to proceed in forma pauperis, reverse the judgment of the Supreme Court of Illinois, and remand for further proceedings not inconsistent with this opinion.
5
Reversed and remanded.
1
Under Illinois law, the address of a vehicle owner must be registered in the office of the Secretary of State. Ill.Rev.Stat., c. 95 1/2, § 3—405 (1971). The Illinois vehicle forfeiture statute authorizes service of notice by certified mail to the address as listed in the records of the Secretary of State. Ill.Rev.Stat., c. 38, § 36—1 (1969).
2
Appellant was tried on October 7, 1970, for the offense of armed robbery. The court, sitting without a jury, found appellant guilty only of plain robbery and sentenced him to probation for three years, the first four months of which to be served in the Cook County jail. In light of appellant's pretrial detention, the four-month requirement was 'considered served' and appellant was released immediately on his own recognizance.
3
Since we dispose of this case on the notice question, we do not reach the additional issues raised by appellant.
| 34
|
409 U.S. 33
93 S.Ct. 32
34 L.Ed.2d 45
CALIFORNIA, Petitioner,v.Judith KRIVDA and Roger T. Minor.
No. 71—651.
Oct. 24, 1972.
Rehearing Denied Dec. 11, 1972.
See 409 U.S. 1068, 93 S.Ct. 549.
Russell Iungerich, Los Angeles, Cal., for petitioner.
Roger S. Hanson, Woodland Hills, Cal., for respondents.
PER CURIAM.
1
On the basis of evidence obtained in a police search of respondents' trash, respondents were charged with possession of marihuana in violation of § 11530 of the California Health & Safety Code. The Supreme Court of California affirmed the superior court's judgment of dismissal and order suppressing the evidence on the grounds that, under the circumstances of this case, respondents 'had a reasonable expectation that their trash would not be rummaged through and picked over by police officers acting without a search warrant.' People v. Krivda, 5 Cal.3d 357, 366 367, 96 Cal.Rptr. 62, 68, 486 P.2d 1262, 1268 (1971) (en banc). We granted certiorari. 405 U.S. 1039, 92 S.Ct. 1307, 31 L.Ed.2d 579.
2
After briefing and argument, however, we are unable to determine whether the California Supreme Court based its holding upon the Fourth and Fourteenth Amendments to the Constitution of the United States, or upon the equivalent provision of the California Constitution, or both. In reaching its result in this case, the California court cited pertinent excerpts from its earlier decision in People v. Edwards, 71 Cal.2d 1096, 80 Cal.Rptr. 633, 458 P.2d 713 (1969) (en banc), which relied specifically upon both the state and federal provisions. 5 Cal.3d, at 367, 96 Cal.Rptr., at 69, 486 P.2d, at 1269. Thus, as in Department of Mental Hygiene Dept. v. Kirchner, 380 U.S. 194, 196 197, 85 S.Ct. 871, 873, 13 L.Ed.2d 753 (1965), '(w)hile we might speculate from the choice of words used in the opinion, and the authorities cited by the court, which provision was the basis for the judgment of the state court, we are unable to say with any degree of certainty that the judgment of the California Supreme Court was not based on an adequate and independent nonfederal ground.' We therefore vacate the judgment of the Supreme Court of California and remand the cause to that court for such further proceedings as may be appropriate. Department of Mental Hygiene Dept. v. Kirchner, supra; Minnesota v. National Tea Co., 309 U.S. 551, 60 S.Ct. 676, 84 L.Ed. 920 (1940); State Tax Commission of Utah v. Van Cott, 306 U.S. 511, 59 S.Ct. 605, 83 L.Ed. 950 (1939). We intimate to view on the merits of the Fourth and Fourteenth Amendment issue presented.
3
Vacated and remanded.
| 89
|
409 U.S. 36
93 S.Ct. 29
34 L.Ed.2d 42
ILLINOISv.MICHIGAN.
No. 57, Orig.
Oct. 24, 1972.
PER CURIAM.
1
The State of Illinois moved to file its bill of complaint in this case on the theory that a 'reciprocal treaty' between the States of Illinois and Michigan was violated by a decision of the Supreme Court of the State of Michigan which allowed recovery by two injured workmen against and Illinois re-insurance company. Federoff v. Ewing, 386 Mich. 474, 192 N.W.2d 242 (1971). It claims that such an agreement arose when the two States enacted the Uniform Insurers Liquidation Act, which contains certain reciprocal features, and that the agreement has the dignity of an interstate compact.*
2
The State of Illinois was a party to the case decided by the Supreme Court of Michigan through the person of the Director of Insurance of the State of Illinois, who was the liquidator of the workmen's compensation insurer, Highway Insurance Co. It was the imposition of liability upon that company's re-insurer which Illinois claims was inappropriate under the uniform act. Review of the Michigan decision should have been sought in that case by means of a petition for writ of certiorari.
3
It is now too late for any such petition for certiorari to be filed. But original jurisdiction of the Court is not an alternative to the redress of grievances which could have been sought in the normal appellate process, if the remedy had been timely sought.
4
The problem presented is essentially one between private litigants and, though the point now raised may not have been presented in the Michigan litigation, these controversies are recurring and essentially not state concerns.
5
While the complaint on its face is within our original, as well as our exclusive, jurisdiction, it seems apparent from the moving papers and the response that Illinois, though nominally a party, is here 'in vindication of the grievances of particular individuals.' Louisiana v. Texas, 176 U.S. 1, 16, 20 S.Ct. 251, 256, 44 L.Ed. 347.
6
The motions to file briefs amici curiae by Jack Federoff, William F. Ewing d/b/a William Ewing Roofing Co., and John H. Shannon are granted.
7
The motion of the State of Illinois for leave to file a bill of complaint is denied.
*
See generally Frankfurter & Landis, The Compact Clause of the Constitution—a Study in Interstate Adjustments, 34 Yale L.J. 685 (1925); Engdahl, Characterization of Interstate Arrangements: When is a Compact not a Compact?, 64 Mich.L.Rev. 63 (1965); Note, At the Intersection of Jurisdiction and Choice of Law, 59 Calif.L.Rev. 1514 (1971).
| 89
|
409 U.S. 41
93 S.Ct. 71
34 L.Ed.2d 194
Frank F. MURCH et al.v.Robert H. MOTTRAM.
No. 72 - 55.
Nov. 6, 1972.
Leave to File Petition for Rehearing Denied Jan. 8, 1973.
See 409 U.S. 1119, 93 S.Ct. 894.
PER CURIAM.
1
Respondent Mottram sought habeas corpus from the United States District Court in Maine, challenging on various constitutional grounds the validity of a criminal conviction obtained in the Maine state courts. After a full evidentiary hearing, the District Court denied relief, both on the ground that respondent had deliberately bypassed state procedures established for the post-conviction adjudication of such claims, and on the ground that the constitutional claims were without merit. 330 F.Supp. 51 (1971). The Court of Appeals for the First Circuit reversed, holding that respondent had not waived his right to raise the constitutional issues, and ruling in favor of respondent on one such issue. 458 F.2d 626 (1972). We have concluded that, under settled principles governing the availability of federal habeas for state prisoners, the finding of the District Court as to waiver must be sustained. We therefore grant the motion of the respondent for leave to proceed in forma pauperis, grant the petition for a writ of certiorari, and reverse the judgment of the Court of Appeals.
2
Mottram was convicted in 1960 of larceny and of being a habitual offender, and these convictions were upheld on appeal. State v. Mottram, 158 Me. 325, 184 A.2d 225 (1962). On that appeal, Mottram did not litigate the constitutional issue upon which the Court of Appeals based its decision. Respondent was paroled in 1963, but parole was revoked in 1965. Following that revocation, Mottram brought in state court the action that later became the main focus of concern of the Court of Appeals and the District Court. The original petition in that proceeding challenged directly the validity of the underlying convictions. Prior to the presentation of evidence to the state court judge, however, Mottram's counsel sought to withdraw the original petition without prejudice and to substitute a 'Supplemental Petition,' which challenged on constitutional grounds only the propriety of the procedures attending the revocation of respondent's parole. At this point the state judge advised respondent's counsel that he considered both the petition and the proceeding to be for post-conviction relief, and that therefore, under the applicable state statutes, Me.Rev.Stat.Ann., Tit. 14, §§ 5502, 5507 (1964) Mottram would either have to raise all grounds for relief from custody or be deemed to waive those that had not been asserted. Mottram's counsel disagreed with the state judge, contending that the petition was one for common-law habeas corpus, and that therefore the statutory requirement that all grounds for attack be presented did not apply. The judge reiterated his interpretation, and the following colloquy then took place:
3
'THE COURT: I think I will have to ask you to deal with this at this moment in making a decision as to what you want to do on the basis that I will undoubtedly view it as post-conviction and your only remedy at that point might be an appeal on this point from my decision. I think in all fairness, I should indicate to you this is as I view it. I think that is the result we are led to by the statute, myself.
4
'MR. TEVANIAN (Mottram's counsel): I understand your position and I shall discuss it.'
5
(Conference between Mr. Tevanian and Mr. Mottram.) (Off-record discussion.)
6
(RECESS)
7
'MR. TEVANIAN: For the record, it is our position here that we do not attack the judgment and conviction of 1960. We are now attacking his personal freedom as a parole violator so that whatever rights we may reserve in appeal as to whether or not this is a post-conviction hearing, we would now like to avail ourselves of that reservation. We have elected to go ahead on that issue.
8
'THE COURT: I think that makes it clear, Brother Tevanian, for the record . . ..'
9
Mottram's attack on the parole revocation procedures was unsuccessful before the state judge, and the latter's decision was sustained on appeal by the Supreme Judicial Court of Maine. Mottram v. State, 232 A.2d 809 (1967). In 1967, Mottram filed another petition for state post-conviction relief, in which he sought to attack collaterally the validity of the 1960 convictions upon grounds that included the constitutional ground ultimately sustained by the Court of Appeals. The Supreme Judicial Court of Maine held that the failure to present those claims in the 1965 petition, after an explicit warning by the trail judge, constituted a waiver of those claims under the applicable provisions of the Maine post-conviction statutes, and therefore those statutes precluded Mottram from raising those claims in a subsequent petition for post-conviction relief. Mottram v. State, 263 A.2d 715 (1970). Mottram than commenced this litigation in the federal courts.
10
In Fay v. Noia, 372 U.S. 391, 439, 83 S.Ct. 822, 849, 9 L.Ed.2d 837 (1963), this Court said:
11
'If a habeas applicant, after consultation with competent counsel or otherwise, understandingly and knowingly forewent the privilege of seeking to vindicate his federal claims in the state courts, whether for strategic, tactical, or any other reasons that can fairly be described as the deliberate by-passing of state procedures, then it is open to the federal court on habeas to deny him all relief if the state courts refused to entertain his federal claims on the merits though of course only after the federal court has satisfied itself, by holding a hearing or by some other means, of the facts bearing upon the applicant's default.'
12
The District Court devoted four days to such a hearing, at which the transcripts of the trials and of the state postconviction proceedings, as well as the testimony of witnesses called by Mottram, were introduced in evidence. Following this evidentiary hearing, the District Court concluded as follows:
13
'From the Court's personal observation of petitioner, it is apparent that he is of at least average intelligence and well deserves his reputation as a cunning 'jailhouse lawyer.' He was represented at the time by counsel of unquestioned competence and integrity. It is inconceivable that his counsel did not fully explain to petitioner the possible consequences of his action. The Court, therefore, finds that petitioner was fully aware of these consequences and that by deliberately bypassing the orderly procedures provided by the Maine postconviction statute for raising the issues presented in his most recent state habeas petition and in his present petition in this Court, petitioner has forfeited his right to do so. (Citing cases.)' 330 F.Supp., at 57.
14
In Sanders v. United States, 373 U.S. 1, 18, 83 S.Ct. 1068, 1078, 10 L.Ed.2d 148 (1963), this Court said, in speaking of habeas corpus for federal prisoners:
15
'Thus, for example, if a prisoner deliberately withholds one of two grounds for federal collateral relief at the time of filing his first application, in the hope of being granted two hearings rather than one or for some other such reason, he may be deemed to have waived his right to a hearing on a second application presenting the withheld ground. . . . Nothing in the traditions of habeas corpus requires the federal courts to tolerate needless piecemeal litigation, or to entertain collateral proceedings whose only purpose is to vex, harass, or delay.'
16
There can be no doubt that States may likewise provide, as Maine has done, that a prisoner seeking post-conviction relief must assert all known constitutional claims in a single proceeding. Indeed, the Court of Appeals agreed that the Maine statutory scheme was an 'orderly procedure of the state courts,' as that term is used in Fay v. Noia, supra, 372 U.S. at 438, 83 S.Ct. at 849. No prisoner has a right either under the Federal Constitution or under 28 U.S.C. § 2241 to insist upon piecemeal collateral attack on a presumptively valid criminal conviction in the face of such a statutory provision.
17
The Court of Appeals conceded that '(t)here are a great many instances where a party must be bound by a mistake of his counsel.' 458 F.2d, at 629. But it concluded that because the statutory question presented to the state trial judge, whether the Maine postconviction statute required respondent to assert in the 1965 proceeding all of his attacks upon his detention, was not open and shut, counsel's failure to assert the constitutional claim in the state proceeding could not be regarded as a 'deliberate by-pass' under Fay v. Noia, supra, at 438—439, 83 S.Ct. at 848—849. That court also relied on the fact that there was no 'extrinsic evidence' that Mottram 'was seeking to circumvent state procedures . . ..' 458 F.2d, at 629.
18
Concededly, Mottram testified at the hearing in the District Court that he did not intend to waive his constitutional attacks on the underlying 1960 convictions. But if a subjective determination not to waive or to abandon a claim were sufficient to preclude a finding of a deliberate bypass of orderly state procedures, constitutionally valid procedural requirements, such as those contained in the Maine statute requiring the joining of all bases for attack in one proceeding, would be utterly meaningless. Nothing in our previous holdings in this area supports the conclusion that Mottram, having fair warning of the effect of the Maine statute, could cavalierly disregard that intended effect by simply announcing that he did not choose to be bound by it. In this sensitive and ofttimes strained area of federal-state relations, a state prisoner may not deliberately 'elect' not to comply with the interpretation of the state procedural statute by the state court, and then assert in federal court that no rights were waived because he did not have the subjective intent to waive his constitutional claims. The Court of Appeals apparently felt that so long as the highest state court has not construed the relevant procedural statute, a prisoner is free to adhere to his own interpretation and to establish thereby that he did not deliberately ignore state procedure. But here, respondent had reasonable warning from the trial judge of the risk that he ran in declining to assert his claim in the first proceeding, and nonetheless chose to run that risk. Such conduct fully supported the District Court's conclusion that he had deliberately chosen to bypass orderly state procedures, and the Court of Appeals erred in upsetting that determination.
19
Reversed.
20
Mr. Justice BRENNAN, with whom Mr. Justice DOUGLAS and Mr. Justice MARSHALL concur, dissenting.
21
I dissent and would affirm because in my view of the Court of Appeals reached the correct result on the facts presented.
| 01
|
409 U.S. 48
93 S.Ct. 74
34 L.Ed.2d 201
NATIONAL LABOR RELATIONS BOARD, Petitioner,v.INTERNATIONAL VAN LINES.
No. 71 - 895.
Argued Oct. 12, 1972.
Decided Nov. 7, 1972.
Syllabus
Four employees of respondent refused to cross a picket line formed in connection with a union's organization campaign. Respondent thereafter advised the employees that because of their failure to report to work they were being permanently replaced, which was not true at the time of the discharges. When respondent refused reinstatement, charges were filed with the National Labor Relations Board (NLRB). Concluding that the discharges were unfair labor practices under the National Labor Relations Act, and that the employees thereby became unfair labor practice strikers, the NLRB ordered unconditional reinstatement with back pay. The Court of Appeals reversed that portion of the NLRB's order, holding that the employees were not unfair labor practice strikers, who were entitled to unconditional reinstatement, but economic strikers, who were not entitled to reinstatement if the employer had substantial business justifications for refusing to rehire them. Held: The unconditional reinstatement of the employees was proper since their discriminatory discharges prior to the time their places were filled constituted unfair labor practices regardless of whether they were economic strikers or unfair labor practice strikers. Pp. 52—53.
448 F.2d 905, reversed in part.
Peter G. Nash, Washington, D.C., for petitioner.
Norman H. Kirshman, Beverly Hills, Cal., for respondent.
Mr. Justice STEWART delivered the opinion of the Court.
1
The respondent is a moving and storage company based in Santa Maria, California. In August 1967, Local 381 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America began a campaign to organize the employees of moving and storage firms in the area. By September 21, five of the respondent's employees had signed upon authorization cards; it is undisputed that they constituted a clear majority of what would be an appropriate bargaining unit. Instead of demanding recognition by the respondent, the Union on September 21, 1967, petitioned the National Labor Relations Board for certification as the exclusive bargaining agent of the respondent's employees.
2
Shortly thereafter, on October 2 and 3, the Union held meetings where it was announced that the respondent had at first consented to a representation election but had later withdrawn its consent. It was decided at the October 3 meeting that all of the moving and storage companies involved in the Union organization campaign should be struck, and on October 4, picketing commenced at the respondent's place of business.
3
Four of the respondent's employees, Robert and Manuel Vasquez, Richard Dicus, and Salvador Casillas, were present at the respondent's premises on the morning when picketing commenced. They refused to cross the picket line. The next morning, Robert and Manuel Vasquez and Richard Dicus received identical telegrams which read: 'For failure to report to work as directed at 7 A.M. on Wednesday Oct. 4, 1967 you are being permanently replaced. (Signed) International Van Lines.'1 It is undisputed that at the time of the discharges, the respondent had not in fact hired permanent replacements.
4
Casillas sought reinstatement in late November, and the other three discharged employees made unconditional offers to return to work on December 12. At least as to these three,2 the respondent refused reinstatement, claiming that it had at that point hired permanent replacements. The Union then went to the National Labor Relations Board with unfair labor practice charges against the respondent.
5
The Board determined that the labor picketing that commenced on October 4 was activity protected under § 7 of the National Labor Relations Act, 49 Stat. 452, as amended, 29 U.S.C. § 157, and concluded that the subsequent discharges of striking employees discriminated against lawful union activity and were unfair labor practices under §§ 8(a)(1) and 8(a)(3) of the Act, 29 U.S.C. §§ 158(a) (1), (a)(3).
6
It is settled that an employer may refuse to reinstate economic strikers if in the interim he has taken on permanent replacements. NLRB v. Mackay Radio & Telegraph Co., 304 U.S. 333, 345—346, 58 S.Ct. 904, 910—911, 82 L.Ed. 1381. It is equally settled that employees striking in protest of an employer's unfair labor practices are entitled, absent some contractual or statutory provision to the contrary, to unconditional reinstatement with back pay, 'even if replacements for them have been made.' Mastro Plastics Corp. v. NLRB, 350 U.S. 270, 278, 76 S.Ct. 349, 355, 100 L.Ed. 309. Since the strike in the instant case continued after the unfair labor practices had been committed by the employer, the Board reasoned that the original economic strike became an unfair labor practice strike on October 5, when the three telegrams were sent. The Board held the four employees to be unfair labor practice strikers and, accordingly, ordered their unconditional reinstatement with back pay.
7
The Board then sought enforcement of its order in the Court of Appeals for the Ninth Circuit. The Court of Appeals agreed that the labor picketing was a lawful economic strike, and that the discharges of the striking employees were unfair labor practices. 448 F.2d 905, 910—911. Nevertheless, the Court of Appeals reversed the portion of the Board's order providing for reinstatement with back pay,3 reasoning as follows:
8
'The strikers whose discharges constituted the unfair labor practice were, at the time of their discharges, protesting only the original grievance. Any strikers subsequently discharged might legitimately be considered unfair labor practice strikers, for they would be protesting not only the original grievance but also the subsequent unfair labor practice. The initially discharged strikers were obviously not protesting their own discharges, which had not yet occurred. To assimilate their status to that of their co-workers who had not yet been discharged would eliminate the distinction between (the) economic-striker-reinstatement rule (Mackay Radio & Telegraph) and the unfair-labor-practice-striker-reinstatement rule (Mastro Plastics) in cases like this one.' Id., at 911 912.
9
Consistent with its determination that the discharged employees were enconomic strikers entitled to reinstatement only if the employer could not show legitimate and substantial business justifications for refusing to take them back, the Court of Appeals remanded the case for further findings concerning the reasons for the employer's refusal to rehire them. Id., at 912. Because this decision appeared to involve principles important to the administration of the National Labor Relations Act as amended, we granted the Board's petition for certiorari, 405 U.S. 953, 92 S.Ct. 1177, 31 L.Ed.2d 230.
10
Both the Board and the Court of Appeals have agreed that the labor picketing was a lawful economic strike, and the validity of that conclusion is not before us.4 Given that hypothesis, the Board and the Court of Appeals were clearly correct in concluding that the respondent committed unfair labor practices when it fired its striking employees. '(T)he discharge of economic strikers prior . . . to the time their places are filled constitutes an unfair labor practice.' NLRB v. Globe Wireless, 9 Cir., 193 F.2d 748, 750; NLRB v. Comfort, Inc., 8 Cir., 365 F.2d 867, 874; NLRB v. McCatron, 9 Cir., 216 F.2d 212, 215. We need not decide, however, whether the Board was correct in determining that the discharged employees assumed the status of unfair labor practice strikers on October 5, 1967, to reach the conclusion that the Court of Appeals erred in refusing to enforce the Board's order of reinstatement with back pay.
11
Unconditional reinstatement of the discharged employees was proper for the simple reason that they were the victims of a plain unfair labor practice by their employer. Quite apart from any characterization of the strike that continued after the wrongful discharges occurred, the discharges themselves were a sufficient ground for the Board's reinstatement order. 'Reinstatement is the conventional correction for discriminatory discharges,' Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 187, 61 S.Ct. 845, 849, 85 L.Ed. 1271, and was clearly within the Board's authority. 29 U.S.C. § 160(c).
12
It would undercut the remedial powers of the Board with respect to § 8 violations, and subvert the protection of § 7 of the Act, to hold that the employees' rights to reinstatement arising from the discriminatory discharges were somehow forfeited merely because they continued for a time to engage in their lawful strike after the unfair labor practices had been committed.
13
The judgment of the Court of Appeals is reversed insofar as it refused to enforce the Board's order that the discharged employees by reinstated with back pay.5
14
It is so ordered.
15
Judgment reversed in part.
16
Mr. Justice BLACKMUN, concurring in the judgment.
17
The result mandated by the narrow factual situation presented in this case need not be automatically imposed whenever an economic striker is discharged before being permanently replaced. Although the Court's opinion speaks only of permanent replacement as a justification for refusal to reinstate an economic striker, the Court has recognized in the past that, in addition to permanent replacement, other 'legitimate and substantial business justifications for not reinstating an economic striker may exist. NLRB v. Fleetwood Trailer Co., 389 U.S. 375, 378—380, 88 S.Ct. 543, 545—546, 19 L.Ed.2d 614 (1967). The Court is not faced in the present case with other 'legitimate and substantial business justifications' because the employer, who bears the burden of proof, asserted only the permanent-replacement justification. The finding on an unfair labor practice here is not to be read, therefore, as necessarily precluding an employer from reliance on appropriate justifications other than permanent replacement.
18
Since the employer failed to show any business justification arising before the discharges, these workers enjoyed reinstatement rights when they were discriminatorily discharged. I concur in the reversal of the Court of Appeals' judgment because preservation of the rights existing before the workers were discharged is the appropriate remedy to provide 'a restoration of the situation, as nearly as possible, to that which would have obtained out for the illegal discrimination.' Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 194, 61 S.Ct. 845, 852, 85 L.Ed. 1271 (1941).
1
Casillas did not receive such a telegram, but the Court of Appeals found that he was discharged at about the same time as the other three, and for the same reasons. 448 F.2d 905, 909.
2
There remains some question as to whether Casillas, a part-time employee, was actually denied subsequent employment or whether instead there had been no occasion for the employer to use his services. The Court of Appeals remanded to the Board for a determination of this question—a determination that will affect the amount of back pay, if any, that Casillas is entitled to receive.
3
The Court of Appeals also rejected the Board's finding of an unfair labor practice in the form of conversations between the son of the respondent's president and the employees, 448 F.2d, at 908—909, but this aspect of the judgment is not before us.
4
The Court of Appeals construed the picketing as a strike for the purpose of forcing the respondent employer to agree to a consent election, 448 F.2d, at 910, and held this to be protected under the Act. The respondent disagrees. But since no timely cross-petition for certiorari was filed by the respondents, this question is not before us. Alaska Industrial Board v. Chugach Electric Assn., 356 U.S. 320, 325, 78 S.Ct. 735, 738, 2 L.Ed.2d 795; NLRB v. Express Publishing Co., 312 U.S. 426, 431—432, 61 S.Ct. 693, 697—698, 85 L.Ed. 930; Morley Construction Co. v. Maryland Casualty Co., 300 U.S. 185, 191, 57 S.Ct. 325, 327, 81 L.Ed. 583. We therefore proceed on the premise that the Union was engaged in protected activity, while intimating no view on the merits of this portion of the decision of the Court of Appeals.
5
The Court of Appeals remanded to the Board for a determination of whether Casillas had actually been denied employment subsequent to his request for reinstatement, and did not reach the propriety of the bargaining order entered by the Board. We leave these aspects of the Court of Appeals decision undisturbed.
| 67
|
409 U.S. 57
93 S.Ct. 80
34 L.Ed.2d 267
Clarence WARD, Petitioner,v.VILLAGE OF MONROEVILLE, OHIO.
No. 71 - 496.
Argued Oct. 17, 1972.
Decided Nov. 14, 1972.
Syllabus
Petitioner was denied a trial before a disinterested and impartial judicial officer as guaranteed by the Due Process Clause of the Fourteenth Amendment where he was compelled to stand trial for traffic offenses before the mayor, who was responsible for village finances and whose court through fines, forfeitures, costs, and fees provided a substantial portion of village funds. Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749. A statutory provision for the disqualification of interested or biased judges did not afford petitioner a sufficient safeguard, and it is of no constitutional relevance that petitioner could later be tried de novo in another court, as he was entitled to an impartial judge in the first instance. Pp. 59—62, 27 Ohio St.2d 179, 271 N.E.2d 757, reversed and remanded.
Bernard A. Berkman, Cleveland, Ohio, for petitioner.
Franklin D. Eckstein, Willard, Ohio, for respondent.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
Pursuant to Ohio Rev.Code Ann. § 1905.01 et seq. (1968), which authorizes mayors to sit as judges in cases of ordinance violations and certain traffic offenses, the Mayor of Monroeville, Ohio, convicted petitioner of two traffic offenses and fined him $50 on each. The Ohio Court of Appeals for Huron County, 21 Ohio App.2d 17, 254 N.E.2d 375 (1969), and the Ohio Supreme Court, 27 Hoio St.2d 179, 271 N.Ed.2d 757 (1971), three justices dissenting, sustained the conviction, rejecting petitioner's objection that trial before a mayor who also had responsibilities for revenue production and law enforcement denied him a trial before a disinterested and impartial judicial officer as guaranteed by the Due Process Clause of the Fourteenth Amendment. We granted certiorari. 404 U.S. 1058, 92 S.Ct. 735, 30 L.Ed.2d 745 (1972).
2
The Mayor of Monroeville has wide executive powers and is the chief conservator of the peace. He is president of the village council, presides at all meetings, votes in case of a tie, accounts annually to the council respecting village finances, fills vacancies in village offices and has general overall supervision of village affairs. A major part of village income is derived from the fines, forfeitures, costs, and fees imposed by him in his mayor's court. Thus, in 1964 this income contributed $23,589.50 of total village revenues of $46,355.38; in 1965 it was $18,508.95 of $46,752.60; in 1966 it was $16,085 of $43,585.13; in 1967 it was $20,060.65 of $53,931.43; and in 1968 it was $23,439.42 of $52,995.95. This revenue was of such importance to the village that when legislation threatened its loss, the village retained a management consultant for advice upon the problem.1
3
Conceding that 'the revenue produced from a mayor's court provides a substantial portion of a municipality's funds,' the Supreme Court of Ohio held nonetheless that 'such fact does not mean that a mayor's impartiality is so diminished thereby that he cannot act in a disinterested fashion in a judicial capacity.' 27 Ohio St.2d, at 185, 271 N.E.2d, at 761. We disagree with that conclusion.
4
The issue turns, as the Ohio court acknowledged, on whether the Mayor can be regarded as an impartial judge under the principles laid down by this Court in Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (1927). There, convictions for prohibition law violations rendered by the Mayor of North College Hill, Ohio, were reversed when it appeared that, in addition to his regular salary, the Mayor received $696.35 from the fees and costs levied by him against alleged violators. This Court held that 'it certainly violates the Fourteenth Amendment and deprives a defendant in a criminal case of dur process of law to subject his liberty or property to the judgment of a court, the judge of which has a direct, personal, substantial pecuniary interest in reaching a conclusion against him in his case.' Id., at 523, 47 S.Ct., at 441.
5
The fact that the mayor there shared directly in the fees and costs did not define the limits of the principle. Although 'the mere union of the executive power and the judicial power in him cannot be said to violate due process of law,' id., at 534, 47 S.Ct., at 445 the test is whether the mayor's situation is one 'which would offer a possible temptation to the average man as a judge to forget the burden of proof required to convict the defendant, or which might lead him not to hold the balance nice, clear, and true between the state and the accused . . ..' Id., at 532, 47 S.Ct., at 444. Plainly that 'possible temptation' may also exist when the mayor's executive responsibilites for village finances may make him partisan to maintain the high level of contribution from the mayor's court. This, too, is a 'situation in which an official perforce occupies two practically and seriously inconsistent positions, one partisan and the other judicial, (and) necessarily involves a lack of due process of law in the trial of defendants charged with crimes before him.' Id., at 534, 47 S.Ct., at 445.
6
This situation is wholly unlike that in Dugan v. Ohio, 277 U.S. 61, 48 S.Ct. 439, 72 L.Ed. 784 (1928), which the Ohio Supreme Court deemed controlling here. There the Mayor of Xenia, Ohio, had judicial functions but only very limited executive authority. The city was governed by a commission of five members, including the Mayor, which exercised all legislative powers. A city manager, together with the commission, exercised all executive powers. In those circumstances, this Court held that the Mayor's relationship to the finances and financial policy of the city was too remote to warrant a presumption of bias toward conviction in prosecutions before him as judge.
7
Respondent urges that Ohio's statutory provision, Ohio Rev.Code Ann. § 2937.20 (Supp.1971), for the disqualification of interested, biased, or prejudiced judges is a sufficient safeguard to protect petitioner's rights. This argument is not persuasive. First, it is highly dubious that this provision was available to raise petitioner's broad challenge to the mayor's court of this village in respect to all prosecutions there in which fines may be imposed. The provision is apparently designed only for objection to a particular mayor 'in a specific case where the circumstances in that municipality might warrant a finding of prejudice in that case.' 27 Ohio St.2d, at 184, 271 N.E.2d, at 760 (emphasis added). If this means that an accused must show special prejudicie in his particular case, the statute requires too much and protects too little. But even if petitioner might have utilized the procedure to make his objection, the Ohio Supreme Court passed upon his constitutional contention despite petitioner's failure to invoke the procedure. In that circumstances, see Raley v. Ohio, 360 U.S. 423, 436, 79 S.Ct. 1257, 1265, 3 L.Ed.2d 1344 (1959), he may be heard in this Court to urge that the Ohio Supreme Court erred in holding that he had not established his Fourteenth Amendment claim.
8
Respondent also argues that any unfairness at the trial level can be corrected on appeal and trial de novo in the County Court of Common Pleas. We disagree. This 'procedural safeguard' does not guarantee a fair trial in the mayor's court; there is nothing to suggest that the incentive to convict would be diminished by the possibility of reversal on appeal. Nor, in any event, may the State's trial court procedure be deemed constitutionally acceptable simply because the State eventually offers a defendant an impartial adjudication. Petitioner is entitled to a neutral and detached judge in the first instance.2 Accordingly, the judgment of the Supreme Court of Ohio is reversed and the case is remanded for further proceedings not inconsistent with this opinion.
9
It is so ordered.
10
Reversed and remanded.
11
Mr. Justice WHITE, with whom Mr. Justice REHNQUIST joins, dissenting.
12
The Ohio mayor who judged this case had no direct financial stake in its outcome. Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (1927), is therefore not controlling, and I would not extend it.
13
To justify striking down the Ohio system on its face, the Court must assume either that every mayor-judge in every case will disregard his oath and administer justice contrary to constitutional commands or that this will happen often enough to warrant the prophylactic, per se rule urged by petitioner. I can make neither assumption with respect to Ohio mayors nor with respect to similar officials in 16 other States. Hence, I would leave the due process matter to be decided on a case-by-case basis, a question which, as I understand the posture of this case, is not now before us. I would affirm the judgment.
1
Ordinance No. 59—9:
'WHEREAS, the legislation known as the County Court law passed by the 102nd General Assembly greatly reduces the jurisdictional powers of Mayor Courts as of January 1, 1960; and
'WHEREAS, such restrictions may place such a hardship upon law enforcement personnel in this village and surrounding areas as to endanger the health, welfare and safety of persons residing or being in our village; and
'WHEREAS, other such provisions of this legislation may cause such a reduction in revenue to this village that an additional burden
may result from increased taxation and/or curtailment of services essential to the health, welfare and safety of this village; . . .
'BE IT ORDAINED BY THE VILLAGE OF (MONROEVILLE) OHIO:
Section 1. That the services of the management consulting firm of Midwest Consultants, Incorporated of Sandusky, Ohio, be employed to conduct a survey and study to ascertain the extent of the effects of the County Court Law on law enforcement and loss of revenue in and to the Village of (Monroeville), Ohio, so that said Village can prepare for the future operations of the Village to safeguard the heath (sic), welfare and safety of its citizens . . ..'
Moreover, Monroeville's Chief of Police, appointed by the Mayor, Ohio Rev.Code Ann. § 737.15 (Supp.1971), testified that it was his regular practice to charge suspects under a village ordinance, rather than a state statute, whenever a choice existed. App. 9. That policy must be viewed in light of § 733.40 (1954), which provides that fines and forfeitures collected by the Mayor in state cases shall be paid to the county treasury, whereas fines and forfeitures collected in ordinance and traffic cases shall be paid into the municipal treasury. Petitioner asserts that the Mayor conceded at trial that this policy was carried out under the Mayor's orders. The record lends itself to this inference. App. 10 11.
2
The question presented on this record is the constitutionality of the Mayor's participation in the adjudication and punishment of a defendant in a litigated case where he elects to contest the charges against him. We intimate no view that it would be unconstitutional to permit a mayor or similar official to serve in essentially a ministerial capacity in a traffic or ordinance violation case to accept a free and voluntary plea of guilty or nolo contendere, a forfeiture of collateral, or the like.
| 34
|
409 U.S. 80
93 S.Ct. 261
34 L.Ed.2d 282
UNITED STATESv.James JIM et al. UTAH et al. v. James JIM et al.
Nos. 71 - 1509 and 71 - 1612.
Nov. 20, 1972.
Rehearings Denied Jan. 8, 1973.
See 409 U.S. 1118, 93 S.Ct. 893, 894.
PER CURIAM.
1
The motion of the Navajo Tribe of Indians for leave to file a brief as amicus Curiae in No. 71—1509, is granted.
2
These cases are here on appeal from a judgment of the District Court for the District of Utah that declared an Act of Congress to be unconstitutional. Jurisdiction in this Court is conferred by 28 U.S.C. §§ 1252 and 2101(a).
3
In 1933, the Congress withdrew certain lands in Utah, known as the 'Aneth Extension,' from the public domain and added them to the Navajo Reservation. Though no oil or gas was believed to be located on these lands, it was provided that should such mineral resources be produced in commercial quantities, '37 1/2 per centum of the net royalties accruing therefrom derived from tribal leases shall be paid to the State of Utah: Provided, That said 37 1/2 per centum of said royalties shall be expended by the State of Utah in the tuition of Indian children in white schools and/or in the building or maintenance of roads across the lands described in section 1 hereof, or for the benefit of the Indians residing therein.' 47 Stat. 1418. The remaining 62 1/2% of the royalties generated by any such tribal mineral leases were, by implication, to go to the Navajo tribe.
4
After the passage of the Act, oil and gas were discovered on the Aneth Extension, and royalties were divided pursuant to the statute. The State of Utah created an Indian Affairs Commission to manage and expend the funds received by the State under the Act. As time went on, the language of the 1933 Act came to create administrative problems regarding the expenditure of the funds channeled through the State. A report of the Senate Committee on Interior and Insular Affairs noted in 1967 that the word 'tuition' in the 1933 Act had created uncertainty as to the breadth of the educational program the State was authorized to finance from the royalty funds. The report also noted a difficulty in discerning precisely who was properly a beneficiary of the funds, since 'many Navajo families do not live permanently within the lands set aside in 1933, but move back and forth between this area and other locations.' S.Rep.No.710, 90th Cong., 1st Sess., 2 (1967).
5
To make the administration of these funds more flexible and to spread the benefits of the royalties more broadly among the Navajo community, the Congress enacted a statute in 1968 that directed the State to expend the 37 1/2% of royalties 'for the health, education, and general welfare of the Navajo Indians residing in San Juan County.' 82 Stat. 121. This statutory change expanded the pool of beneficiaries substantially, and a class action was brought on behalf of the residents of the Aneth Extension, seeking inter alia a declaration that the statute was an unconstitutional taking of property without just compensation. The District Court concluded that the 1933 Act vested certain property rights in the plaintiffs, and held the 1968 Act, with its changed pool of beneficiaries, to be unconstitutional.1
6
The judgment of the District Court is in error. Congress in 1933 did not create constitutionally protected property rights in the appellees. The Aneth Extension was added to a tribal reservation, and the leases which give rise to mineral royalties are tribal leases. It is settled that '(w)hatever title the Indians have is in the tribe, and not in the individuals, although held by the tribe for the common use and equal benefit of all the members.' Cherokee Nation v. Hitchcock, 187 U.S. 294, 307, 23 S.Ct. 115, 120, 47 L.Ed. 183; Delaware Indians v. Cherokee Nation, 193 U.S. 127, 136, 24 S.Ct. 342, 345, 48 L.Ed. 646. To be sure, the 1933 Act established a pattern of distribution which benefited the appellees more than other Indians on the Navajo Reservation.2 But it was well within the power of Congress to alter that distributional scheme.3 In Gritts v. Fisher, 224 U.S. 640, 32 S.Ct. 580, 56 L.Ed. 928, this Court approved a congressional enlargement of the pool of Indians who were to benefit from a distribution of tribal property. There, too, an earlier statute had established a more limited entitlement.
7
'But it is said that the act of 1902 contemplated that they (the beneficiaries under the first enactment) alone should receive allotments and be the participants in the distribution of the remaining lands, and also of the funds, of the tribe. No doubt such was the purport of the act. But that, in our opinion, did not confer upon them any vested right such as would disable Congress from thereafter making provision for admitting newly-born members of the tribe to the allotment and distribution. The difficulty with the appellants' contention is that it treats the act of 1902 as a contract, when 'it is only an act of Congress, and can have no greater effect.' . . . It was but an exertion of the administrative control of the government over the tribal property of tribal Indians. and was subject to change by Congress . . ..' Id., at 648, 32 S.Ct. 580, 583.
8
Congress has not deprived the Navajo of the benefits of mineral deposits on their tribal lands. It has merely chosen to re-allocate the 37 1/2% of royalties which flow through the State in a more efficient and equitable manner. This was well within the power of Congress to do. As no 'property,' in a Fifth Amendment sense, was conferred upon residents of the Aneth Extension by the 1933 Act, no violation of the Fifth Amendment was effected by the 1968 legislation. The judgment of the District Court is reversed.
9
Reversed.
10
Mr. Justice DOUGLAS, dissenting.
11
Plaintiffs below are a class of Indians with a membership of 1,500. They are a mixture of Navajo and Piute and live in an area of the Navajo Reservation called the Aneth Extension, made part of that reservation in a 1933 Act of Congress. 47 Stat. 1418. In 1968 Congress amended that Act, 82 Stat. 121, and the District Court for the District of Utah declared the amendment unconstitutional.
12
Prior to 1933 the Extension was part of the public lands of the United States. The area was occupied by the direct ancestors of the appellees.
13
The Indians in the Aneth Extension number about 1,500 people who are primitive Navajos with some mixture of Piute blood. See Sakezzie v. Utah Indian Affairs Comm'n, 198 F.Supp. 218, 220. They live in a remote and relatively inaccessible area with an average annual income per family of $240. Ibid. The Aneth Extension is in San Juan County and the 1933 Act stated: '(N)o further allotments of lands to Indians on the public domain shall be made in San Juan County, Utah, nor shall further Indian homesteads be made in said county'.
14
The white man was unconcerned about this domain until oil was discovered; and then he became quite active. By June 30, 1970, the royalties owing the Aneth Extension Indians had increased to $7,039,022.32. Of this, $78,000 was used to pipe water from the Aneth Extension to the adjoining lands of a white man, an 'improvement' that only incidentally aided the resident Indians. Another $27,000 of Indian funds was spent for the construction of an airport and connecting road, which substantially benefited a white man's private dude ranch operation. Some $10,000 or more was expended for administrative purposes by Utah. 198 F.Supp., at 221. When this suit was started, additional expenditures were about to be made: $175,000 to a federal agency to locate isolated water springs on the Aneth Extension and $500,000 to build a hard-surfaced road outside the boundaries of the Extension.
15
These primitive Navajos wanted the money used to purchase high-elevation ranges where they might have summer grazing for the livestock and thus realize a round-the-year livestock operation. Judge Christensen found that members of the Aneth Extension were the sole beneficiaries of the fund and that it should be administered with their wishes in mind.
16
But there are tensions and conflicts between these primitive Navajos who live on the Aneth Extension and other members of the tribe who live elsewhere. 198 F.Supp., at 221.
17
The State Commission did not comply with the District Court's order but sponsored legislation to extend the benefits of the fund to other Indians.1 Judge Christensen ruled again that the fund was solely for the benefit of members of the Aneth Extension. Sakezzie v. Utah State Indian Affairs Comm'n, 215 F.Supp. 12. Neither opinion was appealed. But the State Commission promoted legislation to extend the benefits of the 1933 Act to other Indians. Id., at 20.
18
The problems the Commission had in administering the fund reached Congress and in 1968 the contested amendment was passed. 82 Stat. 121. This amendment indicates that money must be used by the State of Utah 'for the health, education, and general welfare of the Navajo Indians residing in San Juan County' and that 'Contribution may be made to projects and facilities within said area that are not exclusively for the benefits of the beneficiaries hereunder in proportion to the benefits to be received therefrom by said beneficiaries, as may be determined by the State of Utah . . ..' Ibid., (Emphasis added.)
19
The 1933 Act gave title to the land and right to the fund, not to the tribe of the Navajo, but to the Aneth community.2 I do not believe that under the circumstances of this case Congress had the power to expand the class of beneficiaries to include the whole tribe.
20
The occupants of the Extension have been a separate community for many generations. Their claim of right by continuous possession precedes the transfer of title by the United States Government. Congress made provision for the Secretary of the Interior to place other tribes on the land and, if he did, their claim would be based on territory, not membership. Since the rights were vested in those who lived on the Aneth Extension, I do not see how they can be extended to outsiders.
21
In Gritts v. Fisher, 224 U.S. 640, 32 S.Ct. 580, 56 L.Ed. 928, the Court upheld the power of Congress to expand the beneficiaries of certain Indian land to the children of those who already enjoyed those rights. Here the expansion is not limited to those of the same blood line. But, more important, Congress had a different legal relation to the Cherokees than it does to the appellees. '(T)he members of this tribe were wards of the United States, which was fully empowered, whenever it seemed wise to do so, to assume full control over them and their affairs, to determine who were such members, to allot and distribute the tribal lands and funds . . ..' Id., at 642, 32 S.Ct., at 581. The 1933 Act states that the lands 'are hereby, permanently withdrawn from all forms of entry or disposal for the benefit of the Navajo and such other Indians as the Secretary of the Interior may see fit to settle thereon'. 47 Stat. 1418. That would seem to freeze the existing legal rights in that area of the Aneth Extension to the inhabitants. The legal effect seems like a disclaimer on the part of the United States of any right in either the land or the minerals. It is difficult for me to see how Congress has power to change the scheme without payment of just compensation. After all, Indians are beneficiaries of the Due Process Clause of the Fifth Amendment. United States v. Creek Nation, 295 U.S. 103, 55 S.Ct. 681, 79 L.Ed. 1331; Shoshone Tribe of Indians v. United States, 299 U.S. 476, 57 S.Ct. 244, 81 L.Ed. 360. They too are people, not sheep or cattle that can be given or denied whatever their overseer decrees.
22
Indians are also beneficiaries of the Just Compensation Clause of the Fifth Amendment. Chippewa Indians of Minnesota v. United States, 305 U.S. 479, 59 S.Ct. 313, 83 L.Ed. 300; United States v. Klamath and Moadoc Tribes, 304 U.S. 119, 58 S.Ct. 799, 82 L.Ed. 1219; Sioux Tribe of Indians v. United States, 316 U.S. 317, 62 S.Ct. 1095, 86 L.Ed. 1501. When there is a taking of Indian lands, the compensation must take into account the mineral rights which are part of the lands. United States v. Shoshone Tribe of Indians, 304 U.S. 111, 58 S.Ct. 794, 82 L.Ed. 1213. What then constitutes a taking? The majority finds no taking because ownership already existed in the Navajo tribe. The 1933 Act states, however, that all lands are 'hereby, permanently withdrawn from all forms of entry or disposal for the benefit of the Navajo and such other Indians as the Secretary of the Interior may see fit to settle thereon', 47 Stat. 1418. That Act plainly indicates that only those residing on that tract, not the tribe as a whole, were the beneficiaries.
23
If the royalty granted by the 1933 Act had been to the Standard Oil Co. or any other producer of oil, no one would dare say that the royalty could be assigned by a subsequent Congress to an oil consortium without payment of just compensation. Whenever we have made grants of public lands or interests therein to Indians the Court has held that the fact that Indians are wards and the United States a guardian does not make the Indian title defeasible. The Court in Lane v. Pueblo of Santa Rosa, 249 U.S. 110, 113, 39 S.Ct. 185, 186, 63 L.Ed. 504, held that if the United States were allowed to take lands from Indians, '(t)hat would not be an exercise of guardianship, but an act of confiscation.'
24
In United States v. Creek Nation, 295 U.S., at 109—110, 55 S.Ct., at 684, the Court said:
25
'The tribe was a dependent Indian community under the guardianship of the United States, and therefore its property and affairs were subject to the control and management of that government. But this power to control and manage was not absolute. While extending to all appropriate measures for protecting and advancing the tribe, it was subject to limitations inhering in such a guardianship and to pertinent constitutional restrictions. It did not enable the United States to give the tribal lands to others, or to appropriate them to its own purposes, without rendering or assuming an obligation to render, just compensation for them . . ..'
26
The present cases are close to Shoshone Tribe of Indians v. United States, 299 U.S. 476, 57 S.Ct. 244, where Congress repeatedly put Arapahoes on Shoshone lands acquired under a treaty. This Court, speaking through Mr. Justice Cardozo, allowed damages to the Shoshones:
27
'Confusion is likely to result from speaking of the wrong to the Shoshones as a destruction of their title. Title in the strict sense was always in the United States, though the Shoshones had the treaty right of occupancy with all its beneficial incidents. . . . What those incidents are, it is needless to consider now. . . . The right of occupancy is the primary one to which the incidents attach and division of the right with strangers is an appropriation of the land pro tanto, in substance, if not in form.' Id., at 496, 57 S.Ct., at 251.
28
And quoting from United States v. Cook, 19 Wall. 591, 22 L.Ed. 210, Mr. Justice Cardozo added,
29
'The right of the Indians to the occupancy of the lands pledged to them may be one of occupancy only, but it is 'as sacred as that of the United States to the fee." Id., at 497, 57 S.Ct., at 252.
30
What power remains in Congress after the express purpose of the Act 'permanently (to) withdraw' the lands from disposal?
31
Public lands are usually subject to disposition by patent and upon its issuance, control over the transaction ceases and the patent can only be set aside by judicial proceedings in the courts. Michigan Land & Lumber Co. v. Rust, 168 U.S. 589, 18 S.Ct. 208, 42 L.Ed. 591; Moore v. Robbins, 96 U.S. 530, 24 L.Ed. 848. Thus, when Congress passed legislation giving public lands to the railroads, it was considered a contract which could not be broken by Congress when it sought to use the lands as a water-power site, Payne v. Central Pacific R. Co., 255 U.S. 228, 41 S.Ct. 314, 65 L.Ed. 598, nor could the Secretary reclaim the property. United States v. Northern Pacific R. Co., 256 U.S. 51, 41 S.Ct. 439, 65 L.Ed. 825; Santa Fe Pacific R. Co. v. Fall, 259 U.S. 197, 199, 42 S.Ct. 466, 467, 66 L.Ed. 896. An entryman on a homestead claim does not achieve title until certain time and work conditions are met. 43 U.S.C. §§ 161—165. Yet, during this period he has the right to exclusive possession and use, unless the patent was secured by fraud. Patents are not issued in oil and gas exploration but leases are. 30 U.S.C. § 226. But that fact does not affect the power to cancel the leases. That can only be done by a failure of the lessee to comply with the lease, the statute, and regulations. 30 U.S.C. § 188. Pan American Petroleum Corp. v. Pierson, 10 Cir., 284 F.2d 649.
32
Until lands are patented, title remains in the United States. Yet even before a patent issues the claims are valid against the United States if there has been a discovery of mineral within the limits of the claim, if the lands are still mineral, and if other statutory requirements have been met.' Best v. Humboldt Mining Co., 371 U.S. 334, 336, 83 S.Ct. 379, 382, 9 L.Ed.2d 350.
33
The devices for doing the Indians in, when it comes to royalties in gas or oil lands, are numerous. See White v. Sinclair Prairie Oil Co., 10 Cir., 139 F.2d 103. But the owners of oil and gas interests (whether those interests be legal or equitable) normally have an interest separate and apart from the land where the oil and gas are discovered. See Lane v. Hughes, Tex.Civ.App., 228 S.W.2d 986; 3 E. Kuntz, Oil and Gas, cc. 38 and 42 (1967); V. Kulp, Oil and Gas Rights § 10—36 et seq. (1954). It is strange law, indeed, when the guardian (the United States) is allowed to do in the wards (the Indians) by depriving them of their equitable interest in the oil royalties which had been granted or by reducing their share of the royalties granted.
34
The problems of this case are typical of those that have plagued the Indians from the beginning. We should put the cases down for oral argument to make certain that these primitive Navajos receive the full benefit of the law.
1
The decision of the District Court is unreported.
2
While the 1933 Act remained in effect, the District Court properly insisted that the Utah State Indian Affairs Commission comply with the statutory formula for disbursements. See Sakezzie v. Utah Indian Affairs Comm'n, 198 F.Supp. 218 (declaratory judgment); 215 F.Supp. 12 (supplemental relief).
3
We intimate no view as to the rights a tribe might have if Congress were to deprive it of the value of mineral royalties generated by tribal lands.
1
The Act admitting Utah to the Union provided:
'That the people inhabiting said proposed State do agree and declare that they forever disclaim all right and title to the unappropriated public lands lying within the boundaries thereof; and to all lands lying within said limits owned or held by any Indian or Indian tribes; and that until the title thereto shall have been extinguished by the United States, the same shall be and remain subject to the disposition of the United States, and said Indian lands shall remain under the absolute jurisdiction and control of the Congress of the United States'. 28 Stat. 108.
2
That Act (47 Stat. 1418), after describing the Aneth Extension by metes and bounds, provided that those public lands 'be, and the same are hereby, permanently withdrawn from all forms of entry or disposal for the benefit of the Navajo and such other Indians as the Secretary of the Interior may see fit to settle thereon: Provided, That no further allotments of lands to Indians on the public domain shall be made in San Juan County, Utah, nor shall further Indian homesteads be made in said county under the Act of July 4, 1884 (23 Stat. 96; U.S.C., title 43, sec. 190). Should oil or gas be produced in paying quantities within the lands hereby added to the Navajo Reservation, 37 1/2 per centum of the net royalties accuring therefrom derived from tribal leases shall be paid to the State of Utah: Provided, That said 37 1/2 per centum of said royalties shall be expended by the State of Utah in the tuition of Indian children in white schools and/or in the building or maintenance of roads across the lands described in section 1 hereof, or for the benefit of the Indians residing therein.'
| 34
|
409 U.S. 75
93 S.Ct. 259
34 L.Ed.2d 290
Daisy JOHNSON et al., Petitioners,v.NEW YORK STATE EDUCATION DEPARTMENT et al.
No. 71 - 5685.
Argued Nov. 8, 1972.
Decided Nov. 20, 1972.
Carl Jay Nathanson, Freeport, N.Y., for petitioners.
Joel Lewittes, New York City, for respondents.
PER CURIAM.
1
We granted certiorari to review the judgment of the United States Court of Appeals for the Second Circuit, 449 F.2d 871 (1971), affirming the District Court's (319 F.Supp. 271) dismissal of petitioners' complaint challenging the constitutionality of New York Education Law § 701 et seq. (1971). 405 U.S. 916, 92 S.Ct. 986, 30 L.Ed.2d 785 (1972). However, respondents' brief states that '(o)n May 3, 1972, the qualified voters of the respondent school district elected by majority vote to assess a tax for the purchase of all textbooks for grades one through six in the schools of the district.' In light of this fact, and given the suggestion at oral argument that the books themselves have a life expectancy of five years, the judgment is vacated and the case is remanded to the United States District Court for the Eastern District of New York to determine whether this case has become moot.
2
Mr. Justice MARSHALL, concurring.
3
While I join the Court's decision, I feel obliged to state somewhat more fully what I view to be the reasons for and meaning of this remand.
4
The New York statutory scheme here under attack effectively denies textbooks to indigent elementary public school children unless the voters of their district approve a tax especially for the purpose of providing the books.1 Petitioners who are indigent recipients of public assistance allege, inter alia, that the statute, as applied to their children, creates a wealth classification violative of the Equal Protection Clause.
5
When this action was initiated in September 1970, respondent Board of Education of Union Free School District No. 27 was not providing free textbooks to petitioners' children, although textbooks were available upon the payment of a fee, which petitioners were unable to afford.2 The practical consequence of this situation was that indigent children were forced to sit "bookless, side by side in the same classroom with other more wealthy children learning with purchase(d) textbooks (thus engendering) a widespread feeling of inferiority and unfitness in poor children (which) is psychologically, emotionally and educationally disastrous to their well being."3 Indeed, an affidavit submitted to the District Court indicated that in at least one case, an indigent child was told that 'he will receive an 'F' for (each) day because he is without the required text-books. When the other pupils in the class read from text-books, the teacher doesn't let him share a book with another pupil, instead she gives him paper and tells him to draw.'4 Despite this evidence, the Court of Appeals, with one Judge dissenting, affirmed the District Court's dismissal of the complaint. We granted certiorari.5
6
This case obviously raises questions of large constitutional and practical importance. For two full school years children in elementary grades were denied access to textbooks solely because of the indigency of their families while these questions were being considered by the lower courts. After we had granted certiorari, however, a majority of the voters in respondent school district finally agreed to levy a tax for the purchase of textbooks for the elementary grades, and we are told that free textbooks have now been provided.
7
I join in the Court's decision to remand the case so that the District Court can assess the consequences of this new development. I do so because I believe that the Court acts out of a proper sense of our constitutional duty to decide only live controversies, and because I believe that the District Judge can best resolve the factual issues upon which proper resolution of the mootness question depends. Certainly, our mere act of remanding in no way suggests any particular view as to whether this case is in fact moot. That decision is for the District Judge in the first instance.
8
In reaching his decision, the District Judge will, of course, have to take into account the standards that we have previously articulated for resolving mootness problems. On the one hand, '(a) case (may be) moot if subsequent events (make) it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.' United States v. Concentrated Phosphate Export Assn., 393 U.S. 199, 203, 89 S.Ct. 361, 364, 21 L.Ed.2d 344 (1968). See also SEC v. Medical Committee for Human Rights, 404 U.S. 403, 92 S.Ct. 577, 30 L.Ed.2d 560 (1972). But on the other, '(m)ere voluntary cessation of allegedly illegal conduct does not moot a case; if it did, the courts would be compelled to leave '(t)he defendant . . . free to return to his old ways." United States v. Concentrated Phosphate Export Assn., supra, 393 U.S. at 203, 89 S.Ct. at 364. In the context of constitutional questions involving electoral processes, these principles have generally found expression in the proposition that a case is not moot if '(t)he problem . . . is 'capable of repetition, yet evading review." Moore v. Ogilvie, 394 U.S. 814, 816, 89 S.Ct. 1493, 1494, 23 L.Ed.2d 1 (1969).6
9
In applying these standards to this case, the District Judge should ascertain the nature of the textbook problem for the elementary grades in respondent school district. Respondents have not suggested that the problem has been resolved once and for all by the recent purchases. To be sure, they do contend that the new textbooks have a useful life of five years. But does this adequately account for destruction by extraordinary events, for loss due to theft, and for obsolescence due to curriculum changes? And, even accepting the five-year figure, does this make the problem a non-recurring one insofar as the continuing viability of this litigation is concerned?
10
The District Judge should also investigate the posture in which the legal issues presented by this case might again arise when the books begin to wear out. Will the respondent school district delay holding a new election until the new books are actually needed? Is it possible that litigation would again have to proceed for an entire school year, or more, while indigent children are deprived of books, before the constitutionality of that deprivation is finally determined?
11
These seem to me essential questions for the District Court to consider on remand in disposing of the issue of mootness.7
1
Under New York law, local school districts are required to loan textbooks free to students in grades seven through 12. N.Y. Educ. Law § 701 (1971). No such provision is made for children in grades one through six; free textbooks are to be made available to children in those grades only upon the vote of the majority of the district's eligible voters to levy a tax to provide funds for the purchase of the textbooks, N.Y. Educ. Law § 703 (1971).
2
The fee imposed was $7.50 per child.
3
449 F.2d 871, 873 (CA2 1971) (quoting with approval petitioners' allegations).
4
Affidavit of Carl Jay Nathanson, App. 28.
5
405 U.S. 916, 92 S.Ct. 986, 30 L.Ed.2d 785 (1972).
6
These prior statements provide only rough guidance in this case, particularly since we deal here with an electoral process that is employed only on an irregular basis as new books are needed. Nevertheless, I think they are enlightening as to the appropriate inquiries for the District Court to make on remand.
7
Nor should the District Court overlook the fact that this is a class action brought by petitioners 'on their own behalf and on behalf of their children and all other persons similarly aggrieved.' Even if the case is now moot as to these particular petitioners, there may be other members of the class who remain aggrieved and thus the action may remain a viable one, see, e.g., Cypress v. Newport News General & Nonsectarian Hospital Assn., 375 F.2d 648, 657—658 (CA4 1967); Gatling v. Butler, 52 F.R.D. 389, 394—395 (D.Conn.1971). Cf. Brockington v. Rhodes, 396 U.S. 41, 43, 90 S.Ct. 206, 207, 24 L.Ed.2d 209 (1969).
| 89
|
409 U.S. 63
93 S.Ct. 253
34 L.Ed.2d 273
Robert GOTTSCHALK, Acting Commissioner of Patents, Petitioner,v.Gary R. BENSON and Arthur C. Tabbot.
No. 71 - 485.
Argued Oct. 16, 1972.
Decided Nov. 20, 1972.
Richard B. Stone, Washington, D.C., for petitioner.
Hugh B. Cox, Washington, D.C., for respondents.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
Respondents filed in the Patent Office an application for an invention which was described as being related 'to the processing of data by program and more particularly to the programmed conversion of numerical information' in general-purpose digital computers. They claimed a method for converting binary-coded decimal (BCD) numerals into pure binary numerals. The claims were not limited to any particular art or technology, to any particular apparatus or machinery, or to any particular end use. They purported to cover any use of the claimed method in a general-purpose digital computer of any type. Claims 8 and 311 were rejected by the Patent Office but sustained by the Court of Customs and Patent Appeals, 441 F.2d 682. The case is here on a petition for a writ of certiorari. Gottschalk v. Benson, 405 U.S. 915, 92 S.Ct. 934, 30 L.Ed.2d 784.
2
The question is whether the method described and claimed is a 'process' within the meaning of the Patent Act.2
3
A digital computer, as distinguished from an analog computer, operates on data expressed in digits, solving a problem by doing arithmetic as a person would do it by head and hand.3 Some of the digits are stored as components of the computer. Others are introduced into the computer in a form which it is designed to recognize. The computer operates then upon both new and previously stored data. The general-purpose computer is designed to perform operations under many different programs.
4
The representation of numbers may be in the form of a time series of electrical impulses, magnetized spots on the surface of tapes, drums, or discs, charged spots on cathode-ray tube screens, the presence or absence of punched holes on paper cards, or other devices. The method or program is a sequence of coded instructions for a digital computer.
5
The patent sought is on a method of programming a general-purpose digital computer to convert signals from binary-coded decimal form into pure binary form. A procedure for solving a given type of mathematical problem is known as an 'algorithm.' The procedures set forth in the present claims are of that kind; that is to say, they are a generalized formulation for programs to solve mathematical problems of converting one form of numerical representation to another. From the generic formulation, programs may be developed as specific applications.
6
The decimal system uses as digits the 10 symbols 0, 1, 2, 3, 4, 5, 6, 7, 8, and 9. The value represented by any digit depends, as it does in any positional system of notation, both on its individual value and on its relative position in the numeral. Decimal numerals are written by placing digits in the appropriate positions or columns of the numerical sequence, i.e., 'unit' (100), 'tens' (101), 'hundreds' (102), 'thousands' (103), etc. Accordingly, the numeral 1492 signifies (1 103) (4 102) (9 101) (2 100).
7
The pure binary system of positional notation uses two symbols as digits—0 and 1, placed in a numerical sequence with values based on consecutively ascending powers of 2. In pure binary notation, what would be the tens position is the twos position; what would be hundreds position is the fours position; what would be the thousands position is the eights. Any decimal number from 0 to 10 can be represented in the binary system with four digits or positions as indicated in the following table.
Shown as the sum of powers of 2
8
23 22 21 20
Decimal (8) (4) (2) (1) Pure Binary
0 = 0 + 0 + 0 + 0 = 0000
1 = 0 + 0 + 0 + 20 = 0001
2 = 0 + 0 + 21 + 0 = 0010
3 = 0 + 0 + 21 + 20 = 0011
4 = 0 + 22 + 0 + 0 = 0100
5 = 0 + 22 + 0 + 20 = 0101
6 = 0 + 22 + 21 + 0 = 0110
7 = 0 + 22+ 21 + 20 = 0111
8 = 23 + 0 + 0 + 0 = 1000
9 = 23 + 0 + 0 + 20 = 1001
10 = 23 + 0 + 21 + 0 = 1010
9
The BCD system using decimal numerals replaces the character for each component decimal digit in the decimal numeral with the corresponding four-digit binary numeral, shown in the righthand column of the table. Thus decimal 53 is represented as 0101 0011 in BCD, because decimal 5 is equal to binary 0101 and decimal 3 is equivalent to binary 0011. In pure binary notation, however, decimal 53 equals binary 110101. The conversion of BCD numerals to pure binary numerals can be done mentally through use of the foregoing table. The method sought to be patented varies the ordinary arithmetic steps a human would use by changing the order of the steps, changing the symbolism for writing the multiplier used in some steps, and by taking subtotals after each successive operation. The mathematical procedures can be carried out in existing computers long in use, no new machinery being necessary. And, as noted, they can also be performed without a computer.
10
The Court stated in Mackay Co. v. Radio Corp., 306 U.S. 86, 94, 59 S.Ct. 427, 431, 83 L.Ed. 506 that '(w)hile a scientific truth, or the mathematical expression of it, is not patentable invention, a novel and useful structure created with the aid of knowledge of scientific truth may be.' That statement followed the longstanding rule that '(a)n idea of itself is not patentable.' Rubber-Tip Pencil Co. v. Howard, 20 Wall. (87 U.S.) 498, 507, 22 L.Ed. 410. 'A principle, in the abstract, is a fundamental truth; an original cause; a motive; these cannot be patented, as no one can claim in either of them an exclusive right.' Le Roy v. Tatham, 14 How. (55 U.S.) 156, 175, 14 L.Ed. 367. Phenomena of nature, though just discovered, mental processes, and abstract intellectual concepts are not patentable, as they are the basic tools of scientific and technological work. As we stated in Funk Bros. Seed Co. v. Kalo Co., 333 U.S. 127, 130, 68 S.Ct. 440, 441, 92 L.Ed. 588, 'He who discovers a hitherto unknown phenomenon of nature has no claim to a monopoly of it which the law recognizes. If there is to be invention from such a discovery, it must come from the application of the law of nature to a new and useful end.' We dealt there with a 'product' claim, while the present case deals with a 'process' claim. But we think the same principle applies.
11
Here the 'process' claim is so abstract and sweeping as to cover both known and unknown uses of the BCD to pure binary conversion. The end use may (1) vary from the operation of a train to verification of drivers' licenses to researching the law books for precedents and (2) be performed through any existing machinery or future-devised machinery or without any apparatus.
12
In O'Reilly v. Morse, 15 How. (56 U.S.) 62, 14 L.Ed. 601, Morse was allowed a patent for a process of using electromagnetism to produce distinguishable signs for telegraphy. Id., at 111, 14 L.Ed. 601. But the Court denied the eighth claim in which Morse claimed the use of 'electromagnetism, however developed for marking or printing intelligible characters, signs, or letters, at any distances.' Id., at 112. The Court in disallowing that claim said, 'If this claim can be maintained, it matters not by what process or machinery the result is accomplished. For aught that we now know, some future inventor, in the onward march of science, may discover a mode of writing or printing at a distance by means of the electric or galvanic current, without using any part of the process or combination set forth in the plaintiff's specification. His invention may be less complicated—less liable to get out of order—less expensive in construction, and in its operation. But yet, if it is covered by this patent, the inventor could not use it, nor the public have the benefit of it, without the permission of this patentee.' Id., at 113, 14 L.Ed. 601.
13
In The Telephone Cases, 126 U.S. 1, 534, 8 S.Ct. 778, 782, 31 L.Ed. 863, the Court explained the Morse case as follows: 'The effect of that decision was, therefore, that the use of magnetism as a motive power, without regard to the particular process with which it was connected in the patent, could not be claimed, but that its use in that connection could.' Bell's invention was the use of electric current to transmit vocal or other sounds. The claim was not 'for the use of a current of electricity in its natural state as it comes from the battery, but for putting a continuous current, in a closed circuit, into a certain specified condition, suited to the transmission of vocal and other sounds, and using it in that condition for that purpose.' Ibid. The claim, in other words, was not 'one for the use of electricity distinct from the particular process with which it is connected in his patent.' Id., at 535, 8 S.Ct., at 782. The patent was for that use of electricity 'both for the magneto and variable resistance methods'. Id., at 538, 8 S.Ct., at 784. Bell's claim, in other words, was not one for all telephonic use of electricity.
14
In Corning v. Burden, 15 How. (56 U.S.) 252, 267—268, 14 L.Ed. 683, the Court said, 'One may discover a new and useful improvement in the process of tanning, dyeing, etc., irrespective of any particular form of machinery or mechanical device.' The examples, given were the 'arts of tanning, dyeing, making waterproof cloth, vulcanizing India rubber, smelting ores.' Id., at 267, 14 L.Ed. 683. Those are instances, however, where the use of chemical substances or physical acts, such as temperature control, changes articles or materials. The chemical process or the physical acts which transform the raw material are, however, sufficiently definite to confine the patent monopoly within rather definite bounds.
15
Cochrane v. Deener, 94 U.S. 780, 24 L.Ed. 139, involved a process for manufacturing flour so as to improve its quality. The process first separated the superfine flour and then removed impurities from the middlings by blasts of air, reground the middlings, and then combined the product with the superfine. Id., at 785, 24 L.Ed. 139. The claim was not limited to any special arrangement of machinery. Ibid. The Court said,
16
'That a process may be patentable, irrespective of the particular form of the instrumentalities used, cannot be disputed. If one of the steps of a process be that a certain substance is to be reduced to a powder, it may not be at all material what instrument or machinery is used to effect that object, whether a hammer, a pestle and mortar, or a mill. Either may be pointed out; but if the patent is not confined to that particular tool or machine, the use of the others would be an infringement, the general process being the same. A process is a mode of treatment of certain materials to produce a given result. It is an act, or a series of acts, performed upon the subject-matter to be transformed and reduced to a different state or thing.' Id., at 787—788, 24 L.Ed. 139.
17
Transformation and reduction of an article 'to a different state or thing' is the clue to the patentability of a process claim that does not include particular machines. So it is that a patent in the process of 'manufacturing fat acids and glycerine from fatty bodies by the action of water at a high temperature and pressure' was sustained in Tilghman v. Proctor, 102 U.S. 707, 721, 26 L.Ed. 279. The Court said, 'The chemical principle or scientific fact upon which it is founded is, that the elements of neutral fat require to be severally united with an atomic equivalent of water in order to separate from each other and become free. This chemical fact was not discovered by Tilghman. He only claims to have invented a particular mode of bringing about the desired chemical union between the fatty elements and water.' Id., at 729, 26 L.Ed. 279.
18
Expanded Metal Co. v. Bradford, 214 U.S. 366, 29 S.Ct. 652, 53 L.Ed. 1034, sustained a patent on a 'process' for expanding metal. A process 'involving mechanical operations, and producing a new and useful result,' id., at 385—386, 29 S.Ct., at 657, was held to be a patentable process, process patents not being limited to chemical action.
19
Smith v. Snow, 294 U.S. 1, 55 S.Ct. 279, 79 L.Ed. 721, and Waxham v. Smith, 294 U.S. 20, 55 S.Ct. 277, 79 L.Ed. 733, involved a process for setting eggs in staged incubation and applying mechanically circulated currents of air to the eggs. The Court, in sustaining the function performed (the hatching of eggs) and the means or process by which that is done, said:
20
'By the use of materials in a particular manner, he secured the performance of the function by a means which had never occurred in nature and had not been anticipated by the prior art; this is a patentable method or process. . . . A method, which may be patented irrespective of the particular form of the mechanism which may be availed of for carrying it into operation, is not to be rejected as 'functional' merely because the specifications show a machine capable of using it.' 294 U.S., at 22, 55 S.Ct., at 278.
21
It is argued that a process patent must either be tied to a particular machine or apparatus or must operate to change articles or materials to a 'different state or thing.' We do not hold that no process patent could ever qualify if it did not meet the requirements of our prior precedents. It is said that the decision precludes a patent for any program servicing a computer. We do not so hold. It is said that we have before us a program for a digital computer but extend our holding to programs for analog computers. We have, however, made clear from the start that we deal with a program only for digital computers. It is said we freeze process patents to old technologies, leaving no room for the revelations of the new, onrushing technology. Such is not our purpose. What we come down to in a nutshell is the following.
22
It is conceded that one may not patent an idea. But in practical effect that would be the result if the formula for converting BCD numerals to pure binary numerals were patented in this case. The mathematical formula involved here has no substantial practical application except in connection with a digital computer, which means that if the judgment below is affirmed, the patent would wholly pre-empt the mathematical formula and in practical effect would be a patent on the algorithm itself.
23
It may be that the patent laws should be extended to cover these programs, a policy matter to which we are not competent to speak. The President's Commission on the Patent System4 rejected the proposal that these programs be patentable:5
24
'Uncertainty now exists as to whether the statute permits a valid patent to be granted on programs. Direct attempts to patent programs have been rejected on the ground of nonstatutory subject matter. Indirect attempts to obtain patents and avoid the rejection, by drafting claims as a process, or a machine or components thereof programmed in a given manner, rather than as a program itself, have confused the issue further and should not be permitted.
25
'The Patent Office now cannot examine applications for programs because of a lack of a classification technique and the requisite search files. Even if these were available, reliable searches would not be feasible or economic because of the tremendous volume of prior art being generated. Without this search, the patenting of programs would be tantamount to mere registration and the presumption of validity would be all but nonexistent.
26
'It is noted that the creation of programs has undergone substantial and satisfactory growth in the absence of patent protection and that copyright protection for programs is presently available.' If these programs are to be patentable,6 considerable problems are raised which only committees of Congress can manage, for broad powers of investigation are needed, including hearings which canvass the wide variety of views which those operating in this field entertain. The technological problems tendered in the many briefs before us7 indicate to us that considered action by the Congress is needed.
27
Reversed.
28
Mr. Justice STEWART, Mr. Justice BLACKMUN, and Mr. Justice POWELL took no part in the consideration or decision of this case.
APPENDIX TO OPINION OF THE COURT
Claim 8 reads:
29
'The method of converting signals from binary coded decimal form into binary which comprises the steps of
30
'(1) storing the binary coded decimal signals in a reentrant shift register,
31
'(2) shifting the signals to the right by at least three places, until there is a binary '1' in the second position of said register,
32
'(3) masking out said binary '1' in said second position of said register,
33
'(4) adding a binary '1' to the first position of said register,
34
'(5) shifting the signals to the left by two positions, '(6) adding a '1' to said first position, and
35
'(7) shifting the signals to the right by at least three positions in preparation for a succeeding binary '1' in the second position of said register.'
Claim 13 reads:
36
'A data processing method for converting binary coded decimal number representations into binary number representations comprising the steps of
37
'(1) testing each binary digit position '1,' beginning with the least significant binary digit position, of the most significant decimal digit representation for a binary '0' or a binary '1';
38
'(2) if a binary '0' is detected, repeating step (1) for the next least significant binary digit position of said most significant decimal digit representation;
39
'(3) if a binary '1' is detected, adding a binary '1' at the (i 1)th and (i 3) th least significant binary digit positions of the next lesser significant decimal digit representation, and repeating step (1) for the next least significant binary digit position of said most significant decimal digit representation;
40
'(4) upon exhausting the binary digit positions of said most significant decimal digit representation, repeating steps (1) through (3) for the next lesser significant decimal digit representation as modified by the previous execution of steps (1) through (3); and
41
'(5) repeating steps (1) through (4) until the second least significant decimal digit representation has been so processed.'
1
They are set forth in the Appendix to this opinion.
2
Title 35 U.S.C. § 100(b) provides:
'The term 'process' means process, art or method, and includes a new use of a known process, machine, manufacture, composition of matter, or material.'
Title 35 U.S.C. § 101 provides:
'Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.'
3
See R. Benrey, Understanding Digital Computers 4 (1964).
4
'To Promote the Progress of . . . Useful Arts,' Report of the President's Commission on the Patent System (1966).
5
Id., at 13.
6
See Wild, Computer Program Protection: The Need to Legislate a Solution, 54 Corn.L.Rev. 586, 604—609 (1969); Bender, Computer Programs: Should They Be Patentable?, 68 Col.L.Rev. 241 (1968); Buckman, Protection of Proprietory Interest in Computer Programs, 51 J.Pat.Off.Soc. 135 (1969).
7
Amicus briefs of 14 interested groups have been filed on the merits in this case.
| 78
|
409 U.S. 100
93 S.Ct. 354
34 L.Ed.2d 335
Marilyn COOLv.UNITED STATES.
No. 72-72.
Dec. 4, 1972.
PER CURIAM.
1
The petition for a writ of certiorari is granted.
2
In this case, the court below held in effect that in a criminal trial, the jury may be instructed to ignore defense testimony unless it believes beyond a reasonable doubt that the testimony is true. That holding is fundamentally inconsistent with our prior decisions in In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), and Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967), and must therefore be reversed.
3
After a jury trial, petitioner was found guilty of possessing and concealing, with intent to defraud, counterfeit obligations of the United States. The evidence showed that on June 2, 1970, petitioner, her hubsand, and one Robert E. Voyles were traveling together by car between St. Louis, Missouri, and Brazil, Indiana. Upon reaching Brazil, Voyles left petitioner and her husband and passed two counterfeit bills at a local store. He was then arrested shortly after he entered the car in which petitioner and her husband were waiting.
4
After his arrest, Voyles was placed in the police car and taken to the station house. Petitioner and her husband were told to follow in their own car. A Mr. Baumunk testified that he saw petitioner throw a paper sack out of the car window as petitioner was following the police car. The bag was subsequently found to contain counterfeit bills. Police also found three counterfeit bills crumpled up under the right seat of petitioner's car.
5
Although petitioner testified in her own defense, she relied primarily on the testimony of Voyles. Voyles freely admitted his own guilt,1 but steadfastly insisted that neither petitioner nor her husband had anything to do with the crime. He testified that petitioner had merely agreed to give him a ride and knew nothing about the counterfeit bills that he carried with him. When the car stopped in Brazil, Voyles allegedly removed some of the counterfeit bills from his satchel which he kept in petitioner's trunk, and concealed the rest of the bills in a sack which he placed under the front bumper by the headlight. The defense argued that it was this sack that Baumunk saw fall to the ground as petitioner drove to the police station. Voyles also stated that after he had rejoined petitioner, he saw police approaching the car and threw the remaining bills on his person onto the car floor, again without the knowledge of petitioner. Petitioner thus asserts that she was not in knowing possession of the bills on the car floor.
6
With the case in this posture, the Government's position clearly depended upon its ability to discredit Voyles, since his testimony was completely exculpatory. Over strenuous defense objection,2 the trial judge gave the jury a lengthy 'accomplice instruction' to be used in evaluating Voyles' testimony. After first defining the word 'accomplice' and warning that an accomplice's testimony is 'open to suspicion,' the judge made the following statement: 'However, I charge you that the testimony of an accomplice is competent evidence and it is for you to pass upon the credibility thereof. If the testimony carries conviction and you are convinced it is true beyond a reasonable doubt, the jury should give it the same effect as you would to a witness not in any respect implicated in the alleged crime and you are not only justified, but it is your duty, not to throw this testimony out because it comes from a tainted source.' (Emphasis added.)
7
The clear implication of this instruction was that the jury should disregard Voyles' testimony unless it was 'convinced it is true beyond a reasonable doubt.'3 Such an instruction places an improper burden on the defense and allows the jury to convict despite its failure to find guilt beyond a reasonable doubt.4
8
Accomplice instructions have long been in use and have been repeatedly approved. See, e.g., Holmgren v. United States, 217 U.S. 509, 523—524, 30 S.Ct. 588, 591—592, 54 L.Ed. 861 (1910). In most instances, they represent no more than a commonsense recognition that an accomplice may have a special interest in testifying, thus casting doubt upon his veracity. See, e.g., Crawford v. United States, 212 U.S. 183, 204, 29 S.Ct. 260, 268, 53 L.Ed. 465 (1909). But in most of the recorded cases, the instruction has been used when the accomplice turned State's evidence and testified against the defendant. See generally McMillen v. United States, 386 F.2d 29 (CA1 1967), and cases cited therein. No constitutional problem is posed when the judge instructs a jury to receive the prosecution's accomplice testimony 'with care and caution.' See, e.g., United States v. George, 319 F.2d 77, 80 (CA6 1963). Cf. United States v. Nolte, 440 F.2d 1124 (CA5 1971).
9
But there is an essential difference between instructing a jury on the care with which it should scrutinize certain evidence in determining how much weight to accord it and instructing a jury, as the judge did here, that as a predicate to the consideration of certain evidence, it must find it true beyond a reasonable doubt.
10
In Washington v. Texas, supra, we held that a criminal defendant has a Sixth Amendment right to present to the jury exculpatory testimony of an accomplice. The instruction given below impermissibly obstructs the exercise of that right by totally excluding relevant evidence unless the jury makes a preliminary determination that it is extremely reliable.
11
Moreover, the instruction also has the effect of substantially reducing the Government's burden of proof. We held in In re Winship, supra, that the Constitution requires proof of guilt beyond a reasonable doubt. It is possible that Voyles' testimony would have created a reasonable doubt in the minds of the jury, but that it was not considered because the testimony itself was not believable beyond a reasonable doubt. By creating an artificial barrier to the consideration of relevant defense testimony putatively credible by a preponderance of the evidence, the trial judge reduced the level of proof necessary for the Government to carry its burden. Indeed, where, as here, the defendant's case rests almost entirely on accomplice testimony, the effect of the judge's instructions is to require the defendant to establish his innocence beyond a reasonable doubt.
12
Because such a requirement is plainly inconsistent with the constitutionally rooted presumption of innocence, the conviction must be reversed and the cause remanded for further proceedings not inconsistent with this opinion.
13
It is so ordered.
14
Reversed and remanded.
15
Mr. Justice REHNQUIST, with whom THE CHIEF JUSTICE and Mr. Justice BLACKMUN concur, dissenting.
16
I believe that the Court's fine-spun parsing of the trial judge's charge to the jury turns the appellate review of this case into the sort of 'quest for error' which was said in Bihn v. United States, 328 U.S. 633, 638, 66 S.Ct. 1172, 1174, 90 L.Ed. 1485 (1946), to be forbidden by Rule 52(a) of the Federal Rules of Criminal Procedure,1 and by 28 U.S.C. § 2111.2
17
The testimony of the witness Voyles, called by petitioner as a witness in her behalf, presented the trial judge with something of a dilemma in determining how he should charge the jury. Much of Voyles' testimony tended to exculpate petitioner, but there were significant aspects of it that did not. He substantiated the fact that the petitioner and her husband3 had traveled with him from St. Louis to Brazil, Indiana. He corroborated prosecution evidence that both petitioner and her husband gave the same false last name of Gibbs when booked at the police station in Brazil. He also suggested a closeness to petitioner's husband which was scarcely helpful to their defense when he testified that 'I was a little sore at Mike (petitioner's husband), because I thought Mike should help me (get out on bond).'
18
The trial judge made clear in his colloquy with counsel, while dealing with their objections to the charge, that he was concerned about the ambivalence of Voyles' testimony and felt it necessary to give the charge relating to accomplices. Petitioner's counsel in objecting to that portion of the charge did so on a quite different ground from that now sustained by the Court; the ground of objection stated to the trial court was apparently that the mention of the term 'accomplice' to the jury suggested that petitioner and her husband were in fact guilty. Such a ground of objection was wholly without merit, since, as the Court of Appeals pointed out in its opinion in this case, the instruction left it entirely to the jury to determine whether or not the facts existed that would make Voyles an accomplice.
19
The trial court gave 36 separate instructions to the jury which covered some 52 pages of the transcript in this case. The instruction in question covers two pages, and the Court reverses the conviction on the basis of one sentence in that one instruction. The trial judge repeatedly emphasized to the jury that the Government was obligated to prove guilt beyond a reasonable doubt. Typical is the following statement, which is repeated throughout the instructions in at least half a dozen places:
20
'The entire burden of proof is upon the Government from the beginning to the end of the trial and this burden of proof never shifts from the Government to the defendants, and the defendants are not bound to prove their innocence, offer any excuse, or explain anything . . ..'
21
The record before us does not indicate that either counsel so much as mentioned the accomplice instruction in his argument to the jury. Nenetheless, the Court concludes that because the instruction contained a 'negative pregnant' that could be taken to mean that the jurors should reject Voyles' testimony if they had a reasonable doubt as to its veracity, the conviction is to be reversed.
22
I had thought the day long past when even appellate courts of the first instance, such as the Court of Appeals in this case, parsed instructions and engaged in nice semantic distinctions in the absence of any showing that would satisfy an ordinary lawyer or layman that substantial rights of one of the parties had been prejudiced by the supposed error. If the nuance of the instruction upon which reversal is now based did not suggest itself to petitioner's trial counsel, it seems doubtful that it suggested itself to the jury either:
23
'A party must make every reasonable effort to secure from the trial court correct rulings, or such at least as are satisfactory to him, before he will be permitted to ask any review by the appellate tribunal; and to that end he must be distinct and specific in his objections and exceptions. . . . '. . . (J) ustice itself, and fairness to the court which makes the rulings complained of, require that the attention of that court shall be specifically called to the precise point to which exception is taken, that it may have an opportunity to reconsider the matter and remove the ground of exception." Allis v. United States, 155 U.S. 117, 122, 15 S.Ct. 36, 38, 39 L.Ed. 91 (1894), quoting Harvey v. Tyler, 2 Wall. 328, 339, 17 L.Ed. 871 (1865).
24
Nor, as pointed out above, did this particular instruction of the trial court stand alone; it was incorporated into a series of instructions that had as their predominant theme that the burden of proof was upon the Government at every stage to prove guilt beyond a reasonable doubt. The trial court's instructions are to be taken as a whole, and even if an isolated passage might be error if standing by itself, that alone is not a sufficient ground for reversal. Boyd v. United States, 271 U.S. 104, 107, 46 S.Ct. 442, 443, 70 L.Ed. 857 (1926).
25
The Court's reversal on the ground that one of the instructions contained a 'negative pregnant' smacks more of the scholastic jurisprudence whose shortcomings led to the enactment of 28 U.S.C. § 2111 than it does of the commonsense approach to appellate review that that section mandates.
1
At the time of his testimony, Voyles had already pleaded guilty to a charge of complicity in the possession and concealment of counterfeit notes.
2
The dissent suggests that the defendant objected to the accomplice instruction solely on the ground that use of the word 'accomplice' suggested that the defendant was guilty. Although the defense objection was not a model of clarity, it seems apparent that it was grounded more broadly on the trial judge's decision to give the standard accomplice instruction despite the fact that the accomplice was a defense witness. The defense attorney stated: 'I take exception to Instruction No. 16, as it's misleading. I don't think it belongs in this cause. There was no accomplice testified (sic) for the Government, and this could mislead them as to the person who was accused of this crime and has already pled guilty, as making an accomplice of him, when actually he is not an accomplice, because they are not involved in the crime.' (Emphasis added.) Certainly, the trial judge understood this objection to be directed to his decision to give the standard cautionary instruction even though the alleged accomplice was called by the defendant. In colloquy with the defense attorney, the judge stated: 'The next, 'accomplice,' the evidence of both the Government and the defendants may be considered by the jury in determining the guilt or innocence, no matter who produces the witness. . . . Now there's a lot of inferences can be drawn from one item of evidence or another, and that's for the jury to decide. So long as there is some evidence, the instruction must be given. It hits both ways on that point.' (Emphasis added.) Nor did the Court of Appeals indicate any doubt that defendant's objection was sufficient to preserve the point on appeal.
3
True, the instruction was couched in positive terms. It told the jury to consider the evidence if it believed it true beyond a reasonable doubt. But the statement contained a negative pregnant as well. There is an unacceptable risk that jurors might have thought they were to reject the evidence—'throw (it) out,' in the words of the trial judge—if they had a reasonable doubt as to its veracity.
4
In the next paragraph of his instruction, the judge stated: 'I further instruct you that testimony of an accomplice may alone and uncorroborated support your verdict of guilty of the charges in the Indictment if believed by you to prove beyond a reasonable doubt the essential elements of the charges in the Indictment against the defendants.' In light of the fact that the only accomplice testimony in the case was exculpatory, this instruction was confusing to say the least. But even if it is assumed that Voyles' testimony was to some extent inculpatory, the instruction was still fundamentally unfair in that it told the jury that it could convict solely on the basis of accomplice testimony without telling it that it could acquit on this basis. Even had there been no other error, the conviction would have to be reversed on the basis of this instruction alone.
1
'Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.' Fed.Rule Crim.Pric. 52(a).
2
'On the hearing of any appeal or writ of certiorari in any case, the court shall give judgment after an examination of the record without regard to errors or defects which do not affect the substantial rights of the parties.' 28 U.S.C. § 2111.
3
The petitioner and her husband were tried and convicted together on the counterfeiting charges. Both appealed their convictions to the Seventh Circuit, which affirmed both. Petitioner's husband has not sought certiorari to have his conviction reviewed.
| 01
|
409 U.S. 91
93 S.Ct. 349
34 L.Ed.2d 325
EVCO, dba Evco Instructional Designs, Petitioner,v.Franklin JONES, Commissioner of Bureau of Revenue of the State of New Mexico, et al.
No. 71 - 857.
Argued Nov. 8, 1972.
Decided Dec. 4, 1972.
Kendall O. Schlenker, Albuquerque, N.M., for petitioner.
John C. Cook, Santa Fe, N.M., for respondents.
PER CURIAM.
1
The petitioner, Evco, is a New Mexico corporation that employs writers, artists, and draftsmen to create and design instructional programs. It develops an educational idea into a finished product that generally consists of reproducible originals of books, films, and magnetic audio tapes. Typical of its contracts is Evco's agreement with the Department of Agriculture to develop camera-ready copies of programmed textbooks, notebooks, and manuals to be used in an orientation course for forest engineers. Evco's contracts are negotiated and entered into outside New Mexico; it creates the reproducible originals in New Mexico, and then delivers them to its out-of-state clients. The customers in turn use the originals to publish however many books and manuals are needed to implement the instructional program.
2
The Commissioner of Revenue for New Mexico levied the State's Emergency School Tax and its Gross Receipts Tax on the total proceeds Evco received from these contracts.1 The company appealed this assessment to the Court of Appeals of New Mexico, arguing that these taxes on out-of-state sales imposed an unconstitutional burden on interstate commerce in violation of Art. I, § 8, of the Constitution. That court found that though the taxes were imposed on the proceeds of out-of-state sales of tangible personal property, rather than on the receipts from sales of services, such taxes were not an unconstitutional burden on commerce. 81 N.M. 724, 472 P.2d 987.2 The Supreme Court of New Mexico declined to review the judgment. 81 N.M. 772, 473 P.2d 911.
3
In his brief in opposition to the petition for certiorari, which sought our review of that judgment, the Attorney General of New Mexico conceded that the State could not tax the receipts from sales of tangible personal property outside the State. We granted certiorari, vacated the judgment, and remanded the case to the Court of Appeals for reconsideration in light of the position taken by the Attorney General. 402 U.S. 969, 91 S.Ct. 1655, 29 L.Ed.2d 134.
4
On remand, the Court of Appeals adhered to its prior findings that these taxes were imposed on out-of-state sales of tangible personal property, not services, but it concluded that the constitutionality of the taxes should not depend on that distinction. It reinstated and reaffirmed its prior opinion finding the taxes constitutional. 83 N.M. 110, 488 P.2d 1214. The Supreme Court of New Mexico again declined to review the case, 83 N.M. 1209, 488 P.2d 1209, and we granted certiorari. 405 U.S. 953, 92 S.Ct. 1174, 31 L.Ed.2d 229.
5
Our prior cases indicate that a State may tax the proceeds from services performed in the taxing State, even though they are sold to purchasers in another State. Hence, in Department of Treasury v. Ingram-Richardson Mfg. Co., 313 U.S. 252, 61 S.Ct. 866, 85 L.Ed. 1313, the Court upheld a state gross income tax imposed on a taxpayer engaged in the process of enameling metal parts for its customers. We accepted the finding of the court below that this was a tax on income derived from services, not from the sales of finished products, and we found irrelevant the fact that the sales were made to out-of-state customers. The tax was validly imposed on the service performed in the taxing State. See also Western Live Stock v. Bureau of Revenue, 303 U.S. 250, 58 S.Ct. 546, 82 L.Ed. 823.
6
But a tax levied on the gross receipts from the sales of tangible personal property in another State is an impermissible burden on commerce. In J. D. Adams Mfg. Co. v. Storen, 304 U.S. 307, 58 S.Ct. 913, 82 L.Ed. 1365, we rejected as unconstitutional a State's attempt to impose a gross receipts tax on a taxpayer's sales of road machinery to out-of-state customers.
7
'The vice of the statute as applied to receipts from interstate sales is that the tax includes in its measure, without apportionment, receipts derived from activities in interstate commerce; and that the exaction is of such a character that if lawful it may in substance be laid to the fullest extent by states in which the goods are sold as well as those in which they are manufactured. Interstate commerce would thus be subjected to the risk of a double tax burden to which intrastate commerce is not exposed, and which the commerce clause forbids.' Id., at 311, 58 S.Ct., at 916.
8
See also Gwin, White & Prince, Inc. v. Henneford, 305 U.S. 434, 59 S.Ct. 325, 83 L.Ed. 272.
9
As on the previous petition for certiorari, both parties accept these propositions, and both agree that if the findings of the Court of Appeals of New Mexico are accepted, its judgment must be reversed.
10
The only real dispute between the parties centers on the factual question of the nature and effect of the taxes. The State contends that these taxes were actually imposed on the receipts from services performed in the State, not on the income from the sale of property outside the State. It argues that the out-of-state purchasers actually paid for the educational programs developed in New Mexico, not for the camera-ready copies that were only incidental to the services purchased. But the Court of Appeals rejected this interpretation of the facts. It found in effect that the reproducible originals were the sine qua non of the contract and that it was the sale of that tangible personal property in another State that New Mexico had taxed. 'There are no exceptional circumstances of any kind that would justify us in rejecting the . . . Court's findings; they are not without factual foundation, and we accept them.' Lloyd A. Fry Roofing Co. v. Wood, 344 U.S. 157, 160, 73 S.Ct. 204, 206, 97 L.Ed. 168. See also Grayson v. Harris, 267 U.S. 352, 357—358, 45 S.Ct. 317, 319, 69 L.Ed. 652; Portland Railway, Light & Power Co. v. Railroad Comm'n, 229 U.S. 397, 411—412, 33 S.Ct. 820, 826—827, 57 L.Ed. 1248.
11
Accordingly, since the Court of Appeals approved the imposition of a tax on the proceeds of the out-of-state sales of tangible personal property, its judgment is reversed.
12
Reversed.
1
Taxes were assessed for the period January 1, 1966, through December 31, 1968. From January 1, 1966, through June 30, 1967, the petitioner's receipts were subject to the Emergency School Tax Act. N.M.Stat.Ann. §§ 72—16—2 to 72—16—19, 1953 Compilation, repealed by N.M.Laws 1966, c. 47, § 22. From July 1, 1967, through December 31, 1968, the remainder of the taxable period, Evco's receipts were taxed under the Gross Receipts and Compensating Tax Act. N.M.Stat.Ann. §§ 72—16A—1 to 72—16A—19, 1953 Compilation (Supp.1971).
2
The court did find, however, that the receipts from sales of tangible personal property to government agencies and certain specified organizations were statutorily exempted from taxation. Those specific exemptions are not at issue here.
| 78
|
409 U.S. 95
93 S.Ct. 351
34 L.Ed.2d 330
Alfred David WEBBv.State of TEXAS.
No. 71-6647.
Dec. 4, 1972.
PER CURIAM.
1
The petitioner was convicted of burglary in the Criminal District Court of Dallas County, Texas, and was sentenced to a term of imprisonment for 12 years. He appealed, raising several claims of error, among them an allegation that the trial court had violated his constitutional rights by 'threatening and harassing' the sole witness for his defense, so that the witness refused to testify. The Court of Criminal Appeals of Texas affirmed his conviction, 480 S.W.2d 398 (1972). We grant the motion for leave to proceed in forma pauperis and the petition for a writ of certiorari and reverse the petitioner's conviction.
2
The record shows that, after the prosecution had rested its case the jury was temporarily excused. During this recess, the petitioner called his only witness, Leslie Max Mills, who had a prior criminal record and was then serving a prison sentence. At this point, the trial judge, on his own initiative, undertook to admonish the witness as follows:
3
'Now you have been called down as a witness in this case by the Defendant. It is the Court's duty to admonish you that you don't have to testify, that anything you say can and will be used against you.
4
If you take the witness stand and lie under oath, the Court will personally see that your case goes to the grand jury and you will be indicted for perjury and the liklihood (sic) is that you would get convicted of perjury and that it would be stacked onto what you have already got, so that is the matter you have got to make up your mind on. If you get on the witness stand and lie, it is probably going to mean several years and at least more time that you are going to have to serve. It will also be held against you in the penitentiary when you're up for parole and the Court wants you to thoroughly understand the chances you're taking by getting on that witness stand under oath. You may tell the truth and if you do, that is all right, but if you lie you can get into real trouble. The court wants you to know that. You don't owe anybody anything to testify and it must be done freely and voluntarily and with the thorough understanding that you know the hazard you are taking.'
5
The petitioner's counsel objected to these comments, on the ground that the judge was exerting on the mind of the witness such duress that the witness could not freely and voluntarily decide whether or not to testify in the petitioner's behalf, and was thereby depriving the petitioner of his defense by coercing the only defense witness into refusing to testify. Counsel pointed out that none of the witnesses for the State had been so admonished. When the petitioner's counsel then indicated that he was nonetheless going to ask the witness to take the stand, the judge interrupted: 'Counsel, you can state the facts, nobody is going to dispute it. Let him decline to testify.' The witness then refused to testify for any purpose and was excused by the court. The petitioner's subsequent motion for a mistrial was overruled.
6
On appeal, the petitioner argued that the judge's conduct indicated a bias against the petitioner and deprived him of due process of law by driving his sole witness off the witness stand. The Court of Criminal Appeals rejected this contention, stating that, while it did not condone the manner of the admonition, the petitioner had made no objection until the admonition was completed, and there was no showing that the witness had been intimidated by the admonition or had refused to testify because of it.
7
We cannot agree. The suggestion that the petitioner or his counsel should have interrupted the judge in the middle of his remarks to object is, on this record, not a basis to ground a waiver of the petitioner's rights. The fact that Mills was willing to come to court to testify in the petitioner's behalf, refusing to do so only after the judge's lengthy and intimidating warning, strongly suggests that the judge's comments were the cause of Mills' refusal to testify.
8
The trial judge gratuitously singled out this one witness for a lengthy admonition on the dangers of perjury. But the judge did not stop at warning the witness of his right to refuse to testify and of the necessity to tell the truth.* Instead, the judge implied that he expected Mills to lie, and went on to assure him that if he lied, he would be prosecuted and probably convicted for perjury, that the sentence for that conviction would be added on to his present sentence, and that the result would be to impair his chances for parole. At least some of these threats may have been beyond the power of this judge to carry out. Yet, in light of the great disparity between the posture of the presiding judge and that of a witness in these circumstances, the unnecessarily strong terms used by the judge could well have exerted such duress on the witness' mind as to preclude him from making a free and voluntary choice whether or not to testify.
9
In Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 1923, 18 L.Ed.2d 1019 (1967), we stated:
10
'The right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense, the right to present the defendant's version of the facts as well as the prosecution's to the jury so it may decide where the truth lies. Just as an accused has the right to confront the prosecution's witnesses for the purpose of challenging their testimony, he has the right to present his own witnesses to establish a defense. This right is a fundamental element of due process of law.'
11
In the circumstances of this case, we conclude that the judge's threatening remarks, directed only at the single witness for the defense, effectively drove that witness off the stand, and thus deprived the petitioner of due process of law under the Fourteenth Amendment. The admonition by the Texas Court of Criminal Appeals might well have given the trial judge guidance for future cases, but it did not serve to repair the infringement of the petitioner's due process rights under the Fourteenth Amendment.
12
Accordingly, the judgment is reversed.
13
Reversed.
14
Mr. Justice BLACKMUN, with whom Mr. Justice REHNQUIST joins, dissenting.
15
The facts before us do not, in my opinion, justify the Court's summary disposition. Petitioner Webb (who, on a prior occasion, had been convicted on still another burglary charge) was apprehended by the owner of a lumber business. The owner, armed with his shotgun, had driven to his office at three o'clock in the morning upon the activation of a burglar alarm. When he entered the building, the owner observed a broken window and an assortment of what he regarded as burglary tools on his desk. When men emerged from an adjacent room, a gun fight ensued. Two intruders escaped, but the owner, despite his having been shot twice, succeeded in holding the petitioner at gunpoint until police arrived.
16
Although the admonition given by the state trial judge to the sole witness proffered by the defense was obviously improper, sufficient facts have not been presented to this Court to demonstrate the depth of prejudice that requires a summary reversal. The admonition might prove far less offensive, and the conduct of the trial judge understandable, if, for example, as is indicated in petitioner's brief, p. 8, prepared by counsel and filed with the Texas Court of Criminal Appeals, the witness were known to have been called for the purpose of presenting an alibi defense. Against the backdrop of being caught on the premises and of apparently overwhelming evidence of guilt, offset only by a bare allegation of prejudice, I would deny the petition for certiorari and, as the Court so often has done, I would remit the petitioner to the relief available to him by way of a post-conviction proceeding with a full evidentiary hearing.*
*
Cf. United States v. Winter, 348 F.2d 204, 210 (1965), where Judge Weinfeld, writing for the Second Circuit, stated:
'Once a witness swears to give truthful answers, there is no requirement to 'warn him not to commit perjury or, conversely to direct him to tell the truth.' It would render the sanctity of the oath quite meaningless to require admonition to adhere to it.'
*
Petitioner's counsel assured the Court of Criminal Appeals that the witness would not have been called 'unless he had been previously interviewed and found to be helpful to the appellant's cause.' Brief for Appellant on First Motion for Rehearing 7, Webb v. Texas, 480 S.W.2d 398 (Ct.Crim.App.Tex.1972). An evidentiary hearing would allow petitioner's trial counsel to outline the testimony that was expected from the witness.
A prior trial is mentioned in the record. An evidentiary hearing might reveal events at the prior trial that justified the trial judge's unusual concern about possible perjury.
| 01
|
409 U.S. 109
93 S.Ct. 390
34 L.Ed.2d 342
CALIFORNIA et al., Appellants,v.Robert LaRUE et al.
No. 71-36.
Argued Oct. 10, 1972.
Decided Dec. 5, 1972.
Rehearing Denied Feb. 20, 1973.
See 410 U.S. 948, 93 S.Ct. 1351.
Syllabus
Following hearings, the California Department of Alcoholic Beverage Control issued regulations prohibiting explicitly sexual live entertainment and films in bars and other establishments licensed to dispense liquor by the drink. A three-judge District Court held the regulations invalid under the First and Fourteenth Amendments, concluding that under standards laid down by this Court some of the prescribed entertainment could not be classified as obscene or lacking a communicative element. Held: In the context, not of censoring dramatic performances in a theater, but of licensing bars and nightclubs to sell liquor by the drink, the States have broad latitude under the Twenty-first Amendment to control the manner and circumstances under which liquor may be dispensed, and here the conclusion that sale of liquor by the drink and lewd or naked entertainment should not take place simultaneously in licensed establishments was not irrational nor was the prophylactic solution unreasonable. Pp. 114—119.
326 F.Supp. 348, reversed.
L. Stephen Porter, San Francisco, Cal., for appellants.
Harrison W. Hertzberg, Los Angeles, Cal., and Kenneth Philip Scholtz, Gardena, Cal., for appellees.
Mr. Justice REHNQUIST delivered the opinion of the Court.
1
Appellant Kirby is the director of the Department of Alcoholic Beverage Control, an administrative agency vested by the California Constitution with primary authority for the licensing of the sale of alcoholic beverages in that State, and with the authority to suspend or revoke any such license if it determines that its continuation would be contrary to public welfare or morals. Art. XX, § 22, California Constitution. Appellees include holders of various liquor licenses issued by appellant, and dancers at premises operated by such licensees. In 1970 the Department promulgated rules regulating the type of entertainment that might be presented in bars and nightclubs that it licensed. Appellees then brought this action in the United States District Court for the Central District of California under the provisions of 28 U.S.C. §§ 1331, 1343, 2201, 2202, and 42 U.S.C. § 1983. A three-judge court was convened in accordance with 28 U.S.C. §§ 2281 and 2284, and the majority of that court held that substantial portions of the regulations conflicted with the First and Fourteenth Amendments to the United States Constitution.1
2
Concerned with the progression in a few years' time from 'topless' dancers to 'bottomless' dancers and other forms of 'live entertainment' in bars and nightclubs that it licensed, the Department heard a number of witnesses on the subject at public hearings held prior to the promulgation of the rules. The majority opinion of the District Court described the testimony in these words:
3
'Law enforcement agencies, counsel and owners of licensed premises and investigators for the Department testified. The story that unfolded was a sordid one, primarily relating to sexual conduct between dancers and customers. . . .' 326 F.Supp. 348, 352.
4
References to the transcript of the hearings submitted by the Department to the District Court indicated that in licensed establishments where 'topless' and 'bottomless' dancers, nude entertainers, and films displaying sexual acts were shown, numerous incidents of legitimate concern to the Department had occurred. Customers were found engaging in oral copulation with women entertainers; customers engaged in public masturbation; and customers placed rolled currency either directly into the vagina of a female entertainer, or on the bar in order that she might pick it up herself. Numerous other forms of contact between the mouths of male customers and the vaginal areas of female performers were reported to have occurred.
5
Prostitution occurred in and around such licensed premises, and involved some of the female dancers. Indecent exposure to young girls, attempted rape, rape itself, and assaults on police officers took place on or immediately adjacent to such premises.
6
At the conclusion of the evidence, the Department promulgated the regulations here challenged, imposing standards as to the type of entertainment that could be presented in bars and nightclubs that it licensed. Those portions of the regulations found to be unconstitutional by the majority of the District Court prohibited the following kinds of conduct on licensed premises:
7
(a) The performance of acts, or simulated acts, of 'sexual intercourse, masturbation, sodomy, bestiality, oral copulation, flagellation or any sexual acts which are prohibited by law';
8
(b) The actual or simulated 'touching, caressing or fondling on the breast, buttocks, anus or genitals';
9
(c) The actual or simulated 'displaying of the public hair, anus, vulva or genitals';
10
(d) The permitting by a licensee of 'any person to remain in or upon the licensed premises who exposes to public view any portion of his or her genitals or anus'; and, by a companion section,
11
(e) The displaying of films or pictures depicting acts a live performance of which was prohibited by the regulations quoted above. Rules 143.3 and 143.4.2
12
Shortly before the effective date of the Department's regulations appellees unsuccessfully sought discretionary review of them in both the State Court of Appeal and the Supreme Court of California. The Department then joined with appellees in requesting the three-judge District Court to decide the merits of appellees' claims that the regulations were invalid under the Federal Constitution.3
13
The District Court majority upheld the appellees' claim that the regulations in question unconstitutionally abridged the freedom of expression guaranteed to them by the First and Fourteenth Amendments to the United States Constitution. It reasoned that the state regulations had to be justified either as a prohibition of obscenity in accordance with the Roth line of decisions in this Court (Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957), or else as a regulation of 'conduct' having a communicative element in it under the standards laid down by this Court in United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968). Concluding that the regulations would bar some entertainment that could not be called obscene under the Roth line of cases, and that the governmental interest being furthered by the regulations did not meet the tests laid down in O'Brien, the court enjoined the enforcement of the regulations. 326 F.Supp. 348. We noted probable jurisdiction. 404 U.S. 999, 92 S.Ct. 559, 30 L.Ed.2d 551.
14
The state regulations here challenged come to us, not in the context of censoring a dramatic performance in a theater, but rather in a context of licensing bars and nightclubs to sell liquor by the drink. In Joseph E. Seagram & Sons v. Hostetter, 384 U.S. 35, 41, 86 S.Ct. 1254, 1259, 16 L.Ed.2d 336 (1966), this Court said:
15
'Consideration of any state law regulating intoxicating beverages must begin with the Twenty-first Amendment, the second section of which provides that: 'The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited."
16
While the States, vested as they are with general police power, require no specific grant of authority in the Federal Constitution to legislate with respect to matters traditionally within the scope of the police power, the broad sweep of the Twenty-first Amendment has been recognized as conferring something more than the normal state authority over public health, welfare, and morals. In Hostetter v. Idlewild Bon Voyage Liquor Corp., 377 U.S. 324, 330, 84 S.Ct. 1293, 1297, 12 L.Ed.2d 350 (1964), the Court reaffirmed that by reason of the Twenty-first Amendment 'a State is totally unconfined by traditional Commerce Clause limitations when it restricts the importation of intoxicants destined for use, distribution, or consumption within its borders.' Still earlier, the Court stated in State Board v. Young's Market Co., 299 U.S. 59, 64, 57 S.Ct. 77, 79, 81 L.Ed. 38 (1936):
17
'A classification recognized by the Twenty-First Amendment cannot be deemed forbidden by the Fourteenth.'
18
These decisions did not go so far as to hold or say that the Twenty-first Amendment supersedes all other provisions of the United States Constitution in the area of liquor regulations. In Wisconsin v. Constantineau, 400 U.S. 433, 91 S.Ct. 507, 27 L.Ed.2d 515 (1971), the fundamental notice and hearing requirement of the Due Process Clause of the Fourteenth Amendment was held applicable to Wisconsin's statute providing for the public posting of names of persons who had engaged in excessive drinking. But the case for upholding state regulation in the area covered by the Twenty-first Amendment is undoubtedly strengthened by that enactment:
19
'Both the Twenty-first Amendment and the Commerce Clause are parts of the same Constitution. Like other provisions of the Constitution, each must be considered in the light of the other, and in the context of the issues and interests at stake in any concrete case.' Hostetter v. Idlewild Bon Voyage Liquor Corp., supra, at 332, 84 S.Ct., at 1298.
20
A common element in the regulations struck down by the District Court appears to be the Department's conclusion that the sale of liquor by the drink and lewd or naked dancing and entertainment should not take place in bars and cocktail lounges for which it has licensing responsibility. Based on the evidence from the hearings that it cited to the District Court, and mindful of the principle that in legislative rulemaking the agency may reason from the particular to the general, Assigned Car Cases, 274 U.S. 564, 583, 47 S.Ct. 727, 733—734, 71 L.Ed. 1204 (1927), we do not think it can be said that the Department's conclusion in this respect was an irrational one.
21
Appellees insist that the same results could have been accomplished by requiring that patrons already well on the way to intoxication be excluded from the licensed premises. But wide latitude as to choice of means to accomplish a permissible end must be accorded to the state agency that is itself the repository of the State's power under the Twenty-first Amendment. Joseph E. Seagram & Sons v. Hostetter, supra, 384 U.S. at 48, 86 S.Ct. at 1262. Nothing in the record before us or in common experience compels the conclusion that either self-discipline on the part of the customer or self-regulation on the part of the bartender could have been relied upon by the Department to secure compliance with such an alternative plan of regulation. The Department's choice of a prophylactic solution instead of one that would have required its own personnel to judge individual instances of inebriation cannot, therefore, be deemed an unreasonable one under the holdings of our prior cases. Williamson v. Lee Optical Co., 348 U.S. 483, 487—488, 75 S.Ct. 461, 464—465, 99 L.Ed. 563 (1955).
22
We do not disagree with the District Court's determination that these regulations on their face would proscribe some forms of visual presentation that would not be found obscene under Roth and subsequent decisions of this Court. See, e.g., Sunshine Book Co. v. Summerfield, 355 U.S. 372, 78 S.Ct. 365, 2 L.Ed.2d 352 (1958), rev'g per curiam, 101 U.S.App.D.C. 358, 249 F.2d 114 (1957). But we do not believe that the state regulatory authority in this case was limited to either dealing with the problem it confronted within the limits of our decisions as to obscenity, or in accordance with the limits prescribed for dealing with some forms of communicative conduct in O'Brien, supra.
23
Our prior cases have held that both motion pictures and theatrical productions are within the protection of the First and Fourteenth Amendments. In Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 72 S.Ct. 777, 96 L.Ed. 1098 (1952), it was held that motion pictures are 'included within the free speech and free press guaranty of the First and Fourteenth Amendments,' though not 'necessarily subject to the precise rules governing any other particular method of expression.' Id., at 502—503, 72 S.Ct., at 781. In Schacht v. United States, 398 U.S. 58, 63, 90 S.Ct. 1555, 26 L.Ed.2d 44 (1970), the Court said with respect to theatrical productions:
24
'An actor, like everyone else in our country, enjoys a constitutional right to freedom of speech, including the right openly to criticize the Government during a dramatic performance.'
25
But as the mode of expression moves from the printed page to the commission of public acts that may themselves violate valid penal statutes, the scope of permissible state regulations significantly increases. States may sometimes proscribe expression that is directed to the accomplishment of an end that the State has declared to be illegal when such expression consists, in part, of 'conduct' or 'action,' Hughes v. Superior Court, 339 U.S. 460, 70 S.Ct. 718, 94 L.Ed. 985 (1950); Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 69 S.Ct. 684, 93 L.Ed. 834 (1949).4 In O'Brien, supra, the Court suggested that the extent to which 'conduct' was protected by the First Amendment depended on the presence of a 'communicative element,' and stated:
26
'We cannot accept the view that an apparently limitless variety of conduct can be labeled 'speech' whenever the person engaging in the conduct intends thereby to express in idea.' 391 U.S., at 376, 88 S.Ct., at 1678.
27
The substance of the regulations struck down prohibits licensed bars or nightclubs from displaying, either in the form of movies or live entertainment, 'performances' that partake more of gross sexuality than of communication. While we agree that at least some of the performances to which these regulations address themselves are within the limits of the constitutional protection of freedom of expression, the critical fact is that California has not forbidden these performances across the board. It has merely proscribed such performances in establishments that it licenses to sell liquor by the drink.
28
Viewed in this light, we conceive the State's authority in this area to be somewhat broader than did the District Court. This is not to say that all such conduct and performance are without the protection of the First and Fourteenth Amendments. But we would poorly serve both the interests for which the State may validly seek vindication and the interests protected by the First and Fourteenth Amendments were we to insist that the sort of bacchanalian revelries that the Department sought to prevent by these liquor regulations were the constitutional equivalent of a performance by a scantily clad ballet troupe in a theater.
29
The Department's conclusion, embodied in these regulations, that certain sexual performances and the dispensation of liquor by the drink ought not to occur at premises that have licenses was not an irrational one. Given the added presumption in favor of the validity of the state regulation in this area that the Twenty-first Amendment requires, we cannot hold that the regulations on their face violate the Federal Constitution.5
30
The contrary holding of the District Court is therefore reversed.
31
Reversed.
32
Mr. Justice STEWART, concurring.
33
A State has broad power under the Twenty-first Amendment to specify the times, places, and circumstances where liquor may be dispensed within its borders. Joseph E. Seagram & Sons v. Hostetter, 384 U.S. 35, 86 S.Ct. 1254, 16 L.Ed.2d 336; Hostetter v. Idlewild Bon Voyage Liquor Corp., 377 U.S. 324, 330, 84 S.Ct. 1293, 1297, 12 L.Ed.2d 350; Dept. of Revenue v. James B. Beam Distilling Co., 377 U.S. 341, 344, 346, 84 S.Ct. 1247, 1249, 1250, 12 L.Ed.2d 362; California v. Washington, 358 U.S. 64, 79 S.Ct. 116, 3 L.Ed.2d 106; Ziffrin, Inc. v. Reeves, 308 U.S. 132, 60 S.Ct. 163, 84 L.Ed. 128; Mahoney v. Joseph Triner, Corp., 304 U.S. 401, 58 S.Ct. 952, 82 L.Ed. 1424; State Board of Equalization v. Young's Market Co., 299 U.S. 59, 57 S.Ct. 77, 81 L.Ed. 38. I should suppose, therefore, that nobody would question the power of California to prevent the sale of liquor by the drink in places where food is not served, or where dancing is permitted, or where gasoline is sold. But here California has provided that liquor by the drink shall not be sold in places where certain grossly sexual exhibitions are performed; and that action by the State, say the appellees, violates the First and Fourteenth Amendments. I cannot agree.
34
Every State is prohibited by these same Amendments from invading the freedom of the press and from impinging upon the free exercise of religion. But does this mean that a State cannot provide that liquor shall not be sold in bookstores, or within 200 feet of a church? I think not. For the State would not thereby be interfering with the First Amendment activities of the church or the First Amendment business of the bookstore. It would simply be controlling the distribution of liquor, as it has every right to do under the Twenty-first Amendment. On the same premise, I cannot see how the liquor regulations now before us can be held, on their face, to violate the First and Fourteenth Amendments.*
35
It is upon this constitutional understanding that I join the opinion and judgment of the Court.
36
Mr. Justice DOUGLAS, dissenting.
37
This is an action for a declaratory judgment, challenging Rules and Regulations of the Department of Alcoholic Beverage Control of California. It is a challenge of the constitutionality of the rules on their face; no application of the rules has in fact been made to appellees by the institution of either civil or criminal proceedings. While the case meets the requirements of 'case or controversy' within the meaning of Art. III of the Constitution and therefore complies with Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 57 S.Ct. 461, 81 L.Ed. 617, the case does not mark the precise impact of these rules against licensees who sell alcoholic beverages in California. The opinion of the Court can, therefore, only deal with the rules in the abstract.
38
The line which the Court draws between 'expression' and 'conduct' is generally accurate; and it also accurately describes in general the reach of the police power of a State when 'expression' and 'conduct' are closely brigaded. But we still do not know how broadly or how narrowly these rules will be applied.
39
It is conceivable that a licensee might produce in a garden served by him a play—shakespearean perhaps or one in a more modern setting—in which, for example, 'fondling' in the sense of the rules appears. I cannot imagine that any such performance could constitutionally be punished or restrained, even though the police power of a State is now buttressed by the Twenty-first Amendment.1 For, as stated by the Court, that Amendment did not supersede all other constitutional provisions 'in the area of liquor regulations.' Certainly a play which passes muster under the First Amendment is not made illegal because it is performed in a beer garden.
40
Chief Justice Hughes stated the controlling principle in Electric Bond & Share Co. v. SEC, 303 U.S. 419, 443, 58 S.Ct. 678, 687, 82 L.Ed. 936:
41
'Defendants are not entitled to invoke the Federal Declaratory Judgment Act in order to obtain an advisory decree upon a hypothetical state of facts. . . . By the cross-bill, defendants seek a judgment that each and every provision of the act is unconstitutional. It presents a variety of hypothetical controversies which may never become real. We are invited to enter into a speculative inquiry for the purpose of condemning statutory provisions the effect of which in concrete situations, not yet developed, cannot now be definitely perceived. We must decline that invitation. . . .'
42
The same thought was expressed by Chief Justice Stone in Alabama State Federation of Labor v. McAdory, 325 U.S. 450, 470 471, 65 S.Ct. 1384, 1393—1394, 89 L.Ed. 1725. Some provisions of an Alabama law regulating labor relations were challenged as too vague and uncertain to meet constitutional requirements. The Chief Justice noted that state courts often construe state statutes so that in their application they are not open to constitutional objections. Id., at 471, 65 S.Ct., at 1394. He said that for us to decide the constitutional question 'by anticipating such an authoritative construction' would be either 'to decide the question unnecessarily or rest our decision on the unstable foundation of our own construction of the state statute which the state court would not be bound to follow.'2 Ibid. He added:
43
'In any event the parties are free to litigate in the state courts the validity of the statute when actually applied to any definite state of facts, with the right of appellate review in this Court. In the exercise of this Court's discretionary power to grant or withhold the declaratory judgment remedy it is of controlling significance that it is in the public interest to avoid the needless determination of constitutional questions and the needless obstruction to the domestic policy of the states by forestalling state action in construing and applying its own statutes.' Ibid.
44
Those precedents suggest to me that it would have been more provident for the District Court to have declined to give a federal constitutional ruling, until and unless the generalized provisions of the rules were given particularized meaning.
45
Mr. Justice BRENNAN, dissenting.
46
I dissent. The California regulation at issue here clearly applies to some speech protected by the First Amendment, as applied to the States through the Due Process Clause of the Fourteenth Amendment, and also, no doubt, to some speech and conduct which are unprotected under our prior decisions. See Memoirs v. Massachusetts, 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1 (1966); Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957). The State points out, however, that the regulation does not prohibit speech directly, but speaks only to the conditions under which a license to sell liquor by the drink can be granted and retained. But, as Mr. Justice MARSHALL carefully demonstrates in Part II of his dissenting opinion, by requiring the owner of a nightclub to forgo the exercise of certain rights guaranteed by the First Amendment, the State has imposed an unconstitutional condition on the grant of a license. See Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972); Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963); Speiser v. Randall, 357 U.S. 513, 78 S.Ct. 1332, 2 L.Ed.2d 1460 (1958). Nothing in the language or history of the Twenty-first Amendment authorizes the States to use their liquor licensing power as a means for the deliberate inhibition of protected, even if distasteful, forms of expression. For that reason, I would affirm the judgment of the District Court.
47
Mr. Justice MARSHALL, dissenting.
48
In my opinion, the District Court's judgment should be affirmed. The record in this case is not a pretty one, and it is possible that the State could constitutionally punish some of the activities described therein under a narrowly drawn scheme. But appellees challenge these regulations1 on their face, rather than as applied to a specific course of conduct.2 Cf. Gooding v. Wilson, 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972). When so viewed, I think it clear that the regulations are overbroad and therefore unconstitutional. See, e.g., Dombrowski v. Pfister, 380 U.S. 479, 486, 85 S.Ct. 1116, 1120, 14 L.Ed.2d 22 (1965).3 Although the State's broad power to regulate the distribution of liquor and to enforce health and safety regulations is not to be doubted, that power may not be exercised in a manner that broadly stifles First Amendment freedoms. Cf. Shelton v. Tucker, 364 U.S. 479, 488, 81 S.Ct. 247, 252, 5 L.Ed.2d 231 (1960). Rather, as this Court has made clear, '(p)recision of regulation must be the touchstone' when First Amendment rights are implicated. NAACP v. Button, 371 U.S. 415, 438, 83 S.Ct. 328, 340, 9 L.Ed.2d 405 (1963). Because I am convinced that these regulations lack the precision which our prior cases require, I must respectfully dissent.
49
* It should be clear at the outset that California's regulatory scheme does not conform to the standards which we have previously enunciated for the control of obscenity.4 Before this Court's decision in Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957), some American courts followed the rule of Regina v. Hicklin, L.R. 3 Q.B. 360 (1868), to the effect that the obscenity vel non of a piece of work could be judged by examining isolated aspects of it. See, e.g., United States v. Kennerley, 209 F. 119 (1913); Commonwealth v. Buckley, 200 Mass. 346, 86 N.E. 910 (1909). But in Roth we held that '(t)he Hicklin test, judging obscenity by the effect of isolated passages upon the most susceptible persons, might well encompass material legitimately treating with sex, and so it must be rejected as unconstitutionally restrictive of the freedoms of speech and press.' 354 U.S., at 489, 77 S.Ct., at 1311. Instead, we held that the material must be 'taken as a whole,' Ibid., and, when so viewed, must appeal to a prurient interest in sex, patently offend community standards relating to the depiction of sexual matters, and be utterly without redeeming social value.5 See Memoirs v. Massachusetts, 383 U.S. 413, 418, 86 S.Ct. 975, 977, 16 L.Ed.2d 1 (1966).
50
Obviously, the California rules do not conform to these standards. They do not require the material to be judged as a whole and do not speak to the necessity of proving prurient interest, offensiveness to community standards, or lack of redeeming social value. Instead of the contextual test approved in Roth and Memoirs these regulations create a system of per se rules to be applied regardless of context: Certain acts simply may not be depicted and certain parts of the body may under no circumstances be revealed. The regulations thus treat on the same level a serious movie such as 'Ulysses' and a crudely made 'stag film.' They ban not only obviously pornographic photographs, but also great sculpture from antiquity.6
51
Roth held 15 years ago that the suppression of serious communication was too high a price to pay in order to vindicate the State's interest in controlling obscenity, and I see no reason to modify that judgment today. Indeed, even the appellants do not seriously contend that these regulations can be justified under the Roth-Memoirs test. Instead, appellants argue that California's regulations do not concern the control of pornography at all. These rules, they argue, deal with conduct rather than with speech and as such are not subject to the strict limitations of the First Amendment.
52
To support this proposition, appellants rely primarily on United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968), which upheld the constitutionality of legislation punishing the destruction or mutilation of Selective Service certificates. O'Brien rejected the notion that 'an apparently limitless variety of conduct can be labeled 'speech' whenever the person engaging in the conduct intends thereby to express an idea,' and held that Government regulation of speech-related conduct is permissible 'if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.' Id., at 376 377, 88 S.Ct., at 1678—1679.
53
While I do not quarrel with these principles as stated in the abstract, their application in this case stretches them beyond the breaking point.7 In O'Brien, the Court began its discussion by noting that the statute in question 'plainly does not abridge free speech on its face.' Indeed, even O'Brien himself conceded that facially the statute dealt 'with conduct having no connection with speech.'8 Id., at 375, 88 S.Ct., at 1678. Here, the situation is quite different. A long line of our cases makes clear that motion pictures, unlike draftcard burning, are a form of expression entitled to prima facie First Amendment protection. 'It cannot be doubted that motion pictures are a significant medium for the communication of ideas. They may affect public attitudes and behavior in a variety of ways, ranging from direct espousal of a political or social doctrine to the subtle shaping of thought which characterizes all artistic expression. The importance of motion pictures as an organ of public opinion is not lessened by the fact that they are designed to entertain as well as to inform.' Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 501, 72 S.Ct. 777, 780, 96 L.Ed. 1098 (1952) (footnote omitted). See also Interstate Circuit, Inc. v. City of Dallas, 390 U.S. 676, 88 S.Ct. 1298, 20 L.Ed.2d 225 (1968); Jacobellis v. Ohio, 378 U.S. 184, 84 S.Ct. 1676, 12 L.Ed.2d 793 (1964); Pinkus v. Pitchess, 429 F.2d 416 (CA9 1970), aff'd by equally divided court sub nom. California v. Pinkus, 400 U.S. 922, 91 S.Ct. 185, 27 L.Ed.2d 183 (1970). Similarly, live performances and dance have, in recent years, been afforded broad prima facie First Amendment protection. See, e.g., Schacht v. United States, 398 U.S. 58, 90 S.Ct. 1555, 26 L.Ed.2d 44 (1970); P.B.I.C., Inc. v. Byrne, 313 F.Supp. 757 (Mass.1970), vacated to consider mootness, 401 U.S. 987, 91 S.Ct. 1222, 28 L.Ed.2d 526 (1971); In re Giannini, 69 Cal.2d 563, 72 Cal.Rptr. 655, 446 P.2d 535 (1968), cert. denied sub nom. California v. Giannini, 395 U.S. 910, 89 S.Ct. 1743, 23 L.Ed.2d 223 (1969).
54
If, as these many cases hold, movies, plays, and the dance enjoy constitutional protection, it follows, ineluctably I think, that their component parts are protected as well. It is senseless to say that a play is 'speech' within the meaning of the First Amendment, but that the individual gestures of the actors are 'conduct' which the State may prohibit. The State may no more allow movies while punishing the 'acts' of which they are composed than it may allow newspapers while punishing the 'conduct' of setting type.
55
Of course, I do not mean to suggest that anything which, occurs upon a stage is automatically immune from state regulation. No one seriously contends, for example, that an actual murder may be legally committed so long as it is called for in the script, or that an actor may inject real heroin into his veins while evading the drug laws that apply to everyone else. But once it is recognized that movies and plays enjoy prima facie First Amendment protection, the standard for reviewing state regulation of their component parts shifts dramatically. For while '(m)ere legislative preferences or beliefs respecting matters of public convenience may well support regulation directed at other personal activities, (they are) insufficient to justify such as diminishes the exercise of rights so vital' as freedom of speech. Schneider v. State, 308 U.S. 147, 161, 60 S.Ct. 146, 151, 84 L.Ed. 155 (1939). Rather, in order to restrict speech, the State must show that the speech is 'used in such circumstances and (is) of such a nature as to create a clear and present danger that (it) will bring about the substantive evils that (the State) has a right to prevent.' Schenck v. United States, 249 U.S. 47, 52, 39 S.Ct. 247, 249, 63 L.Ed. 470 (1919). Cf. Brandenburg v. Ohio, 395 U.S. 444, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969); Dennis v. United States, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137 (1951).9
56
When the California regulations are measured against this stringent standard, they prove woefully inadequate. Appellants defend the rules as necessary to prevent sex crimes, drug abuse, prostitution, and a wide variety of other evils. These are precisely the same interests that have been asserted time and again before this Court as justification for laws banning frank discussion of sex and that we have consistently rejected. In fact, the empirical link between sex-related entertainment and the criminal activity popularly associated with it has never been proved and, indeed, has now been largely discredited. See, e.g., Report of the Commission on Obscenity and Pornography 27 (1970); Cairns, Paul, & Wishner, Sex Censorship: The Assumptions of Anti-Obscenity Laws and the Empirical Evidence, 46 Minn.L.Rev. 1009 (1962). Yet even if one were to concede that such a link existed, it would hardly justify a broadscale attack on First Amendment freedoms. The only way to stop murders and drugs abuse is to punish them directly. But the State's interest in controlling material dealing with sex is secondary in nature.10 It can control rape and prostitution by punishing those acts, rather than by punishing the speech that is one step removed from the feared harm.11 Moreover, because First Amendment rights are at stake, the State must adopt this 'less restrictive alternative' unless it can make a compelling demonstration that the protected activity and criminal conduct are so closely linked that only through regulation of one can the other be stopped. Cf. United States v. Robel, 389 U.S. 258, 268, 88 S.Ct. 419, 426, 19 L.Ed.2d 508 (1967). As we said in Stanley v. Georgia, 394 U.S. 557, 566—567 89 S.Ct. 1243, 1249, 22 L.Ed.2d 542 (1969), 'if the State is only concerned about printed or filmed materials inducing antisocial conduct, we believe that in the context of private consumption of ideas and information we should adhere to the view that '(a)mong free men, the deterrents ordinarily to be applied to prevent crime are education and punishment for violations of the law . . ..' Whitney v. California, 274 U.S. 357, 378, 47 S.Ct. 641, 649, 71 L.Ed. 1095 (1927) (Brandeis, J., concurring). . . . Given the present state of knowledge, the State may no more prohibit mere possession of obscene matter on the ground that it may lead to antisocial conduct than it may prohibit possession of chemistry books on the ground that they may lead to the manufacture of homemade spirits.'12
57
* It should thus be evident that, under the standards previously developed by this Court, the California regulations are overbroad: They would seem to suppress not only obscenity outside the scope of the First Amendment, but also speech that is clearly protected. But California contends that these regulations do not involve suppression at all. The State claims that its rules are not regulations of obscenity, but are rather merely regulations of the sale and consumption of liquor. Appellants point out that California does not punish establishments which provide the proscribed entertainment, but only requires that they not serve alcoholic beverages on their premises. Appellants vigorously argue that such regulation falls within the State's general police power as augmented, when alcoholic beverages are involved, by the Twenty-first Amendment.13
58
I must confess that I find this argument difficult to grasp. To some extent, it seems premised on the notion that the Twenty-first Amendment authorizes the States to regulate liquor in a fashion which would otherwise be constitutionally impermissible. But the Amendment by its terms speaks only to state control of the importation of alcohol, and its legislative history makes clear that it was intended only to permit 'dry' States to control the flow of liquor across their boundaries despite potential Commerce Clause objections.14 See generally Joseph E. Seagram & Sons Inc. v. Hostetter, 384 U.S. 35, 86 S.Ct. 1254, 16 L.Ed.2d 336 (1966); Hostetter v. Idlewild Bon Voyage Liquor Corp., 377 U.S. 324, 84 S.Ct. 1293, 12 L.Ed.2d 350 (1964). There is not a word in that history which indicates that Congress meant to tamper in any way with First Amendment rights. I submit that the framers of the Amendment would be astonished to discover that they had inadvertently enacted a pro tanto repealer of the rest of the Constitution. Only last Term, we held that the State's conceded power to license the distribution of intoxicating beverages did not justify use of that power in a manner that conflicted with the Equal Protection Clause. See Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 178—179, 92 S.Ct. 1965, 1974—1975, 32 L.Ed.2d 627 (1972). Cf. Wisconsin v. Constantineau, 400 U.S. 433, 91 S.Ct. 507, 27 L.Ed.2d 515 (1971); Hornsby v. Allen, 326 F.2d 605 (CA5 1964). I am at a loss to understand why the Twenty-first Amendment should be thought to override the First Amendment but not the Fourteenth.
59
To be sure, state regulation of liquor is important, and it is deeply embedded in our history. See, e.g., Colonnade Catering Corp. v. United States, 397 U.S. 72, 77, 90 S.Ct. 774, 777, 25 L.Ed.2d 60 (1970). But First Amendment values are important as well. Indeed in the past they have been thought so important as to provide an independent restraint on every power of Government. 'Freedom of press, freedom of speech, freedom of religion are in a preferred position.' Murdock v. Pennsylvania, 319 U.S. 105, 115, 63 S.Ct. 870, 876, 87 L.Ed. 1292 (1943). Thus, when the Government attempted to justify a limitation on freedom of association by reference to the war power, we categorically rejected the attempt. '(The) concept of 'national defense" we held, 'cannot be deemed an end in itself, justifying any exercise of legislative power designed to promote such a goal. Implicit in the term 'national defense' is the notion of defending those values and ideals which set this Nation apart. For almost two centuries, our country has taken singular pride in the democratic ideals enshrined in its Constitution, and the most cherished of those ideals have found expression in the First Amendment. It would indeed, be ironic if, in the name of national defense, we would sanction the subversion of one of those liberties—the freedom of association—which makes the defense of the Nation worthwhile.' United States v. Robel, 389 U.S., at 264, 88 S.Ct., at 423—424. Cf. New York Times Co. v. United States, 403 U.S. 713, 716—717, 91 S.Ct. 2140, 2142 2143, 29 L.Ed.2d 822 (1971) (Black, J., concurring); Home Bldg. & Loan Ass'n v. Blaisdell, 290 U.S. 398, 426, 54 S.Ct. 231, 235, 78 L.Ed. 413 (1934). If the First Amendment limits the means by which our Government can ensure its very survival, then surely it must limit the State's power to control the sale of alcoholic beverages as well.
60
Of course, this analysis is relevant only to the extent that California has in fact encroached upon First Amendment rights. Appellants argue that no such encroachment has occurred, since appellees are free to continue providing any entertainment they choose without fear of criminal penalty. Appellants suggest that this case is somehow different because all that is at stake is the 'privilege' of serving liquor by the drink.
61
It should be clear, however, that the absence of criminal sanctions is insufficient to immunize state regulation from constitutional attack. On the contrary, 'this is only the beginning, not the end, of our inquiry.' Sherbert v. Verner, 374 U.S. 398, 403—404, 83 S.Ct. 1790, 1794, 10 L.Ed.2d 965 (1963). For '(i)t is too late in the day to doubt that the liberties of religion and expression may be infringed by the denial of or placing of conditions upon a benefit or privilege.' Id., at 404, 84 S.Ct., at 1794. As we pointed out only last Term, '(f)or at least a quarter century, this Court has made clear that even though a person has no 'right' to a valuable governmental benefit and even thought the government may deny him the benefit for any number or reasons, there are some reasons upon which the government may not act. It may not deny a benefit to a person on a basis that infringes his constitutionally protected interests especially, his interest in freedom of speech. For if the government could deny a benefit to a person because of his constitutionally protected speech or associations, his exercise of those freedoms would in effect be penalized and inhibited.' Perry v. Sindermann, 408 U.S. 593, 597, 92 S.Ct. 2694, 2697, 33 L.Ed.2d 570 (1972).
62
Thus, unconstitutional conditions on welfare benefits,15 unemployment compensation,16 tax exemptions,17 public employment,18 bar admissions,19 and mailing privileges20 have all been invalidated by this Court. In none of these cases were criminal penalties involved. In all of them, citizens were left free to exercise their constitutional rights so long as they were willing to give up a 'gratuity' that the State had no obligation to provide. Yet in all of them, we found that the discriminatory provision of a privilege placed too great a burden on constitutional freedoms. I therefore have some difficulty in understanding why California nightclub proprietors should be singled out and informed that they alone must sacrifice their constitutional rights before gaining the 'privilege' to serve liquor.
63
Of course, it is true that the State may in proper circumstances enact a broad regulatory scheme that incidentally restricts First Amendment rights. For example, if California prohibited the sale of alcohol altogether, I do not mean to suggest that the proprietors of theaters and bookstores would be constitutionally entitled to a special dispensation. But in that event, the classification would not be speech related and, hence, could not be rationally perceived as penalizing speech. Classifications that discriminate against the exercise of constitutional rights per se stand on an altogether different footing. They must be supported by a 'compelling' governmental purpose and must be carefully examined to insure that the purpose is unrelated to mere hostility to the right being asserted. See, e.g., Shapiro v. Thompson, 394 U.S. 618, 634, 89 S.Ct. 1322, 1331, 22 L.Ed.2d 600 (1969).
64
Moreover, not only is this classification speech related; it also discriminates between otherwise indistinguishable parties on the basis of the content of their speech. Thus, California nightclub owners may present live shows and movies dealing with a wide variety of topics while maintaining their licenses. But if they choose to deal with sex, they are treated quite differently. Classifications based on the content of speech have long been disfavored and must be viewed with the gravest suspicion. See, e.g., Cox v. Louisiana, 379 U.S. 536, 556—558, 85 S.Ct. 453, 465 466, 13 L.Ed.2d 471 (1965). Whether this test is thought to derive from equal protection analysis, see Police Department of City of Chicago v. Mosley, 408 U.S. 92, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972); Niemotko v. Maryland, 340 U.S. 268, 71 S.Ct. 325, 95 L.Ed. 267, 280 (1951), or directly from the substantive constitutional provision involved, see Cox v. Louisiana, supra; Schneider v. State, 308 U.S. 147, 60 S.Ct. 146, 84 L.Ed. 155 (1939), the result is the same: any law that has 'no other purpose . . . than to chill the assertion of constitutional rights by penalizing those who choose to exercise them . . . (is) patently unconstitutional.' United States v. Jackson, 390 U.S. 570, 581, 88 S.Ct. 1209, 1216, 20 L.Ed.2d 138 (1968).
65
As argued above, the constitutionally permissible purposes asserted to justify these regulations are too remote to satisfy the Government's burden, when First Amendment rights are at stake. See supra, at 131—133. It may be that the Government has an interest in suppressing lewd or 'indecent' speech even when it occurs in private among consenting adults. Cf. United States v. Thirty-seven Photographs, 402 U.S. 363, 376, 91 S.Ct. 1400, 1408, 28 L.Ed.2d 822 (1971). But cf. Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969). That interest, however, must be balanced against the overriding interest of our citizens in freedom of thought and expression. Our prior decisions on obscenity set such a balance and hold that the Government may suppress expression treating with sex only if it meets the three-pronged Roth-Memoirs test. We have said that '(t)he door barring federal and state intrusion into this area cannot be left ajar; it must be kept tightly closed and opened only the slightest crack necessary to prevent encroachment upon more important interests.' Roth v. United States, 354 U.S., at 488, 77 S.Ct., at 1311. Because I can see no reason why we should depart from that standard in this case, I must respectfully dissent.
1
Appellees in their brief here suggest that the regulations may exceed the authority conferred upon the Department as a matter of state law. As the District Court recognized, however, such a claim is not cognizable in the suit brought by these appellees under 42 U.S.C. § 1983.
2
In addition to the regulations held unconstitutional by the court below appellees originally challenged Rule 143.2 prohibiting topless waitresses, Rule 143.3(2) requiring certain entertainers to perform on a stage at a distance away from customers, and Rule 143.5 prohibiting any entertainment that violated local ordinances. At oral argument in that court they withdrew their objections to these rules, conceding 'that topless waitresses are not within the protection of the First Amendment; that local ordinances must be independently challenged depending upon their content; and that the requirement that certain entertainers must dance on a stage is not invalid.' 326 F.Supp. 348, 350—351.
3
Mr. Justice DOUGLAS in his dissenting opinion suggests that the District Court should have declined to adjudicate the merits of appellees' contention until the appellants had given the 'generalized
provisions of the rules . . . particularized meaning.' Since parties may not confer jurisdiction either upon this Court or the District Court by stipulation, the request of both parties in this case that the court below adjudicate the merits of the constitutional claim does not foreclose our inquiry into the existence of an 'actual controversy' within the meaning of 28 U.S.C. § 2201 and Art. III, § 2, cl. 1, of the Constitution.
By pretrial stipulation, the appellees admitted they offered performances and depictions on their licensed premises that were proscribed by the challenged rules. Appellants stipulated they would take disciplinary action against the licenses of licensees violating such rules. In similar circumstances, this Court held that where a state commission had 'plainly indicated' an intent to enforce an act that would affect the rights of the United States, there was a 'present and concrete' controversy within the meaning of 28 U.S.C. § 2201 and of Art. III. Public Utilities Comm'n of California v. United States, 355 U.S. 534, 539, 78 S.Ct. 446, 450, 2 L.Ed.2d 470 (1958). The District Court therefore had jurisdiction of this action.
Whether this Court should develop a nonjurisdictional limitation on actions for declaratory judgments to invalidate statutes on their face is an issue not properly before us. Cf. Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 341, 56 S.Ct. 466, 480, 80 L.Ed. 688 (1936) (Brandeis, J., concurring). Certainly a number of our cases have permitted attacks on First Amendment grounds similar to those advanced by the appellees, see, e.g., Zwickler v. Koota, 389 U.S. 241, 88 S.Ct. 391, 19 L.Ed.2d 444 (1967); Keyishian v. Board of Regents, 385 U.S. 589, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967); Baggett v. Bullitt, 377 U.S. 360, 84 S.Ct. 1316, 12 L.Ed.2d 377 (1964), and we are not inclined to reconsider the procedural holdings of those cases in the absence of a request by a party to do so.
4
Similarly, States may validly limit the manner in which the First Amendment freedoms are exercised, by forbidding sound trucks in residential neighborhoods, Kovacs v. Cooper, 336 U.S. 77, 69 S.Ct. 448, 93 L.Ed. 513 (1949), and may enforce a nondiscriminatory requirement that those who would parade on a public thoroughfare first obtain a permit. Cox v. New Hampshire, 312 U.S. 569, 61 S.Ct. 762, 85 L.Ed. 1049 (1941). Other state limitations on the 'time, manner and place' of the exercise of First Amendment rights have been sustained. See, e.g., Cameron v. Johnson, 390 U.S. 611, 88 S.Ct. 1335, 20 L.Ed.2d 182 (1968), and Cox v. Louisiana, 379 U.S. 559, 85 S.Ct. 476, 13 L.Ed.2d 487 (1965).
5
Because of the posture of this case, we have necessarily dealt with the regulations on their face, and have found them to be valid. The admonition contained in the Court's opinion in Joseph E. Seagram & Sons v. Hostetter, 384 U.S. 35, 52, 86 S.Ct. 1254, 1264, 16 L.Ed.2d 336 (1966), is equally in point here: 'Although it is possible that specific future applications of (the statute) may engender concrete problems of constitutional dimension, it will be time enough to consider any such problems when they arise. We deal here only with the statute on its face. And we hold that so considered, the legislation is constitutionally valid.'
*
This is not to say that the Twenty-first Amendment empowers a State to act with total irrationality or invidious discrimination in controlling the distribution and dispensation of liquor within its borders. And it most assuredly is not to say that the Twenty-first Amendment necessarily overrides in its allotted area any other relevant provision of the Constitution. See Wisconsin v. Constantineau, 400 U.S. 433, 91 S.Ct. 507, 27 L.Ed.2d 515; Hostetter v. Idlewild Bon Voyage Liquor Corp., 377 U.S. 324, 329—334, 84 S.Ct. 1293, 1296—1299, 12 L.Ed.2d 350; Dept. of Revenue v. James B. Beam Distilling Co., 377 U.S. 341, 84 S.Ct. 1247, 12 L.Ed.2d 362.
1
Section 2 of the Twenty-first Amendment reads as follows:
'The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.'
2
Even in cases on direct appeal from state court, when the decision below leaves unresolved questions of state law or procedure which bear on federal constitutional questions, we dismiss the appeal. Rescue Army v. Municipal Court, 331 U.S. 549, 67 S.Ct. 1409, 91 L.Ed. 1666.
1
Rule 143.3(1) provides in relevant part:
'No licensee shall permit any person to perform acts of or acts which simulate:
'(a) Sexual intercourse, masturbation, sodomy, bestiality, oral copulation, flagellation or any sexual acts which are prohibited by law.
'(b) The touching, caressing or fondling on the breasts, buttocks, anus or genitals.
'(c) The displaying of the pubic hair, anus, vulva or genitals.'
Rule 143.4 prohibits: 'The showing of film, still pictures, electronic reproduction, or other visual reproductions depicting:
'(1) Acts or simulated acts of sexual intercourse, masturbation, sodomy, bestiality, oral copulation, flagellation or any sexual acts which are prohibited by law.
'(2) Any person being touched, caressed or fondled on the breast, buttocks, anus or genitals.
'(3) Scenes wherein a person displays the vulva or the anus or the genitals.
'(4) Scenes wherein artificial devices or inanimate objects are employed to depict, or drawings are employed to portray, any of the prohibited activities described above.
2
This is not an appropriate case for application of the abstention doctrine. Since these regulations are challenged on their face for overbreadth, no purpose would be served by awaiting a state court construction of them unless the principles announced in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), govern. See Zwickler v. Koota, 389 U.S. 241, 248—250, 88 S.Ct. 391, 395—396, 19 L.Ed.2d 444 (1967). Thus far, however, we have limited the applicability of Younger to cases where the plaintiff has an adequate remedy in a pending criminal prosecution. See Younger v. Harris, supra, 401 U.S. at 43—44, 91 S.Ct. at 750. Cf. Douglas v. City of Jeannette, 319 U.S. 157, 63 S.Ct. 877, 87 L.Ed. 1324 (1943). But cf. Berryhill v. Gibson, 331 F.Supp. 122, 124 (MD Ala.1971), probable jurisdiction noted, 408 U.S. 920, 92 S.Ct. 2487, 33 L.Ed.2d 331 (1972). The California licensing provisions are, of course, civil in nature. Cf. Hearn v. Short, 327 F.Supp. 33 (SD Tex.1971). Moreover, the Younger doctrine has been held to 'have little force in the absence of a pending state proceeding.' Lake Carriers' Ass'n v. MacMullan, 406 U.S. 498, 509, 92 S.Ct. 1749, 1757, 32 L.Ed.2d 257 (1972) (emphasis added). There are at present no proceedings of any kind pending against these appellees. Finally, since the Younger doctrine rests heavily on federal deference to state administration of its own statutes, see Younger v. Harris, supra, 401 U.S. at 44—45, 91 S.Ct. at 750—751, it is waivable by the State. Cf. Hostetter v. Idlewild Bon Voyage Liquor Corp., 377 U.S. 324, 329, 84 S.Ct. 1293, 1296, 12 L.Ed.2d 350 (1964). Appellants have nowhere mentioned the Younger doctrine in their brief before this Court, and when the case was brought to the attention of the attorney for the appellants during oral argument, he expressly eschewed reliance on it. In the court below, appellants specifically asked for a federal decision on the validity of California's regulations and stated that they did not think the court should abstain. See 326 F.Supp. 348, 351 (CD Cal.1971).
3
I am startled by the majority's suggestion that the regulations are constitutional on their face even though 'specific future applications of (the statute) may engender concrete problems of constitutional dimension.' (Quoting with approval Joseph E. Seagram & Sons v. Hostetter, 384 U.S. 35, 52, 86 S.Ct. 1254, 1265, 16 L.Ed.2d 336 (1966). Ante, at 119 n. 5.) Ever since Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093 (1940), it has been thought that statutes which trench upon First Amendment rights are facially void even if the conduct of the party challenging them could be prohibited under a more narrowly drawn scheme. See, e.g., Baggett v. Bullitt, 377 U.S. 360, 366, 84 S.Ct. 1316, 1319, 12 L.Ed.2d 377 (1964); Coates v. City of Cincinnati, 402 U.S. 611, 616, 91 S.Ct. 1686, 1689, 29 L.Ed.2d 214 (1971); NAACP v. Button, 371 U.S. 415, 432—433, 83 S.Ct. 328, 337 338, 9 L.Ed.2d 405 (1963).
Nor is it relevant that the State here 'sought to prevent (bacchanalian revelries)' rather than performances by 'scantily clad ballet troupe(s).' Whatever the State 'sought' to do, the fact is that these regulations cover both these activities. And it should be clear that a praiseworthy legislative motive can no more rehabilitate an unconstitutional statute than an illicit motive can invalidate a proper statute.
4
Indeed, there are some indications in the legislative history that California adopted these regulations for the specific purpose of evading those standards. Thus, Captain Robert Devin of the Los Angeles Police Department testified that the Department favored adoption of the new regulations for the following reason: 'While statutory law has been available to us to regulate what was formerly considered as antisocial behavior, the federal and state judicial system has, through a series of similar decisions, effectively emasculated law enforcement in its effort to contain and to control the growth of pornography and of obscenity and of behavior that is associated with this kind of performance.' See also testimony of Roy E. June, City Attorney of the City of Costa Mesa; testimony of Richard C. Hirsch, Office of Los Angeles County District Attorney. App. 117.
5
I do not mean to suggest that this test need be rigidly applied in all situations. Different standards may be applicable when children are involved, see Ginsberg v. New York, 390 U.S. 629, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968); when a consenting adult possesses putatively obscene material in his own home, see Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969); or when the material by the nature of its presentation cannot be viewed as a whole, see Rabe v. Washington, 405 U.S. 313, 317 n. 2, 92 S.Ct. 993, 995, 31 L.Ed.2d 258 (1972) (Burger, C.J., concurring). Similarly, I do not mean to foreclose the possibility that even the Roth-Memoirs test will ultimately be found insufficient to protect First Amendment interests when consenting adults view putatively obscene material in private. Cf. Redrup v. New York, 386 U.S. 767, 87 S.Ct. 1414, 18 L.Ed.2d 515 (1967). But cf. United States v. Reidel, 402 U.S. 351, 91 S.Ct. 1410, 28 L.Ed.2d 813 (1971). But I do think that, at very least, Roth-Memoirs sets an absolute limit on the kinds of speech that can be altogether read out of the First Amendment for purposes of consenting adults.
6
Cf. Fuller, Changing Society Puts Taste to the Test, The National Observer, June 10, 1972, p. 24: 'Context is the essence of esthetic judgment . . .. There is a world of difference between Playboy and less pretentious girly magazines on the one hand, and on the other, The Nude, a picture selection from the whole history of art, by that fine teacher and interpreter of civilization, Kenneth Clark. People may be just as naked in one or the other, the bodies inherently just as beautiful, but the context of the former is vulgar, of the latter, esthetic.
'The same words, the same actions, that are cheap and tawdry in one book or play may contribute to the sublimity, comic universality or tragic power of others. For a viable theory of taste, context is all.'
7
Moreover, even if the O'Brien test were here applicable, it is far from clear that it has been satisfied. For example, most of the evils that the State alleges are caused by appellees' performances are already punishable under California law. See n. 11, infra. Since the less drastic alternative of criminal prosecution is available to punish these violations, it is hard to see how 'the incidental restriction on alleged First Amendment freedoms is no greater than is essential' to further the State's interest.
8
The Court pointed out that the statute 'does not distinguish between public and private destruction, and it does not punish only destruction engaged in for the purpose of expressing views . . . A law prohibiting destruction of Selective Service certificates no more abridges free speech on its face than a motor vehicle law prohibiting the destruction of drivers' licenses, or a tax law prohibiting the destruction of books and records.' 391 U.S., at 375, 88 S.Ct., at 1678.
9
Of course, the State need not meet the clear and present danger test if the material in question is obscene. See Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957). But, as argued above, the difficulty with California's rules is that they do not conform to the Roth test and therefore regulate material that is not obscene. See supra, at 126—127.
10
This case might be different if the State asserted a primary interest in stopping the very acts performed by these dancers and actors. However, I have serious doubts whether the State may constitutionally assert an interest in regulating any sexual act between consenting adults. Cf. Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965). Moreover, it is unnecessary to reach that question in this case since the State's regulations are plainly not designed to stop the acts themselves, most of which are in fact legal when done in private. Rather, the State punishes the acts only when done in public as part of a dramatic presentation. Cf. United States v. O'Brien, supra, 391 U.S. at 375, 88 S.Ct. at 1678. It must be, therefore, that the asserted state interest stems from the effect of the acts on the audience rather than from a desire to stop the acts themselves. It should also be emphasized that this case does not present problems of an unwilling audience or of an audience composed of minors.
11
Indeed, California already has statutes controlling virtually all of the misconduct said to flow from appellees' activities. See Calif.Penal Code § 647(b) (Supp.1972) (prostitution); Calif.Penal Code §§ 261, 263 (1970) (rape); Calif.Bus. & Prof.Code § 25657 (Supp.1972) ('B-Girl' activity); Calif.Health & Safety Code §§ 11500, 11501, 11721, 11910, 11912 (1964 and Supp.1972) (sale and use of narcotics).
12
Of course, it is true that Stanley does not govern this case, since Stanley dealt only with the private possession of obscene materials in one's own home. But in another sense, this case is stronger than Stanley. In Stanley, we held that the State's interest in the prevention of sex crimes did not justify laws restricting possession of certain materials, even though they were conceded to be obscene. It follows a fortiori that this interest is insufficient when the materials are not obscene and, indeed, are constitutionally protected.
13
The Twenty-first Amendment, in addition to repealing the Eighteenth Amendment, provides: 'The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.'
14
The text of the Amendment is based on the Webb-Kenyon Act, 37 Stat. 699, which antedated prohibition. The Act was entitled 'An Act Divesting intoxicating liquors of their interstate character in certain cases,' and was designed to allow 'dry' States to regulate the flow of alcohol across their borders. See, e.g., McCormick & Co. v. Brown, 286 U.S. 131, 140—141, 52 S.Ct. 522, 526, 76 L.Ed. 1017 (1932); Clark Distilling Co. v. Western Maryland R. Co., 242 U.S. 311, 324, 37 S.Ct. 180, 184, 61 L.Ed. 326 (1917). The Twenty-first Amendment was intended to embed this principle permanently into the Constitution. As explained by its sponsor on the Senate floor 'to assure the so-called dry States against the importation of intoxicating liquor into those States, it is proposed to write permanently into the Constitution a prohibition along that line.
'(T)he pending proposal will give the States that guarantee. When our Government was organized and the Constitution of the United States adopted, the States surrendered control over and regulation of interstate commerce. This proposal is restoring to the States, in effect, the right to regulate commerce respecting a single commodity—namely, intoxicating liquor.' 76 Cong.Rec. 4141 (remarks of Sen. Blaine).
15
See Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969). But cf. Wyman v. James, 400 U.S. 309, 91 S.Ct. 381, 27 L.Ed.2d 408 (1971).
16
See Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963).
17
See Speiser v. Randall, 357 U.S. 513, 78 S.Ct. 1332, 2 L.Ed.2d 1460 (1958).
18
See, e.g., Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968); Keyishian v. Board of Regents, 385 U.S. 589, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967); Baggett v. Bullitt, 377 U.S. 360, 84 S.Ct. 1316, 12 L.Ed.2d 377 (1964).
19
See, e.g., Baird v. State Bar of Arizona, 401 U.S. 1, 91 S.Ct. 702, 27 L.Ed.2d 639 (1971); Konigsberg v. State Bar, 353 U.S. 252, 77 S.Ct. 722, 1 L.Ed.2d 810 (1957); Schware v. Board of Bar Examiners, 353 U.S. 232, 77 S.Ct. 752, 1 L.Ed.2d 796 (1957). But cf. Law Students Civil Rights Research Council v. Wadmond, 401 U.S. 154, 91 S.Ct. 720, 27 L.Ed.2d 749 (1971); Konigsberg v. State Bar, 366 U.S. 36, 81 S.Ct. 997, 6 L.Ed.2d 105 (1961).
20
See, e.g., Blount v. Rizzi, 400 U.S. 410, 91 S.Ct. 423, 27 L.Ed.2d 498 (1971); Hannegan v. Esquire Inc., 327 U.S. 146, 156, 66 S.Ct. 456, 461, 90 L.Ed. 586 (1946).
| 23
|
409 U.S. 140
93 S.Ct. 368.
34 L.Ed.2d 365
UNION OIL COMPANY OF CALIFORNIA, Petitioner,v.THE SAN JACINTO et al.
No. 71-900.
Argued Oct. 17, 1972.
Decided Dec. 5, 1972.
Syllabus
Implicit in that portion of Art. 16 of the Inland Rules of Navigation that directs a moderate speed for vessels proceeding in foggy weather, and in the concomitant half-distance rule, is the assumption that vessels can reasonably be expected to be traveling on intersecting courses. On the facts of this case, it was totally unrealistic to anticipate the possibility that the vessels were on intersecting courses and the rule was not applicable. Pp. 144—146.
451 F.2d 1369, reversed.
Kenneth E. Roberts, Portland, Or., for petitioner.
Erskine B. Wood, Portland, Or., for respondents.
Mr. Justice REHNQUIST delivered the opinion of the Court.
1
While proceeding up the Columbia River, the oil tanker S.S. Santa Maria, bareboat chartered by petitioner, was struck by a barge owned by respondent Oliver J. Olson & Co. The barge was being towed by the tugboat San Jacinto, owned by respondent Star & Crescent Towboat Co. Both vessels were damaged. Petitioner commenced this admiralty action for damages to the Santa Maria, and respondent cross-libeled for damages to the barge. The District Court found the collision resulted solely from negligence on the part of the crew of the San Jacinto, and dismissed the cross-libel. 304 F.Supp. 519 (Or.1969). The Ninth Circuit affirmed the finding that the San Jacinto had been negligent, but determined that the Santa Maria was also negligent in violating the 'half-distance' rule, 30 Stat. 99, 33 U.S.C. § 192. That court therefore reversed with directions that the District Court determine the amount of damage sustained by the barge and assess damages under the divided-damages rule. See The Schooner Catharine v. Dickinson, 17 How. 170, 15 L.Ed. 233 (1855). We granted certiorari, 405 U.S. 954, 92 S.Ct. 1177, 31 L.Ed.2d 230 (1972), principally to consider petitioner's request that we abandon the divided-damages rule. The orderly disposition of the issues presented by the petition for certiorari, however, requires that we address ourselves to the issue of liability before reaching the question of damages. Since in so doing we conclude that the Court of Appeals was wrong in holding the Santa Maria liable at all, we do not reach the issue of damages.
2
* On the evening of December 24, 1967, the Santa Maria, loaded with 17,000 tons of petroleum products, was proceeding up the Columbia River toward Portland. The ship was steaming on the Oregon side of the channel, with clear visibility. At the same time, the San Jacinto was proceeding downriver, towing a 275-foot barge, fully loaded with lumber, by a 250-foot towline. Proceeding on the Washington side of the channel, it had encountered foggy weather conditions upriver. As the San Jacinto approached Cooper Point, the Santa Maria, steaming upstream, sighted the tug both visually and by radar. The two vessels were more than a mile apart and on opposite sides of the 500-foot-wide shipping channel. There was heavy fog, described as 'tule fog,' around Cooper Point, but the fog was localized on the Washington side of the channel. Although there was haze and drizzle, there was no fog on the Oregon side of the channel; the visibility from the bridge of the Santa Maria upstream was between one and one-half and two miles.
3
As the San Jacinto entered the fog on the Washington side off Cooper Point, the Santa Maria lost visual contact with the tug and barge. The Santa Maria's pilot did not track the San Jacinto on radar, believing that the tug would remain on the Washington side of the channel and knowing that there was ample room for a port-to-port passage. At this time, the Santa Maria was proceeding at half-speed making approximately seven knots.
4
The watch on the San Jacinto had not sighted the Santa Maria when the tug entered the heavy fog off Cooper Point. The tug's captain testified that, after entering the fog, he cut speed to three or three and one-half knots, and the visibility dead ahead was approximately 50 yards. The San Jacinto's navigators were 'navigating by visual sight of the Washington coast,' and the captain estimated that the tug passed between 50 and 75 yards off Cooper Point. At that point, the crew of the San Jacinto heard one blast of a ship's horn (later discovered to have been that of the Santa Maria), and responded with the fog signal for a tug with a barge in tow. No visual sighting of a ship was made, however. Shortly thereafter, the captain sighted range lights, which, he testified, he thought were 20 degrees off his starboard bow. To avoid what he anticipated to be a momentary collision, the captain swung the San Jacinto to port—towards the Oregon side of the channel—and executed a U-turn, hoping to run upriver and thus avoid a collision.
5
The San Jacinto started the U-turn while still in the heavy fog, and the execution of the turn brought the tug on a course directly across that of the Santa Maria. The Santa Maria sighted the San Jacinto emerging from the fog, at right angles to the Santa Maria, at a distance of approximately 900 feet. Full astern was immediately ordered. The San Jacinto, quickly completing the turn, headed safely upriver. Before the Santa Maria could completely stop, however, the barge in tow sideslipped across the channel, crashing into the port bow of the Santa Maria; the force of that blow drove the tanker aground.
6
The District Court found that the San Jacinto and the barge, and those in charge of navigation, were negligent in eight respects, including navigating at excessive speed, failing to maintain a proper lookout, and 'acting hastily and without sufficient cause in pulling the tow across the channel when there was adequate clearance for the tug and barge to pass port to port.' The court found that 'the collision was proximately caused by the sole fault and negligence' of the San Jacinto and the barge, and that the acts of negligence allegedly committed by the Santa Maria did not 'proximately (contribute) to the collision and resulting damage.' 304 F.Supp., at 521, 522.
7
The Ninth Circuit partially reversed, holding that the Santa Maria was proceeding at an immoderate speed in traveling at three to seven knots 'while approaching the edge of the fog bank.' That court reasoned that the San Jacinto was only 900 feet from the Santa Maria when the tug emerged from the fog bank, and the Santa Maria's speed was such that she could not stop within half that distance. The court, relying on The Silver Palm, 94 F.2d 754 (CA9), cert. denied sub nom. United States v. Silver Line, Ltd., 304 U.S. 576, 58 S.Ct. 1046, 82 L.Ed. 1539 (1937), deemed it immaterial that the visibility up the Oregon side of the channel the direction in which the Santa Maria was headed—was almost two miles, because in its view the 'relevant distance' for calculating the proper speed under the half-distance rule was the distance between the tanker and the fog bank—to port of the santa maria. Finding statutory fault, and ruling that petitioner had failed to prove that that fault could not have possibly contributed to the collision, see The Pennsylvania, 19 Wall. 125, 22 L.Ed. 148 (1874), the Court of Appeals held the Santa Maria liable for half the total damages.
II
8
The question of the liability of the Santa Maria turns on the application of Art. 16 of the Inland Rules of Navigation, 33 U.S.C. § 192. That Rule provides in pertinent part:
9
'Every vessel shall, in a fog, mist, falling snow, or heavy rainstorms, go at a moderate speed, having careful regard to the existing circumstances and conditions.' (Emphasis added.)
10
Although the statutory test for determining the proper speed at which a vessel should proceed in a fog is phrased in general terms, our decisions have attached a well-recognized gloss to that phrase. This gloss on the statutory rule, variously referred to as the half-distance rule or the 'rule of slight,' is that, in a fog, 'a moderate speed' is that
11
'rate of speed as would enable (the vessel) to come to a standstill, by reversing her engines at full speed, before she should collide with a vessel which she should see through the fog.' The Nacoochee, 137 U.S. 330, 339, 11 S.Ct. 122, 125, 34 L.Ed. 687 (1890).
12
See also The Colorado, 91 U.S. 692, 702, 23 L.Ed. 379 (1876); the Umbria, 166 U.S. 404, 417, 17 S.Ct. 610, 615, 41 L.Ed. 1053 (1897). As stated in The Chattahoochee, 173 U.S. 540, 548, 19 S.Ct. 491, 494, 43 L.Ed. 801 (1899), '(t) he principal reason for such reduction of speed is that it will give (both) vessels time to avoid a collision after coming in sight of each other.' If two vessels, upon sighting each other, are proceeding at rates of speed such that each can stop before it reaches the point at which the courses of the two intersect, collision is impossible.
13
There can be no quarrel with the salutary purpose of this 'rule of thumb.' It is premised on the notion that when a ship is traveling under foggy weather conditions in waters in which other ships might be proceeding on intersecting courses, the speed of each ship must be such as to enable her to stop within half the distance separating the ships when they first sight each other. Implicit in the rule, however, is the assumption that vessels can reasonably be expected to be traveling on intersecting courses. If, on the facts of the case, it is totally unrealistic to anticipate the possibility that a vessel will travel on a particular heading that would intersect the course of another ship, the reason for the rule is rather clearly not present.
14
Those cases in which this Court has upheld a finding of statutory fault because of a violation of the half-distance rule involved ships proceeding in fog on established coastal shipping lanes. The City of New York, 147 U.S. 72, 13 S.Ct. 211, 37 L.Ed. 84 (1893); The Nacoochee, supra; cf. The Colorado, supra (Lake Huron), or ships traveling near or in a harbor, The Umbria, supra; cf. The Ludvig Holberg, 157 U.S. 60, 15 S.Ct. 477, 39 L.Ed. 620 (1895) (no fault). We do not imply that because a vessel is running near fog, as opposed to running in it, the vessel is not required to proceed at 'a moderate speed' in relation to the distance to the fog cover. That was, indeed, the circumstance in The Silver Palm, supra, upon which the Ninth Circuit relied. But there a naval cruiser was traveling, with clear visibility ahead but with fog banks on each side, on the busy coastal shipping lane between San Francisco and Los Angeles. On such a course it is reasonable to expect that another ship might steam out of the fog at right angles to, and on a collision course with, the first vessel. The rule of sight was applicable there precisely because of the reasonable possibility that such an event might occur.
15
The facts of our case were significantly different. The Santa Maria and the San Jacinto were proceeding on opposite sides of a well-defined and relatively narrow channel. The Santa Maria had last sighted the tug only a mile ahead, proceeding along the Washington coast. Those in charge of the navigation of the tanker cannot be faulted for not anticipating the tug's totally unorthodox maneuver in darting across such a channel. The Victory & The Plymothian, 168 U.S. 410, 18 S.Ct. 149, 42 L.Ed. 519 1897). The visibility in the direction in which the Santa Maria was headed was almost two miles. There is no evidence in the record suggesting that the speed of the tanker would have prevented her from coming to a complete halt within half the distance of sighting a vessel that was either proceeding on a remotely foreseeable intersecting course or else being overtaken by her. The tug emerged from a fog bank only 900 feet from the tanker on a course and for reasons that no seaman could, under the circumstances, have anticipated.
16
The District Court's finding that any negligence on the part of the Santa Maria did not 'proximately (contribute) to the collision' was but another way of saying that fault based on the half-distance rule must have some relationship to the dangers against which that rule was designed to protect. Here it did not. We believe that the District Court, and not the Court of Appeals, reached the correct result on the issue of liability.
17
Since in our view respondents alone were at fault, there is no occasion to consider how damages should be apportioned were both vessels at fault.
18
Reversed.
19
Mr. Justice STEWART, with whom Mr. Justice DOUGLAS and Mr. Justice BRENNAN join, dissenting.
20
On a misty Christmas Eve the petitioner's oil tanker—the Santa Marie—was moving upstream along the Oregon side of the channel of the Columbia River. The vessel was proceeding at half speed with forward visibility of one and a half to two miles. Both visually and by radar, the tanker's pilot sighted the respondent tug, the San Jacinto, which was moving downstream along the Washington side of the channel more than a mile ahead. The tug, with a heavily laden barge in tow, disappeared from sight into a patch of fog. The inexperienced crew of the tug became disoriented in the fog and mistakenly thought the tanker had veered to the Washington side of the channel. To avoid what he believed would be a collision, the master of the tug executed a sharp leftward U-turn directly into the path of the oncoming tanker. While the tug successfully completed its turn, the barge swung around and smashed into the tanker, damaging her forward left side and driving her aground.
21
In a complaint and cross-complaint the owners of both vessels sued, each charging the other with sole blame. The District Court found that the collision was entirely the fault of the tug—in navigating at an unreasonable speed in fog, in failing to maintain a proper lookout, in failing to sound fog signals, and in failing to ascertain the risk of collision and sound the danger signal, in failing to reduce speed or take any evasive action, in failing to keep the tow in control, and in turning directly into the path of the tanker. 304 F.Supp. 519. Finding that the tanker was also at fault in proceeding at a rate in excess of that which would have allowed her to stop in one-half the visibility before her, the Court of Appeals for the Ninth Circuit modified the judgment of the District Court. 451 F.2d 1369. Though the tug's fault was 'more flagrant and shocking,' id., at 1374, the tanker was held liable for half the damages, since she was unable to prove that her fault could not possibly have contributed to the collision.1
22
I would reaffirm the continued vitality of the 'half-distance' rule and approve its application in this case. I cannot concur in the Court's decision, which, while apparently approving the 'salutary purpose' of the rule, guts its certainty by making its application turn on elusive concepts such as the reasonable possibility of collision, or the particular bearing that a vessel might be expected to take on emerging from a fog bank. In short, the Court today allows a vessel to proceed at an immoderate speed, provided that its crew does not expect a collision. I cannot agree.
23
The half-distance rule is a rational interpretation of the command of Art. 16 of the Inland Rules that vessels shall proceed at a 'moderate speed' in fog with a 'careful regard to the existing circumstances and conditions.' 33 U.S.C. § 192. The rule does not simply require a vessel to be able to stop in one-half the distance of her forward visibility, but rather 'to maintain only such a rate of speed as would enable her to come to a standstill, by reversing her engines at full speed, before she should collide with a vessel which she should see through the fog.' The Nacoochee, 137 U.S. 330, 339, 11 S.Ct. 122, 125, 34 L.Ed. 687.2 As one scholar phrased the rule: 'the vessels must be able to stop, not within the distance of visibility, but before they collide.' J. Griffin, The American Law of Collision 295 (1949).
24
In this case, the crew of the Santa Marie knew that the San Jacinto had disappeared into a fog bank over a mile ahead on the Washington side of the narrow channel. The tanker nevertheless steamed ahead at half-speed as it approached the edge of the fog bank. When the Santa Maria sighted the tug emerging from the fog and cutting directly across her course, no more than 900 feet separated the vessels. The Court of Appeals found a violation of the half-distance rule in that the tanker could not stop within 450 feet.3 Indeed, since the tug had turned back upstream at the time of the tanker's collision with the barge, the Santa Maria covered considerably more than half the distance that initially separated the vessels.
25
I agree with the Court of Appeals that the half-distance rule correctly applies to the facts of this case. Not only was the Santa Maria navigating near a fog bank in a narrow, heavily traveled shipping channel, but she actually knew that a tug was in the fog bank off the port bow; the tug might become disoriented in the fog and emerge on a collision course. And for that reason the Santa Maria should not have been proceeding at a rate in excess of the speed which would have allowed her to stop in half the distance ahead. The tug emerged from the fog and cut directly across the path of the tanker, approximately 900 feet ahead. But surely the half-distance rule does not apply only to head-on collisions. See The Silver Palm, 9 Cir., 94 F.2d 754. Moreover, the tanker here should not be any less at fault because the tug emerged tangentially to her course rather than on a head-on collision course. If the tug had altered her course in the fog and emerged steaming head on into the tanker rather than across her course—which would have been quite possible since the channel was only 500 feet wide at this point—the Santa Maria would still have had to stop within 450 feet. Since the tug was not closing the distance between the vessels, the tanker actually had more distance within which to stop than she would have had if the tug had followed a more orthodox collision course. The half-distance rule cannot mean that a ship can travel in the direction of a fog bank, oblivious to the possibility that another vessel might become lost there and steam out across or into the first vessel's path.
26
Concepts such as 'reasonable expectancy,' 'anticipated possibility,' and 'reasonable possibility,' do little service to the half-distance rule. '(T)he genius of the Rules for Prevention of Collision is their certainty.' Hess Shipping Corp. v. S. S. Charles Lykes, 5 Cir., 417 F.2d 346, 351 (Brown, J., dissenting). The half-distance rule is effective precisely because it is a measurable rule of thumb, a nautical speed limit. Speed limits would serve no useful purpose if they applied only when there was a foreseeable probability that an accident might occur.
27
Since I cannot say that the Court of Appeals for the Ninth Circuit incorrectly concluded that the Santa Maria had violated the half-distance rule, and that she was unable to prove that her fault could not have contributed to the collision, I would reach the question that we granted certiorari in this case to consider the continued validity of the divided-damages rule. The Court, however, does not address that question, and I therefore refrain from expressing my views upon it.
1
See The Pennsylvania, 19 Wall. 125, 136, 22 L.Ed. 148; O/Y Finlayson-Forssa A/B v. Pan Atlantic S.S. Corp., 5 Cir., 259 F.2d 11, 22.
2
'The general consensus of opinion in this country is to the effect that a steamer is bound to use only such precautions as will enable her to stop in time to avoid a collision, after the approaching vessel comes in sight, provided such approaching vessel is herself going at the moderate speed required by law.' The Umbria, 166 U.S. 404, 417, 17 S.Ct. 610, 615, 41 L.Ed. 1053.
3
The District Court appears to have assumed as much:
'It is my view that any possible violation of Article 16 of the Inland Rules by the §§ Santa Maria, or those in charge of her navigation, were technical in nature and were not a contributing cause of the collision.' 304 F.Supp. 519, 522.
| 78
|
409 U.S. 188
93 S.Ct. 375
34 L.Ed.2d 401
William S. NEIL, Warden,v.Archie Nathaniel BIGGERS.
No. 71-586.
Argued Oct. 18 and 19, 1972.
Decided Dec. 6, 1972.
Syllabus
Respondent was convicted of rape on evidence that consisted in part of testimony concerning the victim's visual and voice identification of respondent at a station-house showup that occurred seven months after the rape. The victim, who had been in the presence of her assailant a considerable time and had directly observed him indoors and under a full moon outdoors, testified that she had 'no doubt' that respondent was her assailant. She had previously given the police a description of her assailant, which was confirmed by a police officer. Before the showup where she identified respondent, the victim had made no identification of others who were presented at previous showups, lineups, or through photographs. The police asserted that they used the showup technique because they had difficulty in finding for a lineup other individuals generally fitting respondent's description as given by the victim. The Tennessee Supreme Court's affirmance of the conviction was affirmed here by an equally divided Court. 390 U.S. 404, 88 S.Ct. 979, 19 L.Ed.2d 1267. Respondent then brought a habeas corpus action in District Court. After rejecting the petitioner's contention that this Court's affirmance constituted an actual adjudication within the meaning of 28 U.S.C. § 2244(c) and thus barred further review of the showup identification in a federal habeas corpus proceeding, the District Court, noting that a lineup is relatively more reliable than a showup, held that the confrontation here was so suggestive as to violate due process. The Court of Appeals affirmed. Held:
1. This Court's equally divided affirmance of respondent's state court conviction does not, under 28 U.S.C. § 2244(c), bar further federal relief by habeas corpus, since such an affirmance merely ends the process of direct review but settles no issue of law. Pp. 190—192.
2. While the station-house identification may have been suggestive, under the totality of the circumstances the victim's identification of respondent was reliable and was properly allowed to go to the jury. Pp. 196—201. 448 F.2d 91, affirmed in part, reversed in part, and remanded.
Bart C. Durham III, Nashville, Tenn., for petitioner.
Michael Meltsner, New York City, for respondent.
Mr. Justice POWELL delivered the opinion of the Court.
1
In 1965, after a jury trial in a Tennessee court, respondent was convicted of rape and was sentenced to 20 years' imprisonment. The State's evidence consisted in part of testimony concerning a station-house identification of respondent by the victim. The Tennessee Supreme Court affirmed. Biggers v. State, 219 Tenn. 553, 411 S.W.2d 696 (1967). On certiorari, the judgment of the Tennessee Supreme Court was affirmed by an equally divided Court. Biggers v. Tennessee, 390 U.S. 404, 88 S.Ct. 979, 19 L.Ed.2d 1267 (1968) (Marshall, J., not participating). Respondent then brought a federal habeas corpus action raising several claims. In reply, petitioner contended that the claims were barred by 28 U.S.C. § 2244(c), which provides in pertinent part:
2
'In a habeas corpus proceeding brought in behalf of a person in custody pursuant to the judgment of a State court, a prior judgment of the Supreme Court of the United States on an appeal or review by a writ of certiorari at the instance of the prisoner of the decision of such State court, shall be conclusive as to all issues of fact or law with respect to an asserted denial of a Federal right which constitutes ground for discharge in a habeas corpus proceeding, actually adjudicated by the Supreme Court therein . . .'
3
The District Court held that the claims were not barred and, after a hearing, held in an unreported opinion that the station-house identification procedure was so suggestive as to violate due process. The Court of Appeals affirmed. 6 Cir., 448 F.2d 91 (1971). We granted certiorari to decide whether an affirmance by an equally divided Court is an actual adjudication barring subsequent consideration on habeas corpus, and, if not whether the identification procedure violated due process. 405 U.S. 954, 92 S.Ct. 1167, 31 L.Ed.2d 230 (1972).
4
* The intended scope of the phrase 'actually adjudicated by the Supreme Court' must be determined by reference to the peculiarities of federal court jurisdiction and the context in which § 2244(c) was enacted. Jurisdiction to hear state prisoner claims on habeas corpus was first expressly conferred on the federal courts by the Judiciary Act of 1867, c. 28, 14 Stat. 385. Thereafter, decisions of this Court established not only that res judicata was inapplicable, e.g., Salinger v. Loisel, 265 U.S. 224, 230, 44 S.Ct. 519, 521, 68 L.Ed. 989 (1924); Fay v. Noia, 372 U.S. 391, 423, 83 S.Ct. 822, 840, 9 L.Ed.2d 837 (1963), but also that federal courts were obliged in appropriate cases to redetermine issues of fact and federal law. By the same token, the Court developed a number of limiting principles to restrain open-ended relitigation, among them that a successive habeas corpus application raising grounds rejected in a previous application might be denied without reaching the merits. Salinger v. Loisel, supra, 265 U.S., at 231, 44 S.Ct., at 521.
5
In 1948, Congress codified a version of the Salinger rule in 28 U.S.C. § 2244. As redesigned and amended in 1966, § 2244(b) shields against senseless repetition of claims by state prisoners without endangering the principle that each is entitled, other limitations aside, to a redetermination of his federal claims by a federal court on habeas corpus. With this in mind, the purpose of § 2244(c), also enacted in 1966, becomes clear. This subsection embodies a recognition that if this Court has 'actually adjudicated' a claim on direct appeal or certiorari, a state prisoner has had the federal redetermination to which he is entitled. A subsequent application for habeas corpus raising the same claims would serve no valid purpose and would add unnecessarily to an already overburdened system of criminal justice.1
6
In this light, we review our cases explicating the disposition 'affirmed by an equally divided Court.' On what was apparently the first occasion of an equal division, The Antelope, 10 Wheat. 66, 6 L.Ed. 268 (1825), the Court simply affirmed on the point of division without much discussion. Id., at 126—127. Faced with a similar division during the next Term, the Court again affirmed, Chief Justice Marshall explaining that 'the principles of law which have been argued, cannot be settled; but the judgment is affirmed, the court being divided in opinion upon it.' Etting v. Bank of United States, 11 Wheat. 59, 78, 6 L.Ed. 419 (1826). As was later elaborated, in such cases it is the appellant or petitioner who asks the Court to overturn a lower court's decree.
7
'If the judges are divided, the reversal cannot be had, for no order can be made. The judgment of the court below, therefore, stands in full force. It is, indeed, the settled practice in such case to enter a judgment of affirmance; but this is only the most convenient mode of expressing the fact that the cause is finally disposed of in conformity with the action of the court below, and that that court can proceed to enforce its judgment. The legal effect would be the same if the appeal, or writ of error, were dismissed.' Durant v. Essex Co., 7 Wall. 107, 112, 19 L.Ed. 154 (1869).
8
Nor is an affirmance by an equally divided Court entitled to precedential weight. Ohio ex rel. Eaton v. Price, 364 U.S. 263, 264, 80 S.Ct. 1463, 1464, 4 L.Ed.2d 1708 (1960). We decline to construe § 2244 (c)'s bar as extending to claims on which the judgment of a state court stands because of the absence of a majority position in this Court, and accordingly conclude that the courts below properly reached the merits.2
II
9
We proceed, then, to consider respondent's due process claim.3 As the claim turns upon the facts, we must first review the relevant testimony at the jury trial and at the habeas corpus hearing regarding the rape and the identification. The victim testified at trial that on the evening of January 22, 1965, a youth with a butcher knife grabbed her in the doorway to her kitchen:
10
'A. (H)e grabbed me from behind, and grappled—twisted me on the floor. Threw me down on the floor.
11
'Q. And there was no light in that kitchen? 'A. Not in the kitchen.
12
'Q. So you couldn't have seen him then?
13
'A. Yet, I could see him, when I looked up in his face.
14
'Q. In the dark?
15
'A. He was right in the doorway—it was enough light from the bedroom shining through. Yes, I could see who he was.
16
'Q. You could see? No light? And you could see him and know him then?
17
'A. Yes.' Tr. of Rec. in No. 237, O.T.1967, pp. 33—34.
18
When the victim screamed, her 12-year-old daughter came out of her bedroom and also began to scream. The assailant directed the victim to 'tell her (the daughter) to shut up, or I'll kill you both.' She did so, and was then walked at knifepoint about two blocks along a railroad track, taken into a woods, and raped there. She testified that 'the moon was shining brightly, full moon.' After the rape, the assailant ran off, and she returned home, the whole incident having taken between 15 minutes and half an hour.
19
She then gave the police what the Federal District Court characterized as 'only a very general description,' describing him as 'being fat and flabby with smooth skin, bushy hair and a youthful voice.' Additionally, though not mentioned by the District Court, she testified at the habeas corpus hearing that she had described her assailant as being between 16 and 18 years old and between five feet ten inches and six feet, tall, as weighing between 180 and 200 pounds, and as having a dark brown complexion. This testimony was substantially corroborated by that of a police officer who was testifying from his notes.
20
On several occasions over the course of the next seven months, she viewed suspects in her home or at the police station, some in lineups and others in showups, and was shown between 30 and 40 photographs. She told the police that a man pictured in one of the photographs had features similar to those of her assailant, but identified none of the suspects. On August 17, the police called her to the station to view respondent, who was being detained on another charge. In an effort to construct a suitable lineup, the police checked the city jail and the city juvenile home. Finding no one at either place fitting respondent's unusual physical description, they conducted a showup instead.
21
The showup itself consisted of two detectives walking respondent past the victim. At the victim's request, the police directed respondent to say 'shut up or I'll kill you.' The testimony at trial was not altogether clear as to whether the victim first identified him and then asked that he repeat the words or made her identification after he had spoken.4 In any event, the victim testified that she had 'no doubt' about her identification. At the habeas corpus hearing, she elaborated in response to questioning.
22
'A. That I have no doubt, I mean that I am sure that when I see, when I first laid eyes on him, I knew that it was the individual, because his face—well, there was just something that I don't think I could ever forget. I believe—
23
'Q. You say when you first laid eyes on him, which time are you referring to?
24
'A. When I identified him—when I seen him in the courthouse when I was took up to view the suspect.' App. 127.
25
We must decide whether, as the courts below held, this identification and the circumstances surrounding it failed to comport with due process requirements.
III
26
We have considered on four occasions the scope of due process protection against the admission of evidence deriving from suggestive identification procedures. In Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), the Court held that the defendant could claim that 'the confrontation conducted . . . was so unnecessarily suggestive and conductive to irreparable mistaken identification that he was denied due process of law.' Id., at 301—302, 87 S.Ct., at 1972. This we held, must be determined 'on the totality of the circumstances.' We went on to find that on the facts of the case then before us, due process was not violated, emphasizing that the critical condition of the injured witness justified a showup in her hospital room. At trial, the witness, whose view of the suspect at the time of the crime was brief, testified to the out-of-court identification, as did several police officers present in her hospital room, and also made an in-court identification.
27
Subsequently, in a case where the witnesses made in-court identifications arguably stemming from previous exposure to a suggestive photographic array, the Court restated the governing test:
28
'(W)e hold that each case must be considered on its own facts, and that convictions based on eye-witness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.' Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968).
29
Again we found the identification procedure to be supportable, relying both on the need for prompt utilization of other investigative leads and on the likelihood that the photographic identifications were reliable, the witnesses having viewed the bank robbers for periods of up to five minutes under good lighting conditions at the time of the robbery.
30
The only case to date in which this Court has found identification procedures to be violative of due process is Foster v. California, 394 U.S. 440, 442, 89 S.Ct. 1127, 1128, 22 L.Ed.2d 402 (1969). There, the witness failed to identify Foster the first time he confronted him, despite a suggestive lineup. The police then arranged a showup, at which the witness could make only a tentative identification. Ultimately, at yet another confrontation, this time a lineup, the witness was able to muster a definite identification. We held all of the identifications inadmissible, observing that the identifications were 'all but inevitable' under the circumstances. Id., at 443, 89 S.Ct., at 1129.
31
In the most recent case of Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970), we held admissible an in-court identification by a witness who had a fleeting but 'real good look' at his assailant in the headlights of a passing car. The witness testified at a pretrial suppression hearing that he identified one of the petitioners among the participants in the lineup before the police placed the participants in a formal line. Mr. Justice Brennan for four members of the Court stated that this evidence could support a finding that the in-court identification was 'entirely based upon observations at the time of the assault and not at all induced by the conduct of the lineup.' Id., at 5—6, 90 S.Ct., at 2001.
32
Some general guidelines emerge from these cases as to the relationship between suggestiveness and misidentification. It is, first of all, apparent that the primary evil to be avoided is 'a very substantial likelihood of irreparable misidentification.' Simmons v. United States, 390 U.S., at 384, 88 S.Ct., at 971. While the phrase was coined as a standard for determining whether an in-court identification would be admissible in the wake of a suggestive out-of-court identification, with the deletion of 'irreparable' it serves equally well as a standard for the admissibility of testimony concerning the out-of-court identification itself.5 It is the likelihood of misidentification which violates a defendant's right to due process, and it is this which was the basis of the exclusion of evidence in Foster. Suggestive confrontations are disapproved because they increase the likelihood of misidentification, and unnecessarily suggestive ones are condemned for the further reason that the increased chance of misidentification is gratuitous. But as Stovall makes clear, the admission of evidence of a showup without more does not violate due process.
33
What is less clear from our cases is whether, as intimated by the District Court, unnecessary suggestiveness alone requires the exclusion of evidence.6 While we are inclined to agree with the courts below that the police did not exhaust all possibilities in seeking persons physically comparable to respondent, we do not think that the evidence must therefore be excluded. The purpose of a strict rule barring evidence of unnecessarily suggestive confrontations would be to deter the police from using a less reliable procedure where a more reliable one may be available, and would not be based on the assumption that in every instance the admission of evidence of such a confrontation offends due process. Clemons v. United States, 133 U.S.App.D.C. 27, 48, 408 F.2d 1230, 1251 (1968) (Leventhal, J., concurring); cf. Gilbert v. California, 388 U.S. 263, 273, 87 S.Ct. 1951, 1957, 18 L.Ed.2d 1178 (1967); Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). Such a rule would have no place in the present case, since both the confrontation and the trial preceded Stovall v. Denno, supra, when we first gave notice that the suggestiveness of confrontation procedures was anything other than a matter to be argued to the jury.
34
We turn, then, to the central question, whether under the 'totality of the circumstances' the identification was reliable even though the confrontation procedure was suggestive. As indicated by our cases, the factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation. Applying these factors, we disagree with the District Court's conclusion.
35
In part, as discussed above, we think the District Court focused unduly on the relative reliability of a lineup as opposed to a showup, the issue on which expert testimony was taken at the evidentiary hearing. It must be kept in mind also that the trial was conducted before Stovall and that therefore the incentive was lacking for the parties to make a record at trial of facts corroborating or undermining the identification. The testimony was addressed to the jury, and the jury apparently found the identification reliable. Some of the State's testimony at the federal evidentiary hearing may well have been self-serving in that it too neatly fit the case law, but it surely does nothing to undermine the state record, which itself fully corroborated the identification.
36
We find that the District Court's conclusions on the critical facts are unsupported by the record and clearly erroneous. The victim spent a considerable period of time with her assailant, up to half an hour. She was with him under adequate artificial light in her house and under a full moon outdoors, and at least twice, once in the house and later in the woods, faced him directly and intimately. She was no casual observer, but rather the victim of one of the most personally humiliating of all crimes.7 Her description to the police, which included the assailant's approximate age, height, weight, complexion, skin texture, build, and voice, might not have satisfied Proust but was more than ordinarily thorough. She had 'no doubt' that respondent was the person who raped her. In the nature of the crime, there are rarely witnesses to a rape other than the victim, who often has a limited opportunity of observation.8 The victim here, a practical nurse by profession, had an unusual opportunity to observe and identify her assailant. She testified at the habeas corpus hearing that there was something about his face 'I don't think I could ever forget.' App. 127.
37
There was, to be sure, a lapse of seven months between the rape and the confrontation. This would be a seriously negative factor in most cases. Here, however, the testimony is undisputed that the victim made no previous identification at any of the showups, lineups, or photographic showings. Her record for reliability was thus a good one, as she had previously resisted whatever suggestiveness inheres in a showup. Weighing all the factors, we find no substantial likelihood of misidentification. The evidence was properly allowed to go to the jury.9
38
Affirmed in part, reversed in part, and remanded.
39
Mr. Justice MARSHALL took no part in the consideration or decision of this case.
40
Mr. Justice BRENNAN, with whom Mr. Justice DOUGLAS and Mr. Justice STEWART concur, concurring in part and dissenting in part.
41
We granted certiorari in this case to determine whether our affirmance by an equally divided Court f respondent's state conviction constitutes an actual adjudication within the meaning of 28 U.S.C. § 2244(c), adn thus bars subsequent consideration of the same issues on federal habeas corpus. The Court holds today that such an affirmance does not bar further federal relief, and I fully concur in that aspect of the Court's opinion. Regrettably, however, the Court also addresses the merits and delves into the factual background of the case to reverse the District Court's finding, upheld by the Court of Appeals, that under the 'totality of the circumstances,' the pre-Stovall showup was so impermissibly suggestive as to give rise to a substantial likelihood of misidentification. This is an unjustified departure from our long-established practice not to reverse findings of fact concurred in by two lower courts unless shown to be clearly erroneous. See, e.g., Blau v. Lehman, 368 U.S. 403, 408—409, 82 S.Ct. 451, 454—455, 7 L.Ed.2d 403 (1962); Faulkner v. Gibbs, 338 U.S. 267, 268, 70 S.Ct. 25, 94 L.Ed. 62 (1949); United States v. Dickinson, 331 U.S. 745, 751, 67 S.Ct. 1382, 1386, 91 L.Ed. 1789 (1947); United States v. Commercial Credit Co., 286 U.S. 63, 67, 52 S.Ct. 467, 468, 76 L.Ed. 978 (1932); United States v. Chemical Foundation, 272 U.S. 1, 14, 47 S.Ct. 1, 6, 71 L.Ed. 131 (1926); Baker v. Schofield, 243 U.S. 114, 118, 37 S.Ct. 333, 334, 61 L.Ed. 626 (1917); Towson v. Moore, 173 U.S. 17, 24 19 S.Ct. 332, 334, 43 L.Ed. 597 (1899); cf. Boulden v. Holman, 394 U.S. 478, 480—481, 89 S.Ct. 1138, 1139—1140, 22 L.Ed.2d 433 (1969).
42
As the Court recognizes, a pre-Stovall identification obtained as a result of an unnecessarily suggestive showup may still be introduced in evidence if, under the 'totality of the circumstances,' the identification retains strong indicia of reliability. After an extensive hearing and careful review of the state court record, however, the District Court found that, under the circumstances of this case, there existed an intolerable risk of misidentification. Moreover, in making this determination, the court specifically found that 'the complaining witness did not get an opportunity to obtain a good view of the suspect during the commission of the crime,' 'the show-up confrontation was not conducted near the time of the alleged crime, but, rather, some seven months after its commission,' and the complaining witness was unable to give 'a good physical description of her assailant' to the police. App. 41—42. The Court of Appeals, which conducted its own review of the record, upheld the District Court's findings in their entirety. 448 F.2d 91, 95 (CA6 1971).
43
Although this case would seem to fall squarely within the bounds of the 'two-court' rule, the Court seems to suggest that the rule is 'inapplicable here' because 'this is a habeas corpus case in which the facts are contained primarily in the state court record (equally available to us as to the federal courts below) . . ..' Ante, at 193 n. 3. The 'two-court' rule, however, rests upon more than mere deference to the trier of fact who has a firsthand opportunity to observe the testimony and to gauge the credibility of witnesses. For the rule also serves as an indispensable judicial 'time-saver,' making it unnecessary for this Court to waste scarce time and resources on minor factual questions which have already been accorded consideration by two federal courts and whose resolution is without significance except to the parties immediately involved. Thus, the 'two-court' rule must logically apply even where, as here, the lower courts' findings of fact are based primarily upon the state court record.
44
The Court argues further, however, that the rule is irrelevant here because, in its view, 'the dispute between the parties is not so much over the elemental facts as over the constitutional significance to be attached to them.' Ante, at 193 n. 3. I cannot agree. Even a cursory examination of the Court's opinion reveals that its concern is not limited solely to the proper application of legal principles but, rather, extends to an essentially de novo inquiry into such 'elemental facts' as the nature of the victim's opportunity to observe the assailant and the type of description the victim gave the police at the time of the crime. And although we might reasonably disagree with the lower courts' findings as to such matters, the 'two-court' rule wisely inhibits us from cavalierly substituting our own view of the facts simply because we might adopt a different construction of the evidence or resolve the ambiguities differently. On the contrary, these findings are 'final here in the absence of very exceptional showing of error.' Comstock v. Group of Institutional Investors, 335 U.S. 211, 214, 68 S.Ct. 1454, 1456, 92 L.Ed. 1911 (1948). The record before us is simply not susceptible of such a showing and, indeed, the petitioner does not argue otherwise. I would therefore dismiss the writ of certiorari as improvidently granted insofar as it relates to Question 2 of the Questions Presented.
1
The legislative history adds little. The Senate Report states, cryptically, that '(t)his subsection is intended to give a conclusive presumption only to actual adjudications of Federal rights, by the Supreme Court, and not to give such a presumption to mere denials of writs of certiorari.' S.Rep.No. 1797, 89th Cong., 2d Sess., 2 (1966); U.S.Code Cong. & Admin.News, p. 3664. We conclude from this only that Congress did not expressly address itself to the effect of an affirmance by an equally divided Court. Nor is this surprising in view of the rarity of such divided affirmances in criminal cases.
2
We have been aided, and are confirmed in this view, by the thoughtful opinion of Judge Mansfield in United States ex rel. Radich v. Criminal Ct. of City of New York, 459 F.2d 745 (CA2 1972), pet. for cert. pending sub nom. Ross v. Radich, No. 71 1510.
3
The dissent would have us decline to address the merits because the District Court, after an evidentiary hearing, found due process to have been violated, and the Court of Appeals—after reviewing the entire record—found that 'the conclusions of fact of the District Judge are (not) clearly erroneous.' 448 F.2d 91, 95. It is said that we should not depart from 'our long-established practice not to reverse findings of fact concurred in by two lower courts unless shown to be clearly erroneous.' Post, at 202. This rule of practice, under which the Court does not lightly overturn the concurrent findings of fact of two lower federal courts, is a salutary one to be followed where applicable. We think it inapplicable here where the dispute between the parties is not so much over the elemental facts as over the constitutional significance to be attached to them. Moreover, this is a habeas corpus case in which the facts are contained primarily in the state court record (equally available to us as to the federal courts below) and where the evidentiary hearing in the District Court purported to be 'confined' to two specific issues which we deem not controlling. Of the nine cases cited in the dissenting opinion in support of the rule of practice urged upon us, eight of them involved civil litigation in the federal system. Only one of the cases cited, Boulden v. Holman, 394 U.S. 478, 89 S.Ct. 1138, 22 L.Ed.2d 433 (1969), involved a habeas corpus review and the Court simply held—on the basis of 'an independent study of the entire record'—that the conclusion reached by the District Court and the Court of Appeals 'was justified.' 394 U.S., at 480, 481, 89 S.Ct., at 1140.
4
At trial, one of the police officers present at the identification testified explicitly that the words were spoken after the identification. The victim testified:
'Q. What physical characteristics, if any, caused you to be able to identify him?
'A. First of all,—uh—his size,—next I could remember his voice.
'Q. What about his voice? Describe his voice to the Jury.
'A. Well, he has the voice of an immature youth—I call it an immature youth. I have teen-age boys. And that was the first thing that made me think it was the boy.' Tr. of Rec. in No. 237, O.T.1967, p. 17.
The colloquy continued, with the victim describing the voice and other physical characteristics. At the habeas corpus hearing, the victim and all of the police witnesses testified that a visual identification preceded the voice identification. App. 80, 123, 134.
5
See Clemons v. United States, 133 U.S.App.D.C. 27, 47, 408 F.2d 1230, 1250 (1968) (McGowan, J., for the court en banc), cert. denied, 394 U.S. 964, 89 S.Ct. 1318, 22 L.Ed.2d 567 (1969). In the present case, there has been controversy, in our view irrelevant, over whether, as she testified at the habeas corpus hearing, the victim actually made an in-court identification. While we think it evident from the many testimonial links between her out-of-court identification and 'the defendant' before her in court that the answer is 'yes,' we recognize that if the testimony concerning the out-ofcourt identification was inadmissible, the conviction must be overturned.
6
The District Court stated:
'In this case it appears to the Court that a line-up, which both sides admit is generally more reliable than a show-up, could have been arranged. The fact that this was not done tended needlessly to decrease the fairness of the identification process to which petitioner was subjected.' App. 42.
7
See United States ex rel. Phipps v. Follette, 428 F.2d 912, 915—916 (CA2) (Friendly, J.), cert. denied, 400 U.S. 908, 91 S.Ct. 151, 27 L.Ed.2d 146 (1970).
8
Respondent attaches some weight to the failure of the victim's daughter to identify him. Apart from the fact that this does not bear directly on the reliability of her mother's identification the girl was only 12 years old and had as best we can tell only a very brief view of the assailant from across the room.
9
Respondent's habeas corpus petition raised a number of other claims, including one challenging the legality of his detention at the time he was viewed by the victim. The courts below did not address these claims, nor do we.
| 01
|
409 U.S. 151
93 S.Ct. 408
34 L.Ed.2d 375
TIDEWATER OIL CO., Petitioner,v.UNITED STATES and Phillips Petroleum Company.
No. 71-366.
Argued Oct. 11, 1972.
Decided Dec. 6, 1972.
Syllabus
The Expediting Act, providing that in a civil antitrust action brought by the United States in a federal district court an appeal from that court's final judgment will lie only to this Court, lodged exclusive appellate jurisdiction over such actions in this Court and thus bars the courts of appeals from asserting jurisdiction over interlocutory orders covered by 28 U.S.C. § 1292(b), as well as over other interlocutory orders specified in § 1292(a). The legislative history of those provisions contains no indication of a congressional intent to impair the original exclusivity of this Court's jurisdiction under the Expediting Act. Pp. 154—174.
Affirmed.
Moses Lasky, San Francisco, Cal., for petitioner.
A. Raymond Randolph, Jr., Washington, D.C., for the respondents, pro hac vice, by special leave of Court.
Mr. Justice MARSHALL delivered the opinion of the Court.
1
On July 13, 1966, the United States filed a civil antitrust suit against Phillips Petroleum Co. (Phillips) and petitioner Tidewater Oil Co. (Tidewater). The complaint alleged that Phillips' acquisition of certain assets and operations of Tidewater violated § 7 of the Clayton Act, 38 Stat. 731, as amended, 15 U.S.C. § 18. The District Court denied the United States' motion for a temporary restraining order to prevent consummation of the acquisition,1 and its subsequent motion for a preliminary injunction to require either rescission of the acquisition or maintenance by Phillips of the going-concern value of the transferred assets and operations.
2
Petitioner continued as a party to the suit during some five years of pretrial discovery and preparation.2 Then in April 1971, following the Government's announcement that it was ready for trial, petitioner moved to be dismissed as a party.3 The District Court denied the motion, but found that it involved 'a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from (the) order may materially advance the ultimate termination of this litigation.' It therefore certified 'its order denying defendant's motion to dismiss for interlocutory appeal under Section 1292(b) of Title 28 of the United States Code.' As required by the statute, Tidewater then applied to the Court of Appeals for the Ninth Circuit for leave to prosecute the appeal. That court, however, denied the application relying solely on its previous decision in United States v. FMC Corp., 321 F.2d 534 (1963). There an attempt was made to appeal an interlocutory order denying a preliminary injunction in a Government civil antitrust case. Notwithstanding that 28 U.S.C. § 1292(a)(1) provides for an appeal of right to the courts of appeals from an order granting or denying preliminary injunctions, the Ninth Circuit held that it lacked jurisdiction over such an appeal in a Government civil antitrust case because of § 2 of the Expediting Act of 1903, 32 Stat. 823, as amended, 15 U.S.C. § 29, which provides that '(i)n every civil action brought in any district court of the United States under any of (the Antitrust) Acts, wherein the United States is complainant, an appeal from the final judgment of the district court will lie only to the Supreme Court.' In this case, then, the Court of Appeals extended its prior ruling to interlocutory orders within § 1292(b). Because this decision raises an important question of federal appellate jurisdiction and because a conflict among the circuits subsequently developed on this question,4 we granted certiorari.5 For the reasons that follow, we affirm the decision of the Court of Appeals.
3
* To determine the relevance of 28 U.S.C. § 1292(b) for Government civil antitrust cases, it is necessary first to consider the original purpose of § 2 of the Expediting Act and the over half-century of experience with that section in the context of interlocutory appeals provisions that preceded the enactment of § 1292(b) in 1958.6
4
In an effort to 'expedite (certain) litigation of great and general importance,' 36 Cong.Rec. 1679 (remarks of Sen. Fairbanks),7 Congress enacted § 2 of the Expediting Act in 19038 to withdraw all intermediate appellate jurisdiction in Government civil antitrust cases. At the time of the passage of the Expediting Act, the then recently established circuit courts of appeals9 had jurisdiction under the Evarts Act over an appeal not only from a 'final decision'10 but also from 'an interlocutory order or decree' granting or continuing an injunction or appointing a receiver 'in a cause in which an appeal from a final decree may be taken . . . to the circuit court of appeals.'11 Hence, by lodging exclusive appellate jurisdiction over the 'final judgment of the district court' in this Court, the Expediting Act necessarily eliminated court of appeals jurisdiction over appeals from interlocutory, as well as final, decrees in Government civil antitrust cases.
5
Congress thus initially determined to speed appellate review by channeling appeals in Expediting Act cases directly to this Court and to avoid the delay inherent in piecemeal appeal by conditioning appeal upon the presence of a 'final judgment.'12 But mere speed in the disposition of Government civil antitrust cases was not Congress' only concern; that result might have been achieved simply by establishing procedures for the expeditious handling of such cases in the courts of appeals. Congress was also intent upon facilitating review by this Court 'of a class of antitrust cases deemed particularly important.'13 Because of the importance of uniform interpretation of the antitrust law,14 which was still in its infancy in 1903, it is understandable that Congress chose to establish this special appellate procedure for Government civil antitrust cases, which were thought generally to involve issues of wide importance.15
6
During the 25 years following the enactment of the Expediting Act, Congress amended the Evarts Act provision governing interlocutory appeals to the courts of appeals on four separate occasions—in 1906,16 1911,17 1925,18 and 1928.19 It can be argued that on its face the very first of these amendments once again made interlocutory appeals available to the courts of appeals in Government civil antitrust cases and that the language of each successive amendment, where relevant, perpetuated that state of affairs.20 But, while the clear meaning of statutory language is not to be ignored, 'words are inexact tools at best,' Harrison v. Northern Trust Co., 317 U.S. 476, 479, 63 S.Ct. 361, 363, 87 L.Ed. 407 (1943), and hence it is essential that we place the words of a statute in their proper context by resort to the legislative history. Nowhere is this better illustrated than in this case. For we find it inconceivable that Congress, having purposefully withdrawn the jurisdiction of the courts of appeals in certain antitrust cases in 1903, would reestablish it in the same cases—but only for interlocutory orders—just three years later in 1906, without making any reference to that purpose. Yet no mention of either the Expediting Act or Government civil antitrust cases is to be found in the legislative history of the 1906 amendment to the interlocutory appeals provision21—or, for that matter, in that of the successive amendments insofr as they are relevant;22 rather, for each amendment some purpose wholly unrelated to Expediting Act cases is apparent from the relevant legislative materials.23 In light of this, we find it impossible to ascribe to Congress an intent to impair the original exclusivity of this Court's jurisdiction under § 2 through any of these amendments to the interlocutory appeals provision.
7
This clearly was the view of the seven members of the unanimous Court in United States v. California Cooperative Canneries, 279 U.S. 553, 49 S.Ct. 423, 73 L.Ed. 838 (1929). There, in rejecting the argument that an appeal lay to the court of appeals from an order denying a motion to intervene in a Government civil antitrust case, the Court stated:24
8
'(t)he Evarts Act) provisions governing appeals in general were amended by the Expediting Act so that in suits in equity under the Anti-Trust Act 'in which the United States is complainant' the appeal should be direct to this court from the final decree in the trial court. Thus, Congress limited the right of review to an appeal from the decree which disposed of all matters . . .; and it precluded the possibility of an appeal to either (this Court or the court of appeals) from an interlocutory decree.' Id., at 558, 49 S.Ct., at 425 (emphasis added).
9
And a decade and a half later, in Allen Calculators v. National Cash Register Co., 322 U.S. 137, 142, 64 S.Ct. 905, 908, 88 L.Ed. 1188 (1944), the Court reiterated 'that jurisdiction to review District Court decrees was not vested in the Circuit Courts of Appeals but solely in this court, and (the Expediting Act) limited the right of appeal to final decrees.' It is true that interlocutory orders in Government civil antitrust cases were subsequently held reviewable by way of extraordinary writs under the All Writs Act, 28 U.S.C. § 1651(a), but application for the extraordinary writ must be made to this Court where 'sole appellate jurisdiction lies' in such cases. United States Alkali Export Assn. v. United States, 325 U.S. 196, 201—203, 65 S.Ct. 1120, 1124—1125, 89 L.Ed. 1554 (1945); De Beers Consolidated Mines v. United States, 325 U.S. 212, 217, 65 S.Ct. 1130, 1132, 89 L.Ed. 1566 (1945).25
10
The wording of the interlocutory appeals provision was again altered in the 1948 revision of the Judicial Code.26 The result after certain subsequent minor changes not here relevant27—was the present 28 U.S.C. § 1292(a)(1), which allows '(i)nterlocutory orders of the district courts . . . granting, continuing, modifying, refusing or dissolving injunctions . . .'28 to be appealed to the courts of appeals 'except where a direct review may be had in the Supreme Court.' (Emphasis added.) This final clause is susceptible of two plausible constructions that yield opposite results in cases subject to the Expediting Act. A direct review of interlocutory orders in Government civil antitrust cases clearly may be had in this Court, thus barring resort to § 1292(a)(1)—or so it would seem. But direct review may not be had when the interlocutory order is entered since there is no 'final judgment,' the predicate of an appeal under the Expediting Act. Therefore, were the final clause construed as directed only at the present availability of review in this Court, it would not, on its face, bar an interlocutory appeal. However, the function of the Revisers of the 1948 Code was generally limited to that of consolidation and codification.29 Consequently, a well-established principle governing the interpretation of provisions altered in the 1948 revision is that 'no change is to be presumed unless clearly expressed.' Fource Glass Co. v. Transmirra Products Corp., 353 U.S. 222, 228, 77 S.Ct. 787, 791, 1 L.Ed.2d 786 (1957). We find no such clear expression here. To the contrary, the Revisers' Notes fail to reveal any intention to expand the scope of the pre-existing jurisdiction of the courts of appeals over interlocutory appeals; the new § 1292 is described merely as a consolidation of a number of previously separate code provisions including the general interlocutory appeals provision—'with necessary changes in phraseology to effect the consolidation.'30
11
In sum, then, our examination of the history and evolution of the present § 1292(a)(1)—the direct descendant of the original interlocutory appeals provision contained in the Evarts Act—has convinced us that at least up to the passage of § 1292(b) in 1958, Congress had not impaired the original exclusivity of this Court's jurisdiction under § 2 of the Expediting Act. As is usually true of questions of statutory construction, the issue is not totally free from doubt.31 Yet, in the last analysis, whatever ambiguity may exist in the lengthy history of the original interlocutory appeals provision relative to the Expediting Act, it results primarily from the absence of any consideration of Government civil antitrust cases in that history and thus emphasizes the extent to which appellate jurisdiction in such cases has long been viewed as a peculiarly distinct matter. Cf. United States Alkali Export Assn. v. United States, 325 U.S., at 202—203, 65 S.Ct., at 1124—1125. Certainly, this conclusion finds substantial support in our prior decisions in which we have consistently interpreted our appellate jurisdiction under § 2 as exclusive.32
II
12
With this background, the question becomes what effect, if any, the enactment of § 1292(b) in 1958 had upon this Court's theretofore exclusive appellate jurisdiction in Government civil antitrust cases. Section 1292(b) provides in relevant part:
13
'When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order. The Court of Appeals may thereupon, in its discretion, permit an appeal to be taken from such order, if application is made to it within ten days after the entry of the order . . ..'
14
At the outset petitioner contends that there is simply no conflict between this provision and § 2 of the Expediting Act. It suggests that 'civil action' must be read as an all-inclusive phrase that covers, inter alia, Government civil antitrust cases. At the same time, it points out that § 1292(b) is concerned only with interlocutory orders, while the Expediting Act deals only with final judgments. Thus, petitioner concludes that the enactment of § 1292(b) made discretionary interlocutory appeals available where none had previously existed, and that the two statutes are in complete harmony with one another.
15
Such a facile argument could also be made to support the contention that § 1292(a)(1) can be invoked in Expediting Act cases—were it not for the fact that, as we have already seen, § 2 does not merely apply solely to a 'final judgment' but also limits the right of appeal to a 'final judgment.' Likewise, we can hardly accept petitioner's suggestion that when Congress enacted § 1292(b), it wrote upon a clean slate insofar as appeals from interlocutory orders in Expediting Act cases are concerned. Nor do we find in § 1292(b) the 'sharp break with the traditional policy' of limited availablity of interlocutory appeal so apparent to the dissent. The new provision hardly created a general right of interlocutory appeal; rather, it only extended the availability of such appeals to a limited group of orders—not previously covered by § 1292(a) that involve 'a controlling question of law' the immediate appeal of which 'may materially advance the ultimate termination of the litigation.'33 In short, the consistent construction that had been accorded § 2 prior to the enactment of § 1292(b)34 cannot simply be ignored in determining the impact of that section on Government civil antitrust cases, cf. Universal Interpretive Shuttle Corp. v. Washington Metropolitan Area Transit Comm'n, 393 U.S. 186, 191 194, 89 S.Ct. 354, 357—359, 21 L.Ed.2d 334 (1968). Acceptance of petitioner's contention would require us to conclude that § 1292(b) was intended to revise the policies underlying the Expediting Act for the first time—that it was intended as the first departure from the purposes of avoiding piecemeal appeal and of limiting review of important questions of antitrust law to this Court. We have been unable to discern any such intention.
16
The legislative history associated with § 1292(b) contains no mention of cases within the Expediting Act.35 Reference, to be sure, was made to antitrust cases, but it is clear on the face of these statements36 that they refer only to private treble damages actions.37 In fact, rather than indicating that § 1292(b) was intended to apply to antitrust cases subject to final review in this Court under the Expediting Act, the legislative history strongly suggests an essentially contrary conclusion: the subsection was intended to apply only to interlocutory orders, 'not otherwise appealable under' § 1292(a), in civil actions in which the courts of appeals would have jurisdiction over an appeal from the final judgment under 28 U.S.C. § 1291. For instance, in explaining the proposed statute, the Senate Report on § 1292(b) states:38
17
'The bill results from a growing awareness of the need for expedition of cases pending before the district courts. Many cases which are filed in the Federal district courts require the district judge to entertain motions at an early stage in the proceedings which, if determined, against the plaintiff, result in a final order which would then be appealable to the circuit courts of appeals of the United States. However, such motions, if determined in the plaintiff's favor, are interlocutory since they do not end the litigation and are not therefore, under existing provisions of law, appealable.'
18
This is hardly supportive of petitioner's position, and yet throughout the legislative materials the focus similarly remains on interlocutory orders in civil cases that would be appealable to the courts of appeals upon final judgment.39
19
Petitioner's case is further weakened by the extraordinary result that acceptance of its position would yield. Section 1292(a) provides for an appeal as a matter of right from a number of specified types of interlocutory orders—in particular, interlocutory orders granting or denying injunctions. Those interlocutory orders not within subsection (a), however, were made appealable in § 1292(b), subject to the judgment and discretion of the district court and the court of appeals. Greater importance obviously was attached to those types of interlocutory orders specified in subsection (a) than to those covered by (b).40 Nevertheless, petitioner would have us conclude that Congress intended to establish court of appeals jurisdiction for all interlocutory orders in Expediting Act cases, except those orders for which an appeal of right is provided in § 1292(a)(1).41 As the Government notes, such a result would effectively turn § 1292 on its head.42 Consistent with the evident thrust of the statute's legislative history, the much more sensible conclusion is that § 1292(b) was intended to establish jurisdiction in the courts of appeals to review interlocutory orders, other than those specified in § 1292(a), in civil cases in which they would have jurisdiction were the judgments final.43
20
At the foundation of the petitioner's position in this case is the contention that § 1292(b) is the panacea for the special burdens imposed on this Court by § 2 of the Expediting Act. Both the Court and various individual Members have on occasion commented that '(w)hatever may have been the wisdom of the Expediting Act in providing direct appeals in antitrust cases at the time of its enactment in 1903, time has proven it unsatisfactory,' for '(d)irect appeals not only place a great burden on the Court but also deprive us of the valuable assistance of the Courts of Appeals.' United States v. Singer Mfg. Co., 374 U.S. 174, 175 n. 1, 83 S.Ct. 1773, 1774, 10 L.Ed.2d 823 (1963); see Ford Motor Co. v. United States, 405 U.S. 562, 595 n. 5, 92 S.Ct. 1142, 1160, 31 L.Ed.2d 492 (1972) (Burger, C.J., concurring in part and dissenting in part); United States v. Borden Co., 370 U.S. 460, 477 n. 82 S.Ct. 1309, 1318, 8 L.Ed.2d 627 (1962) (Harlan, J., dissenting); Brown Shoe Co. v. United States, 370 U.S. 294, 355, 82 S.Ct. 1502, 1541, 8 L.Ed.2d 510 (1962) (Clark, J., concurring); id., at 364—365, 82 S.Ct. at 1546—1547 (Harlan, J., dissenting in part and concurring in part). Further, in light of the present size of our docket, direct review 'seldom results in much expedition' since we normally must examine the entire record and resolve all questions however unsubstantial. Brown Shoe Co. v. United States, Id., at 355, 82 S.Ct., at 1541 (Clark, J., concurring); see id., at 364, 82 S.Ct. at 1546 (Harlan, J., dissenting in part and concurring in part); United States v. Borden Co., supra, 370 U.S. at 477 n., 82 S.Ct. at 1318. (Harlan, J., dissenting). Our action today should not be construed as a retreat from these previous remarks. On the contrary, we remain convinced that under present circumstances the Expediting Act fails to hasten substantially the final disposition of important antitrust actions while it unjustfiably burdens this Court with inadequately sifted records and with cases that could be disposed of by review in the courts of appeals. Uniformity in the interpretation and administration of the antitrust laws continues to be an important consideration. But such uniformity could be adequately ensured by the availability of review in this Court on certiorari of cases involving issues of general importance—together with the '(l)imited expediting of such cases, under the discretion of this Court.' Ford Motor Co. v. United States, supra, 405 U.S. at 595 n. 5, 92 S.Ct. at 1160 (Burger, C.J., concurring in part and dissenting in part), where time is a factor. The simple fact is that '(t)he legal issues in most (Government) civil antitrust cases are no longer so novel or unsettled as to make them especially appropriate for initial appellate consideration by this Court, as compared with those in a variety of other areas of federal law,' Brown Shoe Co. v. United States, supra, 370 U.S. at 364, 82 S.Ct. at 1546 (Harlan, J., dissenting in part and concurring in part). Yet, despite all of these criticisms, our personal views as to the wisdom of § 2 are, of course, no basis for disregarding what we are bound to recognize as the plain and unaltered intent of Congress to require that appeals in Government civil antitrust cases be taken only from final judgments and only to this Court.
21
In any event, petitioner has failed to convince us that permitting appeals under § 1292(b) would provide a meaningful solution—if any solution at all—to the various problems created for the Court by the Expediting Act. In the first place, the availability of interlocutory appeals under § 1292(b) would not reduce the number of Government civil antitrust cases that could be brought to this Court on direct appeal upon the entrance of a final judgment. Nor would it reduce the number of issues subject to review by this Court; any issue determined on interlocutory appeal would normally be open to consideration on final appeal,44 and doubtless some party would raise an issue appealed under § 1292(b) since it must have involved 'a controlling question of law.' Also, there would be the added problem of applications for certiorari following a certified appeal in Expediting Act cases. By definition, the issue will be a substantial one and, where the appellate decision is questionable, it would be necessary to decide whether to grant certiorari, which might require the Court to consider a particular case, on two separate occasions,45 or to deny certiorari, which might mean allowing the district court to proceed to final judgment on an erroneous basis. Given the potential waste of limited judicial resources—those either of this Court or of the district court—associated with each choice, neither can be considered attractive. Finally, in emphasizing the value of the screening function that court of appeals review would provide in Expediting Act cases, we have consistently focused upon the lengthy records and complex factual issues common to such cases. Yet, as is illustrated by this very case, in which the certified question relates to a motion to dismiss a party, questions that would be presented to the courts of appeals under § 1292(b) would often involve threshold procedural issues not requiring extensive analysis of the record.46 With respect to such issues the screening function performed by intermediate appellate review is of far less significance than it would be with respect to questions of, say, relevant market, competition, or agreement. But these latter questions can be properly decided only after full development of the evidence, and it is therefore doubtful at best that interlocutory appeals would aid this Court in dealing with them on final review.47
22
Nor are we even certain that the expeditious termination of litigation in the district courts—the express purpose of § 1292(b)48—would be materially advanced in the context of Government civil antitrust cases by acceptance of petitioner's contention. Permitting interlocutory appeals under § 1292(b) in Expediting Act cases would result in an anomalous situation: the court of appeals would have jurisdiction over certain interlocutory orders but not over the final judgment, which would be appealable only to this Court. An interlocutory appeal taken under § 1292(b) must, of course, involve 'a controlling question of law' the immediate appeal of which 'may materially advance the ultimate termination of the litigation.' In the normal case, the decision of such a question on interlocutory appeal is final since the same court reviews the final judgment, and the likelihood of review in this Court on certiorari is very small. Here, however, the decision of the court of appeals on the interlocutory order would essentially be only an advisory opinion to the district court since the issue would usually be open to relitigation on appeal of the final judgment to this Court.49 The net result would be added work for the courts of appeals,50 with no assurance that there would ultimately be a saving of district court time.
III
23
Hence, we conclude that § 1292(b) did not establish jurisdiction in the Court of Appeals over interlocutory orders in Expediting Act cases. The exclusive nature of the jurisdiction created in § 2 of the Expediting Act has consistently been recognized by this Court, and we hold today that that exclusivity remains unimpaired. Despite our interest in a restructuring of our jurisdiction under the Expediting Act, we are neither willing nor able to adopt the ungainly half measure offered by the petitioner in this case.
24
Affirmed.
25
Mr. Justice WHITE joins the Court's opinion except for the advisory to Congress reflecting one view of the relative merits of the Expediting Act.
26
Mr. Justice DOUGLAS, dissenting.
27
I agree with Mr. Justice STEWART that the appeal of the interlocutory order in this case to the Court of Appeals under 28 U.S.C. § 1292(b) was not barred by the Expediting Act. But I disagree with the intimations in both the majority opinion and the other dissenting opinion that because of our overwork the antitrust cases should first be routed to the courts of appeals and only then brought here.1
28
The case for our 'overwork' is a myth. The total number of cases filed has increased from 1063 cases in the 1939 Term to 3643 in the 1971 Term. That increase has largely been in the in forma pauperis cases, 117 being filed in the 1939 Term and 1930 in the 1971 Term. But we grant certiorari or note probable jurisdiction in very few cases. The signed opinions of the Court (which are only in argued cases) totaled 137 in the 1939 Term with six per curiams2 or a total of 143 Court opinions, while in the 1971 Term we had 129 signed opinions of the Court and 20 per curiams3 or a total of 149 Court opinions. So in terms of petitions for certiorari granted and appeals noted and set for argument our load today is substantially what it was 33 years ago.
29
The load of work so far as processing cases is concerned has increased. That work is important; and in many ways it is the most important work we do. For the selection of cases across the broad spectrum of issues presented is the very heart of the judicial process. Once our jurisdiction was largely mandatory and the backlog of cases piled high. The 1925 Act4 changed all that, leaving to the Court the selection of those certiorari cases which seem important to the public interest. The control of the docket was left to the minority, only four votes out of nine being necessary to grant a petition. The review or sifting of these petitions is in many respects the most important and, I think, the most interesting of all our functions. Across the screen each Term come the worries and concerns of the American people—high and low presented in concrete, tangible form. Most of these cases have been before two or more courts already; and it is seldom important that a third or fourth review be granted. But we have national standards for many of our federal-state problems and it is important, where they control, that the national standards be uniform; and it is equally important where state law is supreme that the States be allowed to experiment with various approaches and solutions.
30
Neither taking that jurisdiction from us nor the device of reducing our jurisdiction is necessary for the performance of our duties. We are, if anything, underworked, not overworked. Our time is largely spent in the fascinating task of reading petitions for certiorari and jurisdictional statements. The number of cases taken or put down for oral argument has not materially increased in the last 30 years.
31
The Expediting Act, 15 U.S.C. §§ 28, 29, involved in the present case, does not contribute materially to our caseload. In the 1967 Term we had 12 such cases but only three of them were argued, the others being disposed of summarily. In the 1968 Term we had eight, but only three were argued. In the 1969 Term we had four; only two being argued. In the 1970 Term only two such cases reached us and each was argued. In the 1971 Term four such cases reached us, two of them being argued.5
32
If there are any courts that are surfeited, they are the courts of appeals. In my Circuit—the Ninth—it is not uncommon for a judge to write over 50 opinions for the court in one term. That Circuit has at the present time a 15-month backlog of civil cases, while we are current. The average number of signed opinions for the Court in this Court is close to 12 per Justice; only occasionally does anyone write even as many as 18; and we have no backlog.
33
Separate opinions—including dissents and concurring opinions multiple. If they are added to the total of 149 for the 1971 Term, the overall number would be 328. But the writing of concurrences, dissents, or separate opinions is wholly in the discretion of the Justice. It is not mandatory work; it is writing done in the vast leisure time we presently have.
34
The antitrust cases are only small fractions of our case load. Yet they represent large issues of importance to the economy, to consumers, and to the maintenance of the free-enterprise system. Congress has expressed in the Sherman Act,6 the Clayton Act,7 the Robinson-Patman Act,8 and the Celler-Kefauver Act9 a clear policy to keep the avenues of business open, to bar monopolies, and to save the country from the cartel system which is the product of gargantuan growth.
35
It is of course for Congress and Congress alone to determine whether the Expediting Act10 should bring the antitrust cases directly here. While I join the statutory construction in Mr. Justice STEWART's dissent, I do not join that part which expresses to me an inaccurate account of the 'overwork' of the Court. We are vastly underworked. One interested in history will discover that once upon a time Hugo Black wrote over 30 opinions for the Court in a Term where only 135 opinions were written for the Court, a few more than we all wrote last Term.
36
Mr. Justice STEWART, with whom Mr. Justice REHNQUIST concurs, and Mr. Justice DOUGLAS concurs in part, dissenting.
37
The Expediting Act, enacted in 1903, provides that in civil antitrust actions brought by the United States 'an appeal from the final judgment of the district court will lie only to the Supreme Court.' (Emphasis added.) Section 1292(b), enacted in 1958, provides that when a district court, 'in making in a civil action an order not otherwise appealable under this section,' shall appropriately certify the question involved, the court of appeals has discretionary jurisdiction to hear an interlocutory appeal from that order. Thus, the Expediting Act, by its terms, relates only to appeals from final judgments in a limited category of cases, while § 1292(b) applies to appeals from certain interlocutory orders in all civil actions. The Expediting Act does not prohibit court of appeals jurisdiction under § 1292(b), for the former applies only to final judgments, while the latter applies only to interlocutory orders. To find any inconsistency whatever between the two statutes thus requires rejection of the plain meaning of each of them—rejection, in short, of a most basic principle of statutory construction. As the Court of Appeals for the Seventh Circuit recognized in Fisons Ltd. v. United States, 458 F.2d 1241, 1245 (1972), 'the language of each (can) be given full effect without limiting the scope of the other.' Moreover, the purpose of § 1292(b) is wholly consistent with that of the Expediting Act. The 1903 statute was motivated by the view that Government antitrust actions are so important that they should be expedited. Shenandoah Valley Broadcasting v. ASCAP, 375 U.S. 39, 40, 84 S.Ct. 8, 9, 11 L.Ed.2d 8 (1963).1 So, too, the motivation behind § 1292(b), enacted 55 years later, was the contemporary view that interlocutory appeals involving important and controlling questions of law are a useful means of expediting litigation. Although § 1292(b) authorizes a departure from the general rule against interlocutory appeals, it does so only for the purpose of materially advancing the ultimate termination of the litigation.2 Thus, the Expediting Act and § 1292(b) are animated by precisely the same objectives and warranted by precisely the same circumstances, and they should be read together as supplementing one another, not as antagonistic.
38
The legislative history of § 1292(b) indicates that its primary benefit was expected to occur in the protracted or 'big' cases, including civil antitrust litigation.3 Yet, if no appeal can be taken to a court of appeals under § 1292(b) in a civil antitrust suit where the Government is plaintiff, then the purpose behind the statute cannot be served at all in these cases, for no statute provides for such an interlocutory appeal directly to this Court. It seems to me that if Congress had wanted to exclude cases like this one from the beneficent provisions of § 1292(b), it would have said so.4
39
The Expediting Act originally provided that Government antitrust cases would be heard by a panel of judges upon the certification of the Attorney General. That provision is now 15 U.S.C. § 28, which provides for a panel of three. The purpose of the provision was to ensure that cases would receive full consideration by a panel of judges before presentation to this Court.5 The Expediting Act, of course, has been criticized because it routes complex cases directly here without benefit of screening by the courts of appeals. As we stated in United States v. Singer Mfg. Co., 374 U.S. 174, 175 n. 1, 83 S.Ct. 1773, 1774, 10 L.Ed.2d 823 (1963):
40
'Whatever may have been the wisdom of the Expediting Act in providing direct appeals in antitrust cases at the time of its enactment in 1903, time has proven it unsatisfactory. . . . Direct appeals not only place a great burden on the Court but also deprive us of the valuable assistance of the Courts of Appeals.'
41
See also Brown Shoe Co. v. United States, 370 U.S. 294, 355, 82 S.Ct. 1502, 1541, 8 L.Ed.2d 510 (1962) (Clark, J., concurring); id., at 364—365, 82 S.Ct. at 1546—1547 (Harlan, J., dissenting in part and concurring in part); United States v. Borden Co., 370 U.S. 460, 477 n., 82 S.Ct. 1309, 1318, 8 L.Ed.2d 627 (1962) (Harlan, J., dissenting); Ford Motor Co. v. United States, 405 U.S. 562, 595 n. 5, 92 S.Ct. 1142, 1160, 31 L.Ed.2d 492 (1972) (Burger, C.J., concurring in part and dissenting in part). Interlocutory appeals under § 1292(b) in Government antitrust cases would provide screening of at least some issues in at least some cases by courts of appeals before those issues reach this Court; and this, as shown above, would be consistent with the original policy of the Expediting Act. The Court's decision today precludes, in cases like this, both the useful expediting effect of § 1292(b) and the equally desirable potential of intermediate review by the courts of appeals of important legal issues.
42
It is said that a ban on court of appeals jurisdiction under § 1292(b) in Government antitrust cases is to be derived from the provisions of § 1292(a) (1). The latter section provides that the courts of appeals shall have jurisdiction of appeals from interlocutory orders of district courts granting or denying injunctions 'except where a direct review may be had in the Supreme Court.' The argument is that that language expressly excludes court of appeals jurisdiction in Expediting Act cases; and since there is nothing in the language of § 1292(b) that contradicts this express exclusion, interlocutory orders in Expediting Act cases are likewise not appealable under § 1292(b). If § 1292(b) did allow court of appeals jurisdiction in this case, it is said, the result would be that an interlocutory order in a Government antitrust case could be appealed to a court of appeals only if it did not involve an injunction; and that result would effectively turn § 1292 on its head, because in non-Expediting Act cases, § 1292 gives priority to injunctive orders, which may be appealed as of right.
43
There are several answers to this argument. At the outset, it is not clear that the major premise—that § 1292(a)(1) expressly excludes court of appeals jurisdiction in Expediting Act cases—is valid. On that question, the Circuits are divided, the First and the Ninth denying their jurisdiction,6 and the Third upholding appealability.7 We have never before faced the question nor resolved the conflict.
44
But even if the Expediting Act does bar court of appeals jurisdiction to review interlocutory injunctive orders under § 1292(a)(1) in Government antitrust cases, it does not follow that there must be a similar bar to § 1292(b) jurisdiction. The very fact that § 1292(a)(1) contains express language which at least arguably creates an exception to court of appeals jurisdiction, while § 1292(b) contains no such language, is reason enough to treat the two differently. Beyond that, § 1292(a)(1) has a history dramatically different from § 1292(b). That history was thoroughly reviewed in United States v. Cities Service Co., 410 F.2d 662 (CA1 1969), in United States v. Ingersoll-Rand Co., 320 F.2d 509 (CA3 1963), and in the Court's opinion today, ante, at 155—163, and need not be discussed in detail here. Suffice it to say that the original version of § 1292(a)(1) was enacted in 1891, and that the provision went through several changes in language in succeeding years, during which its relationship to the 1903 Expediting Act was often unclear. See United States v. Cities Service Co., 410 F.2d, at 666—669. The provision was finally codified in its present form in 1948, although, as the above-mentioned conflict among the circuits demonstrates, that codification did not make its relationship to the Expediting Act any clearer. Section 1292(b), on the other hand, was an entirely new statute, written on a clean slate in 1958, and representing a sharp break with the traditional policy against appeals from noninjunctive interlocutory orders. At that time, there was already growing doubt about the wisdom of the Expediting Act; and the fact that Congress conferred § 1292(b) jurisdiction without making any express exception for cases where direct review may be had in this Court—such as had been in § 1292(a)(1) for some years—is surely some indication that Congress in 1958 was expressing the contemporary view that interlocutory appeals to the courts of appeals on controlling questions of law provide a desirable tool that should not be denied even in Expediting Act cases.
45
As to the point that this interpretation would 'turn § 1292 on its head,' it is certainly arguable that if an appeal from an injunctive order in an Expediting Act case cannot be had under § 1292(a)(1), it may still be taken under § 1292(b). Section 1292(b) relates to orders 'not otherwise appealable under this section,' whatever the nature of the order and whatever the reason for its nonappealability. Hence, if, in Government antitrust cases, courts of appeals have no jurisdiction under § 1292(a)(1), then an interlocutory injunctive order would be an order 'not otherwise appealable,' and § 1292(b)'s discretionary jurisdiction might well be held to apply.
46
In short, there is no validity to the argument that the terms of § 1292(a)(1), whatever they may mean, have any bearing upon the proper interpretation of § 1292(b).
47
It is also argued that the basic policy of the Expediting Act was to remove all court of appeals jurisdiction in Government antitrust cases. According to this argument, although the Act speaks only of final judgments, it must be understood to include interlocutory appeals, since, at the time the Act was passed, the courts of appeals could review interlocutory orders only in cases where they could review final judgments. From United States v. California Cooperative Canneries, 279 U.S. 553, 558, 49 S.Ct. 423, 424, 73 L.Ed. 838 (1929), to Brown Shoe Co. v. United States, 370 U.S., at 305 n. 9, 82 S.Ct., at 1512, the argument goes, this Court has consistently indicated that courts of appeals may not exercise jurisdiction in Expediting Act cases, regardless of whether the appeal is from a final or interlocutory order; and it should not be assumed that Congress in 1958 repealed this longstanding interpretation by legislation that is not addressed specifically to appeals in these cases.
48
I fail to see how we effect anything like a repealer of the Expediting Act by construing § 1292(b) to permit court of appeals jurisdiction thereunder in Expediting Act cases. As demonstrated above, there is no inconsistency whatever between this construction of § 1292(b) and the plain language of the Expediting Act. It is equally clear that the reason why in 1903, and indeed for 55 years thereafter, courts of appeals could not review noninjunctive interlocutory orders in cases where they could not review the final judgment is not that the Expediting Act forbade such review, but that there was no statutory authority for such review in any cases whatsoever. In 1958, however, Congress broke with the old policy against interlocutory appeals from noninjunctive orders and specifically provided that such appeals may be taken to the courts of appeals in their discretion in all civil actions, where the question is properly certified. I see no reason, in the absence of some statutory prohibition, to refrain from applying that clear language, whether or not the court of appeals can review the final judgment.
49
The cases cited by the Government do not persuade me otherwise. California Conneries, of course, was decided 29 years before the enactment of § 1292(b); and whatever was said there was a judgment on what Congress had done, not on what it could do or on the meaning of what it was to do 29 years later. Brown Shoe does postdate the enactment of § 1292(b); but that case involved a direct appeal to this Court, and the only question about appealability was whether the appealed order was final. The issue of court of appeals jurisdiction under § 1292(b) was not involved there, nor was the 1958 Act even mentioned in the short footnote dictum so heavily relied on by the Government. That dictum did little more than quote the language of California Canneries, and it surely cannot be understood to decide the issue now before us.
50
Finally, it is said that it would be anomalous for a court of appeals that is without jurisdiction to entertain an appeal from a final judgment to decide an interlocutory issue that could control the outcome of the case. But there is no case in which the judgment of a court of appeals is necessarily final. Whenever a court of appeals decides a controlling question of law in any litigation, its views are subject to review here. Far from being anomalous, interlocutory review of potentially dispositive questions by the courts of appeals in Government antitrust cases would be helpful to this Court, giving us the benefit of intermediate appellate consideration in these cases. We could then exercise our certiorari power informed by the reasoning of an appellate court, and there might be no later direct appeal at all from the final judgment. And surely interlocutory appeals under § 1292(b) in Government antitrust cases would serve to lighten the burden on trial courts and litigants alike.
51
We cannot, of course, create an appellate jurisdiction not created by Congress, however desirable. But what Congress has conferred, we should not reject.
52
I would reverse the order of the Court of Appeals denying Tidewater's petition to appeal under § 1292(b) for lack of jurisdiction, and I would remand this case to that court with directions to consider the merits of the petition to appeal.
1
Tidewater then transferred title to its Western Marketing and Manufacturing Division to Phillips.
2
Tidewater merged with Getty Oil Co. on September 30, 1967. It has never been contended that that merger altered Tidewater's legal status in this case.
3
In its motion to be dismissed, Tidewater contended 'that Section 7 of the Clayton Act is directed only against the acquiring corporation and not against the seller, that the sale of assets by defendant Tidewater Oil Company to Phillips Petroleum Company has long ago been consummated, that no relief is obtainable against Tidewater Oil Company, and that its presence in the suit is no longer necessary or appropriate.'
4
Subsequent to the decision by the Ninth Circuit in this case, the Court of Appeals for the Seventh Circuit held that § 1292(b) could be used to take an interlocutory appeal in a Government civil antitrust case. See Fisons Ltd. v. United States, C.A.7, 458 F.2d 1241, 1244—1248, cert. denied, 405 U.S. 1041, 92 S.Ct. 1312, 31 L.Ed.2d 581 (1972). The only other court of appeals to consider the question, the Court of Appeals for the District of Columbia Circuit, reached the same result as the Ninth Circuit in this case. See Farbenfabriken Bayer, A.G. v. United States, 1968 CCH Trade Cas. 72,570, cert. denied, 393 U.S. 959, 89 S.Ct. 397, 21 L.Ed.2d 373 (1968); Glaxo Group, Ltd. v. United States, Misc. No. 3261 (June 25, 1968).
5
405 U.S. 986, 92 S.Ct. 1245, 31 L.Ed.2d 452 (1972). We had originally denied certiorari 404 U.S. 941, 92 S.Ct. 280, 30 L.Ed.2d 254 (1971).
6
Act of Sept. 2, 1958, Pub.L. 85—919, 72 Stat. 1770.
7
See also Shenandoah Valley Broadcasting, Inc. v. ASCAP, 375 U.S. 39, 40, 84 S.Ct. 8, 9, 11 L.Ed.2d 8 (1963), modified, 375 U.S. 994, 84 S.Ct. 627, 11 L.Ed.2d 467 (1964).
Section 1 of the Expediting Act, 15 U.S.C. § 28, requires that a three-judge district court be convened to hear any Government civil antitrust case that the Attorney General certifies to be of 'general public importance.' See also 49 U.S.C. § 44. This three-judge court provision is also a reflection of the 'great importance' attached to Government civil antitrust cases and was intended to provide a mechanism for full consideration of such cases by a panel of judges 'before presentation to the Supreme Court as if heard by the United States circuit court of appeals.' H.R.Rep. No. 3020, 57th Cong., 2d Sess., 2 (1903). But this provision has been seldom used.
8
Act of Feb. 11, 1903, § 2, 32 Stat. 823, as amended, Act of Mar. 3, 1911, § 291, 36 Stat. 1167; Act of June 9, 1944, c. 239, 58 Stat. 272; Act of June 25, 1948, § 17, 62 Stat. 989. As originally enacted, the statute read in relevant part as follows:
'That in every suit in equity pending or hereafter brought in any circuit court of the United States under any of said Acts, wherein the United States is complainant, . . . an appeal from the final decree of the circuit court will lie only to the Supreme Court and must be taken within sixty days from the entry thereof . . ..'
There is no contention here that the very minor changes in wording effected by the subsequent amendments and codifications of the statute in any way altered the original meaning of the Act.
9
Act of March 3, 1891, § 2, 26 Stat. 826.
10
Act of March 3, 1891, § 6, 26 Stat. 828.
11
Act of June 6, 1900, c. 803, 31 Stat. 660, amending Act of Mar. 3, 1891, § 7, 26 Stat. 828, as amended, Act of Feb. 18, 1895, 28 Stat. 666 (emphasis added).
12
In United States v. California Cooperative Canneries, 279 U.S. 553, 558, 49 S.Ct. 423, 425, 73 L.Ed.2d 838 (1929), Mr. Justice Brandeis, speaking for the Court, detailed the causes of delay that prompted the Expediting Act:
'Congress sought by the Expediting Act to insure speedy disposition of suits in equity brought by the United States under the Anti-Trust Act. Before the passage of the Expediting Act the opportunities for delay were many. From a final decree in the trial court under the Anti-Trust Act an appeal lay to the Circuit Court of Appeals; and six months were allowed for taking the appeal. From the judgment of the Court of Appeals an appeal lay to this court; and one year was allowed for taking that appeal. Act of March 3, 1891, c. 517, §§ 6, 11, 26 Stat. 826, 828, 829. See United States v. E. C. Knight Co., C.C., 60 F. 306; 60 F. 934; 156 U.S. 1, 15 S.Ct. 249, 39 L.Ed. 325; United States v. Trans-Missouri Freight Association, C.C., 53 F. 440; 58 F. 58; 166 U.S. 290, 17 S.Ct. 540, 41 L.Ed. 1007. Moreover, there might be an appeal to the Circuit Court of Appeals from a decree granting or denying an interlocutory injunction, Act of June 6, 1900, c. 803, 31 Stat. 660.'
See also United States Alkali Export Assn. v. United States, 325 U.S. 196, 203, 65 S.Ct. 1120, 1125, 89 L.Ed. 1554 (1945).
13
United States v. Cities Service Co., 410 F.2d 662, 664 (CA1, 1969); see Brown Shoe Co. v. United States, 370 U.S. 294, 364, 82 S.Ct. 1502, 1546, 8 L.Ed.2d 510 (1962) (Harlan, J., dissenting in part and concurring in part); 36 Cong.Rec. 1679 (remarks of Sen. Fairbanks); cf. n. 7, supra.
14
Act of July 2, 1890, c. 647, 26 Stat. 209.
15
In saying this, we are not to be understood as necessarily accepting today an important premise that underlies § 2—namely, that the courts of appeals, subject to review on certiorari in this Court, are incapable of providing the uniformity of interpretation necessary to the administration of the antitrust laws. See infra, at 170. In 1903, the courts of appeals had been in existence for only 12 years and various reservations about them had not yet been dispelled. See F. Frankfurter & J. Landis, The Business of the Supreme Court 258 (1927). Since that time, we have had over a half-century of experience with the courts of appeals—including experience in the field of private antitrust litigation—which has resolved any initial doubts. See ibid.
16
See Act of Apr. 14, 1906, c. 1627, 34 Stat. 116.
17
See Act of Mar. 3, 1911, § 129, 36 Stat. 1134.
18
See Act of Feb. 13, 1925, amending § 129, 43 Stat. 937.
19
See Act of Apr. 11, 1928, c. 354, 45 Stat. 422.
20
The 1906 amendment removed the limitation on interlocutory appeal to causes 'in which an appeal from a final decree may be taken . . . to the circuit court of appeals' and provided simply that such an appeal may be taken to the court of appeals 'in any cause.' Act of Apr. 14, 1906, c. 1627, 34 Stat. 116. In codifying the Evarts Act interlocutory appeals provision in 1911, 'in any cause' was struck, and the provision was amended to allow the courts of appeals to entertain appeals from interlocutory orders 'notwithstanding an appeal in such case might, upon final decree under the statutes regulating the same, be taken directly to the Supreme Court.' Act of Mar. 3, 1911, § 129, 36 Stat. 1134. Finally, the famous Judges' Bill of 1925, in turn struck the 'notwithstanding' language, with the result that the codified provision, § 129, simply allowed an appeal to be 'taken from (an) interlocutory order or decree (granting or denying an injunction or appointing a receiver) to the circuit court of appeals . . ..' Act of Feb. 13, 1925, amending § 129, 43 Stat. 937.
The 1928 amendment is completely without relevance here since it merely extended the applicability of the statute to interlocutory orders issued by the District Courts of Alaska, Hawaii, the Virgin Islands, and the Canal Zone. Act of Apr. 11, 1928, c. 354, 45 Stat. 422.
21
See S.Rep.No. 2192, 59th Cong., 1st Sess. (1906); H.R.Rep. No. 542, 59th Cong., 1st Sess. (1906); 40 Cong.Rec. 1723, 1742, 4429, 4856—4857, 5056.
22
As to the 1911 amendment, see S.Rep.No. 388, 61st Cong., 2d Sess., pt. 1, p. 53 (1910); H.R.Doc.No. 783, 61st Cong., 2d Sess., 57 (1910); H.R.Rep.No. 818, 61st Cong., 2d Sess. (1910); S.Doc.No. 848, 61st Cong., 3d Sess. (1911); 45 Cong.Rec. 4001. As to the 1925 amendment, see S.Rep.No. 362, 68th Cong., 1st Sess., 3 (1924); H.R.Rep.No. 1075, 68th Cong., 2d Sess., 4—5 (1925); Hearing on S. 2060 and S. 2061 before a Subcommittee of the Senate Committee on the Judiciary, 68th Cong., 1st Sess., 12 (1924).
23
Thus, the 1906 amendment, see n. 20, supra, was intended to render ineffective certain evasive pleading tactics that had theretofore been employed to take advantage of the fact that under the Evarts Act an interlocutory appeal could be taken where only a nonconstitutional issue was at stake but not where a constitutional issue was involved. See H.R.Rep.No. 542, 59th Cong., 1st Sess., 2—3 (1906); 40 Cong.Rec. 1723 (remarks of Rep. Brantley); id., at 4856 (remarks of Sen. Bacon).
The legislative history concerning the 1911 amendment, see n. 20, supra, indicates that the 'notwithstanding' language was designed to 'remove any doubt' that the limitation—initially struck by the 1906 amendment—on interlocutory appeals to those cases in which an appeal might be taken to the court of appeals after a final decree had been eliminated. But this merely suggests an intent finally to resolve with even more specific language the problem of
evasive pleading which had motivated the 1906 amendment. See S.Rep.No. 388, 61st Cong., 2d Sess., pt. 1, p. 53 (1910). Thus, in response to inquiry whether this amendment constituted 'a change in the existing law,' Senator Heyburn, a sponsor of the legislation, said on the Senate floor, 'This is the existing law.' 45 Cong.Rec. 4001.
As to the 1925 version of the interlocutory appeals provision, see n. 20, supra, the analysis prepared by the committee of this Court which drafted it explained that the 'notwithstanding' language was 'eliminated as having no further application in view of the repeal of' the provisions that had necessitated the initial 1906 amendment. Hearing on S. 2060 and S. 2061 before a Subcommittee on the Senate Committee on the Judiciary, 68th Cong., 1st Sess., 12 (1924). And if the addition of the 'notwithstanding' language in 1911 did not establish court of appeals jurisdiction over interlocutory orders in Expediting Act cases, we fail to see how dropping that language in 1925 did so. At the same time, elsewhere in the Judges' Bill, § 2 of the Expediting Act was carried forward without alteration. See Act of Feb. 13, 1925, amending § 238(1), 43 Stat. 938. In doing so, it was stated: 'A direct review by the Supreme Court of an interlocutory or final judgment or decree of a district court may be had where it is so provided in the following Acts or parts of Acts, and not otherwise: (1) Section 2 of the Act of February 11, 1903, 'to expedite the hearing and determination' of certain suits brought by the United States under the antitrust . . . laws . . ..' Ibid. (emphasis added). Section 2, of course, has never contained a provision allowing appeal of interlocutory orders. Moreover, Mr. Justice Van Devanter, a member of this Court's committee that prepared the bill, testified before the Senate Committee that the character of Expediting Act cases 'suggest(s) that they should go directly to the Supreme Court rather than through the circuit courts of appeals' without any indication that an exception was being introduced for interlocutory appeals to the courts of appeals. Hearing on S. 2060 and S. 2061 before a Subcommittee of the Senate Committee on the Judiciary, 68th Cong., 1st Sess., 33 (1924). See also S.Rep.No. 362, 68th Cong., 1st Sess., 3 (1924).
24
Certainly the Court spoke fully cognizant of at least the amendment contained in the Judges' Bill of just four years before, see n. 20, supra, since all seven sitting Justices had been on the Court when its committee submitted the bill to Congress.
25
In Alkali Export Assn., the Court went on to say:
'(Extraordinary) writs may not be used as a substitute for an authorized appeal; and where, as here, the statutory scheme (the Expediting Act) permits appellate review of interlocutory orders only on appeal from the final judgment, review by certiorari or other extraordinary writ is not permissible in the face of the plain indication of the legislative purpose to avoid piecemeal reviews.' 325 U.S., at 203, 65 S.Ct., at 1125 (emphasis added). Nevertheless, the Court found that exigent circumstances associated with the District Court's denial of the defendant's motion to dismiss the action justified immediate review by common-law certiorari in the particular case. Id., at 203—204, 65 S.Ct. at 1125—1126.
The Court in De Beers, stating that '(w)hat is . . . said (in Alkali Export Assn.) applies in this instance,' 325 U.S., at 217, 65 S.Ct., at 1133, granted review under the All Writs Act of a preliminary injunction although normally review would have been to the court of appeals under what is now 28 U.S.C. § 1292(a)(1).
Of course, nothing we say today signifies a retreat from our previous statements that appeals of interlocutory orders in Government civil antitrust cases cannot be taken even to this Court.
26
Act of June 25, 1948, 62 Stat. 929.
27
In 1951 reference to the District Court of Guam was inserted in the section, Act of Oct. 31, 1951, § 49, 65 Stat. 726, and reference to the District Court for the Territory of Alaska was removed from the section effective upon the admission of Alaska into the Union in 1959, Act of July 7, 1958, § 12(e), 72 Stat. 348. Finally, when subsection (b) was added to the section, the former entire section was designated subsection (a). Act of Sept. 2, 1958, Pub.L. 85—919, 72 Stat. 1770.
28
The portion of the provision governing appeal of interlocutory orders appointing receivers and related matters became 28 U.S.C. § 1292(2) (1946 ed., Supp. II), now 28 U.S.C. § 1292(a)(2).
29
See S.Rep.No. 1559, 80th Cong., 2d Sess., 1—2 (1948) ('great care has been exercised to make no changes in the existing law which would not meet with substantially unanimous approval'); H.R.Rep.No. 308, 80th Cong., 1st Sess., 1—8 (1947).
30
H.R.Rep.No. 2646 of the Committee on Revision of the Laws of the House of Representatives to accompany H.R. 7124, 79th Cong., 2d Sess., App. A107—108 (1946). See also H.R.Rep.No. 308 of the Committee on the Judiciary of the House of Representatives to accompany H.R. 3214, 80th Cong., 1st Sess., App. A110—111 (1947).
31
Compare n. 20, supra, with n. 23, supra.
32
See supra, at 160—161. Similarly, two of three courts of appeals which have considered the question have concluded that an interlocutory appeal does not lie under § 1292(a)(1) in Expediting Act cases. See United States v. Cities Service Co., 410 F.2d 662 (CA1 1969); United States v. FMC Corp., 321 F.2d 534 (CA9 1963). But see United States v. Ingersoll-Rand Co., 320 F.2d 509, 511—517 (CA3 1963).
33
Cf. S.Rep.No. 2434, 85th Cong., 2d Sess., 3 (1958) U.S.Code Cong. & Admin. News 1958, p. 5255; H.R.Rep.No. 1667, 85th Cong., 2d Sess., 2 (1958).
34
It was only subsequent to the enactment of § 1292(b) that a single Court of Appeals concluded—despite the unqualified statements by this Court since United States v. California Cooperative Canneries, 279 U.S., at 558, 49 S.Ct., at 424, to the contrary—that an interlocutory appeal would lie under § 1292(a) (1) in a Government civil antitrust case. See United States v. Ingersoll-Rand Co., 320 F.2d, at 511—517. See also Fisons Ltd. v. United States, 458 F.2d, at 1244—1248, cert. denied, 405 U.S. 1041, 92 S.Ct. 1312, 31 L.Ed.2d 581 (1972) (§ 1292(b)).
35
See S.Rep.No. 2434, 85th Cong., 2d Sess. (1958); H.R.Rep.No. 1667, 85th Cong., 2d Sess. (1958); Hearings on H.R. 6238 before Subcommittee No. 3 of the House Committee on the Judiciary, 85th Cong., 2d Sess. (1958); 104 Cong.Rec. 8002 (remarks of Rep. Keating). See also Report of the Proceedings of the Regular Annual Meeting of the Judicial Conference of the United States 32—33 (1951); Report of the Proceedings of a Special Meeting of the Judicial Conference of the United States 7 (1952); Report of the Proceedings of the Regular Annual Meeting of the Judicial Conference of the United States 27—28 (1953).
36
The Senate Report suggests the denial of a motion to dismiss an antitrust action as barred by the statute of limitations as one instance in which an interlocutory appeal might be desirable. But it goes on to state:
'Disposition of antitrust cases may take considerable time, yet upon appeal following final disposition of such cases, the court of appeals may well determine that the statute of limitations had run and for that reason the district court did not have jurisdiction.' S.Rep.No. 2434, 85th Cong., 2d Sess., 3 (1958) U.S.Code Cong. & Admin.News, 1958, p. 5256 (emphasis added). The reference to antitrust cases in Chief Judge John J. Parker's testimony at the hearings on § 1292(b) was also clearly limited to private trebledamages actions. See Hearings on H.R. 6238 before Subcommittee No. 3 of the House Committee on the Judiciary, 85th Cong., 2d Sess., 9 (1958).
37
38 Stat. 731, 15 U.S.C. § 15.
38
S.Rep.No. 2434, 85th Cong., 2d Sess., 2 (1958) U.S.Code Cong. & Admin.News 1958, p. 5256 (emphasis added).
39
See id., at 2—3; H.R.Rep.No. 1667, 85th Cong., 2d Sess., 1 (1958); Hearings on H.R. 6238 before Subcommittee No. 3 of the House Committee on the Judiciary, 85th Cong., 2d Sess., 8 (1958).
40
Cf. H.R.Rep.No. 1667, 85th Cong., 2d Sess., 1—2 (1958).
41
Petitioner suggests two avenues of escape from this anomalous situation: (1) that under § 1292(a)(1) an interlocutory appeal may in fact lie from an injunctive order in a Government civil antitrust case; (2) that if an appeal from such an order cannot be taken under § 1292(a), it may nevertheless be taken under § 1292(b) since, the argument goes, the latter applies to all orders not appealable under the former, 'whatever the nature of the order and whatever the reason for its nonappealability.' Reply Brief for Petitioner 7—8. Our discussion in Part I of this opinion is sufficient to dispose of petitioner's first contention. As to the second argument, while the language of § 1292(b) is unqualified on its face, the legislative history indicates that Congress was concerned only with orders of types other than those specified in § 1292(a); in other words, § 1292(b) was intended to supplement § 1292(a), not to provide a substitute for it. See n. 35, supra. Moreover, it would be, to say the least, extraordinary for Congress to have resorted to such a subtle method of establishing for the first time in Government civil antitrust cases interlocutory appeals for orders of the type specified in § 1292(a) without giving any hint whatsoever that this was its purpose.
42
Brief for United States 18.
43
Nor can it be ignored that subsequent to both the 1948 revision which resulted in § 1292(a) and the enactment of § 1292(b), we have reaffirmed that a final judgment is an essential prerequisite to an appeal of an order issued in a government civil antitrust case since 'congress . . . limited the right of review in such cases to an appeal from a decree which disposed of all matters, and it precluded the possibility of an appeal either to this Court or to a Court of Appeals from an interlocutory decree.' Brown Shoe Co. v. United States, 370 U.S., at 305 n. 9, 82 S.Ct. at 1512. Section 1292 was not, to be sure, specifically at issue in Brown Shoe. But in holding as it did, that the District Court's decree was appealable only because it was 'final,' id., at 306 309, 82 S.Ct., at 1513—1515, the Court necessarily foreclosed the possibility of an interlocutory appeal to any court, and thus its remark concerning the preclusion of interlocutory appeals cannot be lightly dismissed.
44
The sole exception to this would be if the certified question had previously been considered by way of certiorari.
45
Only if we were to dispose of a controlling question in such a way as to end all proceedings would the possibility of a subsequent appeal be foreclosed. A threshold issue of jurisdiction might present such a controlling question; but even that type of issue will often not end an entire Government civil antitrust case which might involve a number of parties—as is true in this case where the certified question relates to only one of the two defendants.
46
See also Fisons Ltd. v. United States, 458 F.2d 1241 (CA7), cert. denied, 405 U.S. 1041, 92 S.Ct. 1312, 31 L.Ed.2d 581 (1972) (service of process); Farbenfabriken Bayer, A. G. v. United States, 1968 CCH Trade Cas. 72,570 (CADC), cert. denied, 393 U.S. 959, 89 S.Ct. 397, 21 L.Ed.2d 373 (1968) (quasi in rem jurisdiction).
47
Other than threshold procedural issues, the question consistently sought to be raised on interlocutory appeal has been the propriety of orders granting or denying preliminary injunctions with respect to proposed acquisitions. See United States v. Cities Service Co., 410 F.2d 662 (CA1 1969); United States v. FMC Corp., 321 F.2d 534 (CA9 1963); United States v. Ingersoll-Rand Co., 320 F.2d 509 (CA3 1963). Although appeals of such orders would involve the merits of the antitrust actions, the fact is that permitting interlocutory appeal under § 1292(b) would not bring these orders and the related evidence before the courts of appeals since they come within § 1292(a)(1). Cf. n. 41, supra. Moreover, because of the need for speed if an acquisition is to be enjoined before accomplished, requests for such interlocutory orders must be determined after, at most, only an initial hearing and without full development of the record. Consequently, appeals from such orders would not necessarily bring before the courts of appeals the lengthy records and numerous documents with which we have often been forced to deal after final judgment.
48
See S.Rep.No. 2434, 85th Cong., 2d Sess., 1—2 (1958).
49
Of course, this problem would not exist if the interlocutory decision were reviewed immediately on certiorari in this Court; but, as we have already seen, this alternative entails serious problems of its own.
50
In this respect, it must be recalled that interlocutory appeal under § 1292(b) is subject to the decision of the court of appeals in the exercise of its discretion, to allow appeal of the question certified by the district court. Thus, the effectiveness of § 1292(b) in Government civil antitrust cases would be dependent upon the willingness of the courts of appeals to assume this new burden aware of the limited import of their decisions and of the fact that interlocutory appeals in such cases would represent only added work for them, since they would not otherwise consider any appeal.
1
It is true that several Justices over the years have expressed the desire that the antitrust cases come to us only by certiorari to the courts of appeals. So far as I am aware the only opinion speaking for the Court containing that suggestion is United States v. Singer Mfg. Co., 374 U.S. 174, 83 S.Ct. 1773, 10 L.Ed.2d 823. But there the idea was contained only in a footnote (id., at 175 n. 1, 83 S.Ct. at 1774); and as Mr. Chief Justice Hughes was wont to say, 'Footnotes do not really count.'
2
Not including orders of dismissal or affirmance.
3
Including orders of dismissal or affirmance.
4
Judiciary Act of Feb. 13, 1925, 43 Stat. 936.
5
Ford Motor Co. v. United States, 405 U.S. 562, 92 S.Ct. 1142, 31 L.Ed.2d 492; United States v. Topco Associates, 405 U.S. 596, 92 S.Ct. 1126, 31 L.Ed.2d 515.
The antitrust cases not argued in the 1967—1971 Terms were either reversed out of hand or affirmed out of hand (some of these being companion cases to those that were argued), or dismissed as moot, or dismissed for want of jurisdiction. There were three dismissed for want of jurisdiction.
Farbenfabriken Bayer A.G. v. United States, 393 U.S. 216, 89 S.Ct. 397, 21 L.Ed.2d 358, involved an interlocutory order in which we ruled that we had no jurisdiction. Standard Fruit & S.S. Co. v. United Fruit Co., 393 U.S. 406, 89 S.Ct. 684, 21 L.Ed.2d 634, involved an effort of a corporation, not a party, to inspect the divestiture plans being submitted to the District Court pursuant to a consent judgment. Garrett Freightlines v. United States, 405 U.S. 1035, 92 S.Ct. 1311, 31 L.Ed.2d 577, involved an appeal from a defendant dismissed from the antitrust case because of the primary jurisdiction of the Interstate Commerce Commission over the acquisition in question.
6
Sherman Anti-Trust Act of July 2, 1890, c. 647, 26 Stat. 209, 15 U.S.C. §§ 1—7.
7
Clayton Act of Oct. 15, 1914, 38 Stat. 730, 15 U.S.C. § 12 et seq., § 44.
8
Robinson-Patman Act of June 19, 1936, 49 Stat. 1526, 15 U.S.C. §§ 13, 13a, 13b, 21a, 1013.
9
Celler-Kefauver Act of Dec. 29, 1950, 64 Stat. 1125, 15 U.S.C. §§ 18, 21.
10
For the legislative history of the Act see H.R.Rep.No.3020, 57th Cong., 2d Sess.
Senator Fairbanks, leading exponent of the Act, said in reporting it to the Senate: 'The far-reaching importance of the cases arising under antitrust laws now upon the statute books or hereafter to be enacted, and the general public interest therein, are such that every reasonable means should be provided for speeding the litigation. It is the purpose of the bill to expedite litigation of great and general importance. It has no other object.' 36 Cong.Rec. 1679.
1
In reporting the bill that became the Expediting Act, Senator Fairbanks stated that:
'(E)very reasonable means should be provided for speeding the litigation. It is the purpose of the bill to expedite litigation of great and general importance. It has no other object.' 36 Cong.Rec. 1679.
2
The Senate Report on the bill that became § 1292(b) stated:
'This legislation results from a considerable study by committees of the Judicial Conference. The legislation itself was introduced at the request of the Administrative Office of the United States Courts pursuant to the direction of the Judicial Conference of the United States. . . . The bill results from a growing awareness of the need for expedition of cases pending before the district courts. Many cases which are filed in the Federal district courts require the district judge to entertain motions at an early stage in the proceedings which, if determined, against the plaintiff, result in a final order which would then be appealable to the circuit courts of appeals of the United States. However, such motions, if determined in the plaintiff's favor, are interlocutory since they do not end the litigation and are not therefore, under existing provisions of law, appealable. . . .
'The committee believes that this legislation constitutes a desirable addition to the existing authority to appeal from interlocutory orders of the district courts of the United States. . . . Any legislation, therefore, appropriately safeguarded, which might aid in the disposition of cases before the district courts of the United States by saving useless expenditure of court time is such as to require the approbation of all those directly concerned with the administration of justice in the United States.' S.Rep.No. 2434, 85th Cong., 2d Sess., 2, 4, (1958). 3 U.S.Code, Congressional and Administrative News, 85th Cong., 2d Sess., at pp. 5255—5257.
3
The Senate Report stated:
'There are many civil actions from which similar illustrations could be furnished. For example, in an antitrust action a plea may be entered that the claim is barred by the statute of limitations. If this motion is denied, under existing law the matter is not appealable and the case then goes forward to trial. Disposition of antitrust cases may take considerable time, yet upon appeal following final disposition of such cases, the court of appeals may well determine that the statute of limitations had run and for that reason the district court did not have jurisdiction.' Id. at 3.
4
Although the antitrust cases referred to in the Senate Committee Report on § 1292(b) were apparently private cases, rather than Government litigation, the proposed legislation was introduced, after considerable study, at the direction of the Judicial Conference of the United States (n. 2, supra), whose members—all eminent federal judges—were surely familiar with the appellate procedure in civil antitrust cases brought by the Government.
5
The House Report on the bill explains this provision by quoting a letter of the Attorney General as follows:
'There are a number of cases now provided by statute where appeals may be made directly to the Supreme Court from the district and circuit courts . . ..
'The class of cases that I suggest should be brought within this rule, it seems to me, is of as great importance as any of those referred to. The suggested provision requiring a full bench of the circuit judges would insure the cases receiving as full consideration before presentation to the Supreme Court as if heard by the United States circuit court of appeals.' H.R.Rep.No.3020, 57th Cong., 2d Sess., 2 (1903).
6
United States v. Cities Service Co., 410 F.2d 662 (CA1 1969); United States v. FMC Corp., 321 F.2d 534 (CA9 1963).
7
United States v. Ingersoll-Rand Co., 320 F.2d 509 (CA3 1963). The reasoning of the Third Circuit in this case was as follows: Section 1292(a)(1) permits an appeal to a court of appeals of interlocutory injunctive orders 'except where a direct review may be had in the Supreme Court.' Since the Supreme Court has direct review in Expediting Act cases only from final judgments, it has none from interlocutory orders. Hence, the exception in § 1292(a)(1) does not bar court of appeals jurisdiction over interlocutory injunctive orders in Government antitrust cases. The court then concluded:
'In fact, it is extremely difficult and requires doing violence to the language of the statute to escape the conclusion that interlocutory orders, such as the one at bar, are reviewable by a court of appeals excepting and only excepting those types of cases in which an interlocutory order is directly reviewable by the Supreme Court.' 320 F.2d, at 517.
| 89
|
409 U.S. 224
93 S.Ct. 359
34 L.Ed.2d 431
Harold R. SWENSON, Warden, Petitioner,v.James William STIDHAM.
No. 71-224.
Argued Oct. 11, 1972.
Decided Dec. 7, 1972.
Opinion Modified Jan. 22, 1973.
See 410 U.S. 904, 93 S.Ct. 955.
Syllabus
During respondent's trial for murder he challenged the voluntariness of his confession. A full evidentiary hearing was held outside the jury's presence, following which the trial court held the confession admissible. After affirmance of respondent's conviction on appeal, respondent sought state post-conviction relief. The Missouri Supreme Court reversed the denial of respondent's motion to vacate, and an evidentiary hearing was held by the St. Louis Circuit Court on the voluntariness issue. That court concluded that the trial judge himself had found the confession voluntary and thus complied with Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908. The Missouri Supreme Court affirmed, and held additionally that respondent had been given a new evidentiary hearing by the St. Louis court and that his confession had again been found to be voluntary. Respondent then sought federal habeas corpus. The District Court determined that Jackson v. Denno had been satisfied. The Court of Appeals, concluding that the trial judge, as permitted by then-prevailing state law, had not made the voluntariness finding himself but had submitted the issue to the jury, reversed and held that respondent was entitled to a new hearing. Held: The trial court's Jackson v. Denno error, if any, was remedied by the constitutionally adequate evidentiary hearing given respondent on the voluntariness issue by the St. Louis court, which the Missouri Supreme Court upheld after concluding from its independent examination of the record that the confession was voluntary. The Court of Appeals therefore erred in holding that respondent was entitled to still another voluntariness hearing in the state court. Pp. 228—231.
443 F.2d 1327, reversed and remanded.
Kenneth M. Romines, Thayer, Mo., for petitioner.
Mark M. Hennelly, St. Louis, Mo., for respondent.
Mr. Justice WHITE delivered the opinion of the Court.
1
This case has a long and tortured history and is not yet concluded. At this juncture the question is whether, absent further state court proceedings to determine the voluntariness of his confession, respondent's 1955 conviction for murder is vulnerable to attack under the Fourteenth Amendment as construed and applied in Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964).
2
In July 1955, respondent Stidham was convicted of first-degree murder of a fellow inmate during a riot. He was sentenced to life imprisonment. He was represented by experienced counsel who challenged his confession when it was offered at trial. A full evidentiary hearing outside the presence of the jury was held. Stidham's testimony as to the relevant circumstances surrounding his confession was in sharp conflict with that of the officers. His claim was that he had been subjected to gross physical abuse; the officers denied the claim. At the conclusion of the hearing, the trial judge admitted the confession with the following ruling:
3
'THE COURT: (Exhibit) 16 and 16—1, it is the Court's opinion that the matters concerning the statement should be offered in the presence of the Jury, subject of course to any attacks as to its credibility by the Defendant. The Defendant has of course the right to proceed to challenge the voluntariness of the statement and confession, even before the Jury, but it is the Court's opinion that upon the evidence that has been offered before the Court and outside of the hearing of the Jury, that the statement is and should be admissible in evidence, subject to further examinations of the witnesses which might be conducted, so we may proceed with Sergeant Little, as to his identification before the Jury of the statement in question, Exhibit 16 and 16—1.
4
'MR. HENNELLY: In other words, the Court is overruling my Motion, and request of the Court to hold as a matter of law, that those statements were involuntary, is that right?
5
'THE COURT: That is right. Mr. Sheriff will you bring the Jury back in?'
6
Stidham's conviction was affirmed on appeal in State v. Stidham, 305 S.W.2d 7 (Mo.1957). A motion to vacate was denied and the denial affirmed, 403 S.W.2d 616 (Mo.1966). On a second motion to vacate, however, the Missouri Supreme Court ordered an evidentiary hearing in accordance with its newly revised post-conviction procedures. State v. Stidham, 415 S.W.2d 297 (1967). Among the issues to be heard and decided was whether Stidham's conviction was infirm under Jackson v. Denno and the Due Process Clause of the Fourteenth Amendment.
7
In compliance with this order, an evidentiary hearing was held on December 5, 1968, before Judge Godfrey in the Circuit Court of the City of St. Louis. The court heard oral testimony from both Stidham and witnesses offered by the State; it also had before it the transcript of the prior proceedings as well as certain stipulations of fact by the parties. In April 1969, the court issued its opinion, with findings of fact and conclusions of law, denying the relief requested. With respect to the confession issue, the court first concluded that the judge himself at Stidham's trial had found the confession voluntary and had thus complied with the rule of Jackson v. Denno. As to voluntariness vel non, the court said:
8
'As to subparagraph b concerning the averment that 'the overwhelming evidence was that the statement was involuntary because of coercion exerted on movant,' this contention was raised and profusely litigated in State vs. Stidham, supra, and the Court finds it no longer open to question here. State vs. Statler, supra; Crawford vs. State, supra.
9
'It should be noted that the evidence concerning the issue of voluntariness was greatly conflicting and was to be resolved by the trial court in the first instance and the jury in the second having regard to the credibility of the witnesses. This issue should now be considered closed, and this Court finds it to be so.'
10
This judgment was affirmed in the Missouri Supreme Court. State v. Stidham, 449 S.W.2d 634 (1970). Agreeing first that the judge at Stidham's trial had with sufficient clarity found the confession voluntary and admissible in evidence, the court then held that in any event Stidham had been given a new evidentiary hearing and his confession again determined to be voluntary by the circuit court. In its view, the circuit court had 'found, as had the previous court, that the oral and written confessions were voluntary . . .' Based upon its own extensive analysis of the record, the Missouri Supreme Court also concluded that the finding of voluntariness was 'overwhelmingly supported and procedurally and factually the cause meets all the requirements of the federal cases and there has been no invasion of due process.' Id., at 644.
11
Stidham then resorted to federal habeas corpus, presenting several issues including the confession matter. The United States District Court for the Western District of Missouri, after having examined the full record of the state court proceedings, denied the petition without a hearing but with an opinion holding that there had been no violation of Jackson v. Denno because the state trial judge had satisfactorily found the confession voluntary prior to submitting it to the jury. 328 F.Supp. 1291 (1970).
12
The Court of Appeals reversed by a divided vote. 443 F.2d 1327 (CA8 1971). Its understanding of Missouri law at the time of Stidham's trial was that the trial judge was not required to make a finding on voluntariness himself, but was permitted to submit the issue to the jury in the first instance. As the Court of Appeals saw it, this is precisely what the trial court did: the finding that the confession was not involuntary as a matter of law was not an independent assessment of voluntariness but merely a statement that the issue was one for the jury. Because in its view there had never been a reliable judicial determination of the facts and of the ultimate issue of voluntariness, either at trial or in later proceedings, the Court of Appeals reversed the judgment and remanded the case to the District Court, it being contemplated that the State would be allowed 'reasonable time to make an error-free determination on the voluntariness of the confession at issue . . .' Sigler v. Parker, 396 U.S. 482, 484, 90 S.Ct. 667, 669, 24 L.Ed.2d 672 (1970). We granted certiorari, 404 U.S. 1058, 92 S.Ct. 732, 30 L.Ed.2d 74 (1972).
13
We are first asked to hold that the Court of Appeals erred in concluding that Stidham's trial judge failed to comply with the requirement of the Fourteenth Amendment as construed in Jackson v. Denno that there must be a judicial finding of voluntariness before a challenged confession is submitted to the jury. Petitioner's position is not without force, and begins with the proposition that the Court of Appeals was too much influenced by what the trial judge might have done under the Missouri law prevailing at the time and too little by what he actually did. Even if the controlling rule permitted submission of a challenged confession to the jury without the judge's own determination of voluntariness, that rule, the argument goes, did not prevent him from resolving the disputed issues of fact prior to admitting the confession into evidence. Obviously, it is said, Stidham's trial judge took the latter course, for (1) he held a full evidentiary hearing outside the presence of the jury, a wholly unnecessary and time-wasting procedure if he was merely to determine if there was a disputed issue as to voluntariness that should be submitted to the jury and (2) having heard the evidence, he denied the motion to suppress and found the confession not involuntary as a matter of law, a conclusion necessarily indicating that the judge resolved the disputed issues against Stidham, for had he believed him rather than the police, it is inconceivable that the confession would have been submitted to the jury. Finally, it is urged that the Missouri courts and the Federal District Court construed the trial judge's ruling as equivalent to an affirmative finding that the confession was voluntary and that the Court of Appeals should have accepted this interpretation of the proceedings in the lower courts.
14
The issue, then, is not free from doubt, but it is evident that we need not decide it in this case, for the Court of Appeals erred in another respect that requires reversal of its judgment.
15
Even if the trial procedure was flawed with respect to the challenged confession, Jackson v. Denno does not entitle Stidham to a new trial if the State subsequently provided him an error-free judicial determination of the voluntariness of his confession—error-free in that the determination was procedurally adequate and substantively acceptable under the Due Process Clause. Jackson v. Denno, 378 U.S., at 393—396, 84 S.Ct., at 1789—1791. Here, the Missouri courts, in connection with Stidham's second motion to vacate his sentence, unquestionably furnished a procedurally adequate evidentiary hearing, and the outcome was adverse to Stidham. But it is said that the St. Louis Circuit Court considered itself bound by prior proceedings and never independently determined that Stidham's confession was voluntarily given. Reliance is placed on Judge Godfrey's statement that the evidence was conflicting, that the issue was for the trial court and jury and that '(t)he issue should now be considered closed, and this Court finds it to be so.'
16
This contention is in the teeth of the Missouri Supreme Court's prior order reopening the entire matter and directing the trial judge to hold a full evidentiary hearing and then 'to decide all issues of fact and questions of law. . . .' 415 S.W.2d at 298. The Missouri Supreme Court later thought its mandate had been complied with and expressly read the Circuit Court as having 'found, as had the previous court, that the oral and written confessions were voluntary . . ..' 449 S.W.2d, at 644. What is more, the Supreme Court carefully reviewed the record, noting that 'the testimony in contradiction of Stidham's uncorroborated claims was all but overwhelming,' id., at 641, and that the patrol, police and prison officers—'all these witnesses, all produced by the state, categorically or implicitly refuted all of Stidham's claims of mistreatment, either physical or mental.' Id., at 643 644. The court's conclusion was that the finding of voluntariness was 'overwhelmingly supported' and that there had been no invasion of due process. Id., at 644.
17
We are not inclined to disagree with the Missouri Supreme Court's interpretation of the Circuit Court's opinion and judgment. We also hold that as between the two courts the Jackson v. Denno error, if any, was sufficiently remedied.
18
This, of course, does not end the matter. A state prisoner is free to resort to federal habeas corpus with the claim that, contrary to a state court's judgment, his confession was involuntary and inadmissible as a matter of law. The Court of Appeals did not reach this issue. We are asked to decide the question here but it is not our function to deal with this issue in the first instance.
19
The judgment of the Court of Appeals for the Eighth Circuit is reversed and the cause is remanded for further proceedings consistent with this opinion.
20
So ordered.
21
Reversed and remanded.
| 01
|
409 U.S. 205
93 S.Ct. 364
34 L.Ed.2d 415
Paul J. TRAFFICANTE et al., Petitioners,v.METROPOLITAN LIFE INSURANCE COMPANY et al.
No. 71-708.
Argued Nov. 7, 1972.
Decided Dec. 7, 1972.
Syllabus
Two tenants of an apartment complex filed complaints with the Secretary of Housing and Urban Development alleging that their landlord racially discriminated against nonwhites, that the tenants thereby lost the social benefits of living in an integrated community, missed business and professional advantages that would have accrued from living with members of minority groups, and suffered from being 'stigmatized' as residents of a 'white ghetto.' The District Court, not reaching the merits, held that the complaining tenants were not within the class of persons entitled to sue under § 810(a) of the Civil Rights Act of 1968. The Court of Appeals, in affirming, construed § 810(a) to permit complaints only by persons who are the objects of discriminatory housing practices. Held: The definition in § 810(a) of 'person aggrieved,' as 'any person who claims to have been injured by a discriminatory housing practice,' shows a congressional intention to define standing as broadly as is permitted by Article III of the Constitution, and petitioners, being tenants of the apartment complex, have standing to sue under § 810(a). Pp. 208—212.
446 F.2d 1158, 9 Cir., reversed.
Stephen V. Bomse, San Francisco, Cal., for petitioners.
Richard J. Kilmartin, San Francisco, Cal., for respondent Metropolitan Life Insurance Co.
Robert M. Shea, San Francisco, Cal., for respondent Parkmerced Corp.
Lawrence G. Wallace, Washington, D.C., for the United States, as amicus curiae.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
Two tenants of Parkmerced, an apartment complex in San Francisco housing about 8,200 residents, filed separate complaints with the Secretary of Housing and Urban Development (HUD) pursuant to § 810(a)1 of the Civil Rights Act of 1968, 82 Stat. 85, 42 U.S.C. § 3610(a). One tenant is black, one white. Each alleged that the owner2 of Parkmerced had discriminated against nonwhites on the basis of race in the rental of apartments within the complex in violation of § 804 of the Act.
2
HUD, pursuant to § 810(c) of the Act,3 notified the appropriate California state agency of the complaints and the state agency, for lack of adequate resources to handle the complaints, referred the charge back to HUD. Since HUD failed to secure voluntary compliance within 30 days, petitioners brought this action in the District Court under § 810(d) of the Act.4
3
The complaint alleged that the owner had discriminated against nonwhite rental applicants in numerous ways, e.g., making it known to them that they would not be welcome at Parkmerced, manipulating the waiting list for apartments, delaying action on their applications, using discriminatory acceptance standards, and the like.
4
They—the two tenants—claimed they had been injured in that (1) they had lost the social benefits of living in an integrated community; (2) they had missed business and professional advantages which would have accrued if they had lived with members of minority groups; (3) they had suffered embarrassment and economic damage in social, business, and professional activities from being 'stigmatized' as residents of a 'white ghetto.'5
5
The District Court did not reach the merits but only held that petitioners were not within the class of persons entitled to sue under the Act. 322 F.Supp. 352. The Court of Appeals affirmed, construing § 810(a) narrowly to permit complaints only by persons who are the objects of discriminatory housing practices. 446 F.2d 1158. The case is here on a petition for a writ of certiorari, which we granted, 405 U.S. 915, 92 S.Ct. 945, 30 L.Ed.2d 784. We reverse the judgment below.
6
The definition of 'person aggrieved' contained in § 810(a)6 is in terms broad, as it is defined as '(a)ny person who claims to have been injured by a discriminatory housing practice.'
7
The Act gives the Secretary of HUD power to receive and investigate complaints regarding discriminatory housing practices. The Secretary, however, must defer to state agencies that can provide relief against the named practice. If the state agency does not act, the Secretary may seek to resolve the controversy by conference, conciliation, or persuasion. If these attempts fail, the complainant may proceed to court pursuant to § 810(d).7 Moreover, these rights may be enforced 'by civil actions in appropriate United States district courts without regard to the amount in controversy,' if brought within 180 days 'after the alleged discriminatory housing practice occurred.' § 812(a). In addition, § 813 gives the Attorney General authority to bring a civil action in any appropriate United States district court when he has reasonable cause to believe 'that any person or group of persons is engaged in a pattern or practice of resistance to the full enjoyment of any of the rights granted' by the Act.
8
It is apparent, as the Solicitor General says, that complaints by private persons are the primary method of obtaining compliance with the Act. Hackett v. McGuire Bros., Inc., 445 F.2d 442 (CA 3), which dealt with the phrase that allowed a suit to be started 'by a person claiming to be aggrieved' under the Civil Rights Act of 1964, 42 U.S.C. § 2000e—5(a), concluded that the words used showed 'a congressional intention to define standing as broadly as is permitted by Article III of the Constitution.' Id., at 446. With respect to suits brought under the 1968 Act,8 we reach the same conclusion, insofar as tenants of the same housing unit that is charged with discrimination are concerned.
9
The language of the Act is broad and inclusive. Individual injury or injury in fact to petitioners, the ingredient found missing in Sierra Club v. Morton, 405 U.S. 727, 93 S.Ct. 1361, 31 L.Ed.2d 636, is alleged here. What the proof may be is one thing; the alleged injury to existing tenants by exclusion of minority persons from the apartment complex is the loss of important benefits from interracial associations.
10
The legislative history of the Act is not too helpful. The key section now before us, i.e., § 810, was derived from an amendment offered by Senator Mondale and incorporated in the bill offered by Senator Dirksen.9 While members of minority groups were damaged the most from discrimination in housing practices, the proponents of the legislation emphasized that those who were not the direct objects of discrimination had an interest in ensuring fair housing, as they too suffered.10
11
The Assistant Regional Administrator for HUD wrote petitioners' counsel on November 5, 1970, that 'it is the determination of this office that the complainants are aggrieved persons and as such are within the jurisdiction' of the Act. We are told that that is the consistent administrative construction of the Act. Such construction is entitled to great weight. Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed. 616; Griggs v. Duke Power Co., 401 U.S. 424, 433—434, 91 S.Ct. 849, 854 855, 28 L.Ed.2d 158.
12
The design of the Act confirms this construction. HUD has no power of enforcement. So far as federal agencies are concerned only the Attorney General may sue; yet, as noted, he may sue only to correct 'a pattern or practice' of housing discrimination. That phrase 'a pattern or practice' creates some limiting factors in his authority which we need not stop to analyze. For, as the Solicitor General points out, most of the fair housing litigation conducted by the Attorney General is handled by the Housing Section of the Civil Rights Division, which has less than two dozen lawyers. Since HUD has no enforcement powers and since the enormity of the task of assuring fair housing makes the role of the Attorney General in the matter minimal, the main generating force must be private suits in which, the Solicitor General says, the complainants act not only on their own behalf but also 'as private attorneys general in vindicating a policy that Congress considered to be of the highest priority.' The role of 'private attorneys general' is not uncommon in modern legislative programs. See Newman v. Piggie Park Enterprises, 390 U.S. 400, 402, 88 S.Ct. 964, 966, 19 L.Ed.2d 1263; Allen v. State Board of Elections, 393 U.S. 544, 556, 89 S.Ct. 817, 22 L.Ed.2d 1; Perkins v. Matthews, 400 U.S. 379, 396, 91 S.Ct. 431, 440, 27 L.Ed.2d 476; J. I. Case Co. v. Borak, 377 U.S. 426, 432, 84 S.Ct. 1555, 12 L.Ed.2d 423. It serves an important role in this part of the Civil Rights Act of 1968 in protecting not only those against whom a discrimination is directed but also those whose complaint is that the manner of managing a housing project affects 'the very quality of their daily lives.' Shannon v. United States Dept. of Housing & Urban Dev., 436 F.2d 809, 818 (CA 3).
13
The dispute tendered by this complaint is presented in an adversary context. Flast v. Cohen, 392 U.S. 83, 101, 88 S.Ct. 1942, 1953, 20 L.Ed.2d 947. Injury is alleged with particularity, so there is not present the abstract question raising problems under Art. III of the Constitution. The person on the landlord's blacklist is not the only victim of discriminatory housing practices; it is, as Senator Javits said in supporting the bill, 'the whole community,' 114 Cong.Rec. 2706, and as Senator Mondale who drafted § 810(a) said, the reach of the proposed law was to replace the ghettos 'by truly integrated and balanced living patterns.' Id., at 3422.
14
We can give vitality to § 810(a) only by a generous construction which gives standing to sue to all in the same housing unit who are injured by racial discrimination in the management of those facilities within the coverage of the statute.
15
We reverse and remand the case to the District Court, leaving untouched all other questions, including the suggestion that the case against Metropolitan Life Insurance Co. has become moot.
16
Reversed and remanded.
17
Mr. Justice WHITE, with whom Mr. Justice BLACKMUN and Mr. Justice POWELL join, concurring.
18
Absent the Civil Rights Act of 1968, I would have great difficulty in concluding that petitioners' complaint in this case presented a case or controversy within the jurisdiction of the District Court under Art. III of the Constitution. But with that statute purporting to give all those who are authorized to complain to the agency the right also to sue in court, I would sustain the statute insofar as it extends standing to those in the position of the petitioners in this case. Cf. Katzenbach v. Morgan, 384 U.S. 641, 648—649, 86 S.Ct. 1717, 1722, 16 L.Ed.2d 828 (1966); Oregon v. Mitchell, 400 U.S. 112, 240, 248—249, 91 S.Ct. 260, 322, 326—327, 27 L.Ed.2d 272 (1970). Consequently, I join the Court's opinion and judgment.
1
Section 810(a) of the Act provides in relevant part:
'Any person who claims to have been injured by a discriminatory housing practice or who believes that he will be irrevocably injured by a discriminatory housing practice that is about to occur (hereafter 'personal aggrieved') may file a complaint with the Secretary. Complaints shall be in writing and shall contain such information and be in such form as the Secretary requires. Upon receipt of such a complaint the Secretary shall furnish a copy of the same to the person or persons who allegedly committed or are about to commit the alleged discriminatory housing practice. Within thirty days after receiving a complaint, or within thirty days after the expiration of any period of reference under subsection (c), the Secretary shall investigate the complaint and give notice in writing to the person aggrieved whether he intends to resolve it. If the Secretary decides to resolve the complaint, he shall proceed to try to eliminate or correct the alleged discriminatory housing practice by informal methods of conference, conciliation, and persuasion.'
2
The owner at the time the suit was started was Metropolitan Life Ins. Co. After the suit was commenced, Parkmerced Corp. acquired the apartment complex from Metropolitan, and it was joined as a defendant.
3
Section 810(c) provides:
'Wherever a State or local fair housing law provides rights and remedies for alleged discriminatory housing practices which are substantially equivalent to the rights and remedies provided in this title, the Secretary shall notify the appropriate State or local agency of any complaint filed under this title which appears to constitute a violation of such State or local fair housing law, and the Secretary shall take no further action with respect to such complaint if the appropriate State or local law enforcement official has, within thirty days from the date the alleged offense has been brought to his attention, commenced proceedings in the matter, or, having done so, carries forward such proceedings with reasonable promptness. In no event shall the Secretary take further action unless he certifies that in his judgment, under the circumstances of the particular case, the protection of the rights of the parties or the interests of justice require such action.'
4
Section 810(d) provides in relevant part:
'If within thirty days after a complaint is filed with the Secretary or within thirty days after expiration of any period of reference under subsection (c), the Secretary has been unable to obtain voluntary compliance with this title, the person aggrieved may, within thirty days thereafter, commence a civil action in any appropriate United States district court, against the respondent named in the complaint, to enforce the rights granted or protected by this title, insofar as such rights relate to the subject of the complaint.'
5
Less than 1% of the tenants in this apartment complex are black.
6
Note 1, supra.
7
Note 4, supra.
8
We find it unnecessary to reach the question of standing to sue under 42 U.S.C. § 1982 which is the basis of the third cause of action alleged in the petition but based on the same allegations as those made under the Civil Rights Act of 1968.
9
The Dirksen substitute, 114 Cong.Rec. 4570—4573 retained the present language of § 810(a) which Senator Mondale had previously introduced, id., at 2270, and it was in the bill passed by the Senate, id., at 5992, which the House subsequently passed, id., at 9621.
The 'aggrieved person' provision that was in Senator Mondale's bill and carried into the Dirksen bill can be found, id., at 2271 (11(a) of the Mondale bill).
10
See Hearings before the Subcommittee on Housing and Urban Affairs of the Senate Committee on Banking and Currency on S. 1358, S. 2114, and S. 2280, 90th Cong., 1st Sess. (1967).
| 89
|
409 U.S. 213
93 S.Ct. 385
34 L.Ed.2d 422
NATIONAL LABOR RELATIONS BOARD, Petitioner,v.
GRANITE STATE JOINT BOARD, TEXTILE WORKERS UNION OF AMERICA, LOCAL 1029,AFL-CIO.
No. 71-711.
Argued Nov. 13, 1972.
Decided Dec. 7, 1972.
Syllabus
Where neither the Union-employer contract nor the Union's constitution or bylaws defined or limited the circumstances under which a member could resign from the Union, it was an unfair labor practice for the Union to fine employees who had been Union members in good standing but who had resigned during a lawful strike authorized by the members and thereafter returned to work during that strike. Pp. 215—218.
446 F.2d 369, reversed.
Norton J. Come, Washington, D.C., for petitioner.
Harold B. Roitman, Boston, Mass., for respondent.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
Respondent is a union that had a collective-bargaining agreement with an employer which contained a maintenance-of-membership clause providing that members were, as a condition of employment, to remain in good standing 'as to payment of dues' for the duration of the contract. Neither the contract nor the Union's constitution or bylaws contained any provision defining or limiting the circumstances under which a member could resign. A few days before the collective agreement expired, the Union membership voted to strike if no agreement was reached by a given date. No agreement was reached in the specified period, so the strike and attendant picketing commenced. Shortly thereafter, the Union held a meeting at which the membership resolved that any member aiding or abetting the employer during the strike would be subject to a $2,000 fine.
2
About six weeks later, two members sent the Union their letters of resignation. Six months or more later, 29 other members resigned. These 31 employees returned to work.
3
The Union gave them notice that charges had been made against them and that on given dates the Union would hold trials. None of the 31 employees appeared on the dates prescribed; but the trials nonetheless took place even in the absence of the employees and fines were imposed on all.1 Suits were filed by the Union to collect the fines. But the outcome was not determined because the employees filed unfair labor practice charges with the National Labor Relations Board against the Union.
4
The unfair labor practice charged was that the Union restrained or coerced the employees 'in the exercise of the rights guaranteed in section 7.'2 See § 8(b)(1) of the Act.3 The Board ruled that the Union had violated § 8(b)(1). 187 N.L.R.B. 636. The Court of Appeals denied enforcement of the Board's order. 446 F.2d 369. The case is here on certiorari, 405 U.S. 987, 92 S.Ct. 1247, 31 L.Ed.2d 452.
5
We held in NLRB v. Allis-Chalmers Mfg. Co., 388 U.S. 175, 87 S.Ct. 2001, 18 L.Ed.2d 1123, that a union did not violate § 8(b)(1) by fining members who went to work during a lawful strike authorized by the membership and by suing to collect the fines. The Court reviewed at length in that opinion the legislative history of §§ 7 and of 8(b)(1), and concluded by a close majority vote that the disciplinary measures taken by the union against its members on those facts were within the ambit of the union's control over its internal affairs. But the sanctions allowed were against those who 'enjoyed full union membership.' Id., at 196, 87 S.Ct., at 2015.
6
Yet when a member lawfully resigns from the union, its power over him ends. We noted in Scofield v. NLRB, 394 U.S. 423, 429, 89 S.Ct. 1154, 1158, 22 L.Ed.2d 385, that if a union rule 'invades or frustrates an overriding policy of the labor laws the rule may not be enforced, even by fine or expulsion, without violating § 8(b)(1).' On the facts, we held that Scofield, where fines were imposed on members by the union, fell within the ambit of Allis-Chalmers. But we drew the line between permissible and impermissible union action against members as follows:
7
'. . . § 8(b)(1) leaves a union free to enforce a properly adopted rule which reflects a legitimate union interest, impairs no policy Congress has imbedded in the labor laws, and is reasonably enforced against union members who are free to leave the union and escape the rule.' Id., at 430, 89 S.Ct., at 1158.
8
Under § 7 of the Act the employees have 'the right to refrain from any or all' concerted activities relating to collective bargaining or mutual aid and protection, as well as the right to join a union and participate in those concerted activities. We have here no problem of construing a union's constitution or bylaws defining or limiting the circumstances under which a member may resign from the union.4 We have, therefore, only to apply the law which normally is reflected in our free institutions—the right of the individual to join or to resign from associations, as he sees fit 'subject of course to any financial obligations due and owing' the group with which he was associated. Communications Workers of America, C.I.O. v. NLRB, 215 F.2d 835, 838 (CA 2).
9
The Scofield case indicates that the power of the union over the member is certainly no greater than the union-member contract. Where a member lawfully resigns from a union and thereafter engages in conduct which the union rule proscribes, the union commits an unfair labor practice when it seeks enforcement of fines for that conduct. That is to say, when there is a lawful dissolution of a union-member relation, the union has no more control over the former member than it has over the man in the street.
10
The Court of Appeals gave weight to the fact that the resigning employees had participated in the vote to strike. We give that factor little weight. The first two members resigned from the Union from one to two months after the strike had begun. The others did so from seven to 12 months after its commencement. And the strike was still in progress 18 months after its inception. Events occurring after the calling of a strike may have unsettling effects, leading a member who voted to strike to change his mind. The likely duration of the strike may increase the specter of hardship to his family; the ease with which the employer replaces the strikers may make the strike seem less provident. We do not now decide to what extent the contractual relationship between union and member may curtail the freedom to resign. But where, as here, there are no restraints on the resignation of members,5 we conclude that the vitality of § 7 requires that the member be free to refrain in November from the actions he endorsed in May and that his § 7 rights are not lost by a union's plea for solidarity or by its pressures for conformity and submission to its regime.
11
Reversed.
12
Mr. Chief Justice BURGER, concurring.
13
I join the Court's opinion because for me the institutional needs of the Union, important though they are, do not outweigh the rights and needs of the individual. The balance is close and difficult; unions have need for solidarity and at no time is that need more pressing than under the stress of economic conflict. Yet we have given special protection to the associational rights of individuals in a variety of contexts; through § 7 of the Labor Act, Congress has manifested its concern with those rights in the specific context of our national scheme of collective bargaining. Where the individual employee has freely chosen to exercise his legal right to abandon the privileges of union membership, it is not for us to impose the obligations of continued membership.
14
Mr. Justice BLACKMUN, dissenting.
15
On September 14, 1968, just six days prior to the expiration of the collective-bargaining agreement then in force, the Union membership voted to strike. The strike began September 20. On September 21 the membership unanimously1 adopted a resolution that anyone aiding or abetting the company during the strike would be subject to a fine not exceeding $2,000. Each of the employees involved here voted for both of these resolutions and participated in the strike.2 Each was a member of the Union during the period in which the votes were taken and the strike began. Membership was voluntary, and persons who became members were free to resign at any time.3
16
In NLRB v. Allis-Chalmers Mfg. Co., 388 U.S. 175, 87 S.Ct. 2001, 18 L.Ed.2d 1123 (1967), this Court held that a union could enforce in a state court a fine levied against a strikebreaking member. The Court noted that, at the time § 8(b)(1)(A) was enacted, 'provisions defining punishable conduct and the procedures for trial and appeal constituted part of the contract between member and union and that '(t)he courts' role is but to enforce the contract." Id., at 182, 87 S.Ct., at 2007. The scope of § 8(b)(1)(A) was confined to restraint or coercion visited upon union members in the course of organizational campaigns, id., at 186—188, 87 S.Ct., at 2009—2011, or by arbitrary and undemocratic union leadership, id., at 188—189, 87 S.Ct., at 2010—2012, or by coercion that prevented employees not in the bargaining unit from going to work, id., at 189 and n. 25, 87 S.Ct., at 2011. That section was not viewed as prohibiting 'the imposition of fines on members who decline to honor an authorized strike and attempts to collect such fines.' Id., at 195, 87 S.Ct., at 2014. Finding, as a consequence, no restraint or coercion by the union on the employees' § 7 rights, the Court sustained the union's power to enforce the strikebreaking fines in state court.
17
Today the Court reaches an opposite result on the basis of two facts: 'Neither the contract nor the Union's constitution or bylaws contained any provision defining or limiting the circumstances under which a member could resign'; and the strikebreaking employees resigned before returning to work, thus effecting 'a lawful dissolution of (the) union-member relation.' As to the first fact, I am not convinced that the presence of a provision in the union constitution, for example, should always make a difference with respect to the existence of an enforceable, voluntary obligation on the part of an employee to refrain from strikebreaking activity. In fact, it seems likely that the three factors of a member's strike vote, his ratification of strikebreaking penalties, and his actual participation in the strike, would be far more reliable indicia of his obligation to the union and its members than the presence of boilerplate provisions in a union's constitution. As to the second fact, while membership in the union may well have implications with respect to the union's power over the resigned member, I am hard put to understand why this fact, alone, results in restraint or coercion under § 8(b)(1)(A), when the imposition of fines for similar conduct by members, and their enforcement in state courts, does not fall within that section's prohibition. NLRB v. Allis-Chalmers Mfg. Co., supra. Are an employee's § 7 rights any more at stake here than they are where, as in Allis-Chalmers, the employee engages in the same activity but stops short of resigning from the union?
18
I cannot join the Court's opinion, which seems to me to exalt the formality of resignation over the substance of the various interests and national labor policies that are at stake here. Union activity, by its very nature, is group activity, and is grounded on the notion that strength can be garnered from unity, solidarity, and mutual commitment. This concept is of particular force during a strike, where the individual members of the union draw strength from the commitments of fellow members, and where the activities carried on by the union rest fundamentally on the mutual reliance that inheres in the 'pact.' Similar mutual commitments arising from perhaps less compelling circumstances have been held to be legally enforceable. See 1A A. Corbin, Contracts § 198, pp. 210—212 (1963).
19
A union's power to enforce these mutual commitments on behalf of its members is of particular importance during the course of a strike. 'The economic strike against the employer is the ultimate weapon in labor's arsenal for achieving agreement upon its terms, and '(t)he power to fine or expel strikebreakers is essential if the union is to be an effective bargaining agent . . .." 388 U.S., at 181, 87 S.Ct., at 2007. The 31 employees involved in this case, joined with their thenfellow members, voted to strike as well as to impose sanctions on those who broke ranks,4 and participated in the strike. Their votes were voluntary and uncoerced. They had notice of the fines, and raised no objections, perhaps feeling that the hardships that would befall them during the strike would be compensated by ultimate victory at the bargaining table. They did not attempt to bring the matter to the vote of the membership, a majority of which could have, and later did,5 terminate the strike.
20
I am not convinced that in the strike context, where paramount union and employee interests are at stake, union enforcement of this mutual obligation by reasonable fines 'invades or frustrates an overriding policy of the labor laws.' Scofield v. NLRB, 394 U.S. 423, 429, 89 S.Ct. 1154, 1158, 22 L.Ed.2d 385 (1969).6 The Court of Appeals concluded that § 7 of the Act, granting employees the right 'to refrain from any or all' collective activities, including membership and participation in strikes, was not involved in this case. Emphasizing the meaning of the word 'refrain,' the court concluded that 'although § 7 gives an employee the right to refuse to undertake and involve himself in union activities, it does not necessarily give him the right to abandon these activities in midcourse once he has undertaken them voluntarily.' 446 F.2d 369, 373. See H.R.Conf.Rep. No. 510, 80th Cong., 1st Sess., 39—40 (1947). I believe this notion expressed by the Court of Appeals is applicable in the limited context of the economic strike. In my view, the policy of § 7, would not be frustrated by a holding that an employee could, in the circumstances of this case, knowingly waive his § 7 right to resign from the union and to return to work without sanction.7 The mutual reliance of his fellow members who abide by the strike for which they have all voted outweighs, in the circumstances here presented, the admitted interests of the individual who resigns to return to work. He may still resign, and he may also return to work, but not without the prospect of having to pay a reasonable union fine for which he voted.
21
The employees who resigned have not asserted any changed circumstances or undue hardships that would justify their resignations and return to work. Nor do they claim that the fines imposed on them were unreasonable.8 Perhaps these matters could be asserted before the Board or in defense in the state court proceedings under prevailing state law. As these issues have not been argued in this case, they need not be resolved at this time.
22
I would affirm the decision below.
1
Fines equivalent to a day's wages for each day worked during the strike were imposed.
2
Section 7 provides in relevant part:
'Employees shall have the right to self-organization, to form, join or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities. . . .' 61 Stat. 140, 29 U.S.C. § 157.
3
Section 8(b). 'It shall be an unfair labor practice for a labor organization or its agents—
'(1) to restrain or coerce (A) employees in the exercise of the rights guaranteed in section 7: Provided, That this paragraph shall not impair the right of a labor organization to prescribe its own rules with respect to the acquisition or retention of membership therein . . .' 61 Stat. 141, 29 U.S.C. § 158(b).
4
Union-security arrangements requiring employees to pay dues, though not requiring membership, have been held not to be an unfair labor practice and therefore not an excuse for the employer to refuse to bargain collectively for such an agreement, at least where state law allows employees that option. NLRB v. General Motors Corp., 373 U.S. 734, 83 S.Ct. 1453, 10 L.Ed.2d 670.
5
The Union argues that its practice was to accept resignations of members only during an annual ten-day 'escape period,' during which time the employees were allowed to revoke their 'dues check-off' authorizations. The Court of Appeals rejected that argument, saying there was no evidence that the employees knew of this practice or that they had consented to its limitation on their right to resign. 446 F.2d 369, 372.
1
There is a mild discrepancy in the record as to whether the vote on the strikebreaking resolution was unanimous. In his first opinion, the trial examiner indicated that the vote was unanimous. (Pet. for Cert. 23a.) In a second opinion the examiner indicated that there was one dissenting vote.
2
The parties stipulated before the trial examiner that all 31 employees participated in the strike vote, and voted in favor of the strike. App. 45. It is less clear whether each of the employees voted in favor of the fine. These are matters that would be resolved in the state court proceedings.
3
The Union and the company had no union shop clause in the 1965 collective-bargaining agreement. The Union constitution and bylaws contained no express provision limiting members' rights to resign. In the absence of such a provision, the members could submit voluntary resignations at any time. NLRB v. Mechanical & Allied Production Workers Union, Local 444, 427 F.2d 883 (CA1 1970); Communications Workers of America, C.I.O. v. NLRB, 215 F.2d 835, 838—839 (CA2 1954). And, as the collective-bargaining agreement was no longer in force at the time of the resignations, the retention-of-membership provision was no longer in effect. Finally, the trial examiner found no evidence that the members knew of the Union's 'established practice' of accepting resignations only during the annual 10-day escape period, and in the absence of such knowledge that practice cannot be enforced.
4
The reasonableness of the fines imposed by the Union is not in issue here.
5
Counsel for respondent stated in oral argument that the Union membership ultimately voted to terminate the strike and accept the company's offer. Tr. of Oral Arg. 29.
6
The decision in Scofield v. NLRB, 394, U.S. 423, 430, 89 S.Ct. 1154, 1158, 22 L.Ed.2d 385 (1969), indicated, in dictum, that an employee could avoid a union productivity rule by resigning from membership. That statement should not be construed to mean that employees can never bind themselves to fulfill union obligations where, as here, the enforcement of that obligation is essential to maintain union discipline during a strike. See Recent Cases, 85 Harv.L.Rev. 1669, 1674—1675, n. 23 (1972); Recent Decisions, 40 Geo.Wash.L.Rev. 330, 338—339 (1971).
7
In other contexts it has been held that § 7 rights may be waived. E.g., NLRB v. Shop Rite Foods, Inc., 430 F.2d 786 (CA5 1970). Indeed, this Court's opinions in Allis-Chalmers and Scofield implicitly recognize that § 7 rights can be waived. NLRB v. Allis-Chalmers Mfg. Co., 388 U.S. 175, 200, 87 S.Ct. 2001, 2017, 18 L.Ed.2d 1123 (1967) (Black, J., dissenting).
8
The General Counsel argued before the trial examiner that the fines imposed were unreasonable, and that the imposition of an unreasonable fine would constitute a violation of § 8(b)(1)(A). The trial examiner did not pass on this issue, as he concluded that the imposition of any fine on employees who resigned from membership in the Union and returned to work violated § 8(b)(1) (A). Neither the Board nor the Court of Appeals passed on this issue, and it has not been argued before this Court.
| 67
|
409 U.S. 232
93 S.Ct. 489
34 L.Ed.2d 438
ONE LOT EMERALD CUT STONES and ONE RINGv.UNITED STATES.
No. 72-376.
Dec. 11, 1972.
PER CURIAM.
1
On June 5, 1969, Francisco Farkac Klementova entered the United States without declaring to United States Customs one lot of emerald cut stones and one ring. Klementova was indicted, tried, and acquitted of charges of violating 18 U.S.C. § 5451 by willfully and knowingly, with intent to defraud the United States, smuggling the articles into the United States without submitting to the required customs procedures. Following the acquittal, the Government instituted a forfeiture action in the United States District Court, Southern District of Florida, under 18 U.S.C. § 545 and § 497 of the Tariff Act of 1930, 46 Stat. 728, 19 U.S.C. § 1497.2 Klementova intervened in the proceeding and argued that his acquittal of charges of violating 18 U.S.C. § 545 barred the forfeiture. The District Court held that the forfeiture was barred by collateral estoppel and the Fifth Amendment. The United States Court of Appeals for the Fifth Circuit reversed, 461 F.2d 1189, holding that a forfeiture action pursuant to 19 U.S.C. § 1497 was not barred by an acquittal of charges of violating 18 U.S.C. § 545. We grant certiorari, affirm, and thereby resolve a conflict among the circuits as to whether a forfeiture is barred in these circumstances.3
2
Collateral estoppel would bar a forfeiture under § 1497 if, in the earlier criminal proceeding, the elements of a § 1497 forfeiture had been resolved against the Government. Ashe v. Swenson, 397 U.S. 436, 443, 90 S.Ct. 1189, 1194, 25 L.Ed.2d 469 (1970). But in this case acquittal on the criminal charge did not necessarily resolve the issues in the forfeiture action. For the Government to secure a conviction under § 545, it must prove the physical act of unlawful importation as well as a knowing and willful intent to defraud the United States. An acquittal on the criminal charge may have involved a finding that the physical act was not done with the requisite intent. Indeed, the court that tried the criminal charge specifically found that the Government had failed to establish intent.4 To succeed in a forfeiture action under § 1497, on the other hand, the Government need only prove that the property was brought into the United States without the required declaration; the Government bears no burden with respect to intent. Thus, the criminal acquittal may not be regarded as a determination that the property was not unlawfully brought into the United States, and the forfeiture proceeding will not involve an issue previously litigated and finally determined between these parties.5
3
Moreover, the difference in the burden of proof in criminal and civil cases precludes application of the doctrine of collateral estoppel. The acquittal of the criminal charges may have only represented "an adjudication that the proof was not sufficient to overcome all reasonable doubt of the guilt of the accused." Helvering v. Mitchell, 303 U.S. 391, 397, 58 S.Ct. 630, 632, 82 L.Ed. 917 (1938). As to the issues raised, it does not constitute an adjudication on the preponderance-of-the-evidence burden applicable in civil proceedings. See Murphy v. United States, 272 U.S. 630, 47 S.Ct. 218, 71 L.Ed. 446 (1926); Stone v. United States, 167 U.S. 178, 17 S.Ct. 778, 42 L.Ed. 127 (1897).
4
If for no other reason, the forfeiture is not barred by the Double Jeopardy Clause of the Fifth Amendment because it involves neither two criminal trials nor two criminal punishments. 'Congress may impose both a criminal and a civil sanction in respect to the same act or omission; for the double jeopardy clause prohibits merely punishing twice, or attempting a second time to punish criminally, for the same offense.' Helvering v. Mitchell, supra, 303 U.S., at 399, 58 S.Ct. at 633. See also United States ex rel. Marcus v. Hess, 317 U.S. 537, 63 S.Ct. 379, 8 L.Ed.2d 443 (1943).6 Forfeiture under § 1497 is a civil sanction. The provision was originally enacted as § 497 of the Tariff Act of 1922, 42 Stat. 964. The Tariff Act of 1930 reenacted the forfeiture remedy, 46 Stat. 728, and added § 593, 46 Stat. 751, which became 18 U.S.C. § 545. The forfeiture provision fell within Title IV of the Act, which contained the 'Administrative Provisions.' Part III of that title, of which § 1497 was a part, dealt with 'Ascertainment, Collection, and Recovery of Duties.' Section 545, on the other hand, was part of the 'Enforcement Provisions' and became part of the Criminal Code of the United States. The fact that the sanctions were separate and distinct and were contained in different parts of the statutory scheme is relevant in determining the character of the forfeiture. Congress could and did order both civil and criminal sanctions, clearly distinguishing them. There is no reason for frustrating that design. See Helvering v. Mitchell, supra, 303 U.S., at 404, 58 S.Ct., at 635.
5
The § 1497 forfeiture is intended to aid in the enforcement of tariff regulations. It prevents forbidden merchandise from circulating in the United States, and, by its monetary penalty, it provides a reasonable form of liquidated damages for violation of the inspection provisions and serves to reimburse the Government for investigation and enforcement expenses. In other contexts we have recognized that such purposes characterize remedial rather than punitive sanctions. See id., at 401, 58 S.Ct., at 634; United States ex rel. Marcus v. Hess, supra, 317 U.S., at 549—550, 63 S.Ct., at 386, 387; Rex Trailer Co. v. United States, 350 U.S. 148, 151—154, 76 S.Ct. 219, 222, 100 L.Ed. 149 (1956). Moreover, it cannot be said that the measure of recovery fixed by Congress in § 1497 is so unreasonable or excessive that it transforms what was clearly intended as a civil remedy into a criminal penalty. Rex Trailer Co. v. United States, supra, at 154, 76 S.Ct., at 222; See Murphy v. United States, supra; United States ex rel. Marcus v. Hess, supra.
6
'Forfeiture of goods or their value and the payment of fixed or variable sums of money are other sanctions which have been recognized as enforceable by civil proceedings . . . In spite of their comparative severity, such sanctions have been upheld against the contention that they are essentially criminal and subject to the procedural rules governing criminal prosecutions.' Helvering v. Mitchell, supra, 303 U.S., at 400, 58 S.Ct., at 633.
7
The question of whether a given sanction is civil or criminal is one of statutory construction. Id., at 399, 58 S.Ct., at 633. It appears that the § 1497 forfeiture is civil and remedial, and, as a result, its imposition is not barred by an acquittal of charges of violating § 545.
8
Affirmed.
1
'Whoever knowingly and willfully, with intent to defraud the United States, smuggles, or clandestinely introduces into the United States any merchandise which should have been invoiced, or makes out or passes, or attempts to pass, through the customhouse any false, forged, or fraudulent invoice, or other document or paper; or
'Whoever fraudulently or knowingly imports or brings into the United States, any merchandise contrary to law, or receives, conceals, buys, sells, or in any manner facilitates the transportation, concealment, or sale of such merchandise after importation, knowing the same to have been imported or brought into the United States contrary to law—
'Shall be fined not more than $10,000 or imprisoned not more than five years, or both.
'Proof of defendant's possession of such goods, unless explained to the satisfaction of the jury, shall be deemed evidence sufficient to authorize conviction for violation of this section.
'Merchandise introduced into the United States in violation of this section, or the value thereof, to be recovered from any person described in the first or second paragraph of this section, shall be forfeited to the United States.
'The term 'United States', as used in this section, shall not include the Philippine Islands, Virgin Islands, American Samoa, Wake Island, Midway Islands, Kingman Reef, Johnston Island, or Guam.'
2
Title 19 U.S.C. § 1497 provides:
'Any article not included in the declaration and entry as made, and, before examination of the baggage was begun, not mentioned in writing by such person, if written declaration and entry was required, or orally if written declaration and entry was not required, shall be subject to forfeiture and such person shall be liable to a penalty equal to the value of such article.'
3
In United States v. Two Hundred and One Fifty-Pound Bags of Furozolidone, No. 71—1329 (1971), cert. denied, 405 U.S. 964, 92 S.Ct. 1168, 31 L.Ed.2d 239 (1972), the Court of Appeals for the Eighth Circuit affirmed a summary judgment on the basis of a previous acquittal of charges of violating § 545 in favor of the owner of property in a forfeiture action commenced by the Government under 18 U.S.C. § 545 and 19 U.S.C. § 1460. The Court of Appeals for the First Circuit agrees with the view of the Fifth Circuit in the present case. See Leiser v. United States, 234 F.2d 648, cert. denied, 352 U.S. 893, 77 S.Ct. 133, 1 L.Ed.2d 87 (1956).
We need not, and do not, decide whether an acquittal under § 545 bars a forfeiture under § 545.
4
The judge at the criminal trial specifically stated:
'He is, obviously, a sophisticated dealer in emeralds and other jewelry.
'I don't condone nor do I approve, for one minute, what he did in this instance. I think he knew that that jewelry—that that ring and those emeralds should have been declared.
'He made a declaration of some cigarettes and some whiskey, several other little odd, meager items there, but I'm not persuaded beyond a reasonable doubt that he did what he did with the intent to defraud the United States.'
5
The difference in the issues involved in the criminal proceeding, on the one hand, and the forfeiture action, on the other, serves to distinguish Coffey v. United States, 116 U.S. 436, 6 S.Ct. 437, 29 L.Ed. 684 (1886), relied upon by the District Court in the present case. Coffey involved a forfeiture action commenced after an acquittal. This Court noted, in holding the forfeiture barred, that '(t)he information (for forfeiture) is founded on sections 3257, 3450 and 3453; and there is no question, on the averments in the answer, that the fraudulent acts and attempts and intents to defraud, alleged in the prior criminal information, and covered by the verdict and judgment of acquittal, embraced all of the acts, attempts and intents averred in the information in this suit.' Id., at 442, 6 S.Ct., at 440. The Court specifically distinguished the situation where 'a certain intent must be proved to support the indictment, which need not be proved to support the civil action.' Id., at 443, 6 S.Ct., at 441. See also Stone v. United States, 167 U.S. 178, 17 S.Ct. 778, 42 L.Ed. 127 (1897).
6
The District Court relied upon the following language in United States v. U.S. Coin & Currency, 401 U.S. 715, 718, 91 S.Ct. 1041, 1043, 28 L.Ed. 434 (1971):
'But as Boyd v. United States, 116 U.S. 616, 634, 68 S.Ct. 525, 534, 29 L.Ed. 746 (1886), makes clear, 'proceedings instituted for the purpose of declaring the forfeiture of a man's property by reason of offences committed by him, though they may be civil in form, are in their nature criminal' for Fifth Amendment purposes.' (Emphasis in United States v. U.S. Coin & Currency.) Section 1497 does not result in a forfeiture by reason of the commission of a criminal offense. A forfeiture results from the act of importation without following customs procedures; no criminal offense, much less a criminal conviction, is required. Cf. id., at 718—722, 91 S.Ct., at 1043, 1045.
One 1958 Plymouth Sedan v. Com. of Pennsylvania, 380 U.S. 693, 85 S.Ct. 1246, 14 L.Ed.2d 170 (1965), is likewise inapposite for it dealt with a forfeiture that could not be had without a 'determination that the criminal law has been violated.' Id., at 701, 85 S.Ct., at 1251.
| 01
|
409 U.S. 238
93 S.Ct. 566
34 L.Ed.2d 444
John R. DILLARD, etc.,v.INDUSTRIAL COMMISSION OF VIRGINIA et al.
No. 72-5411.
Supreme Court of the United States
December 11, 1972
PER CURIAM.
1
Appellant brought a class action to challenge the constitutionality of a state regulation that permitted temporary suspension of his workmen's compensation payments without a prior hearing. He appealed an adverse judgment, but his jurisdictional statement states that after the decision below 'an Order was entered by the Commission approving a lump-sum settlement of $4,243.20 in full settlement of [his] individual claim for compensation for his injury which occurred on March 15, 1971.'
2
In this state of the record, the motion to proceed in forma pauperis is granted, the judgment is vacated, and the case is remanded to the United States District Court for the Eastern District of Virginia to consider whether this case is moot.
| 89
|
409 U.S. 239
93 S.Ct. 477
34 L.Ed.2d 446
Paul P. ERLENBAUGH et al., Petitioners,v.UNITED STATES.
No. 71-839.
Argued Nov. 13, 1972.
Decided Dec. 12, 1972.
Syllabus
Causing a publication to be carried by a facility of interstate commerce with an intent to facilitate the operation of an illegal gambling business is a violation of 18 U.S.C. § 1952. The exception for 'any newspaper or similar publication' contained in 18 U.S.C. § 1953, which prohibits the interstate shipment of certain gambling paraphernalia, was not intended to be read into § 1952. Pp. 242—248.
452 F.2d 967, affirmed.
Charles W. Grubb, Cedar Lake, Ind., for petitioners.
Allan A. Tuttle, Raleigh, N.C., for respondent.
Mr. Justice MARSHALL delivered the opinion of the Court.
1
The petitioners in this case attack their convictions under the Travel Act, 18 U.S.C. § 1952, which makes it unlawful to use a facility of interstate commerce in furtherance of certain criminal activity. Petitioners were tried in five separate trials.1 The cases were consolidated for purposes of appeal since each raised the question whether causing a publication to be carried by a facility of interstate commerce with an intent to facilitate the operation of a gambling business illegal under state law violated § 1952. The Court of Appeals for the Seventh Circuit affirmed the convictions, finding no exception in § 1952 for the transmittal of publications. 452 F.2d 967 (1971). We granted certiorari for the limited purpose of resolving the conflict between this decision and a previous ruling of the Court of Appeals for the Fourth Circuit.2 405 U.S. 973, 92 S.Ct. 1194, 31 L.Ed.2d 247 (1972). For reasons stated below, we affirm.
2
In all respects here relevant, the facts of the five cases are identical. Each involves the operation in Hammond, Indiana, of a bookmaking business. A publication known as the Illinois Sports News was important to the functioning of each bookmaking operation. The News, a publication of the type generally referred to as a 'scratch sheet,'3 contains more complete and detailed horse racing information than is found in regular newspapers, and was used extensively by the customers of the five bookmaking operations in placing their bets. Because the News, which appears daily except Sunday, is published in Chicago, Illinois, it was necessary to make arrangements for prompt daily delivery from Chicago to Hammond and the bookmaking establishments. This was accomplished by causing copies of the News to be placed on board an early morning train of the Chicago, South Shore & South Bend Railroad in Chicago for delivery to the railroad station in Hammond, where copies were picked up for each of the bookmaking operations. In each case the petitioners assumed various roles in this scheme,4 but the pattern of the scheme for securing the prompt daily delivery of the News was the same in all cases.
3
Section 1952(a) subjects to criminal liability anyone who 'uses any facility in interstate . . . commerce . . . with intent to . . . promote, manage, establish, carry on, or facilitate the promotion, management, establishment, or carrying on, of any unlawful activity, and thereafter performs or attempts to perform any of (these) acts . . ..' Unlawful activity includes 'any business enterprise involving gambling . . . offenses in violation of the laws of the State in which they are committed . . ..' See 18 U.S.C. § 1952(b).5 For our limited purposes it is not open to dispute that in each case petitioners were involved in bookmaking businesses which violated Indiana law;6 that the Illinois Sports News was important to the operation of those bookmaking businesses; that the scheme for delivery of the News—a scheme which involved the use of a facility of interstate commerce, the railroad—was intended to facilitate the operation of the bookmaking businesses; or that the requisite overt acts occurred following the use of the interstate facility. The only question here is whether these cases fall outside the ambit of § 1952 because the use of the interstate facility was to secure delivery of a news publication.7
4
The basis of petitioners' challenge to the legality of their convictions under § 1952—and of the conflict between the courts of appeals—is to be found in 18 U.S.C. § 1953. Section 1953(a) makes it unlawful for anyone, 'except a common carrier in the usual course of its business, knowingly (to) carr(y) or (to send) in interstate . . . commerce any . . . paraphernalia, . . . paper, writing, or other device used, or to be used . . . in (a) bookmaking; or (b) wagering pools . . .; or (c) in a numbers, policy, polita, or similar game . . ..' The broad sweep of subsection (a) in terms of paraphernalia covered is limited to some extent by § 1953(b)(3) which makes the section inapplicable to 'the carriage or transportation in interstate . . . commerce of any newspaper or similar publication.'8
5
Petitioners' argument starts from the premise that they could not have been prosecuted under § 1953(a) because the Illinois Sports News falls within the newspaper exception contained in § 1953(b)(3).9 Petitioners recognize that § 1952 contains no express exception for newspapers comparable to § 1953(b)(3), but contend that § 1952 and § 1953 are in pari materia that is, pertain to the same subject—and, under settled principles of statutory construction, should therefore be construed 'as if they were one law,' United States v. Freeman, 3 How. 556, 564, 11 L.Ed. 724 (1845); see, e.g., United States v. Stewart, 311 U.S. 60, 64, 61 S.Ct. 102, 105, 85 L.Ed. 40 (1940); Estate of Sanford v. Commissioner of Internal Revenue, 308 U.S. 39, 44, 60 S.Ct. 51, 56, 84 L.Ed. 20 (1939). Thus, petitioners would have us read the exception contained in § 1953(b)(3) as applicable to not only § 1953(a) but also § 1952(a), thereby barring their prosecution under the latter as well as the former. This we cannot do.
6
The rule of in pari materia—like any canon of statutory construction—is a reflection of practical experience in the interpretation of statutes: a legislative body generally uses a particular word with a consistent meaning in a given context. Thus, for example, a 'later act can . . . be regarded as a legislative interpretation of (an) earlier act . . . in the sense that it aids in ascertaining the meaning of the words as used in their contemporary setting,' and 'is therefore entitled to great weight in resolving any ambiguities and doubts.' United States v. Stewart, supra, 311 U.S. at 64—65, 61 S.Ct. at 105. See also, e.g., Hunter v. Erickson, 393 U.S. 385, 388, 89 S.Ct. 557, 559, 21 L.Ed.2d 616 (1969); United States v. Freeman, supra, 44 U.S. at 565. The rule is but a logical extension of the principle that individual sections of a single statute should be construed together,10 for it necessarily assumes that whenever Congress passes a new statute, it acts aware of all previous statutes on the same subject, cf. Allen v. Grand Central Aircraft Co., 347 U.S. 535, 541—552, 74 S.Ct. 745, 748 755, 98 L.Ed. 933 (1954). Given this underlying assumption, the rule's application certainly makes the most sense when the statutes were enacted by the same legislative body at the same time. Such was indeed the case here.11 Yet petitioners would have us resort to the exception contained in § 1953(b)(3) not simply to resolve any 'ambiguities (or) doubts' in the language in § 1952 but to introduce an exception to the coverage of the latter where none is now apparent. This might be a sensible construction of the two statutes if they were intended to serve the same function, but plainly they were not.12
7
True, § 1952 and § 1953 were both parts of a comprehensive federal legislative effort13 to assist local authorities in dealing with organized criminal activity which, in many instances, had assumed interstate proportions14 and which in all cases was materially assisted in its operations by the availability of facilities of interstate commerce.15 The two statutes, however, play different roles in achieving these broad, common goals.
8
Section 1953 has a narrow, specific function. It erects a substantial barrier16 to the distribution of certain materials used in the conduct of various forms of illegal gambling.17 By interdicting the flow of these materials to and between illegal gambling businesses, the statute purposefully seeks to impede the operation of such businesses.18
9
Section 1952, by contrast, does not apply just to illegal gambling; rather, it is concerned with a broad spectrum of 'unlawful activity,'19 illegal gambling businesses being only one element. Moreover, the statute does not focus upon any particular materials, but upon the use of the facilities of interstate commerce with the intent of furthering an unlawful 'business enterprise.' It is, in short, an effort to deny individuals who act for such a criminal purpose access to the channels of commerce.20 Thus, while § 1952 ultimately seeks, like § 1953, to inhibit organized criminal activity,21 it takes a very different approach to doing so. To introduce into § 1952 an exception based upon the nature of the material transported in interstate commerce would carve a substantial slice from the intended coverage of the statute. This we will not do without an affirmative indication—which is lacking here—that Congress so intended.
10
Our conclusion here is bolstered by the fact that the reason for the newspaper exception to § 1953 is absent in the context of § 1952. The original version of § 1953 introduced in the Senate contained none of the exceptions set forth in subsection (b). It was quickly realized that the bill, as introduced, bore the potential for unreasonably broad application, since it would have imposed absolute criminal liability on anyone, except a common carrier, who 'knowingly carries or sends in interstate . . . commerce' any gambling paraphernalia used in an illegal gambling business. Were 'knowingly' construed as modifying only the phrase 'carries or sends'22 the statute might have been applied to a wholly innocent person who knowingly carried a newspaper in interstate commerce unaware that it contained racing information.23 It was to avoid this problem that the newspaper exception was added to § 1953.24 But § 1952 obviously poses no threat to innocent citizens. Its application is limited to those who act with an intent to further unlawful activity—as was clearly true of these petitioners. There is, then, no reason for carrying the newspaper exception of § 1953(b)(3) over to § 1952.
11
The judgment is affirmed.
12
Affirmed.
13
Mr. Justice WHITE took no part in the decision of this case.
1
Petitioners Erlenbaugh, Mitchell, and Hintz were tried together. Petitioner Erlenbaugh was convicted of conspiracy to violate § 1952. Petitioners Mitchell and Hintz were each convicted of two counts of violating § 1952 and of conspiracy to violate the section.
Petitioners White and Lloyd were tried together with petitioner Hintz in a second trial. Each was convicted of conspiracy to violate § 1952, and petitioner White was convicted of three counts, petitioner Hintz of two counts, and petitioner Lloyd of one count of violating § 1952.
Petitioner Kelly was tried alone and convicted of one count of violating § 1952 and of conspiracy to violate the section.
Petitioners Kulik and Dobrowski were tried together and convicted of conspiracy to violate § 1952 and of three counts and two counts, respectively, of violating the section.
Petitioners Misiolek, Tumlin, and Strosky were tried together, and convicted of conspiracy to violate § 1952. Petitioner Misiolek was also convicted of three counts of violating § 1952, while petitioners Tumlin and Strosky were convicted of four counts of violating the section.
2
In United States v. Arnold, 380 F.2d 366, 368 (1967), the Fourth Circuit reversed a conviction under § 1952 because, in its view, 'the use of the telephone to order . . . transmittal through the mail (of a sports publication intended to be used to facilitate the operation of a football betting pool) is not the use of a 'facility . . . to . . . promote . . . any unlawful activity', as contemplated by . . . § 1952.' The Seventh Circuit in this case specifically declined to follow the decision in Arnold. See 452 F.2d, at 973.
3
A 'scratch' is a horse that has been withdrawn from a race in which it was entered. The withdrawal of a good horse obviously affects the odds in a race, and is therefore of great interest to bettors.
4
The Court of Appeals described each operation and the respective roles of the petitioners in detail, see 452 F.2d, at 969—970.
5
See n. 19, infra.
6
See Ind.Ann.Stat. §§ 10—2304, 10—2307, 10—2331 (1956), IC 1971, 35—1—104—4, 35—1—104—7, 35—25—1—3.
7
The question presented in this case is solely one of statutory construction. There is no issue here as to the constitutionality of § 1952.
8
Subsection (b) also makes the section inapplicable to:
'(1) parimutuel betting equipment, parimutuel tickets where legally acquired, or parimutuel materials used or designed for use at racetracks or other sporting events in connection with which betting is legal under applicable State law, or (2) the transportation of betting materials to be used in the placing of bets or wagers on a sporting event into a State in which such betting is legal under the statutes of that State . . ..'
9
Whether publications such as the 'scratch sheet' here at issue are in fact within the 'newspaper or similar publication' exception contained in § 1953(b) (3) is a question that has arisen on a number of occasions in the lower courts. See United States v. Kelly, 328 F.2d 227, 229—236 (CA6 1964); United States v. Arnold, 380 F.2d 366, 368 (CA4 1967); United States v. Kish, 303 F.Supp. 1212 (N.D.Ind.1969); United States v. Azar, 243 F.Supp. 345, 346 347 (E.D.Mich.1964). The Government here concedes that the Illinois Sports News is within § 1953(b)(3). See Brief for United States 9 n. 3.
10
See, e.g., Clark v. Uebersee Finanz-Korporation, A.G., 332 U.S. 480, 488, 68 S.Ct. 174, 177, 92 L.Ed. 88 (1947); Markham v. Cabell, 326 U.S. 404, 410—411, 66 S.Ct. 193, 196—197, 90 L.Ed. 165 (1945); Ex parte Public National Bank, 278 U.S. 101, 104, 49 S.Ct. 43, 44, 73 L.Ed. 202 (1928).
11
Section 1952 was added to Title 18 of the United States Code by the Act of Sept. 13, 1961, Pub.L. 87—228, § 1(a), 75 Stat. 498, amended, Act of July 7, 1965, Pub.L. 89—68, 79 Stat. 212; Act of Oct. 27, 1970, Tit. II, § 701(i) (2), 84 Stat. 1282. Section 1953 was added to Title 18 of the United States Code by the Act of Sept. 13, 1961, Pub.L. 87—218, 75 Stat. 492. Indeed, both statutes were a part of Attorney General Kennedy's legislative program to combat organized crime and racketeering, and were considered simultaneously by committees of the House and Senate. See Hearings on S. 1653, S. 1654, S. 1655, S. 1656, S. 1657, S. 1658, S. 1665 before the Senate Committee on the Judiciary, 87th Cong., 1st Sess. (1961) (hereinafter Senate Hearings); Hearings on H.R. 468, H.R. 1246, H.R. 3021, H.R. 3022, H.R. 3023, H.R. 3246, H.R. 5230, H.R. 6571, H.R. 6572, H.R. 6909, H.R. 7039 before Subcommittee No. 5 of the House Committee on the Judiciary, 87th Cong., 1st Sess. (1961) (hereinafter House Hearings).
12
Cf. Farmers Reservoir & Irrigation Co. v. McComb, 337 U.S. 755, 764, 69 S.Ct. 1274, 1279, 93 L.Ed. 1672 (1949); Helvering v. Stockholms Enskilda Bank, 293 U.S. 84, 87—88, 55 S.Ct. 50, 51—52, 79 L.Ed. 211 (1934); Atlantic Cleaners & Dyers v. United States, 286 U.S. 427, 433, 52 S.Ct. 607, 608, 76 L.Ed. 1204 (1932).
13
See n. 11, supra.
14
Attorney General Kennedy, who recommended the legislation to Congress, testified before the Senate and House Committees that 'the extent to which organized crime and racketeering have developed on an interstate basis convincingly (demonstrates) the need for new Federal laws.' Senate Hearings 10—11; see House Hearings 19—20. See also H.R.Rep. No. 966, 87th Cong., 1st Sess., 2—3 (1961) (§ 1952) U.S.Code Cong. & Admin.News 1961, p. 2664.
15
Attorney General Kennedy observed before the Senate Committee that racketeers 'use interstate commerce and interstate communications with impunity in the conduct of their unlawful activities. If we could curtail their use of interstate communications and facilities, we could inflict a telling blow to their operations. We could cut them down to size.' Senate Hearings 11. Previously, before the House Subcommittee, the Attorney General had described the legislative package as 'designed to prohibit the use of interstate facilities for the conduct of the many unlawful enterprises which make up organized crime today.' House Hearings 20. See also H.R.Rep.No. 966, 87th Cong., 1st Sess., 3 (1961) (§ 1952); H.R.Rep. No. 968, 87th Cong., 1st Sess., 2 (1961) (§ 1953), U.S.Code Cong. & Admin.News 1961, p. 2634.
16
Only common carriers acting in the usual course of their business, plus those materials specified in § 1953(b), see n. 8, supra, are excluded from the statute's prohibition.
17
See also 18 U.S.C. § 1084.
18
Representative Celler, who introduced the statute in the House, described its purposes as follows:
'The primary purpose is to prevent the transportation in interstate commerce of wagering material. The purpose actually is to (cut off) and (shut off) gambling supplies, in reality to prevent these lotteries and kindred illegal diversions.' 107 Cong.Rec. 16537.
See also S.Rep. No. 589, 87th Cong., 1st Sess., 2 (1961); H.R.Rep. No. 968, 87th Cong., 1st Sess., 2 (1961).
19
'As used in this section 'unlawful activity' means (1) any business enterprise involving gambling, liquor on which the Federal excise tax has not been paid, narcotics, or controlled substances . . . or prostitution offenses in violation of the laws of the State in which they are committed or of the United States, or (2) extortion, bribery, or arson in violation of the laws of the State in which committed or of the United States.'
20
'This bill will assist local law enforcement by denying interstate facilities to individuals engaged in illegal gambling, liquor, narcotics or prostitution business enterprises.' H.R.Rep. No. 966, 87th Cong., 1st Sess., 3 (1961); U.S.Code Cong. & Admin.News 1961, p. 2665. See also 107 Cong.Rec. 13943 (remarks of Sen. Eastland).
21
In Rewis v. United States, 401 U.S. 808, 811, 91 S.Ct. 1056, 1059, 28 L.Ed.2d 493 (1971), we observed that '§ 1952 was aimed primarily at organized crime and, more specifically, at persons who reside in one State while operating, or managing illegal activities located in another.' We, of course, adhere to this view of the statute for 'Congress would certainly recognize that an expansive Travel Act would alter sensitive federal-state relationships, could overextend limited federal police resources, and might well produce situations in which . . . relatively minor state offenses (would be transformed) into federal felonies.' Id., at 812, 91 S.Ct., at 1059. See also United States v. Bass, 404 U.S. 336, 349—350, 92 S.Ct. 515, 523—524, 30 L.Ed.2d 488 (1971). Petitioners contend that there was no proof in these cases that they were involved in organized criminal activity and that such activity was being directed from another State. Given the limited nature of our grant of certiorari, it is not open to question here that the five illegal bookmaking businesses were elements of organized criminal activity of the type contemplated by § 1952 though we do note that the reach of the statute clearly was not limited to instances in which organized criminal activity in one State is managed from another State, see n. 15, supra.
22
But cf. United States v. Chase, 372 F.2d 453, 460 (C.A.4), cert. denied, 387 U.S. 907, 87 S.Ct. 1688, 18 L.Ed.2d 626 (1967) ('(K)nowledge and intent to transmit gambling paraphernalia in interstate commerce are elements of the crime created by' § 1953).
23
'The committee . . . felt that the bill, as introduced, might be so interpreted as to bring within its criminal penalties a person who carried a newspaper or other publication containing racing results or predictions.' S.Rep. No. 589, 87th Cong., 1st Sess., 2 (1961).
24
See ibid.; H.R.Rep. No. 968, 87th Cong., 1st Sess., 3 (1961).
| 01
|
409 U.S. 249
93 S.Ct. 493
34 L.Ed.2d 454
EXECUTIVE JET AVIATION, INC., et al., Petitioners,v.CITY OF CLEVELAND, OHIO, et al.
No. 71-678.
Argued Nov. 15, 1972.
Decided Dec. 18, 1972.
Syllabus
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
No. 71—678. Argued November 15, 1972—Decided December 18, 1972
Petitioners, invoking federal admiralty jurisdiction under 28 U.S.C. § 1333(1), brought suit for damages resulting from the crash-landing and sinking in the navigable waters of Lake Erie of their jet aircraft shortly after takeoff from a Cleveland airport. The District Court dismissed the complaint for lack of admiralty jurisdiction on the grounds that the alleged tort had neither a maritime locality nor a maritime nexus. The Court of Appeals affirmed on the first ground. Held: Neither the fact that an aircraft goes down on navigable waters nor that the negligence 'occurs' while the aircraft is flying over such waters is sufficient to confer federal admiralty jurisdiction over aviation tort claims, and in the absence of legislation to the contrary such jurisdiction exists with respect to those claims only when there is a significant relationship to traditional maritime activity. Therefore, federal admiralty jurisdiction does not extend to aviation tort claims arising from flights like the one involved here between points within the continental United States. Pp. 253—274.
448 F.2d 151, affirmed.
Phillip D. Bostwick, Washington, D.C., for petitioners.
Sol. Gen. Erwin N. Griswold, for respondents.
Mr. Justice STEWART delivered the opinion of the Court.
1
On July 28, 1968, a jet aircraft, owned and operated by the petitioners, struck a flock of seagulls as it was taking off from Burke Lakefront Airport in Cleveland, Ohio, adjacent to Lake Erie. As a result, the plane lost its power, crashed, and ultimately sank in the navigable waters of Lake Erie, a short distance from the airport. The question before us is whether the petitioner's suit for property damage to the aircraft, allegedly caused by the respondents' negligence, lies within federal admiralty jurisdiction.
2
When the crash occurred, the plane was manned by a pilot, a co-pilot, and a stewardess, and was departing Cleveland on a charter flight to Portland, Maine, where it was to pick up passengers and then continue to White Plains, New York. After being cleared for takeoff by the respondent Dicken, who was the federal air traffic controller at the airport, the plane took off, becoming airborne at about half the distance down the runway. The takeoff flushed the seagulls on the runway, and they rose into the airspace directly ahead of the assending plane. Ingestion of the birds into the plane's jet engines caused an almost total loss of power. Descending back toward the runway in a semi-stalled condition, the plane veered slightly to the left, struck a portion of the airport perimeter fence and the top of a nearby pickup truck, and then settled in Lake Erie just off the end of the runway and less than one-fifth of a statute mile offshore. There were no injuries to the crew, but the aircraft soon sank and became a total loss.
3
Invoking federal admiralty jurisdiction under 28 U.S.C. § 1333(1),1 the petitioners brought this suit for damages in the District Court for the Northern District of Ohio against Dicken and the other respondents2 alleging that the crash had been caused by the respondents' negligent failure to keep the runway free of the birds or to give adequate warning of their presence.3 The District Court, in an unreported opinion, held that the suit was not cognizable in admiralty and dismissed the complaint for lack of subject matter jurisdiction.
4
Relying primarily on the Sixth Circuit precedent of Chapman v. City of Grosse Pointe Farms, 385 F.2d 962 (1967), the District Court held that admiralty jurisdiction over torts may properly be invoked only when two criteria are met: (1) the locality where the alleged tortious wrong occurred must have been on navigable waters; and (2) there must have been a relationship between the wrong and some maritime service, navigation, or commerce on navigable waters. The District Court found that the allegations of the petitioners' complaint satisfied neither of these criteria. With respect to the locality of the alleged wrong, the court stated that 'the alleged negligence became operative upon the aircraft while it was over the land; and in this sense the 'impact' of the alleged negligence occurred with the gulls disabled the plane's engines (over the land) . . .. From this point on the plane was disabled and was caused to fall. Whether it came down upon land or upon water was largely fortuitous.' Alternatively, the court concluded that the wrong bore no relationship to maritime service, navigation, or commerce:
5
'Assuming . . . that air commerce bears some relationship to maritime commerce when the former is carried out over navigable waters, the relevant circumstances here were unconnected with the maritime facets of air commerce. The claimed 'wrong' in this case was the alleged failure to keep the runway free of birds and the failure to adequately warn the pilots of their presence upon the end of the runway. When the alleged negligence occurred, and when it became operative upon the aircraft, all the parties were engaged in functions common to all air commerce, whether over land or over sea.
6
'. . . Thus, the conclusion here must be that the operative facts of the claim in this case are concerned with the land-connected aspects of air-commerce, namely, the maintenance and operation of an airport located on the land and the dangers encountered by an aircraft when using its runways for take-off.'
7
The Court of Appeals for the Sixth Circuit affirmed on the ground that 'the alleged tort in this case occurred on land before the aircraft reached Lake Erie . . ..' 448 F.2d 151, 154 (1971). Hence, that court found it 'not necessary to consider the question of maritime relationship or nexus discussed by this court in (Chapman).' Ibid. We granted certiorari to consider a seemingly important question affecting the jurisdiction of the federal courts. 405 U.S. 915, 92 S.Ct. 941, 30 L.Ed.2d 784 (1972).
8
* Determination of the question whether a tort is 'maritime' and thus within the admiralty jurisdiction of the federal courts has traditionally depended upon the locality of the wrong. If the wrong occurred on navigable waters, the action is within admiralty jurisdiction; if the wrong occurred on land, it is not. As early as 1813, Mr. Justice Story, on Circuit, stated this general principle:
9
'In regard to torts I have always understood, that the jurisdiction of the admiralty is exclusively dependent upon the locality of the act. The admiralty has not, and never (I believe) deliberately claimed to have any jurisdiction over torts, except such as are maritime torts, that is, such as are committed on the high seas, or on waters within the ebb and flow of the tide.' Thomas v. Lane, 23 Fed.Cas. pp. 957, 960, No. 13,902 (C.C.Me).
10
See also DeLovio v. Boit, 7 Fed.Cas. pp. 418, 444, No. 3,776 (C.C.Mass.1815); Philadelphia, W. & B.R. Co. v. Philadelphia & Havre de Grace Steam Towboat Co., 23 How. 209, 215, 16 L.Ed. 433 (1860). Later, this locality test was expanded to include not only tidewaters, but all navigable waters, including lakes and rivers. The Genesee Chief v. Fitzhugh, 12 How. 443, 13 L.Ed. 1058 (1852).
11
In The Plymouth, 3 Wall. 20, 35, 36, 18 L.Ed. 125 (1866), the Court essayed a definition of when a tort is 'located' on navigable waters:
12
'(T)he wrong and injury complained of must have been committed wholly upon the high seas or navigable waters, or, at least, the substance and consummation of the same must have taken place upon these waters to be within the admiralty jurisdiction. . . .
13
'. . . The jurisdiction of the admiralty over maritime torts does not depend upon the wrong having been committed on board the vessel, but upon its having been committed on the high seas or other navigable waters.
14
'. . . Every species of tort, however occurring, and whether on board a vessel or not, if upon the high seas or navigable waters, is of admiralty cognizance.'
15
The Court has often reiterated this rule of locality.4 As recently as last Term, in Victory Carries, Inc. v. Law, 404 U.S. 202, 205, 92 S.Ct. 418, 421, 30 L.Ed.2d 383, we repeated that '(t)he historic view of this Court has been that the maritime tort jurisdiction of the federal courts is determined by the locality of the accident and that maritime law governs only those torts occurring on the navigable waters of the United States.'
16
This locality test, of course, was established and grew up in an era when it was difficult to conceive of a tortious occurrence on navigable waters other than in connection with a waterborne vessel. Indeed, for the traditional types of maritime torts, the traditional test has worked quite satisfactorily. As a leading admiralty text has put the matter:
17
'It should be stressed that the important cases in admiralty are not the borderline cases on jurisdiction; these may exercise a perverse fascination in the occasion they afford for elaborate casuistry, but the main business of the (admiralty) court involves claims for cargo damage, collision, seamen's injuries and the like—all well and comfortably within the circle, and far from the penumbra.' G. Gilmore & C. Black, The Law of Admiralty 24 n. 88 (1957).
18
But it is the perverse and casuistic borderline situations that have demonstrated some of the problems with the locality test of maritime tort jurisdiction. In Smith & Son v. Taylor, 276 U.S. 179, 48 S.Ct. 228, 72 L.Ed. 520 (1928), for instance, a longshoreman unloading a vessel was standing on the pier when he was struck by a cargoladen sling from the ship and knocked into the water where he was later found dead. This Court held that there was no admiralty jurisdiction in that case, despite the fact that the longshoreman was knocked into the water, because the blow by the sling was what gave rise to the cause of action, and it took effect on the land. Hence, the Court concluded, '(t)he substance and consummation of the occurrence which gave rise to the cause of action took place on land.' 276 U.S., at 182, 48 S.Ct., at 229. In the converse factual setting, however, where a longshoreman working on the deck of a vessel was struck by a hoist and knocked onto the pier, the Court upheld admiralty jurisdiction because the cause of action arose on the vessel. Minnie v. Port Huron Terminal Co., 295 U.S. 647, 55 S.Ct. 884, 79 L.Ed. 1631 (1935). See also The Admiral People, 295 U.S. 649, 55 S.Ct. 885, 79 L.Ed. 1633 (1935).
19
Other serious difficulties with the locality test are illustrated by cases where the maritime locality of the tort is clear, but where the invocation of admiralty jurisdiction seems almost absurd. If a swimmer at a public beach is injured by another swimmer or by a submerged object on the bottom, or if a piece of machinery sustains water damage from being dropped into a harbor by a land-based crane, a literal application of the locality test invokes not only the jurisdiction of the federal courts, but the full panoply of the substantive admiralty law as well. In cases such as these, some courts have adhered to a mechanical application of the strict locality rule and have sustained admiralty jurisdiction despite and lack of any connection between the wrong and traditional forms of maritime commerce and navigation.5 Other courts, however, have held in such situations that a maritime locality is not sufficient to bring the tort within federal admiralty jurisdiction, but that there must also be a maritime nexus—some relationship between the tort and traditional maritime activities, involving navigation or commerce on navigable waters. The Court of Appeals for the Sixth Circuit, for instance, in the Chapman case, where a swimmer at a public beach was injured, held that
20
'(a)bsent such a relationship, admiralty jurisdiction would depend entirely upon the fact that a tort occurred on navigable waters; a fact which in and of itself, in light of the historical justification for federal admiralty jurisdiction, are quite immaterial to any meaningful invocation of the jurisdiction of admiralty courts.' 385 F.2d, at 966.6
21
As early as 1850, admiralty scholars began to suggest that a traditional maritime activity, as well as a maritime locality, is necessary to invoke admiralty jurisdiction over torts. In that year, Judge Benedict expressed his 'celebrated doubt'7 as to whether such jurisdiction did not depend, in addition to a maritime locality, upon some 'relation of the parties to a ship or vessel, embracing only those tortious violation(s) of maritime right and duty which occur in vessels to which the Admiralty jurisdiction, in cases of contracts, applies.' E. Benedict, The American Admiralty 173 (1850). More recently, commentators have actively criticized the rule of locality as the sole criterion for admiralty jurisdiction, and have recommended adoption of a maritime relationship requirement as well. See 7A J. Moore, Federal Practice, Admiralty .325(3) and .325(5) (2d ed. 1972); Black, Admiralty Jurisdiction: Critique and Suggestions, 50 Col.L.Rev. 259, 264 (1950). In 1969, the American Law Institute's Study of the Division of Jurisdiction Between State and Federal Courts (ALI Study) also made that recommendation, stating (at 233):
22
'It is hard to think of any reason why access to federal court should be allowed without regard to amount in controversy or citizenship of the parties merely because of the fortuity that a tort occurred on navigable waters, rather than on other waters or on land. The federal courts should not be burdened with every case of an injured swimmer.'
23
Despite the broad language of cases like The Plymouth, 3 Wall. 20, 18 L.Ed. 125 (1866), the fact is that this Court has never explicitly held that a maritime locality is the sole test of admiralty tort jurisdiction. The last time the Court considered the matter, the question was left open. Atlantic Transport Co. of West Virginia v. Imbrovek, 234 U.S. 52, 34 S.Ct. 733, 58 L.Ed. 1208 (1914). In that case, a stevedore brought suit for injuries sustained on board a vessel while loading and stowing copper. The petitioner admitted the maritime locality of the tort, but contended that no maritime relationship was present. The Court sustained federal admiralty jurisdiction, but found that it was not necessary to decide whether locality alone is sufficient:
24
'Even if it be assumed that the requirement as to locality in tort cases, while indispensable, is not necessarily exclusive, still in the present case the wrong which was the subject of the suit was, we think, of a maritime nature and hence the District Court, from any point of view, and jurisdiction. . . .
25
'. . . If more is required than the locality of the wrong in order to give the court jurisdiction, the relation of the wrong to maritime service, to navigation and to commerce on navigable waters, was quite sufficient.' Id., at 61, 62, 34 S.Ct., at 735.
26
Since the time of that decision the Court has not squarely dealt with the question left open there, although opinions in several cases have discussed the maritime or non-maritime nature of the tort and its relationship to maritime navigation. In Rodrigue v. Aetna Casualty & Surety Co., 395 U.S. 352, 89 S.Ct. 1835, 23 L.Ed.2d 360 (1969), for instance, we held that admiralty had no jurisdiction of wrongful-death actions under the Death on the High Seas Act, 41 Stat. 537, 46 U.S.C. § 761 et seq., arising out of accidents on artificial island drilling rigs in the Gulf of Mexico more than a marine league offshore. We relied in that case on the fact that the accidents bore no relation to any navigational function:
27
'The accidents in question here involved no collision with a vessel, and the structures were not navigational aids. They were islands, albeit artificial ones, . . . and the accidents had no more connection with the ordinary stuff of admiralty than do accidents on piers.' Id., at 360, 89 S.Ct., at 1839.
28
See also The Raithmoor, 241 U.S. 166, 176—177, 36 S.Ct. 514, 516—517, 60 L.Ed. 937 (1916); Chelentis v. Luckenbach S.S. Co., 247 U.S. 372, 382, 38 S.Ct. 501, 503, 62 L.Ed. 1171 (1918); Great Lakes Dredge & Dock Co. v. Kierejewski, 261 U.S. 479, 481, 43 S.Ct. 418, 67 L.Ed. 756 (1923); Robins Dry Dock & Repair Co. v. Dahl, 266 U.S. 449, 457, 45 S.Ct. 157, 158, 69 L.Ed. 372 (1925); London Guarantee & Accident Co. v. Industrial Accident Comm'n, 279 U.S. 109, 123, 49 S.Ct. 296, 299, 73 L.Ed. 632 (1929).
29
Apart from the difficulties involved in trying to apply the locality rule as the sole test of admiralty tort jurisdiction, another indictment of that test is to be found in the number of times the federal courts and the Congress, in the interests of justice, have had to create exceptions to it in the converse situation—i.e., when the tort has no maritime locality, but does bear a relationship to maritime service, commerce, or navigation. See 7A J. Moore, Federal Practice, Admiralty .325(4) (2d ed. 1972). For example, in O'Donnell v. Great Lakes Dredge & Dock Co., 318 U.S. 36, 63 S.Ct. 488, 87 L.Ed. 596 (1943), the Court sustained the application of the Jones Act, 41 Stat. 1007, 46 U.S.C. § 688, to injuries to a seaman on land, because of the seaman's connection with maritime commerce. We relied in that case on an analogy to maintenance and cure:
30
'(T)he maritime law, as recognized in the federal courts, has not in general allowed recovery for personal injuries occurring on land. But there is an important exception to this generalization in the case of maintenance and cure. From its dawn, the maritime law has recognized the seaman's right to maintenance and cure for injuries suffered in the course of his service to his vessel, whether occurring on sea or on land.' Id., at 41—42, 63 S.Ct., at 491.
31
Similarly, the doctrine of unseaworthiness has been extended to permit a seaman or a longshoreman to recover from a ship owner for injuries sustained wholly on land, so long as those injuries were caused by defects in the ship or its gear. Gutierrez v. Waterman S.S. Corp., 373 U.S. 206, 214—215, 83 S.Ct. 1185, 1190 1191, 10 L.Ed.2d 297 (1963). See also Strika v. Netherlands Ministry of Traffic, 185 F.2d 555 (CA2 1950).
32
Congress, too, has extended admiralty jurisdiction predicated on the relation of the wrong to maritime activities, regardless of the locality of the tort. In the Extension of Admiralty Jurisdiction Act, 62 Stat. 496, 46 U.S.C. § 740, enacted in 1948, Congress provided:
33
'The admiralty and maritime jurisdiction of the United States shall extend to and include all cases of damage or injury, to person or property, caused by a vessel on navigable water, notwithstanding that such damage or injury be done or consummated on land.'
34
This Act was passed specifically to overrule cases, such as The Plymouth, supra, holding that admiralty does not provide a remedy for damage done to land structures by ships on navigable waters. Victory Carriers, Inc. v. Law, 404 U.S., at 209 n. 8, 92 S.Ct., at 423; Gutierrez v. Waterman S.S. Corp., 373 U.S., at 209 210, 83 S.Ct., at 1187—1188.8
35
In sum, there has existed over the years a judicial, legislative, and scholarly recognition that, in determining whether there is admiralty jurisdiction over a particular tort or class of torts, reliance on the relationship of the wrong to traditional maritime activity is often more sensible and more consonant with the purposes of maritime law than is a purely mechanical application of the locality test.
II
36
One area in which locality as the exclusive test of admiralty tort jurisdiction has given rise to serious problems in application is that of aviation. For the reasons discussed above and those to be discussed, we have concluded that maritime locality alone is not a sufficient predicate for admiralty jurisdiction in aviation tort cases.
37
In one of the earliest aircraft cases brought in admiralty, The Crawford Bros., No. 2, 215 F. 269, 271 (WD Wash.1914), in which a libel in rem for repairs was brought against an airplane that had crashed into Puget Sound, the federal court declined to assume jurisdiction, reasoning that an airplane could not be characterized as a maritime vessel. The Crawford Bros. was followed by a number of cases dealing with seaplanes, in which the courts restricted admiralty jurisdiction to occurrences involving planes that were afloat on navigable waters.9 Continuing doubt as to the applicability of admiralty law to aircraft was illustrated by cases in the 1930's and 1940's holding that aircraft owners could not invoke the benefits of the maritime doctrine of limitation of liability,10 and that crimes committed on board aircraft flying over international waters were not punishable under criminal statutes proscribing acts committed on the high seas.11 Moreover, Congress exempted all aircraft from conformity with United States navigation and shipping laws.12
38
The first major extension of admiralty jurisdiction to land-based aircraft came in wrongful-death actions arising out of aircraft crashes at sea and brought under the Death on the High Seas Act, 46 U.S.C. § 761 et seq. The federal courts took jurisdiction of such cases because the literal provisions of that statute appeared to be clearly applicable. The Death on the High Seas Act, enacted in 1920, provides:
39
'Whenever the death of a person shall be caused by wrongful act, neglect, or default occurring on the high seas beyond a marine league from the shore of any State, or the District of Columbia, or the Territories or dependencies of the United States, the personal representative of the decedent may maintain a suit for damages in the district courts of the United States, in admiralty . . ..'
40
The first aviation case brought pursuant to the Death on the High Seas Act was apparently Choy v. Pan American Airways Co., 1941 A.M.C. 483 (SDNY), where death was caused by the crash of a seaplane into the Pacific Ocean during a transoceanic flight. The District Court upheld admiralty jurisdiction on the ground that the language of the Act was broad and made no reference to surface vessels. According to the court:
41
'The statute certainly includes the phrase 'on the high seas' but there is no reason why this should make the law operable only on a horizontal plane. The very next phrase 'beyond a marine league from the shore of any State' may be said to include a vertical sense and another dimension.' Id., at 484.
42
Since Choy, many actions for wrongful death arising out of aircraft crashes into the high seas beyond one marine league from shore have been brought under the Death on the High Seas Act, and federal jurisdiction has consistently been sustained in those cases.13 Indeed, it may be considered as settled today that this specific federal statute gives the federal admiralty courts jurisdiction of such wrongful-death actions.
43
In recent years, however, some federal courts have been persuaded in aviation cases to extend their admiralty jurisdiction beyond the statutory coverage of the Death on the High Seas Act. Several cases have held that actions for personal injuries arising out of aircraft crashes into the high seas more than one league off shore or arising out of aircraft accidents in the airspace over the high seas were cognizable in admiralty because of their maritime locality, although they were not within the scope of the Death on the High Seas Act or any other federal legislation.14 These cases, as well as most of those brought under the Death on the High Seas Act, involved torts both with a maritime locality, in that the alleged negligence became operative while the aircraft was on or over navigable waters, and also with some relationship to maritime commerce, at least insofar as the aircraft was beyond state territorial waters and performing a function—transoceanic crossing—that previously would have been performed by waterborne vessels.15
44
But a further extension of admiralty jurisdiction was created when courts began to sustain that jurisdiction in situations such as the one now before us—when the claim arose out of an aircraft accident that occurred on or over navigable waters within state territorial limits, and when the aircraft was not on a transoceanic flight. Apparently, the first such case grew out of a 1960 crash of a commercial jet, bound from Boston to Philadelphia, that collided with a flock of birds over the airport runway and crashed into Boston Harbor within one minute after takeoff. Weinstein v. Eastern Airlines, Inc., 316 F.2d 758 (CA3 1963). In deciding that a wrongful-death action arising from this crash was within admiralty jurisdiction, the Court of Appeals for the Third Circuit applied the strict locality rule and found that the tort had a maritime locality. The court further justified the invocation of admiralty jurisdiction in that case by an analogy to the Death on the High Seas Act:
45
'If, as it has been held, a tort claim arising out of the crash of an airplane beyond the one marine league line is within the jurisdiction of admiralty, then a fortiori a crash of an aircraft just short of that line but still within the navigable waters is within that jurisdiction as well.' Id., at 765.
46
There have been a few subsequent cases to like effect.16 To the contrary, of course, is the decision of the Court of Appeals for the Sixth Circuit in the present case.
III
47
These latter cases graphically demonstrate the problems involved in applying a locality-alone test of admiralty tort jurisdiction to the crashes of aircraft. Airplanes, unlike waterborne vessels, are not limited by physical boundaries and can and do operate over both land and navigable bodies of water. As Professor Moore and his colleague Professor Pelaez have stated, 'In both death and injury cases . . . it is evident that while distinctions based on locality often are in fact quite relevant where water vessels are concerned, they entirely lose their significance where aircraft, which are not geographically restrained, are concerned.' 7A J. Moore, Federal Practice, Admiralty .330(5), pp. 3772—3773 (2d ed. 1972). In flights within the continental United States, which are principally over land, the fact that an aircraft happens to fall in navigable waters, rather than on land, is wholly fortuitous. The ALI Study, in criticizing the Weinstein decision, observed:
48
'If a plane takes off from Boston's Logan Airport bound for Philadelphia, and crashes on takeoff, it makes little sense that the next of kin of the passengers killed should be left to their usual remedies, ordinarily in state court, if the plane crashes on land, but that they have access to a federal court, and the distinctive substantive law of admiralty applies, if the wrecked plane ends up in the waters of Boston Harbor.' ALI Study 231.17
49
Moreover, not only is the locality test in such cases wholly adventitious, but it is sometimes almost impossible to apply with any degree of certainty. Under the locality test, the tort 'occurs' where the alleged negligence took effect, The Plymouth, supra; Smith & Son v. Taylor, 276 U.S. 179, 48 S.Ct. 228, 72 L.Ed. 520 (1928); and in the case of aircraft that locus is often most difficult to determine.
50
The case before us provides a good example of these difficulties. The petitioners contend that since their aircraft crashed into the navigable waters of Lake Erie and was totally destroyed when it sank in those waters, the locality of the tort, or the place where the alleged negligence took effect, was there. The fact that the major damage to their plane would not have occurred if it had not landed in the lake indicates, they say, that the substance and consummation of the wrong took place in navigable waters. The respondents, on the other hand, argue that the alleged negligence took effect when the plane collided with the birds—over land. Relying on cases such as Smith & Son v. Taylor, supra, where admiralty jurisdiction was denied in the case of a longshoreman struck by a ship's sling while standing on a pier, and knocked into the water, the respondents contend that a tort 'occurs' at the point of first impact of the alleged negligence. Here, they say, the cause of action arose as soon as the plane struck the birds; from then on, the plane was destined to fall, and whether it came down on land or water should not affect 'the locality of the act.' See Thomas v. Lane, 23 Fed.Cas., at 960.
51
In the view we take of the question before us, we need not decide who has the better of this dispute. It is enough to note that either position gives rise to the problems inherent in applying the strict locality test of admiralty tort jurisdiction in aviation accident cases. The petitioners' argument, if accepted, would make jurisdiction depend on where the plane ended up—a circumstance that could be wholly fortuitous and completely unrelated to the tort itself. The anomaly is well illustrated by the hypothetical case of two aircraft colliding at a high altitude, with one crashing on land and the other in a navigable river. If, on the other hand, the respondents' position were adopted, jurisdiction would depend on whether the plane happened to be flying over land or water when the original impact of the alleged negligence occurred. This circumstance, too, could be totally fortuitous. If the plane in the present case struck the birds over Cleveland's Lakefront Airport, admiralty jurisdiction would not lie; but if the plane had just crossed the shoreline when it struck the birds, admiralty jurisdiction would attach, even if the plane were then able to make it back to the airport and crashland there. These are hardly the types of distinctions with which admiralty law was designed to deal.
52
All these and other difficulties that can arise in attempting to apply the locality test of admiralty jurisdiction to aeronautical torts are, of course, attributable to the inherent nature of aircraft. Unlike waterborne vessels, they are not restrained by one-dimensional geographic and physical boundaries. For this elementary reason, we conclude that the mere fact that the alleged wrong 'occurs' or 'is located' on or over navigable waters—whatever that means in an aviation context—is not of itself sufficient to turn an airplane negligence case into a 'maritime tort.' It is far more consistent with the history and purpose of admiralty to require also that the wrong bear a significant relationship to traditional maritime activity. We hold that unless such a relationship exists, claims arising from airplane accidents are not cognizable in admiralty in the absence of legislation to the contrary.
IV
53
This conclusion, however, does not end our inquiry, for there remains the question of what constitutes, in the context of aviation, a significant relationship to traditional maritime activity. The petitioners argue that any aircraft falling into navigable waters has a sufficient relationship to maritime activity to satisfy the test. The relevant analogy, they say, is not between flying aircraft and sailing ships, but between a downed plane and a sinking ship. Quoting from the Weinstein opinion, they contend: 'When an aircraft crashes into navigable waters, the dangers to persons and property are much the same as those arising out of the sinking of a ship or a collision between two vessels.' 316 F.2d, at 763. The dissenting opinion in the Court of Appeals in the present case made the same argument:
54
'I believe that there are many comparisons between the problems of aircraft over navigable waters and those of the ships which the aircraft are rapidly replacing. . . .
55
'. . . Problems posed for aircraft landing on, crashing on, or sinking into navigable waters differ markedly from landings upon land. . . . In such instances, wind and wave and water, the normal problems of the mariner, become the approach or survival problems of the pilot and his passengers. . . . What I would hold is that tort cases arising out of aircraft crashes into navigable waters are cognizable in admiralty jurisdiction even if the negligent conduct is alleged to have happened wholly on land.' 448 F.2d at 163.
56
We cannot accept that definition of traditional maritime activity. It is true that in a literal sense there may be some similarities between the problems posed for a plane downed on water and those faced by a sinking ship. But the differences between the two modes of transportation are far greater, in terms of their basic qualities and traditions and consequently in terms of the conceptual expertise of the law to be applied.18 The law of admiralty has evolved over many centuries, designed and molded to handle problems of vessels relegated to ply the waterways of the world, beyond whose shores they cannot go. That law deals with navigational rules rules that govern the manner and direction those vessels may rightly move upon the waters. When a collision occurs or a ship founders at sea, the law of admiralty looks to those rules to determine fault, liability, and all other questions that may arise from such a catastrophe. Through long experience, the law of the sea knows how to determine whether a particular ship is seaworthy, and it knows the nature of maintenance and cure. It is concerned with maritime liens, the general average, captures and prizes, limitation of liability, cargo damage, and claims for salvage.
57
Rules and concepts such as these are wholly alien to air commerce, whose vehicles operate in a totally different element, unhindered by geographical boundaries and exempt from the navigational rules of the maritime road. The matters with which admiralty is basically concerned have no conceivable bearing on the operation of aircraft, whether over land or water. Indeed, in contexts other than tort, Congress and the courts have recognized that, because of these differences, aircraft are not subject to maritime law.19 Although dangers of wind and wave faced by a plane that has crashed on navigable waters may be superficially similar to those encountered by a sinking ship, the plane's unexpected descent will almost invariably have been attributable to a cause unrelated to the sea—be it pilot error, defective design or manufacture of airframe or engine, error of a traffic controller at an airport, or some other cause; and the determination of liability will thus be based on factual and conceptual inquiries unfamiliar to the law of admiralty. It is clear, therefore, that neither the fact that a plane goes down on navigable waters nor the fact that the negligence 'occurs' while a plane is flying over such waters is enough to create such a relationship to traditional maritime activity as to justify the invocation of admiralty jurisdiction.
58
We need not decide today whether an aviation tort can ever, under any circumstances bear a sufficient relationship to traditional maritime activity to come within admiralty jurisdiction in the absence of legislation.20 It could be argued, for instance, that if a plane flying from New York to London crashed in the mid-Atlantic, there would be admiralty jurisdiction over resulting tort claims even absent a specific statute.21 An aircraft in that situation might be thought to bear a significant relationship to traditional maritime activity because it would be performing a function traditionally performed by waterborne vessels.22 Moreover, other factors might come into play in the area of international air commerce—choice-of-forum problems, choice of law problems,23 international-law problems, problems involving multi-nation conventions and treaties, and so on.
59
But none of these considerations is of concern in the case before us. The flight of the petitioners' land-based aircraft was to be from Cleveland to Portland, Maine, and thence to White Plains, New York—a flight that would have been almost entirely over land was within the continental United States. After it struck the flock of seagulls over the runway, the plane descended the settled in Lake Erie within the territorial waters of Ohio. We can find no significant relationship between such an even befalling a land-based plane flying from one point in the continental United States to another, and traditional maritime activity involving navigation and commerce on navigable waters.
60
Just last Term, in Victory Carriers, Inc. v. Law, 404 U.S., at 212, 92 S.Ct., at 425, we observed that in determining whether to expand admiralty jurisdiction 'we should proceed with caution . . ..' Quoting from Healy v. Ratta, 292 U.S. 263, 270, 54 S.Ct. 700, 703, 78 L.Ed. 1248 (1934), we stated:
61
"The power reserved to the states, under the Constitution, to provide for the determination of controversies in their courts may be restricted only by the action of Congress in conformity to the judiciary sections of the Constitution. . . . Due regard for the rightful independence of state governments, which should actuate federal courts, requires that they scrupulously confine their own jurisdiction to the precise limits which (a federal) statute has defined."
62
In the situation before us, which is only fortuitously and incidentally connected to navigable waters and which bears no relationship to traditional maritime activity, the Ohio courts could plainly exercise jurisdiction over the suit,24 and could plainly apply familiar concepts of Ohio tort law without any effect on maritime endeavors.25
63
It may be, as the petitioners argue, that aviation tort cases should be governed by uniform substantive and procedural laws and that such actions should be heard in the federal courts so as to avoid divergent results and duplicitous litigation in multi-party cases. But for this Court to uphold federal admiralty jurisdiction in a few wholly fortuitous aircraft cases would be a most quixotic way of approaching that goal. If federal uniformity is the desired goal with respect to claims arising from aviation accidents, Congress is free under the Commerce Clause to enact legislation applicable to all such accidents, whether occurring on land or water, and adapted to the specific characteristics of air commerce.
64
For the reasons stated in this opinion we hold that, in the absence of legislation to the contrary, there is no federal admiralty jurisdiction over aviation tort claims arising from flights by land-based aircraft between points within the continental United States.26
65
The judgment is affirmed.
66
Affirmed.
1
That section provides:
'The district courts shall have original jurisdiction, exclusive of the courts of the States, of:
'(1) Any civil case of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise entitled.'
2
Besides Dicken, the respondents are the City of Cleveland, as owner and operator of the airport, and Phillip A. Schwenz, the airport manager.
3
The petitioners also filed an action against Dicken's employer, the United States, under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b) and 2674, asserting the same claim. That action is pending in the District Court for the Northern District of Ohio.
4
In Victory Carriers, Inc. v. Law, 404 U.S. 202, 205 n. 2, 92 S.Ct. 418, 421, 30 L.Ed.2d 383 (1971), we cited over 40 cases to this effect.
5
Davis v. City of Jacksonville Beach, Florida, 251 F.Supp. 327 (MD Fla.1965) (injury to a swimmer by a surfboard); King v. Testerman, 214 F.Supp. 335, 336 (ED Tenn.1963) (injuries to a water skier). See also Horton v. J. & J. Aircraft, Inc., 257 F.Supp. 120, 121 (SD Fla.1966). Cf. Weinstein v. Eastern Airlines, Inc., 316 F.2d 758 (CA3 1963).
6
In another injured-swimmer case, McGuire v. City of New York, 192 F.Supp. 866, 871—872 (SDNY 1961), the court stated:
'The proper scope of jurisdiction should include all matters relating to the business of the sea and the business conducted on navigable waters.
'The libel in this case does not relate to any tort which grows out of navigation. It alleges an ordinary tort, no different in substance because the injury occurred in shallow waters along the shore than if the injury had occurred on the sandy beach above the water line. Whether the City of New York should be held liable for the injury suffered by libellant is a question which can easily be determined in the courts of the locality. To endeavor to project such an action into the federal courts on the ground of admiralty jurisdiction is to misinterpret the nature of admiralty jurisdiction.'
Other cases holding that admiralty jurisdiction was not properly invoked because the tort, while having a maritime locality, lacked a significant relationship to maritime navigation and commerce, include: Peytavin v. Government Employees Insurance Co., 453 F.2d 1121 (CA5 1972); Gowdy v. United States, 412 F.2d 525, 527—529 (CA9 1969); Smith v. Guerrant, 290 F.Supp. 111, 113 114 (SD Tex.1968). See also J. W. Petersen Coal & Oil Co. v. United States, 323 F.Supp. 1198, 1201 (ND Ill.1970); O'Connor & Co. v. City of Pascagoula, Miss., 304 F.Supp. 681, 683 (SD Miss.1969); Hastings v. Mann, 226 F.Supp. 962, 964—965 (EDNC 1964), aff'd, 340 F.2d 910 (CA4 1965). A similar view is taken by the English courts. Queen v. Judge of the City of London Court, (1892). 1 Q.B. 273.
7
Hough, Admiralty Jurisdiction—Of Late Years, 37 Harv.L.Rev. 529, 531 (1924).
8
The Court has held, however, that there is no admiralty jurisdiction under the Extension of Admiralty Jurisdiction Act over suits brought by longshoremen injured while working on a pier, when such injuries were caused, not by ships, but by pier-based equipment. Victory Carriers, Inc. v. Law, supra; Nacirema Operating Co. v. Johnson, 396 U.S. 212, 223, 90 S.Ct. 347, 353, 24 L.Ed.2d 371 (1969). The Longshoremen's and Harbox Workers' Compensation Act, 33 U.S.C. § 901 et seq., was amended in 1972 to cover employees working on those areas of the shore customarily used in loading, unloading, repairing, or building a vessel. Pub.L.No. 92—576, § 2, 86 Stat. 1251.
9
Matter of Reinhardt v. Newport Flying Service Corp., 232 N.Y. 115, 117—118, 133 N.E. 371, 372 (1921); United States v. Northwest Air Service, Inc., 80 F.2d 804, 805 (CA9 1935). See also Lambros Seaplane Base v. The Batory, 215 F.2d 228, 231 (CA2 1954).
10
Dollins v. Pan-American Grace Airways, Inc., 27 F.Supp. 487, 488—489 (SDNY 1939); Noakes v. Imperial Airways, Ltd., 29 F.Supp. 412, 413 (SDNY 1939).
11
United States v. Peoples, 50 F.Supp. 462 (ND Cal.1943); United States v. Cordova, 89 F.Supp. 298 (EDNY 1950).
In 1952, however, Congress amended the criminal jurisdiction of admiralty to include crimes committed aboard aircraft while in flight over the high seas or any other waters within the admiralty jurisdiction of the United States except waters within the territorial jurisdiction of any State. 18 U.S.C. § 7(5).
12
The Federal Aviation Act of 1958, 72 Stat. 799, as amended, 49 U.S.C. § 1509(a), the successor to the Air Commerce Act of 1926, 44 Stat. 572, formerly 49 U.S.C. § 177 (1952 ed.).
13
See, e.g., Wyman v. Pan American Airways, Inc., 181 Misc. 963, 966, 43 N.Y.S.2d 420, 423, aff'd, 267 App.Div. 947, 48 N.Y.S.2d 459, aff'd, 293 N.Y. 878, 59 N.E.2d 785 (1944); Higa v. Transocean Airlines, 230 F.2d 780 (CA9 1955); Noel v. Linea Aeropostal Venezolana, 247 F.2d 677, 680 (CA2 1957); Trihey v. Transocean Air Lines, 255 F.2d 824, 827 (CA9 1958); Lacey v. L. W. Wiggins Airways, Inc., 95 F.Supp. 916 (Mass.1951); Wilson v. Transocean Airlines, 121 F.Supp. 85 (ND Cal.1954); Stiles v. National Airlines, Inc., 161 F.Supp. 125 (ED La.1958), aff'd, 268 F.2d 400 (CA5 1959); Noel v. Airponents, Inc., 169 F.Supp. 348 (NJ 1958); Lavello v. Danko, 175 F.Supp. 92 (SDNY 1959); Blumenthal v. United States, 189 F.Supp. 439, 445 (ED Pa.1960), aff'd, 306 F.2d 16 (CA3 1962); Pardonnet v. Flying Tiger Line, Inc., 233 F.Supp. 683 (ND Ill.1964); Kropp v. Douglas Aircraft Co., 329 F.Supp. 447, 453—455 (EDNY 1971). Cf. D'Aleman v. Pan American World Airways, 259 F.2d 493 (CA2 1958).
14
Bergeron v. Aero Associates, Inc., 213 F.Supp. 936 (ED La.1963); Notarian v. Trans World Airlines, Inc., 244 F.Supp. 874 (WD Pa.1965); Horton v. J. & J. Aircraft, Inc., 257 F.Supp. 120 (SD Fla.1966).
15
Whether this type of relationship to maritime commerce is a sufficient maritime nexus to justify admiralty jurisdiction over airplane accidents is discussed infra, at 271—272. We do not decide that question in this case.
16
Hornsby v. Fish Meal Co., 431 F.2d 865 (CA5 1970); Harris v. United Air Lines, Inc., 275 F.Supp. 431, 432 (SD Iowa 1967). Cf. Scott v. Eastern Air Lines, Inc., 399 F.2d 14, 21—22 (CA3 1968) (en banc).
17
See also Comment, Admiralty Jurisdiction: Airplanes and Wrongful Death in Territorial Waters, 64 Col.L.Rev. 1084, 1091 1092 (1964).
18
Moreover, if the mere happenstance that an aircraft falls into navigable waters creates a maritime relationship because of the maritime dangers to a sinking plane, then the maritime relationship test would be the same as the petitioners' view of the maritime-locality test, with the same inherent fortuity.
19
See supra, at 260—262.
20
Of course, under the Death on the High Seas Act, a wrongful-death action arising out of an airplane crash on the high seas beyond a marine league from the shore of a State may clearly be brought in a federal admiralty court.
21
But see 7A J. Moore, Federal Practice, Admiralty .330(5), p. 3772 (2d ed. 1972):
'What possible rational basis is there, for instance, in holding that the personal representative of a passenger killed in the crash of an airplane traveling from Shannon, Ireland to Logan Field in Boston has a cause of action within the admiralty jurisdiction if the plane goes down three miles from shore; may have a cause of action within the admiralty jurisdiction if the plane goes down within an area circumscribed by the shore and the three-mile limit; and will not have a cause of action within the admiralty jurisdiction if the plane managed to remain airborne until reaching the Massachusetts coast? And this notwithstanding that in all instances the plane may have developed engine trouble or been the victim of pilot error at an identical site far out over the Atlantic.'
22
Apart from transoceanic flights, the Government's brief suggests that another example where admiralty jurisdiction might properly be invoked in an airplane accident case on the ground that the plane was performing a function traditionally performed by waterborne vessels, is shown in Hornsby v. Fish Meal Co., 431 F.2d 865 (CA5 1970), which involved the mid-air collision of two light aircraft used in spotting schools of fish and the crash of those aircraft into the Gulf of Mexico within one marine league of the Louisiana shore.
23
In such a situation, it has been stated: 'Were the maritime law not applicable, it is argued that the recovery would depend upon a confusing consideration of what substantive law to apply, i.e., the law of the forum, the law of the place where each decedent (or injured party) purchased his ticket, the law of the place where the plane took off, or, perhaps, the law of the point of destination.' 7A J. Moore, Federal Practice, Admiralty .330(5), p. 3774 (2d ed. 1972).
24
There is no diversity of citizenship between petitioners and the City of Cleveland.
25
The United States, respondent Dicken's employer, can be sued, of course, only in federal district court under the Federal Tort Claims Act, 28 U.S.C. § 1346(b) and 2674. Such an action has been filed by the petitioners here, but even in that suit the federal court will apply the substantive tort law of Ohio. Thus, Ohio law will not be ousted in this case, and the pendency of the action under the Tort Claims Act has no relevance in determining whether the instant case should be heard in admiralty, with its federal substantive law.
The possibility that the petitioners would have to litigate the same claim in two forums is the same possibility that would exist if their plane had stopped on the shore of the lake, instead of going into the water, and is the same possibility that exists every time a plane goes down on land, negligence of the federal air traffic controller is alleged, and there is no diversity of citizenship. This problem cannot be solved merely by upholding admiralty jurisdiction in cases where the plane happens to fall on navigable waters.
26
Some such flights, e.g., New York City to Miami, Florida, no doubt involve passage over 'the high seas beyond a marine league from the shore of any State.' To the extent that the terms of the Death on the High Seas Act become applicable to such flights, that Act, of course, is 'legislation to the contrary.'
| 78
|
409 U.S. 275
93 S.Ct. 483
34 L.Ed.2d 472
HEUBLEIN, INC., Appellant,v.SOUTH CAROLINA TAX COMMISSION.
No. 71-879.
Argued Nov. 13, 1972.
Decided Dec. 18, 1972.
Syllabus
Incident to South Carolina's valid scheme of regulating the sale of liquor within the State, a requirement that a manufacturer do more, as a condition of doing business, than merely solicit sales is not impermissible even though it has the effect of requiring the out-of-state manufacturer to undertake activities that eliminate its protection under 15 U.S.C. § 381(a) from the state income tax. Pp. 278—284.
257 S.C. 17, 183 S.E.2d 710, affirmed.
Stephen M. Piga, New York City, for appellant.
G. Lewis Argoe, Jr., North, S.C., for the appellee.
Mr. Justice MARSHALL delivered the opinion of the Court.
1
In this case we must determine whether South Carolina may tax the income from local sales of Heublein's products, consistent with the limitations on the State's power to tax imposed by 15 U.S.C. § 381(a).1 The South Carolina Tax Commission assessed Heublein, Inc., a Connecticut corporation that produces alcoholic beverages, a total of $21,549.50 in taxes on income derived from the sale of its goods in South Carolina.2 After a hearing before the Tax Commission, Heublein paid the taxes and brought suit to recover them. The Court of Common Pleas held that § 381(a) protected Heublein from tax liability in South Carolina. The Supreme Court of South Carolina reversed. 257 S.C. 17, 183 S.E.2d 710. We noted probable jurisdiction, 405 U.S. 952, 92 S.Ct. 1175, 31 L.Ed.2d 229 (1972), and now affirm. We hold that Heublein's activities within South Carolina exceed the minimum standards established in 15 U.S.C. § 381(a), and that South Carolina may, pursuant to an otherwise valid regulatory scheme, compel Heublein to undertake activities that take it beyond the protection of 15 U.S.C. § 381(a).
2
* During the years in question, Hueblein had one employee in South Carolina. He maintained an office in his home and a desk at the warehouse of Ben Arnold Co., the local distributor of Heublein's products. Heublein's representative briefed Ben Arnold's salesmen on Heublein's products, and traveled throughout the State to liquor retailers, telling them of the products and leaving promotional literature with them. Ordinarily, the retailers sent orders directly to Ben Arnold, but occasionally Heublein's representative transmitted them. Ben Arnold, in turn, placed its orders with Heublein's home office in Connecticut. Heublein then acknowledged its acceptance of the orders and indicated to Ben Arnold when the goods would be shipped. They were sent by common carrier consigned to Heublein in care of its representative at the premises of Ben Arnold.
3
This arrangement, which served none of Heublein's business interests, was adopted to conform to the requirements of the South Carolina Alcoholic Beverage Control Act. S.C.Code Ann. § 4—1 et seq. (1962 and Supp.1971). Under that Act, only registered producers of registered brands of alcoholic beverages may ship those brands of alcoholic beverages into the State. §§ 4—134, 4 135. Such producers must have a resident representative who has no direct or indirect interest in a local liquor business. §§ 4 131(3), 4—139. Shipments of liquor into the State may be made only to the producer in care of its representative. § 4—141. Prior to the shipment, the producer must mail a copy of the invoice showing the quantity and price of the items shipped, and a copy of the bill of lading, to the Alcoholic Beverage Control Commission. Immediately after accepting delivery, the representative must furnish the Commission a copy of the invoice showing the time and place of delivery. Ibid. When received, the shipment must be stored in a licensed warehouse of the producer, or, after delivery is complete, the shipment may be transferred to a licensed wholesaler. §§ 4—140, 4—141. Before the goods are shipped to a wholesaler, however, the representative must obtain the Commission's permission to make the transfer. § 4—141. Heublein complied with this regulatory scheme.
II
4
Title 15 U.S.C. § 381(a)(1), on which Heublein relies, provides that no State shall have power to impose a net income tax on income derived within the State from interstate commerce if the recipient of the income confined its business within the State to 'the solicitation of orders . . . in such State for sales of tangible personal property, which orders are sent outside the State for approval or rejection, and, if approved, are filled by shipment or delivery from a point outside the State.'
5
We need not decide whether, as the State urges, the actions of Heublein's representative in maintaining a local office, meeting with retailers, distributing promotional literature, and personally delivering some orders to the wholesaler, do not fall within the term 'solicitation.' Compare Smith Kline & French v. Tax Comm'n, 241 Or. 50, 403 P.2d 375 (1965), with Clairol, Inc. v. Kingsley, 109 N.J.Super. 22, 262 A.2d 213, aff'd, 57 N.J. 199, 270 A.2d 702 (1970), appeal dismissed, 402 U.S. 902, 91 S.Ct. 1377, 28 L.Ed.2d 643 (1971). For here Heublein has done more than just those acts. It sent its products to its local representative who transferred them to a local wholesaler. This transfer occurred within the State and clearly was neither 'solicitation' nor the filling of orders 'by shipment or delivery from a point outside the State' within the meaning of § 381(a)(1).
6
Heublein contends, however, that the transfer never would have occurred had not South Carolina required it as a condition of conducting business within the State. Heublein argues that a State may not evade the purpose of § 381(a) by requiring a firm to do more than solicit business within the State and then taxing the firm for engaging in this compelled additional activity.
7
If we were persuaded that South Carolina has evaded the intent of the statute we would, of course, be reluctant to uphold its actions. But that is not what South Carolina has done here. The legislative history of § 381 shows that Congress had rather limited purposes which are not evaded by South Carolina's regulation of liquor sales in the manner it has chosen. Congress did not focus on the consequences of its actions for such local regulatory schemes. We therefore will not read the statute as prohibiting the States from adopting such schemes, even when the regulation requires the producer to have more than the minimum contacts with the State for which § 381 provides tax immunity. Such a reading would require us to assume that Congress carefully considered the difficult problems of accommodating the federal interest in an open national economy with local interest in regulating the sale of liquor. The evidence is clear that Congress did not do so.
8
The impetus behind the enactment of § 381 was this Court's opinion in Northwestern States Portland Cement Co. v. Minnesota, 358 U.S. 450, 79 S.Ct. 357, 3 L.Ed.2d 421 (1959). There we held that 'net income from the interstate operations of a foreign corporation may be subjected to state taxation provided the levy is not discriminatory and is properly apportioned to local activities within the taxing State forming sufficient nexus to support the same.' 358 U.S., at 452, 79 S.Ct., at 359. Congress promptly responded to the 'considerable concern and uncertainty'3 and the 'serious apprehension in the commercial community'4 generated by this decision by enacting Pub.L. 86—272, 73 Stat. 555, 15 U.S.C. § 381, within seven months.
9
In this statute, Congress attempted to allay the apprehension of businessmen that 'mere solicitation' would subject them to state taxation. Such apprehension arose because, as businessmen who sought relief from Congress viewed the situation, Northwestern States Portland Cement did not adequately specify what local activities were enough to create a 'sufficient nexus' for the exercise of the State's power to tax.5 Section 381 was designed to define clearly a lower limit for the exercise of that power. Clarity that would remove uncertainty was Congress' primary goal. By establishing such a limit, Congress did, of course, implicitly determine that the State's interest in taxing business activities below that limit was weaker than the national interest in promoting an open economy. But it did not address the questions raised by a requirement, incident to a valid regulatory scheme, that a business undertake activities above the limit as a condition of doing business within the State.6
10
Congress recognized, instead, that the accommodation of local and national interests in this area was a delicate matter. The committees reporting the bill to the House and Senate emphasized the difficulty of devising appropriate limitations on state taxing powers. Both Committees called their bills temporary solutions to meet only the most pressing problems created by Northwestern States Portland Cement.7 More comprehensive legislation could only follow careful study, in the Committees' view. Congress agreed, and in Title II of Pub.L. 86—272, provided that the Committee on the Judiciary of the House of Representatives and the Committee on Finance of the Senate study the entire problem of state taxation of interstate commerce.8
11
Congress, then, did not address in § 381 the problem of taxing a business when it undertook local activities simply in order to comply with the requirements of a valid regulatory scheme. Such regulation is an important function of local governments in our federal scheme. As we said last Term, 'unless Congress conveys its purpose clearly, it will not be deemed to have significantly changed the Federal-State balance.' United States v. Bass, 404 U.S. 336, 349, 92 S.Ct. 515, 523, 30 L.Ed.2d 488 (1971).
12
Congress of course did not enact in § 381 a statute which a State can deliberately evade by requiring a firm to undertake more than mere solicitation. When a State enacts a regulatory scheme that serves legitimate State purposes other than assuring that the State may tax the firm's income, it is not evading § 381; it is pursuing permissible ends in a manner that Congress did not address. Thus, if South Carolina's system of regulating the sale of liquor is valid, § 381 does not prohibit taxation of Heublein's local sales.9
III
13
South Carolina's Alcoholic Beverage Control Act is a long and detailed statute. Requirements that certain records be kept by the manufacturer, the wholesaler, and the retailer pervade the scheme. There must be complete records of the quantities, brands, and prices involved at every stage of each liquor sale. By requiring manufacturers to localize their sales, South Carolina establishes a check on the accuracy of these records. For example, when a manufacturer can transfer its goods to a wholesaler in the State only after it submits an invoice showing the price and after it receives permission for the transfer, it is easier for the State to enforce its requirement that the wholesale price in South Carolina be no higher than that elsewhere in the country. S.C.Code Ann. § 4—137.1 (Supp.1971). The requirement that sales be localized is, unquestionably, reasonably related to the State's purposes and is not simply an attempt by the State to provide a basis for the taxation of an out-of-state seller's local sales.
14
Nor does this requirement violate the Commerce Clause. The Twenty-first Amendment, § 2, provides that '(t)he transportation or importation into any State . . . for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.' As this Court said in Hostetter v. Idlewild Bon Voyage Liquor Corp., 377 U.S. 324, 330, 84 S.Ct. 1293, 1296, 12 L.Ed.2d 350 (1964):
15
'This Court made clear in the early years following the adoption of the Twenty-first Amendment that by virtue of its provisions a State is totally unconfined by traditional Commerce Clause limitations when it restricts the importation of intoxicants destined for use, distribution, or consumption within its borders.'
16
The requirement that, before engaging in the liquor business in South Carolina, a manufacturer do more than merely solicit sales there, is an appropriate element in the State's system of regulating the sale of liquor.10 The regulation in question here is therefore valid, and § 381(a) does not apply. The judgment of the Supreme Court of South Carolina is affirmed.
17
Affirmed.
18
Mr. Justice STEWART took no part in the consideration or decision of this case.
19
Mr. Justice BLACKMUN, being of the opinion that the Twenty-first Amendment provides the sole authority for what South Carolina has required of Heublein by its Alcoholic Beverage Control Act and, to that extent, overrides what otherwise would be proscribed by 15 U.S.C. § 381, concurs in the result.
1
Title 15 U.S.C. § 381(a) provides in pertinent part:
'No State . . . shall have power to impose . . . a net income tax on the income derived within such State by any person from interstate commerce if the only business activities within such State by or on behalf of such person . . . are either, or both, of the following:
'(1) the solicitation of orders by such person, or his representative, in such State for sales of tangible personal property, which orders are sent outside the State for approval or rejection, and, if approved, are filled by shipment or delivery from a point outside the State; and
'(2) the solicitation of orders by such person, or his representative, in such State in the name of or for the benefit of a prospective customer of such person, if orders by such customer to such person to enable such customer to fill orders resulting from such solicitation are orders described in paragraph (1).'
2
A license tax, which is predicated upon liability for income taxes, was also assessed and paid. S.C.Code Ann. § 65—606 (1962). There is no dispute over the amount for which Heublein is liable under this statute.
3
S.Rep. No. 658, 86th Cong., 1st Sess., 2, U.S.Code Cong. & Admin.News 1959, p. 2548.
4
H.R.Rep. No. 936, 86th Cong., 1st Sess., 1.
5
See, e.g., S.Rep.No. 658, supra, n. 3, pp. 2—3: 'Persons engaged in interstate commerce are in doubt as to the amount of local activities within a State that will be regarded as forming a sufficient 'nexus,' that is, connection, with the State to support the imposition of a tax on net income from interstate operations and 'properly apportioned' to the State.' U.S.Code Cong. & Admin.News 1959, p. 2549.
6
That Congress was untroubled by those questions is suggested by its emphasis on the increased overhead and recordkeeping that local taxation of minimal activities would cause. See, e.g., id., at 4; H.R.Rep.No. 936, supra, n. 4, p. 2: 'These businesses are concerned not only with the costs of taxation, but also with the inescapable fact that compliance with the diverse tax laws of every jurisdiction in which income is produced will require the maintenance of records for each jurisdiction and the retention of legal counsel and accountants who are familiar with the tax practice of each jurisdiction.' Where a valid regulatory scheme requires that records be kept, the overhead costs about which Congress was concerned might not rise substantially when a state income tax was imposed. South Carolina's scheme for regulating liquor does little more than require that Heublein keep certain records.
7
H.R.Rep.No. 936, supra, n. 4, p. 2; S.Rep.No. 658, supra, n. 3, pp. 4—5:
'Your committee recognizes that the bill it has reported is not a permanent solution to the problem that exists. It was not intended to be. Your committee . . . recognizes that the problem is a complex one which requires extensive and exhaustive study in arriving at a permanent solution fair alike to the States and to the Nation. Your committee believes, however, that the bill it has reported will serve as an effective stopgap or temporary solution while further studies are made of the problem.' U.S.Code Cong. & Admin.News 1959, p. 2551.
8
This report is published as H.R.Rep. No. 1480, 88th Cong., 2d Sess., H.R.Rep. No. 565, 89th Cong., 1st Sess., and H.R.Rep. No. 952, 89th Cong., 1st Sess.
9
Mr. Justice BLACKMUN, in his separate statement, suggests that § 381 does proscribe what South Carolina has done here, but that the Twenty-first Amendment prohibits such an action by Congress. In his view, to the extent that § 381 prohibits taxing activities undertaken in order to comply with a regulation valid under the Twenty-first Amendment, it is unconstitutional. We prefer to read the statute and its legislative history, ambiguous though they may be, to avoid such a holding. Cf. United States v. Jin Fuey Moy, 241 U.S. 394, 401, 36 S.Ct. 658, 659, 60 L.Ed. 1061 (1916). And, though the relation between the Twenty-first Amendment and the force of the Commerce Clause in the absence of congressional action has occasionally been explored by this Court, we have never squarely determined how that Amendment affects Congress' power under the Commerce Clause. Cf. Schwegmann Bros. v. Calvert Distillers Corp., 341 U.S. 384, 71 S.Ct. 745, 95 L.Ed. 1035 (1951).
10
In upholding a comprehensive scheme of liquor regulation rather similar to South Carolina's, this Court said:
'(The State) has seen fit to permit manufacture of whiskey only upon condition that it be sold to an indicated class of customers and transported in definitely specified ways. These conditions are not unreasonable and are clearly appropriate for effectuating the policy of limiting traffic in order to minimize well known evils . . ..' Ziffrin, Inc. v. Reeves, 308 U.S. 132, 139, 60 S.Ct. 163, 167, 84 L.Ed. 128 (1939). Cf. Duckworth v. Arkansas, 314 U.S. 390, 62 S.Ct. 311, 86 L.Ed. 294 (1941); Carter v. Virginia, 321 U.S. 131, 64 S.Ct. 464, 88 L.Ed. 605 (1944).
| 78
|
409 U.S. 322
93 S.Ct. 611
34 L.Ed.2d 548
Lillian V. COUCH, Petitioner,v.UNITED STATES and Edward F. Jennings, etc.
No. 71-889.
Argued Nov. 14, 1972.
Decided Jan. 9, 1973.
Syllabus
Petitioner challenges an Internal Revenue Service (IRS) summons directing an accountant, an independent contractor with numerous clients, to produce business records that she had been giving to him for preparation of her tax returns from 1955 to 1968, when the summons was issued. The District Court and the Court of Appeals concluded that the privilege against self-incrimination asserted by petitioner was not available. Held: On the facts of this case, where petitioner had effectively surrendered possession of the records to the accountant, there was no personal compulsion against petitioner to produce the records. The Fifth Amendment therefore constitutes no bar to their production by the accountant, even though the IRS tax investigation may entail possible criminal as well as civil consequences. Nor does petitioner, who was aware that much of the information in the records had to be disclosed in her tax returns, have any legitimate expectation of privacy that would bar production under either the Fourth or Fifth Amendment. Pp. 327 336.
449 F.2d 141, affirmed.
John G. Rocovich, Jr., Roanoke, Va., for petitioner.
Lawrence G. Wallace, Washington, D.C., for respondents.
Mr. Justice POWELL delivered the opinion of the Court.
1
On January 7, 1970, the Government filed a petition in the United States District Court for the Western District of Virginia, pursuant to 26 U.S.C. §§ 7402(b) and 7604(a),1 seeking enforcement of an Internal Revenue summons in connection with an investigation of petitioner's tax liability from 1964—1968. The summons was directed to petitioner's accountant for the production of:
2
'All books, records, bank statements, cancelled checks, deposit ticket copies, workpapers and all other pertinent documents pertaining to the tax liability of the above taxpayer.'2
3
The question is whether the taxpayer may invoke her Fifth Amendment privilege against compulsory self-incrimination to prevent the production of her business and tax records in the possession of her accountant. Both the District Court3 and the Court of Appeals for the Fourth Circuit4 held the privilege unavailable. We granted certiorari, 405 U.S. 1038, 92 S.Ct. 1311, 31 L.Ed.2d 581.
4
Petitioner is the sole proprietress of a restaurant. Since 1955 she had given bank statements, payroll records, and reports of sales and expenditures to her accountant, Harold Shaffer, for the purpose of preparing her income tax returns. The accountant was not petitioner's personal employee but an independent contractor with his own office and numerous other clients who compensated him on a piecework basis. When petitioner surrendered possession of the records to Shaffer, she, of course, retained title in herself.
5
During the summer of 1969, Internal Revenue Agent Dennis Groves commenced an investigation of petitioner's tax returns. After examining her books and records in Shaffer's office with his permission, Groves found indications of a substantial understatement of gross income. Groves thereupon reported the case to the Intelligence Division of the Internal Revenue Service.
6
Special Agent Jennings of the Intelligence Division next commenced a joint investigation with Groves to determine petitioner's correct tax liability, the possibility of income tax fraud and the imposition of tax fraud penalties, and, lastly, the possibility of a recommendation of a criminal tax violation. Jennings first introduced himself to petitioner, gave her Miranda warnings as required by IRS directive, and then issued the summons to Shaffer5 after the latter refused to let him see, remove, or microfilm petitioner's records.
7
When Jennings arrived at Shaffer's office on September 2, 1969, the return day of the summons, to view the records, he found that Shaffer, at petitioner's request, had delivered the documents to petitioner's attorney. Jennings thereupon petitioned the District Court for enforcement of the summons, and petitioner intervened, asserting that the ownership of the records warranted a Fifth Amendment privilege to bar their production.6
8
* It is now undisputed that a special agent is authorized, pursuant to 26 U.S.C. § 7602, to issue an Internal Revenue summons in aid of a tax investigation with civil and possible criminal consequences.7 In Donaldson v. United States, 400 U.S. 517, 91 S.Ct. 534, 27 L.Ed.2d 580 (1971), the Court upheld such a summons, noting that:
9
'Congress clearly has authorized the use of the summons in investigating what may prove to be criminal conduct. . . . There is no statutory suggestion for any meaningful line of distinction, for civil as compared with criminal purposes, at the point of a special agent's appearance. . . . To draw a line where a special agent appears would require the Service, in a situation of suspected but undetermined fraud, to forgo either the use of the summons or the potentiality of an ultimate recommendation for prosecution. We refuse to draw that line and thus to stultify enforcement of federal law.' Id., at 535—536, 91 S.Ct. at 544.8
10
The Court in Donaldson noted that the taxpayer there had attempted to intervene, pursuant to Fed.Rule Civ.Proc. 24(a)(2), to bar production of records 'in which the taxpayer has no proprietary interest of any kind, which are owned by the third person, which are in his hands, and which relate to the third person's business transactions with the taxpayer.' Id., at 523, 91 S.Ct., at 538. The Court quite properly concluded that, under those facts, no absolute right to intervene existed. Id., at 530—531, 91 S.Ct., at 542. The instant case, however, presents a different question. Here petitioner does own the business records which the Government seeks to review and the courts below did permit her to intervene. The essential inquiry is whether her proprietary interest further enables her to assert successfully a privilege against compulsory self-incrimination to bar enforcement of the summons and production of the records, despite the fact that the records no longer remained in her possession.
II
11
The importance of preserving inviolate the privilege against compulsory self-incrimination has often been stated by this Court and need not be elaborated. Counselman v. Hitchcock, 142 U.S. 547, 12 S.Ct. 195, 35 L.Ed. 1110 (1892); Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964); Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed. 694 (1966). By its very nature, the privilege is an intimate and personal one. It respects a private inner sanctum of individual feeling and thought and proscribes state intrusion to extract self-condemnation. Historically, the privilege sprang from an abhorrence of governmental assault against the single individual accused of crime and the temptation on the part of the State to resort to the expedient of compelling incriminating evidence from one's own mouth. United States v. White, 322 U.S. 694, 698, 64 S.Ct. 1248, 1251, 88 L.Ed. 1542 (1944). The Court has thought the privilege necessary to prevent any 'recurrence of the Inquisition and the Star Chamber, even if not in their stark brutality,' Ullmann v. United States, 350 U.S. 422, 428, 76 S.Ct. 497, 501, 100 L.Ed. 511 (1956).
12
In Murphy v. Waterfront Commission of New York Harbor, 378 U.S. 52, 55, 84 S.Ct. 1594, 1596, 12 L.Ed.2d 678 (1964), the Court articulated the policies and purposes of the privilege:
13
'(O)ur unwillingness to subject those suspected of crime to the cruel trilemma of self-accusation, perjury or contempt; our preference for an accusatorial rather than an inquisitorial system of criminal justice; our fear that self-incriminating statements will be elicited by inhumane treatment and abuses; our sense of fair play which dictates 'a fair state-individual balance by requiring the government . . . in its contest with the individual to shoulder the entire load,' . . . our respect for the inviolability of the human personality and of the right of each individual 'to a private enclave where he may lead a private life' . . .'
14
It is important to reiterate that the Fifth Amendment privilege is a personal privilege: it adheres basically to the person, not to information that may incriminate him. As Mr. Justice Holmes put it: 'A party is privileged from producing the evidence, but not from its production.' Johnson v. United States, 228 U.S. 457, 458, 33 S.Ct. 572, 57 L.Ed. 919 (1913). The Constitution explicitly prohibits compelling an accused to bear witness 'against himself': it necessarily does not proscribe incriminating statements elicited from another. Compulsion upon the person asserting it is an important element of the privilege, and 'prohibition of compelling a man . . . to be witness against himself is a prohibition of the use of physical or moral compulsion to extort communications from him,' Holt v. United States, 218 U.S. 245, 252—253, 31 S.Ct. 2, 6, 54 L.Ed. 1021 (1910) (emphasis added). It is extortion of information from the accused himself that offends our sense of justice.
15
In the case before us the ingredient of personal compulsion against an accused is lacking. The summons and the order of the District Court enforcing it are directed against the accountant.9 He, not the taxpayer, is the only one compelled to do anything. And the accountant makes no claim that he may tend to be incriminated by the production. Inquisitorial pressure or coercion against a potentially accused person, compelling her, against her will, to utter self-condemning words or produce incriminating documents is absent. In the present case, no 'shadow of testimonial compulsion upon or enforced communication by the accused' is involved. Schmerber v. California, 384 U.S. 757, 765, 86 S.Ct. 1826, 1832, 16 L.Ed.2d 908 (1966).
16
The divulgence of potentially incriminating evidence against petitioner is naturally unwelcome. But petitioner's distress would be no less if the divulgence came not from her accountant but from some other third party with whom she was connected and who possessed substantially equivalent knowledge of her business affairs. The basic complaint of petitioner stems from the fact of divulgence of the possibly incriminating information, not from the manner in which or the person from whom it was extracted. Yet such divulgence, where it does not result from coercion of the suspect herself, is a necessary part of the process of law enforcement and tax investigation.
III
17
Petitioner's reliance on Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1886), is misplaced. In Boyd, the person asserting the privilege was in possession of the written statements in question. The Court in Boyd did hold that 'any forcible and compulsory extortion of a man's own testimony, or of his private papers to be used as evidence to convict him of crime,' violated the Fourth and Fifth Amendments. Id., at 630, 6 S.Ct., at 532. That case did not, however, address or contemplate the divergence of ownership and possession,10 and petitioner concedes that court decisions applying Boyd have largely been in instances where possession and ownership conjoined,11 see, e.g., Hill v. Philpott, 445 F.2d 144 (CA7 1971); United States v. Judson, 322 F.2d 460, 63—2 USTC 9658 (CA 1963).12 In Boyd, the production order was directed against the owner of the property who, by responding, would have been forced 'to product and authenticate any personal documents or effects that might incriminate him.' United States v. White, 322 U.S., at 698, 64 S.Ct., at 1251. But we reiterate that in the instant case there was no enforced communication of any kind from any accused or potential accused.
18
Petitioner would, in effect, have us read Boyd to mark ownership, not possession, as the bounds of the privilege,13 despite the fact that possession bears the closest relationship to the personal compulsion forbidden by the Fifth Amendment. To tie the privilege against selfincrimination to a concept of ownership would be to draw a meaningless line. It would hold here that the business records which petitioner actually owned would be protected in the hands of her accountant, while business information communicated to her accountant by letter and conversations in which the accountant took notes, in addition to the accountant's own workpapers and photocopies of petitioner's records, would not be subject to a claim of privilege since title rested in the accountant. Such a holding would thus place unnecessary emphasis on the form of communication to an accountant and the accountant's own working methods, while diverting the inquiry from the basic purposes of the Fifth Amendment's protections.
19
Other precedents debated by the parties lend no support to petitioner's contention that ownership of documents should determine the availability of the privilege.14 In Perlman v. United States, 247 U.S. 7, 38 S.Ct. 417, 62 L.Ed. 950 (1918), the Court held the privilege unavailable to a party seeking to suppress the admission of incriminating documents and exhibits before a grand jury. The movant's expectations of privacy in the exhibits had, according to the Court, been destroyed when he voluntarily surrendered the exhibits as evidence in a patent infringement case he had earlier brought in Federal District Court. Petitioner's claims of ownership failed to overcome this fact. The Court noted pertinently:
20
'But Perlman insists that he owned the exhibits and appears to contend that his ownership exempted them from any use by the Government without his consent. The extent of the insistence is rather elusive of measurement. It seems to be that the owner of property must be considered as having a constructive possession of it wherever it be and in whosesoever hands it be, and it is always, therefore, in a kind of asylum of constitutional privilege. And to be of avail the contention must be pushed to this extreme. It is opposed, however, by all the cited cases. They, as we have said, make the criterion of immunity not the ownership of property but the 'physical or moral compulsion' exerted.' Id., at 15, 38 S.Ct., at 420.
21
Petitioner argues, nevertheless, that grave prejudice will result from a denial of her claim to equate ownership and the scope of the privilege. She alleges that '(i)f the IRS is able to reach her records the instant those records leave her hands and are deposited in the hands of her retainer whom she has hired for a special purpose then the meaning of the privilege is lost.'15 That is not, however, the import of today's decision. We do indeed believe that actual possession of documents bears the most significant relationship to Fifth Amendment protections against governmental compulsions upon the individual accused of crime. Yet situations may well arise where constructive possession is so clear or the relinquishment of possession is so temporary and insignificant as to leave the personal compulsions upon the accused substantially intact.16 But this is not the case before us. Here there was no mere fleeting divestment of possession: the records had been given to this accountant regularly since 1955 and remained in his continuous possession until the summer of 1969 when the summons was issued.17 Moreover, the accountant himself worked neither in petitioner's office nor as her employee.18 The length of his possession of petitioner's records and his independent status confirm the belief that petitioner's divestment of possession was of such a character as to disqualify her entirely as an object of any impermissible Fifth Amendment compulsion.
IV
22
Petitioner further argues that the confidential nature of the accountant-client relationship and her resulting expectation of privacy in delivering the records protect her, under the Fourth and Fifth Amendments, from their production. Although not in itself controlling, we note that no confidential accountant-client privilege exists under federal law, and no statecreated privilege has been recognized in federal cases, Falsone v. United States, 205 F.2d 734 (CA5 1953), cert. denied, 346 U.S. 864, 74 S.Ct. 103, 98 L.Ed. 375; Gariepy v. United States, 189 F.2d 459, 463—464 (CA6 1951); Himmelfarb v. United States, 175 F.2d 924, 939 (CA9 1949), cert. denied, 338 U.S. 860, 70 S.Ct. 103, 94 L.Ed. 527; Olender v. United States, 210 F.2d 795, 806 (CA9 1954). Nor is there justification for such a privilege where records relevant to income tax returns are involved in a criminal investigation or prosecution. In Boyd, a pre-income tax case, the Court spoke of protection of privacy, 116 U.S., at 630, 6 S.Ct., at 532, but there can be little expectation of privacy where records are handed to an accountant, knowing that mandatory disclosure of much of the information therein is required in an income tax return. What information is not disclosed is largely in the accountant's discretion, not petitioner's. Indeed, the accountant himself risks criminal prosecution if he willfully assists in the preparation of a false return. 26 U.S.C. § 7206(2). His own need for self-protection would often require the right to disclose the information given him. Petitioner seeks extensions of constitutional protections against self-incrimination in the very situation where obligations of disclosure exist and under a system largely dependent upon honest self-reporting even to survive. Accordingly, petitioner here cannot reasonably claim, either for Fourth19 or Fifth Amendment purposes, an expectation of protected privacy or confidentiality.
V
23
The criterion for Fifth Amendment immunity remains not the ownership of property but the "physical or moral compulsion' exerted.' Perlman, 247 U.S., at 15, 38 S.Ct., at 420. We hold today that no Fourth or Fifth Amendment claim can prevail where, as in this case, there exists no legitimate expectation of privacy and no semblance of governmental compulsion against the person of the accused.20 It is important, in applying constitutional principles, to interpret them in light of the fundamental interests of personal liberty they were meant to serve. Respect for these principles is eroded when they leap their proper bounds to interfere with the legitimate interest of society in enforcement of its laws and collection of the revenues.
24
The judgment of the Court of Appeals is affirmed.
25
Judgment affirmed.
26
Mr. Justice BRENNAN, concurring.
27
I join the opinion of the Court on the understanding that it does not establish a per se rule defeating a claim of Fifth Amendment privilege whenever the documents in question are not in the possession of the person claiming the privilege. In my view, the privilege is available to one who turns records over to a third person for custodial safekeeping rather than disclosure of the information, United States v. Guterma, 272 F.2d 344 (CA2 1959), cf. Schwimmer v. United States, 232 F.2d 855 (CA8 1956); to one who turns records over to a third person at the inducement of the Government, Stuart v. United States, 416 F.2d 489 (CA5 1969); to one who places records in a safety deposit box or in hiding; and to similar cases where reasonable steps have been taken to safeguard the confidentiality of the contents of the records.* The privilege cannot extend, however, to the protection of a taxpayer's records conveyed to a retained accountant for use in preparation of an income tax return, where the accountant is himself obligated to prepare a complete and lawful return. 26 U.S.C. § 7206 (2). It is clear on the facts of this case that the taxpayer has voluntarily removed these records from that "private enclave where (she) may lead a private life . . .," Murphy v. Waterfront Comm'n of New York Harbor, 378 U.S. 52, 55, 84 S.Ct. 1594, 1597, 12 L.Ed.2d 678 (1964), quoting United States v. Grunewald, 233 F.2d 556, 581—582 (CA2 1956) (Frank, J., dissenting), rev'd, 353 U.S. 391, 77 S.Ct. 963, 1 L.Ed.2d 931 (1957), and for that reason I would affirm the judgment below.
28
Mr. Justice DOUGLAS, dissenting.
29
I cannot agree with the majority that the privilege against self-incrimination was not available to the petitioner merely because she did not have possession of the documents in question and was not herself subject to compulsory process. The basic concerns which, in my opinion, underlie the privilege are more subtle and far-reaching than mere aversion to the methods of the Inquisition and the Star Chamber and their modern counterparts.1 The decision today sanctions yet another tool of the ever-widening governmental invasion and oversight of our private lives. As I urged in dissent in Warden v. Hayden, 387 U.S. 294, 325, 87 S.Ct. 1642, 1659, 18 L.Ed.2d 782, without the right of privacy 'the Fourth Amendment and the Fifth are ready instruments for the police state that the Framers sought to avoid.'
30
* By looking solely to the historical antecedents of the privilege and focusing on 'the ingredient of personal compulsion,' the majority largely ignores the interplay of the fundamental values protected by the Fourth and Fifth Amendments. As early as 1886, the Court recognized that issues often cannot be pigeonholed within one amendment or the other, thereby foreclosing consideration of related policies. Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746. In dealing with the compulsory production of a private paper for use in a forfeiture proceeding, the Court stated:
31
'The principles laid down (in Entick v. Carrington, 19 How.St.Tr. 1029, 95 Eng.Rep. 807) affect the very essence of constitutional liberty and security. . . . (T)hey apply to all invasions on the part of the government and its employes of the sanctity of a man's home and the privacies of life. It is not the breaking of his doors, and the rummaging of his drawers, that constitues the essence of the offense; 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 offense . . . Breaking 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 private papers to be used as evidence to convict him of crime, or to forfeit his goods, is within the condemnation of that judgment. In this regard the fourth and fifth Amendments run almost into each other.' Id., at 630, 6 S.Ct., at 532.
32
Although the subpoena in Boyd was directed at the person asserting the privilege, that fact cannot be allowed to obscure the basic trust of the Court's reasoning: the Fourth and Fifth Amendments delineate a 'sphere of privacy' which must be protected against governmental intrusion.2 We confirmed in Murphy v. Waterfront Commission of New York Harbor, 378 U.S. 52, 55, 84 S.Ct. 1594, 1597, 12 L.Ed.2d 678 that 'our respect for the inviolability of the human personality and of the right of each individual' to a private enclave where he may lead a private life," is a fundamental policy underlying the Fifth Amendment.
33
The majority contends, however, that petitioner cannot reasonably claim 'an expectation of protected privacy or confidentiality.' The reasons asserted for this position overlook the nature of the accountant-client relationship. The accountant, an agent for a specified purpose—i.e., completing the petitioner's tax returns—bore certain fiduciary responsibilities to petitioner. One of those responsibilities was not to use the records given him for any purpose other than completing the returns. Under these circumstances, it hardly can be said that by giving the records to the accountant, the petitioner committed them to the public domain.3
34
I defined what I believe to be the boundaries of this right to privacy in Warden v. Hayden, 387 U.S., at 323, 87 S.Ct., at 1658:
35
'The constitutional philosophy is, I think, clear. The personal effects and possessions of the individual (all contraband and the like excepted) are sacrosanct from prying eyes, from the long arm of the law, from any rummaging by police. Privacy involves the choice of the individual to disclose or to reveal what he believes, what he thinks, what he possesses. The article may be a nondescript work of art, a manuscript of a book, a personal account book, a diary, invoices, personal clothing, jewelry, or whatnot. Those who wrote the Bill of Rights believed that every individual needs both to communicate with others and to keep his affairs to himself. That dual aspect of privacy means that the individual should have the freedom to select for himself the time and circumstances when he will share his secrets with others and decide the extent of that sharing.'
36
The majority, by the seeming implications of its opinion, has cleared the way for investigatory authorities to compel disclosure of facets of our life we heretofore considered sacrosanct. We are told that 'situations may well arise where . . . the relinquishment of possession is so temporary and insignificant as to leave the personal compulsions upon the accused substantially intact.' I can see no basis in the majority opinion, however, for stopping short of condemning only those intrusions resting on compulsory process against the author of the thoughts or documents. Are we now to encourage meddling by the Government and ever more ingenious methods of obtaining access to sought-after materials? The premium now will be on subterfuge, on by passing the master of the domain by spiriting the materials away or compelling disclosure by a trusted employee or confidant.4 Inevitably, this will lead those of us who cherish our privacy to refrain from recording our thoughts or trusting anyone with even temporary custody of documents we want to protect from public disclosure. In short, it will stultify the exchange of ideas that we have considered crucial to our democracy.
II
37
The decision may have a more immediate impact which the majority does not consider. Our tax laws have become so complex that very few taxpayers can afford the luxury of completing their own returns without professional assistance. If a taxpayer now wants to insure the confidentiality and privacy of his records, however, he must forgo such assistance. To my mind, the majority thus attaches a penalty to the exercise of the privilege against self-incrimination. It calls for little more discussion than to note that we have not tolerated such penalties in the past. Cf. Uniformed Sanitation Men Association v. Commissioner of Sanitation, 392 U.S. 280, 88 S.Ct. 1917, 20 L.Ed.2d 1089; Gardner v. Broderick, 392 U.S. 273, 88 S.Ct. 1913, 20 L.Ed.2d 1082.
III
38
Thus, I would reverse the decisions below, finding that the subpoena violated both petitioner's Fourth and Fifth Amendment rights.5 I offer one more observation. The majority cautions that respect for our constitutional principles is eroded 'when they leap their proper bounds.' We should not be swayed by the popular cry for a formalistic and narrow interpretation of those provisions which safeguard our fundamental rights.
39
It is the Constitution we are construing, not a legislative-judicial code of conduct that suits our private value choices or that satisfies the appetite of prosecutors for more and more shortcuts that avoid constitutional barriers. Those constitutional barriers and the judicial traditions supporting them are the sources of the privacy we value so greatly. That privacy 'protects people,' not places, under the Fourth Amendment, Katz v. United States, 389 U.S. 347, 353, 88 S.Ct. 507, 512, 19 L.Ed.2d 530. And, as already noted, Boyd v. United States, supra, held that when it comes to the 'forcible and compulsory extortion of a man's own testimony, or of his private papers to be used as evidence to convict him of crime, or to forfeit his goods,' that is an illustration of the manner in which 'the fourth and fifth Amendments run almost into each other.' 116 U.S., at 630, 6 S.Ct., at 532.
40
One's privacy embraces what the person has in his home, his desk, his files, and his safe as well as what he carries on his person. It also has a very meaningful relationship to what he tells any confidant—his wife, his minister, his lawyer, or his tax accountant. The constitutional fences of law are being broken down by an ever-increasingly powerful Government that seeks to reduce every person to a digit.
41
Mr. Justice MARSHALL, dissenting.
42
I cannot agree with the majority that the Constitution permits the Government to enforce the summons issued in this case. The opinion of the Court fails to articulate the basis of its result in a way that addresses the range of constitutional concerns involved.1 The majority seems to create a bright-line rule that no constitutional right of petitioner is violated by enforcing a summons of papers not in her possession. Like Mr. Justice BRENNAN, I could not accept such a rule. However, the majority blurs the line by suggesting that temporary relinquishment of possession presents a different case, see ante, at 333. The Court expressly disclaims the proposition that possession alone is determinative of the availability of constitutional protection for petitioner's papers. Ante, at 336, and 333 n. 16. But neither the opinion of the Court nor the concurring opinion of Mr. Justice BRENNAN supplies a clearly articulated constitutional basis for the rule adopted. If the considerations that underlie the Court's expressed concerns are stated explicitly, I think it is clear that the Court has failed to apply correctly the standards which it appears to find relevant.2 I agree, of course, that possession does not define the limits of the protection that the Constitution affords to private papers, and add these comments to indicate how I would treat claims like petitioner's.
43
A. I begin with Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1886), whose continuing vitality is indicated by the majority's effort to distinguish it. That was a suit for the forfeiture of 35 cases of plate glass alleged to have been illegally imported. In the course of the forfeiture proceeding, the Government introduced into evidence an invoice of a prior shipment. The defendants objected on the ground that the use of the invoice violated their rights under the Fourth and Fifth Amendments, because the invoice was a private paper secured by a subpoena. This Court found a violation of both amendments.
44
One might interpret Boyd as holding that the Fifth Amendment prohibits the use of private papers in a criminal proceeding over the author's objection. The words of the Fifth Amendment surely can be read in that way. The use of the papers over objection 'compel(s the author) in (a) criminal case to be a witness against himself.' The compulsion occurs when the paper is introduced over objection, not when the paper is written or subpoenaed.
45
But that interpretation has not been adopted by this Court. See, e.g., Perlman v. United States, 247 U.S. 7, 38 S.Ct. 417, 62 L.Ed. 950 (1918); Johnson v. United States, 228 U.S. 457, 33 S.Ct. 572, 57 L.Ed. 919 (1913). And in some possible cases, consistent application of that interpretation of Boyd might lead to results at odds with common sense.3
46
Another interpretation of Boyd has been accepted by this Court and by the leading commentators. See, e.g., Curcio v. United States, 354 U.S. 118, 125, 77 S.Ct. 1145, 1151, 1 L.Ed.2d 1225 (1957); 8 J. Wigmore, Evidence § 2264 (McNaughton rev. 1961); C. McCormick, Evidence §§ 126—127 (2d ed. 1972). When a party produces potentially incriminating evidence in response to a summons or subpoena, he implicitly testifies that the evidence he brings forth is in fact the evidence demanded. 'The custodian's act of producing books or records in response to a subpoena duces tecum is itself a representation that the documents produced are those demanded by the subpoena. Requiring the custodian to identify or authenticate the documents for admission in evidence merely makes explicit what is implicit in the production itself.' Curcio v. United States, 354 U.S., at 125, 77 S.Ct., at 1150.
47
The potential for incrimination inherent in the act of production is illustrated by this case. The summons here called for the production of '(a)ll books . . . pertaining to the tax liability of' petitioner. Had the summons been directed to her, she would have implicitly testified, on producing some papers, that these were 'all' the records sought. The Internal Revenue agents believed that she may have understated her income. Their belief might have been confirmed on examining all of her records, but not on examining only some of them. The records could then be used in a subsequent criminal prosecution for underreporting her income. If she produced only some of her books, though, she would be liable for contempt of the order. The Fifth Amendment was designed to prevent the Government from placing potential defendants in such a position. Cf. Murphy v. Waterfront Commission of New York Harbor, 378 U.S. 52, 55, 84 S.Ct. 1594, 1596, 12 L.Ed.2d 678 (1964).
48
These considerations operate only against the person in possession of the papers, as the majority correctly points out. In this case, the accountant to whom the summons was directed made no claim that turning over the records he has might incriminate him, for example, by exposing him to the charge that he had perjured himself in representing that the return prepared for petitioner was correct to the best of his knowledge and belief, 26 U.S.C. § 6065, or that he had knowingly aided in the preparation of a false return, 26 U.S.C. § 7206(2). Nor could he be held to have represented more than that he had produced all the records in his possession.
49
However, the accepted interpretation of Boyd has an odd sound to it. Boyd emphasized that the invoice there was a private paper written by the defendants. Yet the accepted interpretation of the case makes the authorship and contents of the paper largely irrelevant. What is incriminating about the production of a document in response to an order is not its contents, as one might have thought, but the implicit authentication that the document is the one named in the order.4 If that is the only way rationally to interpret Boyd, it might make sense to do so.5 But it makes better sense to devise a rationale that focuses on the obvious concern of the case, the desire of the author of documents to keep them private.
50
B. This Court also held in Boyd that the Fourth Amendment was violated. Indeed, much of the opinion is devoted to a discussion of Entick v. Carrington, 19 How.St.Tr. 1029, 95 Eng.Rep. 807 (1765), a landmark in the development of the prohibition against unreasonable searches and seizures. Here, too, the doctrinal basis of the holding is unclear, in part because the Court correctly perceived that '(i)n this regard the fourth and fifth Amendments run almost into each other.' 116 U.S., at 630, 6 S.Ct., at 532.
51
Boyd suggested that the Fourth Amendment prohibited the seizure of 'mere evidence.' 116 U.S., at 623—624, 6 S.Ct., at 623. See Gouled v. United States, 255 U.S. 298, 41 S.Ct. 261, 65 L.Ed. 647 (1921). Searches for mere evidence were unreasonable even if such searches were sure to produce evidence leading to a conviction. The precise contours of the 'mere evidence' rule were shaped by concepts of property law which we now see as outmoded. See Warden v. Hayden, 387 U.S. 294, 303—307, 87 S.Ct. 1642, 1650, 18 L.Ed.2d 782 (1967). But those concepts attempted to define, however imprecisely, a sphere of personal privacy that the Government could not enter over objection. See, e.g., Gouled v. United States, supra, 255 U.S., at 304, 87 S.Ct., at 1648. And when this Court repudiated the 'mere evidence' rule, it suggested that Fourth Amendment limitations might be devised precisely in terms of the interest in privacy, prohibiting the seizure of 'items of evidential value whose very nature precludes them from being the object of a reasonable search and seizure.' Warden v. Hayden, 387 U.S., at 303, 87 S.Ct., at 1648. Cf. Stanford v. Texas, 379 U.S. 476, 485, 85 S.Ct. 506, 511, 13 L.Ed.2d 431 (1965).
52
The Fourth and Fifth Amendments do not speak to totally unrelated concerns. Cf. Griswold v. Connecticut, 381 U.S. 479, 484 485, 85 S.Ct. 1678, 1682, 14 L.Ed.2d 510 (1965); Murphy v. Waterfront Commission of New York Harbor, 378 U.S., at 55, 84 S.Ct., at 1596. Both involve aspects of a person's right to develop for himself a sphere of personal privacy. Where the Amendments 'run almost into each other,' I would prohibit the Government from entering.6 The problem, as I see it, is to develop criteria for determining whether evidence sought by the Government lies within the sphere of activities that petitioner attempted to keep private. Cf. Katz v. United States, 389 U.S. 347, 351—352, 88 S.Ct. 507, 511, 19 L.Ed.2d 530 (1967).
53
The first criterion, as Hayden suggests, is the nature of the evidence. Diaries and personal letters that record only their author's personal thoughts lie at the heart of our sense of privacy. In contrast, I see no bar in the Fourth or Fifth Amendment to the seizure of a letter from one conspirator to another directing the recipient to take steps that further the conspiracy. Business records like those sought in this case lie between those cases. We are not so outraged by the intrusion on privacy that accompanies the seizure of these records as we are by the seizure of a diary, yet the records could not easily be called 'instrumentalities' of tax evasion, particularly if they are accurate.
54
Second, we must consider the ordinary operations of the person to whom the records are given. A transfer to a lawyer is protected, not simply because there is a recognized attorney-client privilege, but also because the ordinary expectation is that the lawyer will not further publicize what he has been given. Again in contrast, a transfer to a trustee in bankruptcy or to a clerk of a court does not usually carry with it such expectations. That is how I would justify Johnson and Perlman. Here, too, the transfer in this case lies between the extremes. It would be relevant to a decision about the expectation of privacy that an accountant-client privilege existed under local law, but not determinative. Petitioner disclaimed reliance on such a privilege. Tr. of Oral Arg. 7. But I would think that, privileged or not, a disclosure to an accountant is rather close to disclosure to an attorney.
55
Third, the purposes for which the records were transferred is an element of an informed judgment about the author's interest in the privacy of the papers. That a transfer is compelled by practical considerations if the author is to claim benefits available under the law, seems to me quite important. If petitioner had sought to take advantage of some complicated provision of the tax laws, and needed the help of an accountant to do so, I would be quite reluctant to hold that the transfer of her records was a surrender of the privacy of the papers. But cf. Johnson v. United States, 228 U.S. 457, 33 S.Ct. 572, 57 L.Ed. 919 (1913). As I understand it, the majority's exception for temporary relinquishment of possession, and several of Mr. Justice BRENNAN'S exceptions, recognize the importance of this criterion.
56
Finally, we must take into account the steps that the author took to insure the privacy of the records. Cf. In re Harris, 221 U.S. 274, 280, 31 S.Ct. 557, 558, 55 L.Ed. 732 (1911). Placing them in a safe deposit box is different from letting them remain for many years with an accountant.
57
It is not impossible that petitioner had indeed abandoned her claim to privacy in the papers sought by summons in this case. But the District Court and the Court of Appeals applied a rather rigid test which made possession alone conclusive. Those courts have more experience than we do with the ordinary practices of taxpayers, accountants, and Internal Revenue agents. They are therefore better able, in the first instance, to apply the criteria I believe are relevant, in light of their understanding of the ordinary practices in such cases. I would vacate the judgment and remand the case to the District Court for consideration of those criteria.
1
§ 7402. Jurisdiction of district courts
'(b) To enforce summons. If any person is summoned under the internal revenue laws to appear, to testify, or to produce books, papers, or other data, the district court of the United States for the district in which such person resides or may be found shall have jurisdiction by appropriate process to compel such attendance, testimony, or production of books, papers, or other data.'
§ 7604. Enforcement of summons
'(a) Jurisdiction of district court. If any person is summoned under the internal revenue laws to appear, to testify, or to produce books, papers, records, or other data, the United States district court for the district in which such person resides or is found shall have jurisdiction by appropriate process to compel such attendance, testimony, or production of books, papers, records, or other data.'
2
App. 59—60.
3
The District Court held that '(s)ince, at the time the summons was served, the taxpayer, Lillian V. Couch, was not in possession of the books, records and documents described in the summons, she may not assert any Fifth Amendment privilege against self-incrimination as a bar to the enforcement of the summons.' App. 6, 11. The opinion of the District Court (WD Va.) is not reported.
4
The Court of Appeals also noted that the answer to petitioner's Fifth Amendment contentions lay in the fact that 'the records were not in the intervenor's (taxpayer's) possession but were in the custody of her accountant,' 449 F.2d 141, 143 (1971).
5
The summons, which is printed in full in App. 59—60 was issued on August 18, 1969, pursuant to 26 U.S.C. § 7602, which provides:
Examination of books and witnesses
'For the purpose of ascertaining the correctness of any return, making a return where none has been made, determining the liability of any person for any internal revenue tax or the liability at law or in equity of any transferee or fiduciary of any person in respect of any internal revenue tax, or collecting any such liability, the Secretary or his delegate is authorized—
'(1) To examine any books, papers, records, or other data which may be relevant or material to such inquiry;
'(2) To summon the person liable for tax or required to perform the act, or any officer or employee of such person, or any person having possession, custody, or care of books of account containing entries relating to the business of the person liable for tax or required to perform the act, or any other person the Secretary or his delegate may deem proper, to appear before the Secretary or his delegate at a time and place named in the summons and to produce such books, papers, records, or other data, and to give such testimony, under oath, as may be relevant or material to such inquiry; and
'(3) To take such testimony of the person concerned, under oath, as may be relevant or material to such inquiry.'
6
Petitioner also claimed that enforcement of the summons would violate her Fourth Amendment right to be secure from unreasonable searches and seizures. We agree with the Government, however, that 'this claim is not further articulated and does not appear to be independent of her Fifth Amendment argument.' Brief for United States 21—22. See part IV, infra.
7
There is clearly the joint civil and possibly criminal investigatory purpose in the instant case, see supra, at 324.
8
Donaldson cautioned only that the summons be issued in good faith and prior to a recommendation for criminal prosecution. 400 U.S., at 536, 91 S.Ct., at 545. Neither of those conditions is successfully challenged here.
9
Technically the order to produce the records was directed to petitioner's attorney since, after the summons was served upon the accountant, he ignored it and surrendered the records to the attorney. But constitutional rights obviously cannot be enlarged by this kind of action. The rights and obligations of the parties became fixed when the summons was served, and the transfer did not alter them. See United States v. Zakutansky, 401 F.2d 68, 72 (CA7 1968), cert. denied, 393 U.S. 1021, 89 S.Ct. 628, 21 L.Ed.2d 565; United States v. Lyons, 442 F.2d 1144 (CA1 1971).
10
A later Court commenting on the Boyd privilege noted that 'the papers and effects which the privilege protects must be the private property of the person claiming the privilege, or at least in his possession in a purely personal capacity.' United States v. White, 322 U.S. 694, 699, 64 S.Ct. 1248, 1251, 88 L.Ed. 1542 (1944). (Emphasis added.)
11
Brief for Petitioner 13—14.
12
See also United States v. Cohen, 388 F.2d 464, 468 (CA9 1967), where the court, in upholding the right of a possessor, nonowner, to assert the privilege, noted that 'it is possession of papers sought by the government, not ownership, which sets the stage for exercise of the governmental compulsion which it is the purpose of the privilege to prohibit.' Though the instant case concerns the scope of the privilege for an owner, nonpossessor, the Ninth Circuit's linkage of possession to the purposes served by the privilege was appropriate.
We do not, of course, decide what qualifies as rightful possession enabling the possessor to assert the privilege.
13
Brief for Petitioner 11—17.
14
Burdeau v. McDowell, 256 U.S. 465, 41 S.Ct. 574, 65 L.Ed. 1048 (1921), also debated and cited in the briefs, held that the Government may retain for use against their owner in a criminal proceeding incriminating documents which were stolen by private individuals, without any governmental knowledge or complicity, and turned over to the Government. The Court, in denying the owner's privilege, alluded primarily to the absence of any governmental compulsion against the accused, the precise factor considered in the instant case. It is true, as petitioner argues, that the case turns somewhat on a discussion of governmental versus private compulsion and invasion, but it is equally true that the Court in Burdeau failed to find any impermissible public compulsion on the owner absent his possession:
'We know of no constitutional principle which requires the government to surrender the papers under such circumstances. Had it learned that such incriminatory papers, tending to show a violation of federal law, were in the hands of a person other than the accused, it having had no part in wrongfully obtaining them, we know of no reason why a subpoena might not issue for the production of the papers as evidence. Such production would require no unreasonable search or seizure, nor would it amount to compelling the accused to testify against himself.' Id., at 476, 41 S.Ct., at 576.
In Johnson v. United States, 228 U.S. 457, 33 S.Ct. 572, 57 L.Ed. 919 (1913), the Court held that the books and records of a bankrupt transferred to a trustee in bankruptcy could be used as evidence against the bankrupt in a prosecution for concealing money from the trustee. Unlike the instant case, both title and possession passed in that transfer and the records were, in one sense, 'published' by it. But the Court, in denying the privilege, recognized that the transfer also succeeded in removing the important element of personal compulsion against the accused, id., at 459, 33 S.Ct., at 572, just as, in this case, the nature of the divestment of possession did.
15
Brief for Petitioner 13. At oral argument petitioner raised a similar concern: 'The Government goes so far as to contend, I believe, with their theory that any time it is out of your actual physical possession it is subject to subpoena . . .. If I were helping you across Constitution Avenue by carrying your briefcase, the Government holds that they could hand me a summons in the middle of Constitution Avenue and seize your documents to use against you in a criminal trial.' Tr. of Oral Arg. 14.
16
See, e.g., Schwimmer v. United States, 232 F.2d 855 (CA8 1956), which involved an attorney's partially successful motion to quash two subpoenas duces tecum issued in a grand jury proceeding against a corporation where the attorney had stored his office files. See also United States v. Guterma, 272 F.2d 344 (CA2 1959), concerning the storage of taxpayer's personal records in a safe in offices of a corporation which the taxpayer had served as Chairman of the Board. Only the taxpayer and an indicted co-defendant knew the combination of the safe, and the corporation had no access to it. The Court of Appeals upheld the taxpayer's assertion of Fifth Amendment privilege as to his personal records in the face of a grand jury subpoena directed to the corporation.
Petitioner argues these cases support her position (Brief for Petitioner 14—15); the Government argues they can be distinguished from the instant case as involving mere custodial safekeeping of records, not disclosure of their information to a third person (Brief for United States 21). We refrain from judging the merits of such distinctions today.
17
Tr. of Oral Arg. 31.
18
As we noted, supra, at 324, his status is that of an independent contractor. He actually did 'very little work for the petitioner,' had many other clients, and was compensated by the job. Tr. of Oral Arg. 8.
This is a significant point. The Government noted in oral argument:
'In the Internal Revenue Service practice, so long as the taxpayer has retained possession of the records and they are being used only by his full-time employees or others on the taxpayer's premises, without the taxpayer having relinquished possession and control of the records, we ordinarily in those situations issue the summons to the taxpayer, because it is the taxpayer who has the dominion over the records and the authority to return the summons. And if the taxpayer chooses to plead the privilege against self-incrimination, that is up to the taxpayer.' Tr. of Oral Arg. 30.
19
See n. 6, supra. The summons satisfied the requirements in United States v. Powell, 379 U.S. 48, 57—58, 85 S.Ct. 248, 254, 255, 13 L.Ed.2d 112 (1964), and, as explained above, the necessary expectation of privacy to launch a valid Fourth Amendment claim does not exist. Katz v. United States, 389 U.S. 347, 88 S.Ct. 807, 19 L.Ed.2d 530 (1967).
20
The dissenting opinion of Mr. Justice MARSHALL implies that the Court has created a 'bright-line rule that no constitutional right of petitioner is violated by enforcing a summons of papers not in her possession.' Post, at 334. This implication does not reflect accurately the position of the Court. Indeed, it ignores the language of the Court, supra, at 333—335, and nn. 15—18. We do indeed attach constitutional importance to possession, but only because of its close relationship to those personal compulsions and intrusions which the Fifth Amendment forbids. Yet, contrary to any intimation in the dissent, we do not adopt any per se rule. We also decline to conjecture broadly on the significance of possession in cases and circumstances not before this Court.
*
In some of these instances, to be sure, the person claiming the privilege would not himself have been the subject of direct Government compulsion. And there is no doubt that the Fifth Amendment is concerned solely with compulsory self-incrimination. But surely the availability of the Fifth Amendment privilege cannot depend on whether or not the owner of the documents is compelled personally to turn the documents over to the Government. If private, testimonial documents held in the owner's own possession are privileged under the Fifth Amendment, then the Government cannot nullify that privilege by finding a way to obtain the documents without requiring the owner to take them in hand and personally present them to the Government agents. Where the Government takes private records from, for example, a safety deposit box against the will of the owner of the documents, the owner has been compelled, in my view, to incriminate himself within the meaning of the Fifth Amendment.
1
This is not to say, of course, that we must not be acutely alert to any 'recurrence of the Inquisition and the Star Chamber, even if not in their stark brutality.' Ullmann v. United States, 350 U.S. 422, 428, 76 S.Ct. 497, 501, 100 L.Ed. 511 (1956). See, e.g., Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
2
The Court in Boyd also stated that it was unable 'to perceive that the seizure of a man's private books and papers to be used in evidence against him is substantially different from compelling him to be a witness against himself. We think it is within the clear intent and meaning of those terms.' Id., at 633, 6 S.Ct., at 534. Subsequent decisions, however, have refused to apply the privilege to bar the introduction of 'testimonial' evidence where the author no longer has any property rights or a valid claim to confidentiality and privacy. See, e.g., Perlman v. United States, 247 U.S. 7, 38 S.Ct. 417, 62 L.Ed. 950; Johnson v. United States, 228 U.S. 457, 33 S.Ct. 572, 57 L.Ed. 919. Obviously, the Court is not disposed to reconsider those decisions as they apply to instances where the author has not knowingly and intelligently waived his privilege against self-incrimination. In any event, I do not believe it is necessary to reach that issue here because, as I will discuss below, I believe that the petitioner has a valid claim to confidentiality and privacy.
3
The majority states that what information to disclose in the petitioner's tax returns is largely in the accountant's discretion. Therefore, it argues, the accountant's own need for self-protection (to answer a possible charge of assisting in the preparation of a false return) would often require the right to disclose the information given him. It may be that the accountant's fiduciary responsibilities must yield in this event, but that was not the case here.
4
The majority notes that 'the accountant himself worked neither in petitioner's office nor as her employee.' I cannot see how that factor bears on whether the 'ingredient of personal compulsion against (the) accused' is present, or whether the accountant was a confidant. The majority would seem to suggest, however, that petitioner, because her business did not call for, or because she could not afford, a full-time accountant, deserves less protection under the Fifth Amendment than a taxpayer more fortunately situated.
5
In holding that 'mere evidence' is not protected from seizure under the Fourth Amendment, the Court expressly refused to consider 'whether there are items of evidential value whose very nature precludes them from being the object of a reasonable search and seizure.' Warden v. Hayden, 387 U.S. 294, 303, 87 S.Ct. 1642, 1648, 18 L.Ed.2d 782. The answer to that question was clear to me when I dissented in that case and remains clear to me now.
1
In part this results from the conflation of petitioner's claims under the Fourth and Fifth Amendments. See ante, at 325—326 n. 6. But the constitutional claims are complicated, and their articulation is difficult. The opinion of the Court does not, I believe, present an acceptable rationale for its holding.
2
It may be that everything in this opinion is implicit in the opinion of the Court. The majority recognizes the importance of the purposes of the transfer, ante, at 334, the steps taken to protect the privacy of the records, ibid., and the ordinary operations of the recipient, ibid. I would be pleased to discover that we had no serious disagreements about the guiding principles in this case, but only a relatively minor disagreement about its proper disposition.
3
For example, suppose a noted criminal lawyer walked into a police station and presented the desk sergeant with his handwritten confession to the arson of his neighbor's house. Boyd v. United States, 116 U.S. 616, 6 L.Ed. 524, 29 L.Ed. 746 (1886), read as suggested in the text, would bar the use of that document if, at trial, the defendant objected.
That case might be analyzed as a problem of waiver: did the manner in which the author revealed the paper indicate a knowing decision to surrender his rights? The cases that stand in the way of the simplest interpretation of Boyd might be treated similarly. But the 'waiver' in those cases was not a waiver in the ordinary sense. In Johnson, for example, the defendant had been indicted for conceling money from his trustee in bankruptcy. The Backruptcy Act required that he turn over his books to the trustee, and the books were used against Johnson in the criminal case. The transfer of the books was required if Johnson was to have the benefits of bankruptcy available to him. To make the transfer a waiver of Fifth Amendment rights would be to impose an unconstitutional condition.
Still, even if 'waiver' is an inappropriate term here, the underlying notion that someone may behave in a way that indicates a relinquishment of his constitutional rights is sound. I rely on it as the proper term to use in analyzing claims like petitioner's. See infra, at 350.
4
Another way of seeing the oddity of this interpretation is to consider whether the person who produces documents other than those called for has committed perjury. Perhaps he has, but the perjury is an unusual one. Yet perjury is the third horn of the 'cruel trilemma' that the Fifth Amendment was designed to eliminate.
5
Another interpretation of Boyd makes ownership crucial. A person who owns something has the right to exercise a great deal of control over it. When the Government seizes it, the owner is compelled to give up that right. This interpretation is consistent with the observation in Boyd that contraband and instrumentalities of crime can be seized because the Government has a superior property right in them. However, this interpretation runs into the same difficulties as the accepted one; in particular, it makes the authorship and content of the property irrelevant. And the emphasis on property rights in this area has since been abandoned. See, e.g., Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782(1967).
6
I recognize that there is an alternate view, that unless a Fifth Amendment privilege is involved, the Fourth Amendment authorizes intrusion when it is not unreasonable. However, this Court has held that increasingly severe standards of probable cause are necessary to justify increasingly intrusive searches. Cf. Camara v. Municipal Court, of City and County of San Francisco, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 1089 (1968); Stanford v. Texas, 379 U.S. 476, 85 S.Ct. 506, 13 L.Ed.2d 431 (1965). The precise elements required of a Fifth Amendment violation need not coincide exactly with the elements of an invasion of privacy that should be considered unreasonable and I see no reason to confine the sphere of privacy free from intrusion to just what the Fifth Amendment protects.
| 01
|
409 U.S. 289
93 S.Ct. 573
34 L.Ed.2d 525
Thomas RICCI, Petitioner,v.CHICAGO MERCANTILE EXCHANGE et al.
No. 71-858.
Argued Oct. 18, 1972.
Decided Jan. 9, 1973.
Petitioner filed an antitrust complaint charging respondents with conspiring to restrain his business by transferring to another person petitioner's Chicago Mercantile Exchange membership, without notice and hearing, and in violation of Exchange rules and the Commodity Exchange Act. The District Court dismissed the complaint. The Court of Appeals reversed but held that the antitrust action should be stayed. Held: The Court of Appeals correctly determined that the antitrust proceedings should be stayed until the Commodity Exchange Commission can pass on the validity of respondents' conduct under the Commodity Exchange Act. Though the Commission cannot decide whether the Act and rules immunize conduct from the antitrust laws, the Commission's determination of whether the Exchange's rules were violated as petitioner claims or were followed requires a factual determination within the special competence of the Commission. That determination will greatly aid the antitrust court in arriving at the essential accommodation between the antitrust and regulatory regimes. Pp. 298—308.
7 Cir., 447 F.2d 713, affirmed.
Jerome H. Torshen, Chicago, Ill., for petitioner.
Lee A. Freeman, Chicago, Ill., for respondents.
Mr. Justice WHITE delivered the opinion of the Court.
1
The question before us is whether in this antitrust case the Court of Appeals for the Seventh Circuit properly stayed further judicial action pending administrative proceedings which the court deemed available under the Commodity Exchange Act, 42 Stat. 998, as amended, 7 U.S.C. § 1 et seq.
2
The case began when petitioner Ricci filed a complaint against the Chicago Mercantile Exchange, its president, vice president, and chairman of the board, and against the Siegel Trading Company, a member of the Exchange, and its president, charging a conspiracy in violation of the Sherman Act, 26 Stat. 209, as amended, 15 U.S.C. § 1. The complaint alleged that Ricci had purchased a membership in the Exchange in 1967, using funds borrowed from the Trading Company, and that in February 1969 the Exchange, at the instance of the Trading Company, transferred the membership to another, without notice and hearing, utilizing a blank transfer authorization that had previously been revoked.1 Allegedly, this course of conduct violated both the rules of the Exchange and the Commodity Exchange Act and was pursuant to an unlawful conspiracy aimed at restraining the conduct of Ricci's business. The result was, the complaint asserted, that Ricci was excluded from trading on the Exchange from February 11, 1969, until March 4, 1969, when he purchased another membership at a considerably higher price than the transferred membership had previously cost.
3
On motion of respondents, the District Court dismissed the complaint. The Court of Appeals reversed the judgment; but because the challenged conduct was deemed subject to the jurisdiction of the Secretary of Agriculture (Secretary) to the Commodity Exchange Commission (Commission) by virtue of the provisions of the Commodity Exchange Act, the District Court was directed to stay further proceedings to permit administrative action to take place. 447 F.2d 713 (CA7 1971). We granted certiorari, 405 U.S. 953, 92 S.Ct. 1173, 31 L.Ed.2d 230 (1972), and now affirm the judgment of the Court of Appeals.
4
* The Commodity Exchange Act,2 first passed in 1922 and from time to time amended—the most recent substantial amendments being in 1968—makes dealing in commodity futures a crime except when undertaken by or through members of a board of trade that meets certain statutory criteria and that is designated as a 'contract market' by the Secretary. 7 U.S.C. §§ 6 and 6h.3 Contract markets must file with the Secretary their bylaws, rules, and regulations, and have the express statutory duty to enforce all such prescriptions (1) 'which relate to terms and conditions in contracts of sale . . . or relate to other trading requirements, and which have not been disapproved by the Secretary of Agriculture pursuant to' his statutory authority, id., § 7a(8),4 or (2) 'which provide minimum financial standards and related reporting requirements for futures commission merchants who are members of such contract market, and which have been approved by the Secretary of Agriculture,' id., § 7a(9).5 If any contract market is not enforcing its rules of government made a condition of its designation, or if it is violating any provision of the Act, the Commission, an official agency established by the Act,6 is authorized, upon notice and hearing and subject to judicial review, to suspend or revoke the designation of the board of trade as a contract market, id., § 8(a),7 or may order such contract market and any director, officer, agent, or employee, to cease and desist from such conduct, id., § 13a.8 Under the relevant regulations, any interested person having information concerning such violation may request the Commission to institute proceedings, or the Commission may initiate proceedings on its own motion,9 and there is provision for persons seeking intervention in such proceedings.10
II
5
It was against this statutory background that petitioner alleged he had been deprived of his membership contrary to the rules of the Exchange, the Commodity Exchange Act, and the Sherman Act. And it was in this context that the Court of Appeals, having concluded that the specific Exchange rules allegedly violated11 were within the bounds of adjudicative and remedial jurisdiction of the Commodity Exchange Commission, directed the District Court to hold its hand and afford the opportunity for administrative consideration of the dispute between petitioner and the alleged co-conspirator-defendants.
6
The problem to which the Court of Appeals addressed itself is recurring.12 It arises when conduct seemingly within the reach of the antitrust laws is also at least arguably protected or prohibited by another regulatory statute enacted by Congress. Often, but not always, the other regime includes an administrative agency with authority to enforce the major provisions of the statute in accordance with that statute's distinctive standards, which may or may not include concern for competitive considerations.
7
Silver v. New York Exchange, 373 U.S. 341, 83 S.Ct. 1246, 10 L.Ed.2d 389 (1963), was a case where the conduct challenged in an antitrust complaint was not within the jurisdiction of an administrative agency but was nevertheless claimed to be immune from antitrust challenge by virtue of the Securities Exchange Act of 1934. Silver sought to recover damages allegedly suffered when his wire connections with Exchange members were terminated without notice or hearing under Exchange rules adopted pursuant to the Securities Exchange Act of 1934, 48 Stat. 881, as amended, 15 U.S.C. § 78a et seq. Under this Act, the Securities and Exchange Commission had general power to approve or disapprove Exchange rules, but it had no authority to deal with challenges, such as Silver's, to specific applications of Exchange rules. Moreover, the statute conferred on the Exchange no express exemption from the antitrust laws. We declined to hold that Congress intended to oust completely the antitrust laws and supplant them with the self-regulatory scheme authorized by the Exchange Act. Repeal of the antitrust laws was to be implied 'only if necessary to make the Securities Exchange Act work, and even then only to the minimum extent necessary.' 373 U.S., at 357, 83 S.Ct., at 1257. The question thus became the extent to which, if any, the 'character and objectives of the duty of Exchange self-regulation contemplated by the Securities Exchange Act are incompatible with the maintenance of an antitrust action.' Id., at 358, 83 S.Ct., at 1257. Conceding that the 'entire public policy of self-regulation, beginning with the idea that the Exchange may set up barriers to membership, contemplates that the Exchange will engage in restraints of trade which might well be unreasonable absent sanction by the Securities Exchange Act,' id., at 360, 83 S.Ct. at 1258, and hence that 'particular instances of exchange self-regulation which fall within the scope and purposes of the Securities Exchange Act may be regarded as justified in answer to the assertion of an antitrust claim,' id., at 361, 83 S.Ct., at 1259, the Court finally concluded that nothing in the terms or policy of the Act required or contemplated that a self-regulating exchange be permitted to impose serious deprivations without notice and opportunity for a hearing, and that neither the statute nor Exchange rules posed any legal barrier to the antitrust action.
8
In arriving at this conclusion, the Court expressly noted that the Securities and Exchange Commission had no authority to review specific instances of enforcement of Exchange rules; that this 'obviate(d) any need to consider whether petitioners were required to resort to the Commission for relief before coming into court,' id., at 358, 83 S.Ct., at 1257, and avoided 'any problem of conflict or coextensiveness of coverage with the agency's regulatory power,' bid.; and that if there had been such jurisdiction in the Commission with 'ensuing judicial review . . . a different case would arise concerning exemption from the operation of laws designed to prevent anticompetitive activity, an issue we do not decide today.' Id., at 358 n. 12, 83 S.Ct., at 1257 n. 12.
9
That 'different case' is now before us, but in the context of the Commodity Exchange Act, and we agree with the Court of Appeals that, given administrative authority to examine the Ricci-Exchange dispute in the light of the regulatory scheme and Exchange rules, the antitrust action should be stayed until the administrative officials have had opportunity to act. This judgment rests on three related premises: (1) that it will be essential for the antitrust court to determine whether the Commodity Exchange Act or any of its provisions are 'incompatible with the maintenance of an antitrust action,' id., at 358, 83 S.Ct. at 1257; (2) that some facets of the dispute between Ricci and the Exchange are within the statutory jurisdiction of the Commodity Exchange Commission; and (3) that adjudication of that dispute by the Commission promises to be of material aid in resolving the immunity question.13
10
As to the first, premise, the argument that the Commodity Exchange Act to some extent limits the applicability of the antitrust laws, and may limit them in this case, is plainly substantial. Repeal of the antitrust laws is not to be lightly assumed. United States v. Philadelphia National Bank, 374 U.S. 321, 350, 83 S.Ct. 1715, 1734, 10 L.Ed.2d 915 (1963); Silver v. New York Stock Exchange, supra, 373 U.S. at 357, 83 S.Ct. at 1257; California v. FPC, 369 U.S. 482, 485, 82 S.Ct. 901, 903, 8 L.Ed.2d 54 (1962); Georgia v. Pennsylvania R. Co., 324 U.S. 439, 456—457, 65 S.Ct. 716, 725—726, 89 L.Ed. 1051 (1945); United States v. Borden Co., 308 U.S. 188, 198, 60 S.Ct. 182, 188, 84 L.Ed. 181 (1939). But here the express will of Congress is that to deal in commodity futures one must either be, or deal through, a member of a board of trade having specified qualifications and carrying official designation as a contract market. The Act clearly contemplates a membership organization and hence the existence of criteria for the acquisition, transfer, and loss of membership. The Chicago Mercantile Exchange has such membership rules, and it had the statutory duty to enforce them to the extent that they constituted or were related to 'trading requirements', 7 U.S.C. § 7a(8). If the transfer of Ricci's membership was pursuant to a valid rule, the immediate question for the antitrust court is whether the rule itself and Ricci's exclusion under it are insulated from antitrust attack. The question has substance, for the Commodity Exchange Act, like the Securities Exchange Act, contemplates that the Exchange and its members will 'engage in restraints of trade which might well be unreasonable absent sanction' by the Act. Silver v. New York Stock Exchange, supra, 373 U.S., at 360, 83 S.Ct., at 1258. See Board of Trade of the City of Chicago v. United States, 246 U.S. 231, 238, 38 S.Ct. 242, 243, 62 L.Ed. 683 (1918). On the other hand, if, as Ricci alleges, loss of his membership was contrary to Exchange rules, the antitrust action should very likely take its normal course, absent more convincing indications of congressional intent than are present here that the jurisdictional and remedial powers of the Commission are exclusive.
11
The question whether this membership dispute is within the jurisdiction of the Commodity Exchange Commission, the second premise for our judgment, was answered in the affirmative by the Court of Appeals. Because trading in futures may be done only by or though members, the membership rules of the Exchange were held to relate to 'trading requirements' and were thus among those rules which the Exchange could not ignore without violating the Act and bringing itself within the jurisdiction of the Commission to adjudicate and remedy any violation 'of the provisions of this chapter or any of the rules, regulations, or orders of the Secretary . . . or the commission thereunder . . ..' 7 U.S.C. §§ 8(a) and 13a. We need not finally decide the jurisdictional issue for present purposes, but there is sufficient statutory support for administrative authority in this area that the agency should at least be requested to institute proceedings.14
12
We also think it very likely that a prior agency adjudication of this dispute will be a material aid in ultimately deciding whether the Commodity Exchange Act forecloses this antitrust suit, a matter that seems to depend in the first instance on whether the transfer of Ricci's membership was in violation of the Act for failure to follow Exchange rules. That issue in turn appears to pose issues of fact15 and questions about the scope, meaning, and significance of Exchange membership rules. These are matters that should be dealt with in the first instance by those especially familiar with the customs and practices of the industry and of the unique market-place involved in this case. United States v. Western Pacific R. Co., 352 U.S. 59, 64—65, 66, 77 S.Ct. 161, 165 166, 1 L.Ed.2d 126 (1956); Far East Conference v. United States, 342 U.S. 570, 574—575, 72 S.Ct. 492, 494—495, 96 L.Ed. 576 (1952). They are matters typically lying at the heart of an administrative agency's task and here they appear to be matters that Congress has placed within the jurisdiction of the Commodity Exchange Commission. We would recognize 'that the courts, while retaining the final authority to expound the statute, should avail themselves of the aid implicit in the agency's superiority in gathering the relevant facts and in marshaling them into a meaningful pattern.' Federal Maritime Board v. Isbrandtsen Co., 356 U.S. 481, 498, 78 S.Ct. 851, 861, 2 L.Ed.2d 926 (1958). The adjudication of the Commission, if it is forthcoming, will be subject to judicial review and would obviate any necessity for the antitrust court to relitigate the issues actually disposed of by the agency decision. Cf. United States v. Philadelphia National Bank, 374 U.S., at 353—354, 83 S.Ct. at 1736 1737; Federal Maritime Board v. Isbrandtsen Co., supra, 356 U.S., at 498—499, 78 S.Ct. at 861—862. Of course, the question of immunity, as such, will not be before the agency; but if Ricci's complaint is sustained, the immunity issue will dissolve, whereas if it is rejected and the conduct of the Exchange warranted by a valid membership rule, the court will be in a much better position to determine whether the antitrust action should go forward. Affording the opportunity for administrative action will 'prepare the way, if the litigation should take its ultimate course, for a more informed and precise determination by the Court of the scope and meaning of the statute as applied to (these) particular circumstances.' Ibid.
III
13
Mr. Justice MARSHALL's dissent concedes, as it must, that it is essential for the antitrust court to make proper accommodation 'between usual antitrust principles and the self-regulatory and exclusionary powers that the exchanges were obviously intended to exercise.' It also concedes that where the regulatory regime is administered by an agency, the antitrusts court will stay its hand to permit institution of administrative proceedings if they are 'likely to make a meaningful contribution to the resolution of this law-suit.' Our differences thus narrow to whether proceedings in the Commodity Exchange Commission would be of sufficient aid to justify a stay of this antitrust action.
14
The dissent asserts that for present purposes the only relevant issue in the antitrust action is 'whether either the rules, or their application, serves a legitimate self-regulatory goal,' that the Commission has no jurisdiction to determine facts relevant to whether Exchange rules are consistent with or essential to legitimate self-regulatory ends, and that we have mistakenly premised our opinion on the existence of such jurisdiction, without which there is no basis for deferring to agency proceedings.16 This misapprehends our opinion and fails to come to grips with reality. We make no claim that the Commission has authority to decide either the question of immunity as such or that any rule of the Exchange takes precedence over antitrust policies. Rather, we simply recognize that the Congress has established a specialized agency that would determine either that a membership rule of the Exchange has been violated or that it has been followed. Either judgment would require determination of facts and the interpretation and application of the Act and Exchange rules. And either determination will be of great help to the antitrust court in arriving at the essential accommodation between the antitrust and the regulatory regimes: The problem disappears entirely if it is found that there has been a violation of the rule; on the other hand, if it is found that the Exchange has merely followed and enforced its own rules, the antitrust court will be in a position to make a more intelligent and sensitive judgment as to whether the antitrust laws wil punish what an apparently valid rule of the Exchange permits.
15
Accordingly, the judgment is affirmed.
16
Judgment affirmed.
17
Mr. Chief Justice BURGER, concurring.
18
As I read the Court's opinion, it plainly disclaims any resolution of the issue left open in Silver v. New York Stock Exchange, 373 U.S. 341, 83 S.Ct. 1246, 10 L.Ed.2d 389 (1963) namely, the question of which 'particular instances of exchange self-regulation' occurring within a statutory scheme providing for self-regulation may be regarded as 'justified in answer to the assertion of an antitrust claim' against the Exchange and its members. Indeed, the Silver problem is not before us. The Court of Appeals was careful to note that it expressed 'no opinion on any antitrust immunity that might result from action or inaction taken by the Commission or the Secretary of Agriculture in this case.' 447 F.2d 713, 720 n. 18.
19
The Court holds that the Commodity Exchange Commission any materially aid in proper consideration of petitioner's antitrust claims by determining whether respondents violated a rule of the Exchange. The Court's opinion should not be read to suggest that the Commission's resolution of the dispute either will or will not foreclose subsequent application of the antitrust laws.
20
With this understanding, I join the Court's opinion.
21
Mr. Justice DOUGLAS, dissenting.
22
While I concur in my Brother MARSHALL's dissent, I wish to add that even if the Commodity Exchange Commission were empowered to make a determination regarding the relief sought by petitioner, it would appear to be an anomaly to direct the plaintiff in a civil action to a federal supervising agency for a determination as to whether the regulations which it is charged to enforce have been violated, when the agency has, by its inaction, already shown every indication of sanctioning the alleged violation. By remanding, we are requiring the petitioner to seek from the regulators an admission of their failure to regulate (or negligence in regulating).
23
The odds of petitioner's getting the Commodity Exchange Commission now to find a violation in contradiction of its past inaction do not, in my view, justify the expense and delay to the petitioner. In the interests of orderly and efficient judicial administration, parties are not generally required to engage in futile gestures. This inequity is even more pronounced since, as Mr. Justice MARSHALL points out in his dissent, the Commodity Exchange Commission has neither the authority nor power to make a determination on the issues underlying the civil action.
24
My concern about remitting parties in federal court litigation to state courts or to federal administrative agencies for resolution of collateral questions of law is stated in my dissent in Clay v. Sun Insurance Office, 363 U.S. 207, 227—228, 80 S.Ct. 1222, 1233—1234, 4 L.Ed.2d 1170; see also England v. Louisiana State Board of Medical Examiners, 375 U.S. 411, 429, 84 S.Ct. 461, 472, 11 L.Ed.2d 440 (concurring opinion). The road this litigant is now required to travel to obtain justice is equally long and expensive and available only to those with long purses, even though he is remitted only to a federal regulatory agency.
25
Mr. Justice MARSHALL, with whom Mr. Justice DOUGLAS, Mr. Justice STEWART, and Mr. Justice POWELL join, dissenting.
26
The majority accurately describes the provisions of the Commodity Exchange Act and the facts of this case. But my Brethren nowhere explain why the lower court should stay its hand pending action by an agency which in all likelihood lacks the statutory power to resolve an issue in the lawsuit. Instead of carefully balancing the advantages and disadvantages of deferral to the agency, the Court seems to apply a mechanical test which requires judicial deference despite the substantial probability that the agency will have nothing of relevance to contribute. The principle that should govern this case can be stated quite adequately in a single sentence: An agency cannot have primary jurisdiction over a dispute when it probably lacks jurisdiction in the first place. The majority seemingly departs from this principle1 and, hence, needlessly bifurcates and complicates a suit that could readily be resolved by the District Court. I must therefore respectfully dissent.
27
* At the outset, it should be noted that the Commodity Exchange Act fails to provide petitioner with a means by which he can require the Commodity Exchange Commission or the Secretary of Agriculture to consider his case. The Act provides that '(t)he Secretary of Agriculture is authorized . . . to disapprove any bylaw, rule, regulation, or resolution made, issued or proposed by a contract market.' 7 U.S.C. § 12a(7) (emphasis added). Similarly, '(i)f any contract market is not enforcing or has not enforced its rules of government made a condition of its designation . . . the commission may . . . make and enter an order directing that such contract market . . . shall cease and desist from such violation.' 7 U.S.C. § 13a (emphasis added). But although the relevant regulations provide a means by which a private party may report apparent violations—see 17 CFR §§ 0.3(a), 0.53(a)—the Act nowhere requires the Secretary or the Commission to act on these reports. Cf. Vaca v. Sipes, 386 U.S. 171, 182, 87 S.Ct. 903, 912, 17 L.Ed.2d 842 (1967). On the contrary, the Act expressly provides that '(n)othing in this chapter shall be construed as requiring the Secretary of Agriculture or the commission to report minor violations of this chapter for prosecution, whenever it appears that the public interest does not require such action.' 7 U.S.C. § 13c(b).
28
Moreover, even if the Secretary or the Commission does institute proceedings at petitioner's behest, it is by no means certain that petitioner will be permitted to participate in those proceedings. The Commission's rules state that '(t)he person filing an application (to institute proceedings) shall have no legal status in the proceeding which may be instituted as a result of the application, except where the applicant may be permitted to intervene therein . . . or may be called as a witness.' 17 CFR § 0.53(b) (emphais added). See also 17 CFR § 0.3(b). Although Commission rules provide for the intervention of private parties, the Commission apparently has unfettered discretion in deciding whether to allow intervention. See 17 CFR § 0.58. See also 17 CFR § 0.8.2
29
Should the Commission or the Secretary not allow intervention in this case, this Court's decision will leave the District Judge on the horns of a serious dilemma. Normally, when a court stays its hand to allow agency proceedings, the result of those proceedings may not be collaterally attacked when the case returns to the court. See, e.g., Port of Boston Marine Terminal Assn. Rederiaktiebolaget Transatlantic, 400 U.S. 62, 71—72, 91 S.Ct. 203, 209—210, 27 L.Ed.2d 203 (1970). But if the Commission decides a major issue in this lawsuit without allowing petitioner to intervene, failure to permit collateral attack would result in petitioner's antitrust case being resolved against him without his participation. On the other hand, if the District Court undertakes a de novo reconsideration of the issues submitted to the Commission, the Commission's decision, together with the concomitant delay, will be for naught.
II
30
The Court, then, remands petitioner to a procedure which he has no power to invoke, in which he has no right to participate if it is invoked, and which cannot provide the remedy he seeks even if he is allowed to participate.3 Yet all this might be justifiable if either the Commission or the Secretary were likely to make a meaningful contribution to the resolution of this lawsuit. We have held that '(w)hen there is a basis for judicial action, independent of agency proceedings, courts may route the threshold decision as to certain issues to the agency charged with primary responsibility for governmental supervision or control of the particular industry or activity involved.' Id., at 68, 91 S.Ct., at 208. The reason for this policy is self-evident: 'in cases raising issues of fact not within the conventional experience of judges or cases requiring the exercise of administrative discretion, agencies created by Congress for regulating the subject matter should not be passed over.' Far East Conference v. United States, 342 U.S. 570, 574, 72 S.Ct. 492, 494, 96 L.Ed. 576 (1952).
31
Thus, if the Commodity Exchange Commission had jurisdiction over some aspect of this suit and special expertise in the area of its jurisdiction, a case could, perhaps, be made for awaiting its decision. For example, if the Commission had been given the power to grant general immunity to antitrust violators, sound judicial administration would require consultation with it before proceeding with the antitrust suit. But, as the majority itself recognizes, there is no indication that Congress intended to grant the Commission any such power. As this Court held in Carnation Co. v. Pacific Westbound Conference, 383 U.S. 213, 218, 86 S.Ct. 781, 784, 15 L.Ed.2d 709 (1966), '(w)e have long recognized that the antitrust laws represent a fundamental national economic policy and have therefore concluded that we cannot lightly assume that the enactment of a special regulatory scheme for particular aspects of an industry was intended to render the more general provisions of the antitrust laws wholly inapplicable to that industry.' In practice, this principle has meant that '(r)epeals of the antitrust laws by implication from a regulatory statute are strongly disfavored, and have only been found in cases of plain repugnancy between the antitrust and regulatory provisions.' United States v. Philadelphia National Bank, 374 U.S. 321, 350 351, 83 S.Ct. 1715, 1734, 10 L.Ed.2d 915 (1963) (footnotes omitted). Such repugnancy has been found to exist only in those rare cases where regulation of the industry is pervasive and Congress plainly intended to substitute Government supervision for competition. See, e.g., Pan American World Airways v. United States, 371 U.S. 296, 83 S.Ct. 476, 9 L.Ed.2d 325 (1963). Cf. United States v. Radio Corp. of America, 358 U.S. 334, 79 S.Ct. 457, 3 L.Ed.2d 354 (1959).
32
Obviously, Congress has not granted the Commission the sort of pervasive power over commodity exchanges that would give rise to antitrust exemption. On the contrary, although the Commission and the Secretary have some general policing duties, day-to-day regulation has been largely left to the industry itself. Where, as here, the industry is given the power to control its own affairs, it is particularly important to make certain that this power is not abused for the purpose of eliminating competition. Cf. Silver v. New York Stock Exchange, 373 U.S. 341, 83 S.Ct. 1246, 10 L.Ed.2d 389 (1963).
33
The majority cannot rely, then, on the Commission's general power to immunize antitrust violations. Its argument, as I understand it, is more subtle and, at the same time, more attenuated. As we recognized in Silver v. New York Stock Exchange, supra, the very purpose of an exchange is to exclude nonmembers from participation in trading. Were it nor for the legislative authorization of such exchanges, they would constitute group boycotts that are per se violations of the Sherman Act. See, e.g., Klor's, Inc. v. Broadway-Hale Stores, 359 U.S. 207, 79 S.Ct. 705, 3 L.Ed.2d 741 (1959). Thus, although Congress cannot be taken to have granted total antitrust immunity to trading exchanges, some accommodation must be reached between usual antitrust principles and the self-regulatory and exclusionary powers that the exchanges were obviously intended to exercise. In Silver, the Court reached such an accommodation by holding that 'exchange self-regulation is to be regarded as justified in response to antitrust charges only to the extent necessary to protect the achievement of the aims of the Securities Exchange Act.' 373 U.S., at 361, 83 S.Ct. at 1259. Thus, if an exchange rule serves a valid self-regulatory purpose, the mere fact that it excludes some individuals from competition does not mean that an antitrust violation has been made out. But where, as in Silver itself, the rule fails to serve any legitimate self-regulatory goal, its exclusionary effect can lay the predicate for a Sherman Act violation.
34
Applying Silver to the facts of this case, the majority argues that the Commission has primary jurisdiction to determine facts relevant to the question whether the Chicago Mercantile Exchange's rules and its application of those rules are in conformity with the self-regulatory purposes of the Commodity Exchange Act. Superficially, at least, that argument has considerable force. It is marred, however, by two flaws which, in my view, make it ultimately fallacious.
35
First, it is important to note that petitioner's complaint does not merely allege that he has been excluded from trading or that an Exchange rule has been broken. Rather, he maintains that the Exchange and certain of its members entered a deliberate conspiracy against him and that this was done 'maliciously, wilfully, knowingly, unlawfully and without just cause or provocation, with the unlawful and illegal intent, purpose and object of restraining and preventing plaintiff from exercising an essential and necessary part of his lawful trade or business in interstate commerce.' Whatever the legitimate self-regulatory goals of the Chicago Mercantile Exchange, I cannot believe that they include the deliberate and malicious suppression of competition. Surely, the courts do not need the Commodity Exchange Commission to tell them that such conduct is antithetical to the purposes of the Commodity Exchange Act. We have held that principles of administrative comity preclude courts from finding antitrust violations 'only . . . when the defendants' conduct is arguably lawful' under the administrative scheme. Carnation Co. v. Pacific Westbound Conference, 383 U.S. 213, 222, 86 S.Ct. 781, 15 L.Ed.2d 709 (1966). I would apply that principle here and hold that deliberate conspiracies with the sole purpose of suppressing competition are not 'arguably lawful' under the Commodity Exchange Act.4
36
To be sure, it may ultimately develop that petitioner is unable to substantiate all of his allegations and that the actions of the Exchange are less sinister than he has made out. Petitioner might be required to submit affidavits before trial demonstrating that his allegations of a deliberate conspiracy are factually supported in order to forestall a remand to the Commission. And if it becomes clear at any time during trial that the conspiracy allegations are insubstantial, there will then be time enough to reconsider the propriety of a delay pending Commission action. But I would not deprive petitioner of immediate access to the courts until he has had an opportunity to prove that the case is as clear as he says it is.
37
Moreover, even if petitioner's allegations are for some reason insufficient to forestall a remand to the Commission, I still doubt that the Court of Appeals acted properly in ordering a stay of the litigation. The majority's position is premised on the assumption that the Commission has jurisdiction to determine facts relevant to whether Exchange rules, or the application of those rules, is consistent with legitimate self-regulatory ends.5 But a careful examination of the Act makes plain that this assumption is simply incorrect.6 Neither the agency nor the Secretary has been granted a roving commission to oversee the proper functioning of the various exchanges. Rather, the powers conferred in the Act are limited and discrete, and none of them grants to the Commission the tools necessary for resolving any issue in this dispute.
38
The Commission does have authority to oversee the exchanges' administration of their own rules. 7 U.S.C. § 7a(8) requires exchanges to '(e)nforce all bylaws, rules, regulations, and resolutions, made or issued by it or by the governing board thereof or any committee, which relate to . . . trading requirements,' and 7 U.S.C. § 13a permits the Commission to issue a cease-and-desist order '(i)f any contract market is not enforcing or has not enforced its rules of government made a condition of its designation as set forth in section 7 of this title.' But it should be obvious that these provisions do not authorize the Commission to resolve the Silver issue. The quoted sections permit the Commission to determine whether the rules made by an exchange are being enforced. But they do not permit the Commission to decide whether either the rules, or their application, serves a legitimate self-regulatory goal, which is the only relevant issue in the antitrust suit. Thus, it is entirely possible that although the Chicago Mercantile Exchange has respected its own rules to the letter, those rules themselves are impermissible under the Sherman Act. Similarly, even if the rules are facially permissible, it is possible that, as applied in this case, they restrain competition without any offsetting self-regulatory gain. The mere fact that an exchange is obeying its own rules—the only question that 7 U.S.C. §§ 7a(8) and 13a permit the Commission to answer—does not tell us whether either the rules or their application meets the Silver test.
39
The Secretary is given supplementary power to invalidate certain exchange rules. But this power, too, is extremely limited. Title 7 U.S.C. § 12a(7) empowers the Secretary to 'disapprove any bylaw, rule, regulation, or resolution made, issued or proposed by a contract market . . . which relates to . . . trading requirements, where he finds that such bylaw, rule, regulation, or resolution violates or will violate any of the provisions of this chapter, or any of the rules, regulations, or orders of the Secretary of Agriculture or the commission thereunder.' (Emphasis added.) The 'chapter' referred to is, of course, the Commodity Exchange Act, not the Sherman Act, and no provision of the Commodity Exchange Act incorporates Sherman Act principles. It follows that § 12a(7) does not empower the Secretary to invalidate exchange rules because they conflict with antitrust policy.
40
Moreover, as noted above, the restrictions placed on the exchanges by the Act are far from pervasive, and the Secretary's power to invalidate rules is therefore similarly restricted. Surely, this power does not include the ability to invalidate any rule that fails to serve a self-regulatory end. Such a reading of the Act would mean that Congress thought it had prohibited everything an exchange might do that would not serve self-regulatory purposes—a reading that defies common sense. Thus, if the Secretary were to refuse to invalidate the rules involved in this action, his decision would only mean that those rules were not prohibited by any specific provision of the Commodity Exchange Act. The decision could in no way be taken to mean that the rule serves any useful purpose or that it meets the Silver requirement.7
III
41
I do not mean to suggest that the Commission's consideration of this case is certain to prove totally useless when the District Court ultimately resumes its deliberations. Should the Secretary invalidate the rules that the Commission relies on, for example, his action would materially aid petitioner, although his claim would still not be conclusively established since the Exchange's actions might be justified by a legitimate regulatory purpose, even though the rule relied upon violated a provision of the Act. Similarly, the Commission may make findings of fact or statements as to the law within areas of its expertise which the court might find helpful.
42
But I had not thought that petitioner need meet the burden of showing that resort to administrative remedies would be totally useless before securing adjudication from a court. Indeed, in virtually every suit involving a regulated industry, there is something of value that an administrative agency might contribute if given the opportunity. But we have never suggested that such suits must therefore invariably be postponed while the agency is consulted.
43
It has been argued that the doctrine of primary jurisdiction involves a mere postponement, rather than relinquishment of judicial jurisdiction. See, e.g., 3 K. Davis, Administrative Law Treatise 3—4 (1958). However, that observation should not be taken to mean that invocation of the doctrine therefore imposes no costs. On the contrary, in these days of crowded dockets and long court delays, the doctrine frequently prolongs and complicates litigation. More fundamentally, invocation of the doctrine derogates from the principle that except in extraordinary situations, every citizen is entitled to call upon the judiciary for expeditious vindication of his legal claims of right. As we have said in a somewhat different context 'due process requires, at a minimum, that absent a countervailing state interest of overriding significance, persons forced to settle their claims of right and duty through the judicial process must be given a meaningful opportunity to be heard.' Boddie v. Connecticut, 401 U.S. 371, 377, 91 S.Ct. 780, 785, 28 L.Ed.2d 113 (1971). And surely the right to a 'meaningful opportunity to be heard' comprehends within it the right to be heard without unreasonable delay. This principle is especially worthy of protection in the antitrust field where it is unmistakably clear that Congress has given courts, rather than agencies, the primary duty to act. Cf. California v. FPC, 369 U.S. 482, 487—490, 82 S.Ct. 901, 904—906, 8 L.Ed.2d 54 (1962).
44
To be sure, judicial deference to agency jurisdiction remains important, particularly in those areas where the responsibilities of judges and administrators meet and overlap. But the primary jurisdiction doctrine, like the related exhaustion requirement, must not be 'applied blindly in every case' without 'an understanding of its purposes and of the particular administrative scheme involved.' McKart v. United States, 395 U.S. 185, 193, 201, 89 S.Ct. 1657, 1662, 23 L.Ed.2d 194 (1969). Wise use of the doctrine necessitates a careful balance of the benefits to be derived from utilization of agency processes as against the costs in complication and delay. Where the plaintiff has no means of invoking agency jurisdiction, where the agency rules do not guarantee the plaintiff a means of participation in the administrative proceedings, and where the likelihood of a meaningful agency input into the judicial process is remote, I would strike a balance in favor of immediate court action. Since the majority's scale is apparently differently calibrated, I must respectfully dissent.
1
Petitioner alleged in his complaint that when he was informed that Siegel Trading Company claimed to be the owner of his membership, he notified the Exchange that he was the owner of the membership; that the Trading Company was indebted to him for $18,000 in brokerage fees which offset the $15,000 he had borrowed to acquire his membership; and that the Trading Company did not have a lien on his membership under the rules of the Exchange. App. 11.
2
Recognizing the public interest involved in '(t)ransactions in commodity involving the sale thereof for future delivery (futures)' and the burden upon interstate commerce imposed by 'sudden or unreasonable fluctuations in . . . prices,' 7 U.S.C. § 5. Congress, to regulate 'futures' transactions, passed the 'Grain Futures Act,' 42 Stat. 998, the title being changed to the present 'Commodity Exchange Act' in 1936, 49 Stat. 1491. The constitutionality of regulating futures trading under the Commerce Clause, Art. I, § 8, cl. 3, of the Constitution was upheld in Board of Trade of the City of Chicago v. Olsen, 262 U.S. 1, 43 S.Ct. 470, 67 L.Ed. 839 (1923).
The following will indicate the content and scope of the Act: Trading in futures is to be done only by or through a member of a 'contract market,' 7 U.S.C. §§ 6 and 6h. The Commodity Exchange Commission (Commission) may take measures to prevent
excessive speculation, id., § 6a, and certain other transactions are prohibited, id., §§ 6a and 6c. Futures commission merchants and floor brokers must register with the Secretary of Agriculture (Secretary) (a member of the Commission, id., § 2), id., §§ 6d and 6e, and to do so, must meet certain financial requirements, id., § 6f. Customers' money, securities, and property must be handled in a prescribed fashion, id., § 6d, and futures commission merchants and floor brokers must meet reporting and recordkeeping requirements established by the Secretary and keep such books and records open for inspection, id., § 6g. Specified transactions must be reported to the Secretary and books and records of same kept, which shall be subject to inspection, id., § 6i. To be designated a 'contract market' a board of trade must meet certain conditions and requirements, id., § 7; and a contract market must perform certain duties, id., § 7a. The contract market can have its designation suspended or revoked, id., §§ 7b and 8, or be subjected to cease-and-desist orders, id., § 13a. For stated reasons persons may be excluded from trading on a contract market by the Secretary, id., § 9, or be subjected to a cease-and-desist order, id., § 13b, and it is unlawful for such persons to trade while banned, id., § 12b. Contract markets are not to exclude from membership cooperative associations or corporations except under certain conditions, id., § 10a. A contract market may have its designation vacated and subsequently be redesignated, id., § 11. The Secretary may make investigations and reports, id., § 12, and may disclose the names of traders on commodity markets, id., § 12 1. Certain acts may be punished as felonies or misdemeanors, id., §§ 13, 13—1, 13a, and 13b. Persons involved in violations of the Act or rules issued thereto may be held responsible as principals, id., § 13c(a). The Secretary or Commission is not equired to report minor violations of the Act 'for prosecution, whenever it appears that the public interest does not require such action,' id., § 13c(b).
3
Title 7 U.S.C. § 6 provides:
'It shall be unlawful for any person to deliver for transmission through the mails or in interstate commerce by telegraph, telephone, wireless, or other means of communication any offer to make or
execute, or any confirmation of the execution of, or any quotation or report of the price of, any contract of sale of commodity for future delivery on or subject to the rules of any board of trade in the United States, or for any person to make or execute such contract of sale, which is or may be used for (a) hedging any transaction in interstate commerce in commodity or the products or by-products thereof, or (b) determining the price basis of any such transaction in interstate commerce, or (c) delivering commodity sold, shipped, or received in interstate commerce for the fulfillment thereof, except, in any of the foregoing cases, where such contract is made by or through a member of a board of trade which has been designated by the Secretary of Agriculture as a 'contract market,' as hereinafter provided in this chapter, and if such contract is evidenced by a record in writing which shows the date, the parties to such contract and their addresses, the property covered and its price, and the terms of delivery: Provided, That each board member shall keep such record for a period of three years from the date thereof, or for a longer period if the Secretary of Agriculture shall so direct, which record shall at all times be open to the inspection of any representative of the United States Department of Agriculture or the United States Department of Justice.'
Title 7 U.S.C. § 6h states:
'It shall be unlawful for any person—
'(1) to conduct any office or place of business anywhere in the United States or its territories for the purpose of soliciting or accepting any orders for the purchase or sale of any commodity for future delivery, or for making or offering to make any contracts for the purchase or sale of any commodity for future delivery, or for conducting any dealings in commodities for future delivery, that are or may be used for
'(A) hedging any transaction in interstate commerce in such commodity or the products or by-products thereof, or
'(B) determining the price basis of any such transaction in interstate commerce, or
'(C) delivering any such commodity sold, shipped, or received in interstate commerce for the fulfillment thereof, 'if such orders, contracts, or dealings are executed or consum-
mated otherwise than by or through a member of a contract market; or
'(2) falsely to represent such person to be a member of a contract market, or the representative or agent of such member, or to be a futures commission merchant registered under this chapter, or the agent of such registered futures commission merchant, in soliciting or handling any order or contract for the purchase or sale of any commodity in interstate commerce or for future delivery, or falsely to represent in connection with the handling of any such order or contract that the same is to be or has been executed on, or by or through any member of, any contract market.'
4
Title 7 U.S.C. § 7a provides:
'Each contract market shall—
'(8) Enforce all bylaws, rules, regulations, and resolutions, made or issued by it or by the governing board thereof or any committee, which relate to terms and conditions in contracts of sale to be executed on or subject to the rules of such contract market or relate to other trading requirements, and which have not been disapproved by the Secretary of Agriculture pursuant to paragraph (7) of section 12a of this title; and revoke and not enforce any such bylaw, rule, regulation, or resolution, made, issued, or proposed by it or by the governing board thereof or any committee, which has been so disapproved . . ..'
Disapproval by the Secretary is to be pursuant to 7 U.S.C. § 12a, which provides:
'The Secretary of Agriculture is authorized—
'(7) to disapprove any bylaw, rule, regulation, or resolution made, issued or proposed by a contract market or by the governing board thereof or any committee which related to terms and conditions in contracts of sale to be executed on or subject to the rules of such contract market or relates to other trading requirements, when he finds that such bylaw, rule, regulation, or resolution violates or will violate any of the provisions of this chapter, or any of the rules, regulations, or orders of the Secretary of Agriculture or the commission thereunder.'
5
Title 7 U.S.C. § 7a states:
'Each contract market shall—
'(9) Enforce all bylaws, rules, regulations, and resolutions made or issued by it or by the governing board thereof or by any committee, which provide minimum financial standards and related reporting requirements for futures commission merchants who are members of such contract market, and which have been approved by the Secretary of Agriculture.'
6
The Commission is composed of the Secretaries of Agriculture and Commerce and the Attorney General, or their designees, the Secretary of Agriculture or his designee serving as chairman, 7 U.S.C. § 2.
7
Title 7 U.S.C. § 8(a) provides:
'The commission is authorized to suspend for a period not to exceed six months or to revoke the designation of any board of trade as a 'contract market' upon a showing that such board of trade is not enforcing or has not enforced its rules of government made a condition of its designation as set forth in section 7 of this title or that such board of trade, or any director, officer, agent, or employee thereof, otherwise is violating or has violated any of the provisions of this chapter or any of the rules, regulations, or orders of the Secretary of Agriculture or the commission thereunder. Such suspension or revocation shall only be after a notice to the officers of the board of trade affected and upon a hearing: Provided, That such suspension or revocation shall be final and conclusive, unless within fifteen days after such suspension or revocation by the commission such board of trade appeals to the court of appeals for the circuit in which it has its principal place of business, by filing with the clerk of such court a written petition praying that the order of the
commission be set aside or modified in the manner stated in the petition, together with a bond in such sum as the court may determine, conditioned that such board of trade will pay the costs of the proceedings if the court so directs. The clerk of the court in which such a petition is filed shall immediately cause a copy thereof to be delivered to the Secretary of Agriculture, who shall thereupon notify the other members of the commission and file in the court the record in such proceedings, as provided in section 2112 of Title 28. The testimony and evidence taken or submitted before the commission, duly filed as aforesaid as a part of the record, shall be considered by the court of appeals as the evidence in the case. The proceedings in such cases in the court of appeals shall be made a preferred cause and shall be expedited in every way. Such a court may affirm or set aside the order of the commission or may direct it to modify its order. No such order of the commission shall be modified or set aside by the court of appeals unless it is shown by the board of trade that the order is unsupported by the weight of the evidence or was issued without due notice and a reasonable opportunity having been afforded to such board of trade for a hearing, or infringes the Constitution of the United States, or is beyond the jurisdiction of the commission.'
8
Title 7 U.S.C. § 13a states:
'If any contract market is not enforcing or has not enforced its rules of government made a condition of its designation as set forth in section 7 of this title, or if any contract market, or any director, officer, agent, or employee of any contract market otherwise is violating or has violated any of the provisions of this chapter or any of the rules, regulations, or orders of the Secretary of Agriculture or the commission thereunder, the commission may, upon notice and hearing and subject to appeal as in other cases provided for in paragraph (a) of section 8 of this title, make and enter an order directing that such contract market, director, officer, agent, or employee shall cease and desist from such violation, and if such contract market, director, officer, agent, or employee thereafter and after the lapse of the period allowed for appeal of such order or after the affirmance of such order, shall fail or refuse to obey or comply with such order, such contract market, director, officer, agent, or employee shall be guilty of a misdemeanor and, upon
conviction thereof, shall be fined not less than $500 nor more than $10,000 or imprisoned for not less than six months nor more than one year, or both. Each day during which such failure or refusal to obey such order continues shall be deemed a separate offense.'
9
Title 17 CFR § 0.53 provides:
'(a) Application to institute proceedings. Any interested person having any information of any violation of the act, or of any of the orders or regulations promulgated thereunder, by any board of trade or by any director, officer, agent, or employee thereof may file with the Act Administrator (see infra) an application requesting the institution of such proceeding as is authorized under the act. Such application shall be in writing, signed by or on behalf of the applicant, and shall include a short and simple statement of the facts constituting the alleged violation and the name and address of the applicant and the name and address of the person against whom the applicant complains.' (The 'Act Administrator,' who 'administers and is responsible for the enforcement of the (Act),' id., § 140.1, is the Administrator of the Commodity Exchange Authority, United States Department of Agriculture, id., § 0.52(r).)
'(b) Status of applicant. The person filing an application as described in paragraph (a) of this section shall have no legal status in the proceeding which may be instituted as a result of the application, except where the applicant may be permitted to intervene therein, in the manner provided in this subpart, or may be called as a witness, and the applicant's identity shall not be divulged by any employee of the Department, except with the applicant's prior consent or upon court order.
'(c) Who may institute. If, after investigation (by regional offices of the Commodity Exchange Authorities, id., § 140.1(d)) of the matters complained of in the application described in paragraph (a) of this section, or after investigation on its own motion, the Commission has reason to believe that any board of trade or any director, officer, agent, or employee thereof has violated or is violating any of the provisions of the act, or of any of the regulations promulgated thereunder, the Commission will institute an appropriate proceeding:
Provided, That in any case, except one of willfullness or one in which the public health, interest or safety otherwise requires, prior to the institution of a proceeding for the suspension or revocation of any designation of a contract market, facts or conditions which may warrant such action shall be called to the attention of the market in writing and such market shall be accorded opportunity to demonstrate or achieve compliance with all lawful requirements. Proceedings will be instituted only upon complains issued by the Commission and will not be instituted upon pleadings filed by private persons.'
Should the Commission institute proceedings after investigation, ibid., unless the respondent is allowed by the Commission to consent to an order, id., § 0.54, proceedings are held before a referee from the Department of Agriculture, id., §§ 0.52(p) and (s) and 0.55 et seq., an oral hearing being granted on request, id., § 0.61. The Commission prepares its order based on consideration of the record of the proceedings, including a report prepared by the referee, id., §§ 0.66, 0.68, and 0.70, oral argument being held before the Commission in certain instances, id., § 0.69.
10
Title 17 CFR § 0.58 states:
'At any time after the institution of a proceeding, and before it has been submitted to the Commission for final consideration, the Commission or the referee may, upon petition in writing and for good cause shown, permit any person to intervene therein. The petition shall state with preciseness and particularity: (a) The petitioner's relationship to the matters involved in the proceeding, (b) the nature of the material he intends to present in evidence, (c) the nature of the argument he intends to make, (d) any other reason that he should be allowed to intervene.'
As indicated in n. 2, supra, while the Commission has been vested with authority to take disciplinary action against a contract market and its officers, agents, and employees, the Secretary has been given such authority against persons other than contract markets, including individuals, associations, partnerships, corporations, and trusts, 7 U.S.C. § 2, and may either exclude them from trading on a contract market, id., § 9, or may issue a cease-and-desist order, id.,
§ 13b. The regulations providing for institution of and intervention in disciplinary proceedings before the Secretary, 17 CFR §§ 0.3 and 0.8, are virtually identical to the regulations for Commission proceedings quoted above and in n. 9, supra.
11
Rules the Court of Appeals found related to 'trading requirements' were Rule 307, which provides for the sale of membership, and Rule 322, which concerns qualifications to trade.
Rule 307 provides:
'Membership in the Exchange is a personal privilege subject to sale and transfer only as authorized herein. When a member or the legal representative of a deceased or incompetent member desires to sell a membership, he shall sign an authorization to transfer in such form as shall be prescribed by the Board. An individual who desires to purchase a membership shall notify the President to such effect and when an agreement with a seller shall have been made shall sign a confirmation of purchase and shall deposit with the President a transfer fee in the amount of $100.00 and also a certified check, payable to the Exchange, for the amount of the agreed purchase price.'
Rule 322 states:
'A member may be qualified to trade on the Spot and To-Arrive Calls provided he has been authorized by a firm or corporation which has been qualified pursuant to Rule 810 to engage in trading on said calls. A member may be qualified to trade on the futures call provided he has been authorized by a firm or corporation which is a Clearing Member.'
12
See, e.g., Carnation Co. v. Pacific Westbound Conference, 383 U.S. 213, 86 S.Ct. 781, 15 L.Ed.2d 709 (1966); United States v. Philadelphia National Bank, 374
U.S. 321, 83 S.Ct. 1715, 10 L.Ed.2d 915 (1963); Silver v. New York Stock Exchange, 373 U.S. 341, 83 S.Ct. 1246, 10 L.Ed.2d 389 (1963); Pan American World Airways v. United States, 371 U.S., 296, 83 S.Ct. 476, 9 L.Ed.2d 325 (1963); California v. FPC, 369 U.S. 482, 82 S.Ct. 901, 8 L.Ed.2d 54 (1962); United States v. Radio Corp. of America, 358 U.S. 334, 79 S.Ct. 457, 3 L.Ed.2d 354 (1959); Far East Conference v. United States, 342 U.S. 570, 72 S.Ct. 492, 96 L.Ed. 576 (1952); Georgia v. Pennsylvania R. Co., 324 U.S. 439, 65 S.Ct. 716, 89 L.Ed. 1051 (1945); United States v. Borden Co., 308 U.S. 188, 60 S.Ct. 182, 84 L.Ed. 181 (1939); United States Navigation Co. v. Cunard S.S. Co., 284 U.S. 474, 52 S.Ct. 247, 76 L.Ed. 408 (1932); Keogh v. Chicago, & N.W.R. Co., 260 U.S. 156, 43 S.Ct. 47, 67 L.Ed. 183 (1922).
13
Thus our judgment is not that Congress intended the Commodity Exchange Act to be the exclusive for the governance of the Exchange and its members. The purpose and structure of the Act and our past cases appear to foreclose any such conclusion. Carnation Co. v. Pacific Westbound Conference, supra; United States v. Philadelphia National Bank, supra; Silver v. New York Stock Exchange, supra; Pan American World Airways v. United States, supra; United States v. Borden Co., supra. Nor do we find that Congress intended the Act to confer general antitrust immunity on the Exchange and its members with respect to that area of conduct within the adjudicative or rulemaking authority of the Commission or the Secretary. See United States v. Philadelphia National Bank, 374 U.S., at 350—354, 83 S.Ct. at 1734—1737; California v. FPC, supra; Maryland & Virginia Milk Producers v. United States, 362 U.S. 458, 80 S.Ct. 847, 4 L.Ed.2d 880 (1960); United States v. Radio Corp. of America, 358 U.S., at 339—352, 79 S.Ct. at 461—468. The Act contains no categorical exemption of this kind; indeed, it confers no express exemption at all, not even with respect to conduct that is directed or authorized by the Commission or the Secretary. Moreover, the area of administrative authority does not appear to be particularly focused on competitive considerations; there is no express provision in the Act directing administrative officials to consider the policies of the antitrust laws in carrying out their duties and there is no other indication that Congress intended the adjudicative authority given the Commission and the Secretary to be a complete substitute for judicial enforcement of the anti-trust laws. Cf. California v. FPC, supra.
14
Mr. Justice MARSHALL's dissent complains that jurisdiction of the Commodity Exchange Commission is not clear, that the Commission need not institute proceedings, that the complainant must intervene to become a party, and that agency remedies are discretionary. But proceeding by complaint and intervention is not an unusual system for invoking administrative action. And surely if administrative proceedings are sought in vain, there would be no further problem for the antitrust court. In any event it should be pointed out that the regulations require investigation of complaints and provide that 'the Commission will institute an appropriate proceeding' if investigation reveals reason to believe that the Act is being violated. 17 CFR § 0.53(c). (Emphasis added.) See n. 9, supra.
15
Likely issues for the factfinder are whether Ricci revoked the transfer authorization before or after he was informed that his membership was transferred; whether the transfer authorization was valid; whether the Trading Company had a lien against Ricci's membership because of its loan to Ricci for the purchase of a membership; whether the Trading Company owned brokerage fees to Ricci; and, if so, whether these brokerage fees could be offset against the debt for the membership purchase.
16
Mr. Justice MARSHALL's dissent also asserts that because 'Ricci's complaint asserts a conspiracy, the matter at issue lies beyond any possible self-regulatory goals of the Exchange. But this simply ignores and refuses to accept the factfinding function of the Commission. It also failed to recognize that the allegation simply characterizes as a conspiracy what may be an attempt to invoke the membership rules of the Exchange.
1
The majority suggests that the Court 'need not finally decide the jurisdictional issue for present purposes.' Rather, it holds that the likelihood of agency jurisdiction is sufficient to require judicial abstention. This approach could well lead to an extraordinary result. Since the Court expressly leaves the jurisdictional issue open, it is possible that at some later date, it will be held that the agency lacks jurisdiction over this dispute. In that event, petitioner will have been forced to resort to possibly lengthy administrative proceedings, only to be told at their conclusion that they were irrelevant to his case. My approach is somewhat different. I submit that the jurisdiction of the relevant agency is a threshold issue in cases such as this and that before a court defers to agency judgment, it should authoritatively determine whether the agency has power to act.
2
I do not intend to foreclose the possibility that petitioner might be able to intervene under § 6(a) of the Administrative Procedure Act, 5 U.S.C. § 555(b). See, e.g., American Communications Assn. v. United States, 298 F.2d 648, 650 (CA2 1962). Petitioner's ability to invoke this provision is, however, problematical at best. Cf. Easton Utilities Comm'n v. AEC, 137 U.S.App.D.C. 359, 362—365, 424 F.2d 847, 850—853 (1970). See generally Shapiro, Some Thoughts on Intervention before Courts, Agencies, and Arbitrators, 81 Harv.L.Rev. 721, 764—767 (1968).
3
Although the Commission may issue cease-and-desist orders and recommend criminal prosecutions, if, of course, lacks criminal prosecutions, it, of course, lacks
4
This position does not, as the majority argues, '(ignore) . . . the fact-finding function of the Commission.' Rather, it is premised on the seemingly obvious proposition that there must be a jurisdictional predicate to support agency fact-finding. I can find nothing in the Commodity Exchange Act that authorizes the Commission to determine whether exchanges and their members are engaged in conspiracies or whether the actions taken by exchanges are motivated by anti-competitive purposes. Nor is it clear to me why such factfinding might be made in the course of determining whether an Exchange rule had been violated.
5
But cf. n. 1, supra.
6
To be sure, as the majority recognizes, the Commission does have factfinding power and, in the course of determining whether the Exchange rules have been violated, it might exercise that power to resolve the underlying facts in dispute. But the majority cites no cases where the mere fact-finding power of an agency has been used to invoke primary jurisdiction in the absence of an issue of law or a mixed question of law and fact common to the agency proceeding and the court action. The Commission may have special expertise that will aid it to determine whether a given rule has been violated or whether the rule is consistent with the Act. But it has no special ability to determine pure questions of fact unrelated to the legal standard relevant in the antitrust suit. On the contrary, I had thought that it was our court system—with its long tradition of jury trials, adversary proceedings, and highly developed evidentiary principles—that was 'expert' in the simple fact-finding process.
7
The Silver case itself neatly illustrates this fact. In Silver, the rule in question provided for the termination of wire connections with Exchange members without notice or hearing. This Court held that the failure to provide notice or hearing served no legitimate self-regulatory goal and therefore held that an antitrust violation had been made out. Had the Silver case arisen in the context of the Commodity Exchange Act, the Secretary could not have invalidated the Exchange rule since no provision of the Act requires an exchange to hold hearings before it takes disciplinary action. But, of course, the Secretary's decision not to invalidate the rule would in no way have changed the Court's ultimate conclusion that the rule served no valid self-regulatory purpose. Hence, invocation of the Secretary's primary jurisdiction would have been a useless act.
| 78
|
409 U.S. 352
93 S.Ct. 595
34 L.Ed.2d 568
Samuel BRONSTON, Petitioner,v.UNITED STATES.
No. 71-1011.
Argued Nov. 15, 1972.
Decided Jan. 10, 1973.
Syllabus
Federal perjury statute, 18 U.S.C. § 1621, does not reach a witness' answer that is literally true, but unresponsive, even assuming the witness intends to mislead his questioner by the answer, and even assuming the answer is arguably 'false by negative implication.' A perjury prosecution is not, in our adversary system, the primary safeguard against errant testimony; given the incongruity of an unresponsive answer, it is the questioner's burden to frame his interrogation acutely to elicit the precise information he seeks. Pp. 357—362.
453 F.2d 555, reversed.
Sheldon H. Elsen, New York City, for petitioner.
Andrew L. Frey, Dept. of Justice, Washington, D.C., for respondent.
Mr. Chief Justice BURGER delivered the opinion of the Court.
1
We granted the writ in this case to consider a narrow but important question in the application of the federal perjury statute, 18 U.S.C. § 1621:1 whether a witness may be convicted of perjury for an answer, under oath, that is literally true but not responsive to the question asked and arguably misleading by negative implication.
2
Petitioner is the sole owner of Samuel Bronston Productions, Inc., a company that between 1958 and 1964, produced motion pictures in various European locations. For these enterprises, Bronston Productions, opened bank accounts in a number of foreign countries; in 1962, for example, it had 37 accounts in five countries. As president of Bronston Productions, petitioner supervised transactions involving the foreign bank accounts.
3
In June 1964, Bronston Productions, petitioned for an arrangement with creditors under Chapter XI of the Bankruptcy Act, 11 U.S.C. § 701 et seq. On June 10, 1966, a referee in bankruptcy held a § 21(a) hearing to determine, for the benefit of creditors, the extent and location of the company's assets.2 Petitioner's perjury conviction was founded on the answers given by him as a witness at that bankruptcy hearing, and in particular on the following colloquy with a lawyer for a creditor of Bronston Productions:
4
'Q. Do you have any bank accounts in Swiss banks, Mr. Bronston?
5
'A. No, sir.
6
'Q. Have you ever?
7
'A. The company had an account there for about six months, in Zurich.
8
'Q. Have you any nominees who have bank accounts in Swiss banks?
9
'A. No, sir.
10
'Q. Have you ever?
11
'A. No, sir.'
12
It is undisputed that for a period of nearly five years, between October 1959 and June 1964, petitioner had a personal bank account at the International Credit Bank in Geneva, Switzerland, into which he made deposits and upon which he drew checks totaling more than $180,000. It is likewise undisputed that petitioner's answers were literally truthful. (a) Petitioner did not at the time of questioning have a Swiss bank account. (b) Bronston Productions, Inc., did have the account in Zurich described by petitioner. (c) Neither at the time of questioning nor before did petitioner have nominees who had Swiss accounts. The Government's prosecution for perjury went forward on the theory that in order to mislead his questioner, petitioner answered the second question with literal truthfulness but unresponsively addressed his answer to the company's assets and not to his own—thereby implying that he had no personal Swiss bank account at the relevant time.
13
At petitioner's trial, the District Court instructed the jury that the 'basic issue' was whether petitioner 'spoke his true belief.' Perjury, the court stated, 'necessarily involves the state of mind of the accused' and 'essentially consists of wilfully testifying to the truth of a fact which the defendant does not believe to be true'; petitioner's testimony could not be found 'wilfully' false unless at the time his testimony was given petitioner 'fully understood the questions put to him but nevertheless gave false answers knowing the same to be false.' The court further instructed the jury that if petitioner did not understand the question put to him and for that reason gave an unresponsive answer, he could not be convicted of perjury. Petitioner could, however, be convicted if he gave an answer 'not literally false but when considered in the context in which it was given, nevertheless constitute(d) a false statement.'3
14
The jury began its deliberations at 11:30 a.m. Several times it requested exhibits or additional instructions from the court, and at one point, at the request of the jury, the District Court repeated its instructions in full. At 6:10 p.m., the jury returned its verdict, finding petitioner guilty on the count of perjury before us today and not guilty on another charge not here relevant.
15
In the Court of Appeals, petitioner contended, as he had in post-trial motions before the District Court, that the key question was imprecise and suggestive of various interpretations. In addition, petitioner contended that he could not be convicted of perjury on the basis of testimony that was concededly truthful, however unresponsive. A divided Court of Appeals held that the question was readily susceptible of a responsive reply and that it adequately tested the defendant's belief in the veracity of his answer. The Court of Appeals further held that, '(f)or the purposes of 18 U.S.C. § 1621, an answer containing half of the truth which also constitutes a lie by negative implication, when the answer is intentionally given in place of the responsive answer called for by a proper question, is perjury.' 453 F.2d 555, 559. In this Court, petitioner renews his attack on the specificity of the question asked him and the legal sufficiency of his answer to support a conviction for perjury. The problem of the ambiguity of the question is not free from doubt, but we need not reach that issue. Even assuming, as we do, that the question asked petitioner specifically focused on petitioner's personal bank accounts, we conclude that the federal perjury statute cannot be construed to sustain a conviction based on petitioner's answer.
16
The statute, 18 U.S.C. § 1621, substantially identical in its relevant language to its predecessors for nearly a century, is 'a federal statute enacted in an effort to keep the course of justice free from the pollution of perjury.' United States v. Williams, 341 U.S. 58, 68, 71 S.Ct. 595, 600, 95 L.Ed. 747 (1951). We have held that the general federal perjury provision is applicable to federal bankruptcy proceedings. Hammer v. United States, 271 U.S. 620, 46 S.Ct. 603, 70 L.Ed. 1118 (1926). The need for truthful testimony in a § 21(a) bankruptcy proceeding is great, since the proceeding is 'a searching inquiry into the condition of the estate of the bankrupt, to assist in discovering and collecting the assets, and to develop facts and circumstances which bear upon the question of discharge.' Travis v. United States, 123 F.2d 268, 271 (CA10 1941). Here, as elsewhere, the perpetration of perjury 'well may affect the dearest concerns of the parties before a tribunal. . . .' United States v. Norris, 300 U.S. 564, 574, 57 S.Ct. 535, 539, 81 L.Ed. 808 (1937).
17
There is, at the outset, a serious literal problem in applying § 1621 to petitioner's answer. The words of the statute confine the offense to the witness who 'willfully . . . states . . . any material matter which he does not believe to be true.' Beyond question, petitioner's answer to the crucial question was not responsive if we assume, as we do, that the first question was directed at personal bank accounts. There is, indeed, an implication in the answer to the second question that there was never a personal bank account; in casual conversation this interpretation might reasonably be drawn. But we are not dealing with casual conversation and the statute does not make it a criminal act for a witness to willfully state any material matter that implies any material matter that he does not believe to be true.4
18
The Government urges that the perjury statute be construed broadly to reach petitioner's answer and thereby fulfill its historic purpose of reinforcing our adversary factfinding process. We might go beyond the precise words of the statute if we thought they did not adequately express the intention of Congress, but we perceive no reason why Congress would intend the drastic sanction of a perjury prosecution to cure a testimonial mishap that could readily have been reached with a single additional question by counsel alert—as every examiner ought to be—to the incongruity of petitioner's unresponsive answer. Under the pressures and tensions of interrogation, it is not uncommon for the most earnest witnesses to give answers that are not entirely responsive. Sometimes the witness does not understand the question, or may in an excess of caution or apprehension read too much or too little into it. It should come as no surprise that a participant in a bankruptcy proceeding may have something to conceal and consciously tries to do so, or that a debtor may be embarrassed at his plight and yield information reluctantly. It is the responsibility of the laywer to probe; testimonial interrogation, and cross-examination in particular, is a probing, prying, pressing form of inquiry. If a witness evades, it is the lawyer's responsibility to recognize the evasion and to bring the witness back to the mark, to flush out the whole truth with the tools of adversary examination.
19
It is no answer to say that here the jury found that petitioner intended to mislead his examiner. A jury should not be permitted to engage in conjecture whether an unresponsive answer, true and complete on its face, was intended to mislead or divert the examiner; the state of mind of the witness is relevant only to the extent that it bears on whether 'he does not believe (his answer) to be true.' To hold otherwise would be to inject a new and confusing element into the adversary testimonial system we know. Witnesses would be unsure of the extent of their responsibility for the misunderstandings and inadequacies of examiners, and might well fear having that responsibility tested by a jury under the vague rubric of 'intent to mislead' or 'perjury by implication.' The seminal modern treatment of the history of the offense concludes that one consideration of policy overshadowed all others during the years when perjury first emerged as a common-law offense: 'that the measures taken against the offense must not be so severe as to discourage witnesses from appearing or testifying.' Study of Perjury, reprinted in Report of New York Law Revision Commission, Legis.Doc.No.60, p. 249 (1935). A leading 19th century commentator, quoted by Dean Wigmore, noted that the English law 'throws every fence round a person accused of perjury,' for
20
'the obligation of protecting witnesses from oppression, or annoyance, by charges, or threats of charges, of having borne false testimony, is far paramount to that of giving even perjury its deserts. To repress that crime, prevention is better than cure: and the law of England relies, for this purpose, on the means provided for detecting and exposing the crime at the moment of commission,—such as publicity, cross-examination, the aid of a jury, etc.; and on the infliction of a severe, though not excessive punishment, wherever the commission of the crime has been clearly proved.' W. Best, Principles of the Law of Evidence § 606 (C. Chamberlayne ed. 1883).
21
See J. Wigmore, Evidence 275—276 (3d ed. 1940). Addressing the same problem, Montesquieu took as his starting point the French tradition of capital punishment for perjury and the relatively mild English punishment of the pillory. He thought the disparity between the punishments could be explained because the French did not permit the accused to present his own witnesses, while in England 'they admit of witnesses on both sides, and the affair is discussed in some measure between them; consequently false witness is there less dangerous, the accused having a remedy against the false witnesses, which he has not in France.' Montesquieu, The Spirit of the Laws, quoted in Study of Perjury, supra, p. 253.
22
Thus, we must read § 1621 in light of our own and the traditional Anglo-American judgment that a prosecution for perjury is not the sole, or even the primary, safeguard against errant testimony. While 'the lower federal courts have not dealt with the question often,' and while their expressions do not deal with unresponsive testimony and are not precisely in point, 'it may be said that they preponderate against the respondent's contention.' United States v. Norris, 300 U.S., at 576, 57 S.Ct., at 540. The cases support petitioner's position that the perjury statute is not to be loosely construed, nor the statute invoked simply because a wily witness succeeds in derailing the questioner—so long as the witness speaks the literal truth. The burden is on the questioner to pin the witness down to the specific object to the questioner's inquiry. United States v. Wall, 371 F.2d 398 (CA6 1967); United States v. Slutzky, 79 F.2d 504 (CA3 1935); Galanos v. United States, 49 F.2d 898 (CA6 1931); United States v. Cobert, 227 F.Supp. 915 (SD Cal.1964).
23
The Government does not contend that any misleading or incomplete response must be sent to the jury to determine whether a witness committed perjury because he intended to sidetrack his questioner. As the Government recognizes, the effect of so unlimited an interpretation of § 1621 would be broadly unsettling. It is said, rather, that petitioner's testimony falls within a more limited category of intentionally misleading responses with an especially strong tendency to mislead the questioner. In the federal cases cited above, the Government tells us the defendants gave simple negative answers 'that were both entirely responsive and entirely truthful . . .. In neither case did the defendant—as did petitioner here—make affirmative statements of one fact that in context constituted denials by negative implication of a related fact.' Thus the Government isolates two factors which are said to require application of the perjury statute in the circumstances of this case; the unresponsiveness of petitioner's answer and the affirmative cast of that answer, with its accompanying negative implication.
24
This analysis succeeds in confining the Government's position, but it does not persuade us that Congress intended to extend the coverage of § 1621 to answers unresponsive on their face but untrue only by 'negative implication.' Though perhaps a plausible argument can be made that unresponsive answers are especially likely to mislead,5 any such argument must, we think, be predicated upon the questioner's being aware of the unresponsiveness of the relevant answer. Yet, if the questioner is aware of the unresponsiveness of the answer, with equal force it can be argued that the very unresponsiveness of the answer should alert counsel to press on for the information he desires. It does not matter that the unresponsive answer is stated in the affirmative, thereby implying the negative of the question actually posed; for again, by hypothesis, the examiner's awareness of unresponsiveness should lead him to press another question or reframe his initial question with greater precision. Precise questioning is imperative as a predicate for the offense of perjury.
25
It may well be that petitioner's answers were not guileless but were shrewdly calculated to evade. Nevertheless, we are constrained to agree with Judge Lumbard, who dissented from the judgment of the Court of Appeals, that any special problems arising from the literally true but unresponsive answer are to be remedied through the 'questioner's acuity' and not by a federal perjury prosecution.
26
Reversed.
1
18 U.S.C. § 1621 provides:
'Whoever, having taken an oath before a competent tribunal, officer, or person, in any case in which a law of the United States authorizes an oath to be administered, that he will testify, declare, depose, or certify truly, or that any written testimony, declaration, deposition, or certificate by him subscribed, is true, willfully and contrary to such oath states or subscribes any material matter which he does not believe to be true, is guilty of perjury, and shall, except as otherwise expressly provided by law, be fined not more than $2,000 or imprisoned not more than five years, or both. This section is applicable whether the statement or subscription is made within or without the United States.'
2
Under § 334 of the Bankruptcy Act, 11 U.S.C. § 734, the court must hold a first meeting of creditors within a limited period of time after the Chapter XI petition is filed. Section 336, 11 U.S.C. § 736, provides that the judge or court-appointed referee shall preside at the meeting and 'shall examine the debtor or cause him to be examined and hear witnesses on any matter relevant to the proceeding.'
Section 21(a) of the Act, 11 U.S.C. § 44(a), is applicable to a Chapter XI proceeding because it is a provision of Chapters I through VII 'not inconsistent with or in conflict with the provisions of (Chapter XI).' 11 U.S.C. § 702. Section 21(a) provides, in pertinent part, that '(t)he court may, upon application of any officer, bankrupt, or creditor, by order require any designated persons . . . to appear before the court . . . to be examined concerning the acts, conduct, or property of a bankrupt.' Numerous statements of the broad scope of a § 21(a) inquiry are collected in 2 W. Collier, Bankruptcy 21.11 (14th ed. 1971). The officers of a bankrupt may be required to undergo a § 21(a) examination even if they are not still officers at the time of filing. Id., 21.09. If it appears that the interest of a witness is adverse to the party calling him to testify, under § 21(j), 11 U.S.C. § 44(j), the party may examine the witness as if under cross-examination, and the examining party is not bound by the witness' testimony. 1A W. Collier, Bankruptcy 5.22 (14th ed. 1972).
3
The District Court gave the following example 'as an illustration only':
'(I)f it is material to ascertain how many times a person has entered a store on a given day and that person responds to such a question by saying five times when in fact he knows that he entered the store 50 times that day, that person may be guilty of perjury even though it is technically true that he entered the store five times.'
The illustration given by the District Court is hardly comparable to petitioner's answer; the answer 'five times' is responsive to the hypothetical question and contains nothing to alert the questioner that he may be sidetracked. See infra, at 358. Moreover, it is very doubtful that an answer which, in response to a specific quantitative inquiry, baldly understates a numerical fact can be described as even 'technically true.' Whether an answer is true must be determined with reference to the question it purports to answer, not in isolation. An unresponsive answer is unique in this respect because its unresponsiveness by definition prevents its truthfulness from being tested in the context of the question—unless there is to be speculation as to what the unresponsive answer 'implies.' See infra, at 359.
4
Petitioner's answer is not to be measured by the same standards applicable to criminally fraudulent or extortionate statements. In that context, the law goes 'rather far in punishing intentional creation of false impressions by a selection of literally true representations, because the actor himself generally selects and arranges the representations.' In contrast, 'under our system of adversary questioning and cross-examination the scope of disclosure is largely in the hands of counsel and presiding officer.' A.L.I. Model Penal Code § 208.20, Comment (Tent.Draft No. 6, 1957, p. 124).
5
Arguably, the questioner will assume there is some logical justification for the unresponsive answer, since competent witnesses do not usually answer in irrelevancies. Thus the questioner may conclude that the unresponsive answer is given only because it is intended to make a statement—a negative statement relevant to the question asked. In this case, petitioner's questioner may have assumed that petitioner denied having a personal account in Switzerland; only this unspoken denial would provide a logical nexus between inquiry directed to petitioner's personal account and petitioner's adverting, in response, to the company account in Zurich.
| 01
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409 U.S. 363
93 S.Ct. 647
34 L.Ed.2d 577
HUGHES TOOL COMPANY et al., Petitioners,v.TRANS WORLD AIRLINES, INC. TRANS WORLD AIRLINES, INC., Petitioner, v. HUGHES TOOL COMPANY et al.
Nos. 71-827, 71-830.
Argued Oct. 10, 1972.
Decided Jan. 10, 1973.
Rehearing Denied March 5, 1973.
See 410 U.S. 975, 93 S.Ct. 1434, 1435.
Syllabus
Trans World Airlines (TWA) brought this antitrust action against the Hughes Tool Co. (Toolco) and others for treble damages as a result of the manner in which Toolco had exercised its controlling interest in TWA, with particular reference to Toolco's asserted acts to control and dictate the acquisition and financing of aircraft by TWA. As an organization engaged in phases of aeronautics, Toolco could not acquire control of an air carrier such as TWA without consent of the Civil Aeronautics Board (CAB). In 1944 the CAB approved de facto control of TWA by Toolco as comporting with the provisions of § 408 of the Federal Aviation Act. That provision permits acquisitions of control that the CAB finds are not inconsistent with the public interest and that will not result in monopoly. Section 414 immunizes from antitrust liability any conduct approved by a CAB order issued under § 408. The approval narrowly limited intercompany sales transactions without specific CAB approval, and required annual reporting. A few years later, Toolco and TWA made an agreement permitting Toolco to obtain full legal control of TWA. The CAB, after full hearings into the Toolco-TWA relationship, found that Toolco's financial and other support was of great importance to TWA and concluded that 'the continued interest of Toolco in TWA appears essential to the best interests of the carrier and the public.' The CAB's approval was made subject to the conditions of the 1944 order. As a result, from 1944 to 1960, every acquisition and lease of aircraft by TWA from Toolco and each financing by TWA from Toolco received CAB approval pursuant to § 408. In 1960, Toolco's stock in TWA was placed in a voting trust in connection with a program for financing TWA's acquisition of jet equipment. Shortly thereafter, TWA brought this suit. As a defense, Toolco relied on Pan American World Airways, Inc. v. United States, 371 U.S. 296, 83 S.Ct. 476, 9 L.Ed.2d 325. The District Court entered a default judgment against Toolco. The Court of Appeals affirmed, concluding that Pan American was inapplicable because, unlike the situation in that case, the conduct challenged in TWA's complaint was 'unrelated to any specific function of the CAB' and not within the CAB's exclusive competence. Held: The transactions that TWA challenged as violative of the antitrust laws were under the CAB's control and surveillance, and, by virtue of §§ 408 and 414 of the Federal Aviation Act, had immunity under the antitrust laws. The Court of Appeals, therefore, erred in holding that Pan American, supra, is not controlling on the facts involved here. Pp. 366—389.
449 F.2d 51, reversed.
Charles Alan Wright, Austin, Tex., for Hughes Tool Co. and others.
Dudley B. Tenney, New York City, for Trans World Airlines, Inc.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
The complaint in this litigation alleged antitrust violations and damages suffered by Trans World Airlines (TWA) while under control of Hughes Tool Co. (Toolco). A default judgment was entered for over $145 million with interest at the rate of 7 1/2%. The District Court's opinions confirming the damages award are reported at 308 F.Supp. 679, 312 F.Supp. 478. The Court of Appeals affirmed, 449 F.2d 51. The cases are here on a petition for certiorari1 and on a cross petition. 405 U.S. 915, 92 S.Ct. 960, 30 L.Ed.2d 785.
2
The crux of TWA's complaint was the use by Toolco of its control over TWA to control and dictate the manner and method by which TWA acquired aircraft and the necessary financing thereof.2
3
Whether or not that complaint states a cause of action under the antitrust laws is a question we do not reach. Another defense of Toolco was that those transactions were under the control and surveillance of the Civil Aeronautics Board and by virtue of the Federal Aviation Act of 1958 those transactions have immunity from the antitrust laws.
4
It is our view that the Court of Appeals erroneously rejected that defense. This result, we think, is required by §§ 408 and 414 of the Federal Aviation Act and by our prior decision in Pan American World Airways, Inc. v. United States, 371 U.S. 296, 83 S.Ct. 476, 9 L.Ed.2d 325 (1963).
5
Section 408 of the Act makes illegal certain mergers, consolidations, and other transactions without the approval of the Civil Aeronautics Board.3 Specifically, s 408(a)(5) requires the approval of the Board when 'any person engaged in any other phase of aeronautics' seeks to acquire control of any air carrier in any manner whatsoever. Section 408(b) authorizes and directs the Board to approve such transactions, including acquisitions of control, that are in the 'public interest' and prohibits approval of any transaction 'which would result in creating a monopoly or monopolies and thereby restrain competition or jeopardize another air carrier' not a party to the transaction. Section 102 of the Act requires that in assessing the public interest and the public convenience and necessity, the Board should consider, among other things, '(c) ompetition to the extent necessary to assure the sound development of an air-transportation system properly adapted to the needs of the foreign and domestic commerce of the United States . . ..'4 Section 408(e) empowers the Board, upon complaint or its own initiative, to investigate and determine whether any person is violating any provision of subsection (a) and, if such violation is found, to 'require such person to take such action, consistent with the provisions of this chapter, as may be necessary, in the opinion of the Board, to prevent further violation of such provision.' Under § 408(d), the Board has broad control over the accounts, records, and reports of anyone controlling an air carrier, and their inspection. The Board is further granted power to control the designation of any officer or director of an air carrier who is an officer, director, member, or the controlling stockholder of any person who is engaged 'in any phase of aeronautics.' § 409(a), 49 U.S.C. § 1379(a). Section 414 relieves from the operation of the antitrust laws any person affected by any order under § 408 'insofar as may be necessary to enable such person to do anything authorized, approved, or required by such order.'5
6
It was against this statutory backdrop that the Civil Aeronautics Board issued a series of decisions and orders with respect to the control of TWA by Toolco, the major decisions being issued in 1944, 1948, 1950, and 1960. The first decision, 6 C.A.B. 153 (1944), authorized control of approximately 45.6% of the outstanding stock of TWA. From the Board's opinion issued at that time, it appears that Howard Hughes first became interested in TWA at the invitation of his friend, Jack Frye, the president of TWA. Hughes began acquiring TWA stock through Toolco, which he solely owned. By 1942, Toolco had acquired 42.1% of TWA's outstanding stock and for all practical purposes was in position to control the day-to-day affairs of the carrier. Meanwhile, Hughes and Frye and jointly designed a four-engine transport, later known as the Constellation, which Lockheed agreed to manufacture under contract with Toolco. The contract was assigned by Toolco to TWA in 1942, Toolco reserving the right to purchase a sizable number of such aircraft through TWA. It was this arrangement by which Toolco might actually acquire for resale a number of commercial aircraft that, together with its experimental work in aviation and its manufacture of aircraft parts for the military, characterized Toolco as an organization engaged in any phase of aeronautics and therefore forbidden to acquire control of an air carrier such as TWA without the consent of the Board. Toolco's control of TWA, by virtue of its stock ownership which had by 1944 increased to 45.6%, was approved by the Board as being in the public interest and consistent with the provisions of § 408, including the prohibition against monopoly. In order to insure that Toolco would not abuse its power over TWA, 'to its own profit and to the detriment of the public interest,' 6 C.A.B., at 156, the approval was to continue only so long as intercompany purchases did not exceed $200 per item and did not amount to more than $10,000 in any one calendar year. Annual reports were required in this respect.6 6 C.A.B., at 158.
7
The 1948 and 1950 decisions of the Board originated in a letter agreement presented by Toolco to TWA on January 8, 1947, and accepted by TWA the following day. By this agreement, Toolco agreed to loan $10 million to TWA in return for the latter's interest-bearing notes which were convertible into common stock of the company. On its own initiative, the Board opened an investigation into the matter. At the threshold was the question of Board jurisdiction, which was hotly contested. The Board's June 1948 opinion sustained its jurisdiction, 9 C.A.B. 381. The opinion took a dual approach to the jurisdictional question. It first inquired whether 'any change in the activities of Toolco in the field of aeronautics since October 17, 1944, has affected or altered the character of the control approved in Docket No. 1182. It is clear that a substantial change in the activities of Toolco in the field of aeronautics would result in a transaction subject to the Board's jurisdiction under section 408 by reason of the fact that the character and propriety of control originally approved might be altered or changed as a result thereof.' 9 C.A.B., at 382.
8
After reviewing the aeronautical activities of Toolco, it was concluded that the aircraft division of the company was chiefly a large-scale experimental plant for the military and had not substantially changed its status with respect to its participation in any phase of aeronautics.
9
The Board's second approach to the jurisdictional question was to inquire whether the letter agreement, which would permit Toolco to increase its shareholdings up to 80% of the outstanding shares of TWA, represented such a change in extent or effectiveness of control as to give the Board jurisdiction and require its consent. Its conclusion was that, although Toolco's 45.6% was obviously enough to dominate the Board and control the day-to-day affairs of the company, the 1947 letter agreement would permit Toolco to translate its de facto control into full legal control of the company, which would 'obviously impl(y) power to dictate the complete corporate activities of the corporation.' 9 C.A.B., at 387. This was sufficient to require an order of the Board in addition to the 1944 order.
10
With its jurisdiction established, the Board proceeded with hearings and inquiry into whether the additional control was consistent with the public interest. This matter was also contested. Toolco thought that only a narrowly focused inquiry was appropriate, but the Board's public counsel not only insisted that the hearings be far-ranging but urged, as a possible solution, that the additional control be disapproved and that the original 1944 proceedings, Docket No. 1182, be reopened to determine whether all control of TWA by Toolco should be terminated. The Board7 opted for an investigation sufficiently broad to inquire 'into the actions and policies of the controlling company with respect to TWA for the period during which the prior-approved control existed . . . (f)or inevitably the controlling company, by virtue of its investment in the acquired carrier, will endeavor to make itself accountable—as indeed the acquirer here under scrutiny had—for the managerial efficiency, the operating economy, and the financial integrity of the controlled carrier.' 12 C.A.B. 192, 196 (1950). Before approving the additional acquisition, which would make certain '(c)omplete actual and legal control,' id., at 197, the Board determined not only to examine the future plans of Toolco but also its past conduct with respect to TWA.
11
Accordingly, the Toolco-Hughes-TWA relationship from 1939 to the date of the decision was examined in detail, including the events occurring since the letter agreement of January 1947. The major focus of the inquiry was the differences between TWA management and Toolco with respect to the acquisition of new flight equipment—the quantity, the type, the timing, and the financing thereof. Unquestionably, TWA had been and was in need of additional financing to make possible the purchase of new equipment, particularly that needed to operate its expanded routes. TWA proposed and preferred equity financing in large measure, but Toolco most often insisted on financing new equipment through credit arrangements. Disagreement caused delay, and this, in combination with other factors, brought TWA to the verge of bankruptcy or reorganization in late 1946. It was at this juncture that the January 1947 letter agreement eventuated. Financial failure was averted; but urgent needs for new equipment continued, and substantial additions were made in the years from 1947 to 1950, most of it with the aid of Toolco and some of it by purchase from Toolco itself.8 By the time the hearings concluded and the case was under submission, TWA's financial condition had considerably improved, measurably aided by better operating results, better expense control, and a stock offering to stockholders with the unsubscribed amount being underwritten by investment bankers. 12 C.A.B., at 208—209.
12
In considering whether the additional control by Toolco would be in the public interest, the Board observed that there was no conflict of interest between Toolco's present or contemplated aeronautical activities and its control of an air carrier and that enhanced control presented no problems under the antimonopoly provisions of § 408(b). Id., at 216. The Board then noted that Toolco's contributions to the science of aeronautics by way of aircraft design and instrumental aids to aviation for both the armed services and civil aviation have been substantial and found that 'of specific importance to TWA, have been the contributions of Toolco and Mr. Hughes in the way of financial support to the carrier, in the selection and purchase of its equipment, and their advice and guidance to the engineering and operations departments of the carrier.' Ibid.9 Most important, however, in the Board's opinion, were the efforts of Toolco to improve the financial position of TWA during the last few years. Although criticizing Toolco, along with others in the aircraft transportation industry, for relying too heavily on debt financing which, in the case of TWA had resulted in a very difficult, lopsided capital structure, the Board concluded that the record would not support a finding that the additional control would be inconsistent with the public interest. Indeed, the Board concluded that '(t)he continued interest of Toolco in TWA appears essential to the best interests of the carrier and the public.' Id., at 224.
13
The Board's approval in 1950 of the complete control of TWA by Toolco was made 'subject to the terms and conditions' imposed by the 1944 order with respect to intercompany purchases and annual reporting. See supra, at 370. As a result, from 1944 through 1960, every acquisition or lease of aircraft by TWA from Toolco and each financing of TWA by Toolco required Board approval. Applications by Toolco were made to the Board in each instance, with the terms and conditions of the transactions being described.10 Each was approved by the Board and each was regarded as a modification or interpretation of its antecedent control orders under § 408. Each of these transactional orders recited a finding of the Board that the transaction was 'just and reasonable and in the public interest.' Then, in December 1960, the Board issued an order approving a major proposal by TWA for the acquisition of jet equipment, which among other things involved fundamental changes in relationship between TWA and Toolco in that the stock of the former, at the insistence of the financial institutions involved in the program, was to be placed in a voting trust and the company's Board of Directors reconstituted. 32 C.A.B. 1363. The dominant position of Toolco thus ended for the period of the trusteeship. In the course of its opinion accompanying the order, the Board stated that although it had not been officially informed of the reasons for the banks' insistence on the voting trust, it was not 'unaware of TWA's problems.' Id., at 1364. The Board knew, because it was a matter of public record, that TWA had been delayed in financing its jet fleet and the Board's opinion was that TWA had probably suffered because more attractive financing terms were no longer available and because the unavailability of equipment may have contributed to the company's failure to maintain its normal share of the transportation market. 'Under these circumstances' the Board said, 'we think it clear that Board action to facilitate TWA's acquisition of jet equipment is in the public interest. At the same time, however, it is evident that Toolco's control of TWA, as exercised through Hughes, has presented substantial problems requiring the Board's attention.' Id., at 1365. The Board went on to make clear that its approval would be required before Toolco would be permitted to reasume control over TWA and that any such approval would be forthcoming only after a most 'searching inquiry' into the public interest factors involved.11 Ibid.
14
It was six months later that TWA, now no longer under control of Toolco, filed suit against the latter alleging violations of the antitrust laws to the injury of TWA's business. As analyzed by the Court of Appeals in its opinions filed in this case, the complaint rested principally on Toolco's conduct as controlling stockholder during the years 1955—1960. The assertions were that in 1955 the commercial air industry was converting to jet aircraft, and that TWA's competitors began in that year 'to aid in the development of and to purchase jet planes.' 332 F.2d 602, 605. Toolco and General Dynamics Corp. (Convair) had entered into an arrangement for the joint development of a suitable aircraft but the plan proved abortive, whereupon Toolco considered but ultimately abandoned a plan for itself to enter aircraft production. Meanwhile, Toolco had arranged for the purchase of jet aircraft from Convair and Boeing, the arrangements providing that Toolco could assign its rights to such aircraft to TWA.
15
As respects its defense that CAB control and surveillance gave it immunity from the antitrust suit, Toolco relies on Pan American World Airways, Inc. v. United States, 371 U.S. 296, 83 S.Ct. 476, 9 L.Ed.2d 325. The Court of Appeals distinguished that case, saying that there the unlawful division of territories and allocation of routes were directly 'within the ambit of powers explicitly granted the Board by the Congress,' 332 F.2d, at 608. The Court of Appeals said that the present case was different because, in its view, the continuing supervision of the Board over the Toolco-TWA relationship was general and not related to specific conduct that gave rise to violations of the antitrust laws.
16
The transactions on the basis of which damages were awarded were based primarily on profits lost as a result of five transactions relating to orders placed by Toolco for a fleet of 63 jet aircraft destined for use by TWA. 449 F.2d, at 65—66:
17
(1) The diversion of six Convairs by Toolco to Northeast Airlines;
18
(2) The temporary retention by Toolco of four other Convairs and their ultimate lease to Northeast Airlines;
19
(3) The diversion of six Boeing jets out of 33 ordered to Pan American Airways; (4) The lease, instead of outright sales, of jets in 1959 1960; and
20
(5) The late delivery of 47 of the 63 jets.
21
One difficulty with the conclusion of the Court of Appeals that these transactions, unlike those involved in the Pan American case, were transactions on which the Board might take action but did not do so, is that it misconstrues the record. As noted, from 1944 through 1960 every acquisition or lease of aircraft by TWA from Toolco and each financing of TWA by Toolco required Board approval. Each transaction was approved by the Board and each approval was an order under § 408, for the Board regarded its transactional orders as modifications or interpretations of its antecedent control order. Each of the modification orders recited a finding of the Board that the transactions were 'just and reasonable and in the public interest.'
22
It is said, however, that while the Board modified its original 'control' order under § 408 so as to permit sale or lease of the aircraft out of which the alleged antitrust violations occurred, the approval of the Board did not sanction the precise way in which Toolco allegedly used the power to the disadvantage of TWA. But that is not an answer to the problem of exemption.
23
The Federal Aviation Act as construed the applied by this Court and the Civil Aeronautics Board dictates a contrary result.
24
In Pan American World Airways, Inc. v. United States, supra, the United States brought a civil antitrust action under §§ 1, 2, and 3 of the Sherman Act challenging the joint control of Panagra, an air carrier, by Pan American Airways and W. R. Grace & Co. The allegations were that Pan American, Grace, and Panagra had divided territories, that Pan American and Grace had conspired to monopolize air transportation on the west coast of South America, and that Pan American had used its power to prevent Panagra from extending its routes from the Canal Zone to the United States. The District Court found no division of territories and no conspiracy between Grace and Pan American but concluded that Pan American had violated the Sherman Act in interfering with Panagra's possible route extension. On cross appeals by Pan American and the United States, this Court held that the complaint should have been dismissed because § 411 of the Act gave the CAB broad power to investigate and bring to a halt unfair practices and unfair methods of competition, including those alleged in the complaint, and because if the courts were to intrude independently with their own construction of the antitrust laws the two regimes might collide. Hence, relief against the alleged division of territories, allocation of routes, and conspiracy to monopolize was a matter exclusively for the Board. The Court also pointed out that under § 414 of the Act, Board orders carried antitrust immunity for any conduct authorized, approved, or required by the order and that it would be odd to hold that an affiliation between an air carrier and others that would pass muster under § 408 could nevertheless run afoul of the antitrust laws: 'Whether or not transactions of that character meet the standards of competition and monopoly provided by the Act is peculiarly a question for the Board, subject of course to judicial review as provided in 49 U.S.C. § 1486.' 371 U.S., at 309, 83 S.Ct., at 484, 9 L.Ed.2d 325.
25
As previously indicated, the Court of Appeals did not consider Pan American to be relevant or controlling because, different from the situation there, the conduct challenged in TWA's complaint against Toolco was 'unrelated to any specific function of the CAB' and hence was not within the exclusive competence of that body. 332 F.2d, at 608. This view is difficult to square with the statute and the several opinions and orders issued by the Board with respect to the relationship between Toolco and TWA.
26
The Act expressly forbade Toolco to acquire control of TWA without approval of the Board. Section 408, however, directed the Board to approve the acquisition if consistent with the public interest and empowered it to remedy any acquisition of control by Toolco obtained otherwise than in accordance with the Act. It is also perfectly clear that in 1944 the Board approved the acquisition of control of TWA by Toolco by virtue of of 45.6% stock ownership and that in 1948 and 1950 the Board approved a transaction that could have increased Toolco's holdings to 80% and transformed its de facto control into full legal, as well as practical, control.
27
In reaching this conclusion, the Board inquired broadly into all phases of the exercise of Toolco's control over TWA during the years 1944—1947. It was not only proper but necessary in determining whether further acquisition of control was consistent with the public interest to examine 'into the actions and policies of the controlling company . . . (f)or inevitably the controlling company, by virtue of its investment in the acquired carrier, will endeavor to make itself accountable . . . for the managerial efficiency, the operating economy, and the financial integrity of the controlled carrier.' 12 C.A.B., at 196. Hence, of major interest to the Board were the decisions of Toolco with respect to the type, quantity, timing, and financing of new equipment acquisitions by TWA. It examined and dealt with in great detail the assertions that Toolco had improperly delayed the arrival of new equipment, had insisted on debt rather than equity financing, and itself had sold or leased aircraft to TWA. All of these matters, the Board concluded, were central to proper determination of the issue of the additional control and, indeed, to the additional question before the Board as to whether the existing relationship should have been completely terminated.
28
The point is that the conduct of Toolco with which the Board so extensively dealt in 1950 is the same kind of conduct charged to Toolco in the 1950's and alleged by TWA in its complaint to violate the antitrust laws. It is, therefore, difficult to understand how the Court of Appeals could conclude that the acts of Toolco in controlling, allegedly to the injury of TWA, the timing, the financing, and the flow of new equipment to TWA were unrelated to any function of the Board under the Act. Clearly, such considerations were in the mainstream of the Board's § 408 responsibilities to insure that only those acquisitions of control that are in the public interest are approved.
29
Nor is it tenable to argue that, however relevant Toolco's new equipment decisions might have been to the public-interest standard mandated for Board approval of the additional control obtained in 1947, the Board's authority nevertheless terminated with that approval and that the Board, having issued its approval, was powerless to control or oversee its exercisde in the years to come. Section 408 permits only those acquisitions of control that are not inconsistent with the public interest and that will not result in a monopoly. It also authorizes the Board to approve acquisitions subject to such conditions as it may deem desirable. Section 408(e) empowers the Board to investigate and remedy violations of § 408(a). If a carrier has acquired control 'in any manner whatsoever' other than that approved by the Board, the Board is authorized either on complaint or its own initiative to investigate and if a violation is discovered it is ordered to remedy that situation. Section 204(a), 49 U.S.C.A. § 1324(a), authorizes the Board to issue and amend such orders as it shall deem necessary to carry out the provisions of and to exercise and perform its powers and duties under the statute.12
30
It seems sufficiently apparent, therefore, that the Board did not exhaust its powers with respect to Toolco's control of TWA when it issued its order of approval in Docket No. 1182 in 1944. Obviously, the Board remained competent to enforce or to waive the conditions attached to that order. It did so many times. See n. 10, supra. It also is clear from the 1948 and 1950 proceedings, where the Board's jurisdiction was challenged, that its jurisdiction was triggered not only by substantial additional acquisitions of stock but by any change in the extent or effectiveness of Toolco's control or in Toolco's position in the aeronautics industry. The Board also implied that had Toolco's exercise of control over TWA from 1942 to 1947 been sufficiently unacceptable to foreclose the additional acquisition of control, reopening of Docket No. 1182 and re-examination of the initial approval would have been justified.
31
We have little doubt that the authority of the Board, either on complaint or its own initiative, extended to forbidding any exercise of control by Toolco which was not authorized or contemplated by the initial or subsequent approval. This seems the clear import of the Act and of the Board's 1948—1950 proceedings.
32
Also instructive is the Board's response when asked in 1956 to modify its original order so as to permit TWA's purchase of up to 25 jet-powered aircraft from Toolco. Reciting that its prior approvals of Toolco's control of TWA had been premised upon the assumption that Toolco was not engaged in the manufacture or sale of aircraft for commercial use, the Board forthwith opened an investigation to determine whether Toolco's position in the aeronautics industry had so changed as to result in a transaction subject to the Board's jurisdiction under § 408. The motion for waiver of the 1944 condition was consolidated with this new proceeding. The proceeding was later canceled when the motion to waive the 1944 condition was withdrawn, but clearly the Board thought, and rightly so, that it had continuing power to audit the orgoing relationship between TWA and Toolco.
33
It is also difficult to read in any other manner the recital by the CAB, in the course of approval of the 1960 voting trust arrangement, of Toolco's alleged conduct in delaying the delivery of new equipment and dictating the financing of same, all to TWA's alleged injury, followed by its assertion that such conduct 'presented substantial problems requiring the Board's attention.' 32 C.A.B., at 1365.
34
It is therefore no answer to say that our Pan American decision does not cover the alleged antitrust violations involved in the Toolco-TWA transactions for which treble damages were sought. As noted, § 408(b) states that the Board shall not approve any 'acquisition of control' which would result 'in creating a monopoly or monopolies and thereby restrain competition or jeopardize another air carrier.' Moreover, the Board in granting permission to 'control' an air carrier must consider the standards of the public interest as defined in § 102 of the Act. Among such standards is that set forth in § 102(c), which, as indicated, ante, at 368 n. 4, provides:
35
'The promotion of adequate, economical, and efficient service by air carriers at reasonable charges, without unjust discriminations, undue preferences or advantages, or unfair or destructive competitive practices.'
36
Competition and monopoly13—two ingredients of the antitrust laws—are thus standards governing the CAB's exercise of authority in granting, allowing, or expanding or contracting the control which Toolco had over TWA by reason of the various orders issued by the CAB under § 408. In this context, the authority of the Board to grant the power to 'control' and to investigate and alter the manner in which that 'control' is exercised leads us to conclude that this phase of CAB jurisdiction, like the one in the Pan American case, pre-empts the antitrust field.14 It should be noted in that connection that in the Pan American case, Pan American, which owned 50% of the stock of the air carrier Panagra, was charged with using its control to prevent Panagra from receiving the authority of the CAB to extend its route from the Canal Zone to the United States. That restraint was held beyond the reach of the antitrust laws even though the CAB had taken no action to investigate, let alone act on, the alleged misfeasance as the Board has done here for over 16 years.
37
We think the Court of Appeals erred also in construing § 414, which immunizes from antitrust liability any conduct approved, authorized, or required by any Board order issued under § 408. As we read this record, the Board not only approved Toolco's ownership of TWA stock but it also contemplated actual and legal control of TWA by Toolco. The Board made it as plain as possible that Toolco's stock ownership would inevitably result in Toolco's exercising authority over the day-to-day affairs of TWA, including the acquisition and financing of equipment. It was precisely this kind of control the Board approved. Toolco's power of decision with respect to these matters was central to the public-interest issue. What is more, the Board not only concluded that Toolco's stewardship, although faulty in some respects, had been a great benefit to TWA and to the public in years gone by, but also determined that the additional control sought by Toolco and continuation of TWA-Toolco relationships were essential to the public interest.
38
It is too clear for argument that in entering the 1950 order the Board fully realized that Toolco had determined and would determine when and how much new equipment would be purchased, from whom it would be acquired, and how it would be financed. It was precisely this type of association that it contemplated when it approved the additional control obtained by Toolco in 1947. And it was precisely this same conclusion that the Board was implementing each time during the 1950's that it approved a sale or a lease of an airplane from Toolco to TWA which, without its approval, would have violated the Board's ongoing limitation on the size of intercompany transactions.
39
We repeat, however, what we said in the Pan American case that the Federal Aviation Act does not completely displace the antitrust laws.
40
'While the Board is empowered to deal with numerous aspects of what are normally thought of as antitrust problems, those expressly entrusted to it encompass only a fraction of the total.' 371 U.S., at 305, 83 S.Ct., at 482, 9 L.Ed.2d 325.
41
One of the most conspicuous exceptions would be the combination or agreement between two air carriers involving trade restraints. See Timken Co. v. United States, 341 U.S. 593, 598, 71 S.Ct. 971, 974, 95 L.Ed. 1199.
42
There may be other exceptions. But where, as here, the CAB authorizes control of an air carrier to be acquired by another person or corporation, and where it specifically authorizes as in the public interest specific transactions between the parent and the subsidiary, the way in which that control is exercised in those precise situations is under the surveillance of the CAB, not in the hands of those who can invoke the sanctions of the antitrust laws. As noted, the parent company which controls an air carrier is subject to pervasive control by the CAB. The control which the CAB is authorized to grant or to deny under § 408 involves an appraisal of the impact of that control in terms of monopoly and competition; and the ongoing supervision entrusted to the CAB by § 415 is broad enough to put all transactions between parent and subsidiary—as originally conceived or subsequently exercised—under CAB supervision.
43
We cannot believe that if the day after the Board's order of 1950, a minority stockbroker had instituted a derivative antitrust suit against Toolco, alleging that Toolco had monopolized the TWA market from 1944 to 1950, delayed deliveries of aircraft, and insisted on improvident financing arrangements, such a suit could have survived a motion to dismiss based on § 414. Such an action would have sought to negate what the Board, after full investigation, had found consistent with § 408's antimonopoly provision, consistent with § 102's competition standard, and consistent with the public interest.
44
TWA's suit in 1961 carries no better credentials, for it sought to terminate a relationship the continuation of which the Board had found essential to both TWA and the public interest and to penalize the type of conduct which the Board expressly contemplated and preferred would continue unless and until a different order from the Board was forthcoming.
45
It adds nothing to the analysis to characterize Toolco's exercise of power over TWA as monopolization of the TWA market, for it was precisely such control that the Board opted for in 1944 and 1950. Moreover, a condition of the order was that Toolco's sales to TWA could not assume more than negligible proportions without in every instance the Board's approving the transaction as being consistent with the public interest. Nor does it add to the argument to describe Toolco's conduct as furthering a tying or exclusive-dealing arrangement or as a conspiracy to restrain trade in that market represented by TWA.
46
The short of it is that in our view §§ 408 and 414 of the Act, as construed in Pan American, require reversal of the Court of Appeals and dismissal of this action. What TWA charged in its complaint was no more than the kind of conduct the CAB in 1950 had approved and authorized for the future; and, in any event, such conduct was within the power of the Board to control and was central to the mandate of § 408 to permit control of TWA by Toolco only if consistent with the public interest.
47
We by no means hold that the Federal Aviation Act completely displaces the antitrust laws. Pan American, 371 U.S., at 305, 83 S.Ct., at 482, 9 L.Ed.2d 325. But where, as here, the CAB authorizes control of an air carrier to be acquired by another person or corporation, and where the CAB specifically authorizes as in the public interest specific transactions between the parent and the subsidiary, the way in which that control is exercised in those precise situations is under the surveillance of the CAB, not in the hands of those who can invoke the sanctions of the antitrust laws. The control which the CAB is authorized to grant or to deny under § 408 involves an appraisal of the impact of that control in terms of monopoly and competition; and the ongoing supervision entrusted to the CAB by § 415 is broad enough to put all transactions between parent and subsidiary—as originally conceived or subsequently exercised—under CAB supervision.
48
This conclusion necessitates a dismissal of the cross-petition, a reversal of the judgment below, and a remand with directions to dismiss the complaint, as the numerous other points briefed and argued become irrelevant in that posture of the litigation.
49
Reversed.
50
Mr. Justice MARSHALL took no part in the consideration or decision of these cases.
51
Mr. Chief Justice BURGER, with whom Mr. Justice BLACKMUN joins, dissenting.
52
The history of this cause is so remarkable—indeed unique in the annals of modern federal jurisprudence, so far as I am aware that I must preface my dissent on the merits with a recital of the course of this litigation over nearly a dozen years. This protracted litigation, conducted at enormous cost, now comes to an abrupt end on an issue directly presented to this Court nearly eight years ago but not decided. As the strange history will demonstrate, resolution of the issue when it was first before the Court, as now decided, would have terminated this litigation without having the parties invest untold efforts and vast expense in a now wholly irrelevant contest over the proper measure of damages.
53
On June 30, 1961, TWA filed a complaint against the Hughes Tool Co. in the United States District Court for the Southern District of New York, charging violations of the antitrust laws. On February 7, 1962, the District Court filed a pretrial order, appointing a Special Master to act in discovery and deposition proceedings. After discovery proceeded to an impasse, on February 1, 1963, the District Court ordered Howard Hughes to appear for a deposition and ordered the defendant Toolco to produce certain documents that it had previously refused to produce. Shortly thereafter, on February 7, 1963, the District Court entered a memorandum opinion and order denying a motion to dismiss TWA's complaint.1 In response to the order to produce Hughes for examination along with the contested documents, Toolco filed a 'notice of position,' on February 8, 1963, advising the District Court and TWA that it had chosen to rest on the merits of its positions in order to 'avoid the burdens and expenses involved in further pretrial and trial proceedings prior to the time that an appellate court has had the opportunity to rule upon the decisions and orders heretofore made herein.'
54
This 'notice of position' constituted a default and accordingly judgment was entered against Toolco, on May 3, 1963. The District Court then certified to the United States Court of Appeals for the Second Circuit the question of the sufficiency of the complaint on which the default judgment was based. The issue of damages was referred to the Special Master. On June 2, 1964, the Second Circuit issued an opinion in which it decided that the District Court had jurisdiction of the action and that the orders of the Civil Aeronautics Board affecting the relationship between the parties did not constitute a good defense to the antitrust claims of TWA.2 On November 16, 1964, this Court granted certiorari to review the judgment of the Court of Appeals.3 After full argument and briefing, but without opinion, the writ was dismissed as improvidently granted on March 8, 1965,4 and the case returned to the District Court for further proceedings to determine the amount of TWA's damages.
55
For nearly three years, proceedings were held before the Special Master5 to determine the appropriate amount of damages. On December 23, 1969, the District Court filed a new opinion confirming a report of the Special Master awarding damages amounting to $137,611,435.95.6 On April 14, 1970, the District Court filed a superseding order in which it added to the TWA award $7,500,000 as a reasonable attorney's fee (representing some 56,000 hours of work at a 'mixed rate' of $128 per hour) and $336,705.12 in costs, for a total of $145,448,141.07, plus interest. The judgment was stayed pending a renewed appeal to the Court of Appeals, which, on September 1, 1971, affirmed the judgment of the District Court, with only slight modification.7
56
This Court again granted certiorari on February 22, 1972,8 and today—more than 11 years after it all began and more than seven years after the now-determinative issue was brushed aside by this Court—the Court discovers that the actions alleged in TWA's complaint were immunized from the antitrust laws by the Civil Aeronautics Board's role in the Toolco—TWA relationship. This, of course, was the precise issue tendered to this Court for decision in 1964 in order to secure an early decision that might end the contest before enormous additional sums were expended in proving damages resulting from the actions alleged in TWA's complaint.9
57
This capsule chronicle of the present litigation barely suggests its factual complexity. To describe this litigation as a 20th-century sequel to Bleak House is only a slight exaggeration. Dickens himself could scarcely have imagined that 56,000 hours of lawyering at a cost of $7,500,000 would represent the visible expenses of only one party to a modern intercorporate conflict, to say nothing of the time of corporate and management personnel diverted from their daily tasks.10 Indeed, today's 'ending' is quite a surprise—as great a surprise for some of us as it must be for the parties. I suggest it will even surprise the victors, for in the oral argument to this Court only a few fleeting comments were devoted to the point that now becomes the dispositive issue in the case. Of course, this was a sound allocation by counsel of the limited time allowed for argument since the Court had not considered the point worthy of notice in 1964 when the case was first here.
58
To be sure, all this is secondary to the correctness of today's decision. I am unable to join the Court's disposition because I believe it departs markedly from our prior decisions uniformly holding that repeal of the antitrust laws to accommodate other federal regulatory statutes 'is to be regarded as implied only if necessary to make the (regulatory scheme) work, and even then only to the minimum extent necessary.' Silver v. New York Stock Exchange, 373 U.S. 341, 357, 83 S.Ct. 1246, 1257, 10 L.Ed.2d 389 (1963). In particular, the Court today substantially enlarges the scope of Pan American World Airways, Inc. v. United States, 371 U.S. 296, 83 S.Ct. 476, 9 L.Ed.2d 325 (1963), a case which the Court says 'requires' the result it reaches today—notwithstanding that Pan American's teaching was available in Volume 371 of the United States Reports when the Court dismissed the writ in this cause as improvidently granted.
59
* Passing to the merits of the Court's holding, I find it necessary at the outset to supplement the Court's description of the statutory framework from which this litigation arises. Section 408 of the Federal Aviation Act of 1958, 49 U.S.C. § 1378,11 requires the approval of the CAB when any person12 seeks to acquire a controlling interest in any air carrier. The Board may approve such acquisition only if it finds that the acquisition will be consistent with the public interest. § 408(b), 49 U.S.C. § 1378(b). Specifically, the Board 'shall not approve any . . . acquisition of control which would result in creating a monopoly or monopolies and thereby restrain competition or jeopardize another air carrier not a party to the . . . acquisition of control.' Ibid.
60
The Act fails to elaborate on the scope of its command to the CAB not to approve any acquisition that would create a monopoly and thereby restrain competition. In other words, the Act fails to specify the relevant market or markets to which the Board must look in determining whether a particular acquisition or exercise of control is forbidden. Section 102 of the Act,13 enumerating the general policies that are to guide the Board is similarly ambiguous. It includes among those factors to be weighed in evaluating the 'public interest' factor under the Act '(c)ompetition to the extent necessary to assure the sound development of an air-transportation system properly adapted to the needs of the . . . commerce of the United States . . ..' Again, though, the question is: competition by whom? In which market or markets?
61
There can be no doubt the Board is responsible for promoting competition in some sense; our inquiry is whether the Board is charged with fostering competition both within the air transportation market and without, in other markets essentially unrelated to air transportation and alien to the purposes for which the Board was created. Resolution of this ambiguity is critical to proper interpretation of § 414 of the Act,14 which confers antitrust immunity upon '(a)ny person affected by any order made under (§ 408, inter alia) . . . insofar as may be necessary to enable such person to do anything authorized, approved, or required by such order.' What is 'authorized, approved, or required' by the CAB must surely by determined, at least to a very large extent, by the scope of the Board's mandate to evaluate potentially anticompetitive conduct.
II
62
The Court today neglects to resolve, or indeed even mention, this problem, and well it might, for the legislative history of the Act demonstrates that the competitive concerns that troubled the framers of the Aviation Act related exclusively to competition by and among air carriers. A major impetus to federal regulations of air transportation was the failure of the preceding era of freely competitive price and route warfare to bring stability to the Nation's air transport industry. In his statement accompanying the report of the Committee on Commerce on the Civil Aeronautics Act of 1938, Senator Copeland stated:
63
'Competition among air carriers is being carried to an extreme, which tends to jeopardize the financial status of the air carriers and to jeopardize and render unsafe a transportation service appropriate to the needs of commerce and required in the public interest, in the interests of the Postal Service, and of the national defense. Aviation in America today, under present laws, is unsatisfactory to investors, labor, and the air carriers themselves. . . . The committee feels that this bill will not only promote an orderly development of our Nation's civil aeronautics, but by its immediate enactment prevent the spread of bad practices and of destructive and wasteful tactics resulting from the intense competition now existing within the air-carrier industry.' S.Rep.No.1661, 75th Cong., 3d Sess., 2 (1938).
64
Similar views were voiced by the Chairman of the House Committee on Interstate and Foreign Commerce, Congressman Clarence Lea:
65
'Under existing law there is little economic regulation of air carriers. Routes are awarded not upon the basis of the ability of the particular air carrier to perform the service or the requirements of the public convenience and necessity, but upon the letting of air-mail contracts to the lowest responsible bidders. This system has completely broken down in recent months, because the air carriers, in their desire to secure the right to carry the mail over a new route, have made absurdly low bids, indeed, have virtually evinced a willingness to pay for the privilege of carrying the mail over a particular route. A route once secured, however, under the existing system of air-mail contracts does not protect the air carrier operating that route from possible cutthroat competition, for air carriers are not required to secure a certificate or other authorization from the Government before beginning operations, other than one based upon safety requirements. Nor, is there any authority in the Federal Government under existing law to prevent competing carriers from engaging in rate wars which would be disastrous to all concerned.
66
'The result of this chaotic situation of the air carriers has been to shake the faith of the investing public in their financial stability and to prevent the flow of funds into the industry.' H.R.Rep. No. 2254, 75th Cong., 3d Sess., 2 (1938).
67
A key aim of the new legislation, then, was to eliminate 'cutthroat competition' among air carriers. From the beginning, the air carriers pushed for a scheme of regulation to control entry and regulate price competition in the air transportation market. Yet equally soon after serious consideration of an air regulation bill began, the prospect of regulation gave rise to concern that the new system of regulation might be used to foster the development of an 'airline trust' or similar overconcentration in the air transportation market. In 1937, Commissioner Eastman of the Interstate Commerce Commission, who supported full federal regulation of air transportation, reminded the members of the Senate Commerce Committee that the proposed legislation would give the Commission unlimited authority to consolidate the Nation's airlines and, possibly, to do away with competition altogether. Eastman suggested that language be drafted to preclude undue consolidation among carriers.15 As one commentator has stated, 'Eastman's suggestion appears to have been heeded, for when the (1937) bill was reported, the merger clause contained (the language which became the anti-monopoly restriction of section 408).' Comment, Merger and Monopoly in Domestic Aviation, 62 Col.L.Rev. 851, 856—857 (1962). Final consideration of the Aviation bill was postponed until the next session of Congress, but when Senator McCarran and Representative Lea introduced legislation at the 1938 session to create an independent air regulatory agency, both bills 'contained a monopoly proviso virtually identical to the one that had been added to the 1937 bills, as reported.' Id., at 857.
68
To implement § 408's scheme for balancing stability with competition in the air transportation market, the bill provided explicit antitrust immunity in § 414.16 The debates over § 414 like the origins of § 408—reflect congressional concern with competition in the air transportation market. Senator McKellar asked Senator Truman, a major supporter of the aviation bill, if it were true that the proposed legislation would repeal the antitrust provisions of the existing airmail laws. When Senator Truman answered in the affirmative, Senator McKellar complained that:
69
'(S)uch a provision is very inadvisable, and very bad legislation, and ought never to be agreed to.
70
As everyone knows, at the present time the air companies are complaining that they are not allowed to consolidate. Some years ago we allowed them to consolidate, and the result was the greatest ill that ever befell the air companies. The same ill will befall them again if such combinations are permitted.
71
'I desire to state that I cannot vote for any bill which proposes that a commission shall give air companies the right to combine and confederate into a huge monopoly. I regret very much that I shall have to vote against the bill.' 83 Cong.Rec. 6728—6729.
72
Senator McCarran disagreed. He told Senator McKeller that the bill 'contain(ed) every protection against the very thing which the Senator from Tennessee fears.' Senator Truman reminded his colleagues of the § 408 proviso requiring that the Board approve no acquisition of control that would 'result in creating a monopoly or monopolies and thereby restrain competition or jeopardize another air carrier not a party to the consolidation . . ..' Senator McCarran agreed that 'every precaution has been written into the bill so that the antitrust laws and all laws for the prevention of combinations and monopolies shall be enforced. . . . Protection has been written into the bill against combinations and monopolies in restraint of trade, in restraint of commerce, and in restraint of everything which would constitute a monoply.' Id., at 6729. Senator Copeland recited five different provisions of the bill 'where the question of monopoly is dealt with in one way or another with the view to its control and prevention.' When the debate turned from the discussion of general principles to application of those principles to a particular fact situation, again the Senators spoke of consolidation and competition by air carriers.17
73
Thus, the debates, as well as the remainder of the legislative history of the 1938 Act, reflect that the Congress that enacted the 1938 legislation was concerned only with problems of competition and monopoly in the air carrier market. Moreover, the debates show that there was considerable concern over even the limited grant of antitrust immunity deemed necessary to provide the proposed authority with sufficient flexibility to administer the air carrier market in the public interest. It is most unlikely that the concerns expressed would have been put to rest by extending the new authority's pre-emptive antitrust responsibilities under § 408 beyond the air transportation market into every market that might happen to be touched by transactions with an air carrier.
III
74
Our holding in Pan American World Airways, Inc. v. United States, 371 U.S. 296, 83 S.Ct. 476, 9 L.Ed.2d 325, becomes important in this setting. There, the Government filed an antitrust complaint alleging, inter alia, anticompetitive interference by Pan American with the route acquisitions of Panagra, a joint venture of Pan American World Airways and W. R. Grace & Co. This Court held that the complaint should be dismissed. The Court stood behind the presumption against implied antitrust immunity, 371 U.S., at 304—305, n. 9, 83 S.Ct., at 482, 9 L.Ed.2d 325; however, for two interdependent reasons, the Court held that the conduct alleged in Panagra's complaint was immunized from the antitrust laws. First, the conduct specified in the complaint fell within the Board's basic mission and competency—the regulation of entry into and competition within the air transportation market:
75
'Limitation of routes and divisions of territories and the relation of common carriers to air carriers are basic in this regulatory scheme.' Id., at 305, 83 S.Ct., at 482.
76
Second, and equally important, we held that § 411 of the Act gave the Board a specific substantive mandate to investigate and regulate unfair practices and unfair methods of competition among air carriers in the air transportation market, id., at 302, 308, 83 S.Ct., at 480, 484.
77
In Pan American the Board had not only the statutory power to supervise the relevant transactions but also the statutory responsibility to remedy the abusive features of those transactions specified in the Panagra complaint. Consequently, 'If the courts were to intrude independently with their construction of the antitrust laws, two regimes might collide.' Id., at 310, 83 S.Ct., at 485. Even this narrow holding provoked the dissent of Mr. Justice Brennan, in which Mr. Chief Justice Warren joined.
78
The present case is different from Pan American in a critical respect. Here, we may assume the Board possesses full authority under the Act to supervise § 408 transactions between a controlling person and an air carrier—just as in Pan American, the allocation of routes and division of territories constituted the basic stuff of the Board's day-to-day business. Yet, unlike the acts specified by Panagra in Pan American, the acts charged in TWA's complaint are components of an antitrust conspiracy to restrain trade in the aircraft supply and manufacturing market. Section 411 does not command Board responsibility for preventing such a conspiracy, since § 411 is in terms restricted to unfair methods of competition 'in air transportation or the sale thereof.' Thus, to sustain its result in this case, the Court must fall back on one (or both) of two propositions: it must either find some specific authority in the Federal Aviation Act other than § 411 for its conclusion that the Board's mandate to police anticompetitive practices extends to the subject matter of TWA's complaint; or it must consider such statutory authority irrelevant to a finding of antitrust immunity. Neither approach is, in my view, sound.
IV
79
A. Improbable as it seems, there is much in the Court's opinion to suggest that its judgment rests upon the assumption that antitrust immunity is conferred here simply by virtue of a rather extensive grant of procedural authority for the Board to intervene in the control-person-air-carrier relationship. The Court recounts in detail the history of the Board's involvement in the Toolco-TWA relationship—though the Court does not suggest, as it cannot, that the Board specifically considered the actions by Toolco alleged in TWA's complaint to violate the antitrust laws.18 The Court tells us that in 1950, the Board embarked upon a wide-ranging evaluation of the treatment afforded TWA by Toolco as controlling person though the Court does not suggest, as again it cannot, that the 1950 proceeding of the Board even remotely considered Toolco's actions as components of an antitrust conspiracy directed toward the aircraft supply and manufacturing market.19 Finally, the Court makes much of the powers of investigation and continuing supervision provided by § 415 of the Act—though the Court does not acknowledge that those powers are explicitly limited by Congress to Board actions '(f)or the purpose of exercising and performing (the Board's) powers and duties under this Act,' and are therefore no indication of the scope of the Board's substantive responsibility.
80
The weakness inherent in the Court's recitation of 'procedural underbrush' is that it leaps from the premise of the Board's acknowledged procedural power to intervene in § 408 'control' transactions to the conclusion that the Board's substantive statutory duty to consider the anticompetitive impact of such transactions is or, for some reason of policy, ought to be equally unlimited. Yet, inescapably, it is the Board's substantive mandate upon which antitrust immunity properly turns; as our prior decisions teach, the potential of colliding substantive judgments forces the carving out of antitrust immunity, not simply the overlapping of jurisdiction to intervene in a particular type of transaction. We have uniformly insisted upon a substantive mandate to the regulatory agency to consider fully and remedy the relevant anticompetitive conduct. See, in addition to Pan American, supra, United States v. Borden Co., 308 U.S. 188, 206, 60 S.Ct. 182, 191, 84 L.Ed. 181 (1939) (relevant provision of Capper-Volstead Act 'does not cover the entire field of the Sherman Act'); Georgia v. Pennsylvania R. Co., 324 U.S. 439, 458, 65 S.Ct. 716, 726, 89 L.Ed. 1051 (1945) ('no warrant in the Interstate Commerce Act and the Sherman Act for saying that the authority to fix joint through rates clothes with legality a conspiracy to discriminate against a State or a region, to use coercion in the fixing of rates, or to put in the hands of a combination of carriers a veto power over rates proposed by a single carrier'); Maryland & Virginia Milk Producers Assn. v. United States, 362 U.S. 458, 469, 80 S.Ct. 847, 855, 4 L.Ed.2d 880 (1960) (§ 7 of Clayton Act immunized 'transactions duly consummated pursuant to authority given by . . . the Secretary of Agriculture' under statutory authority, but this included only marketing agreements and not agreements or restraints of wider scope typically covered by the antitrust laws); California v. Federal Power Comm'n, 369 U.S. 482, 485, 82 S.Ct. 901, 904, 8 L.Ed.2d 54 (1962) ('Here . . . while 'antitrust considerations' are relevant to the issue of 'public interest, convenience, and necessity' . . . there is no 'pervasive regulatory scheme' . . . including the antitrust laws that has been entrusted to the Commission'); United States v. Philadelphia National Bank, 374 U.S. 321, 351—352, 83 S.Ct. 1715, 1734—1736, 10 L.Ed.2d 915 (1963) (though Comptroller of Currency was required to consider effect on competition in passing on bank merger, not required to give the factor any particular weight, to hold a hearing, or to subject his determination to judicial review).
81
B. The major premise of the Court's decision must, then, be that the Federal Aviation Act imposes on the Board full responsibility for evaluating and preventing anticompetitive impact, of whatever variety, flowing from a control transaction touching an air carrier. As the Court puts it, 'Competition and monopoly—two ingredients of the antitrust laws—are thus standards governing the CAB's exercise of authority in granting, allowing, or expanding or contracting all control which Toolco had over TWA by reason of the various orders issued by the CAB under § 408.' I cannot agree with the Court's reading of the provisions of the Act that require the Board of maintain competition. The Court offers no support for its reading of those provisions; and, as I have already indicated, the legislative history surely provides none. Moreover, the Board itself has consistently interpreted the Act not to impose on it the expansive role the Court now perceives for the first time. In a brief amicus curiae filed in 1964 and again in 1972, the Board disclaimed the mandate or the competency to police the aircraft supply market or any non-air carrier market which may be threatened by anticompetitive acts involving control of an air carrier. We have only recently reaffirmed the well-established doctrine that the consistent administrative construction of federal legislation 'is entitled to great weight.' Trafficante v. Metropolitan Life Insurance Co., 409 U.S. 205, at 210, 93 S.Ct. 364, at 367, 34 L.Ed.2d 415; Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616 (1965); Griggs v. Duke Power Co., 401 U.S. 424, 433—434, 91 S.Ct. 849, 854—855, 28 L.Ed.2d 158 (1971). As for the Board's competence to do the job assigned it by the Court, we are not tied to the Board's self-appraisal, but 'it is entitled to some weight,' particularly when the legal issue surrounding Toolco's alleged behavior in the aircraft supply market 'are typical antitrust problems and not at all typical airline law problems.' 'The search for a practical accommodation of court and agency . . . is not advanced by our ignoring the agency's considered sense of self-limitation.' Pan American World Airways, supra, 371 U.S., at 328, 330, 83 S.Ct., at 494 (Brennan, J., dissenting).
82
If the Board's basic function, the Act's legislative history, and the Board's view of its own mandate and competence were not enough to convince me that the Court's reading of the Act is erroneous, these factors are at least enough to raise substantial doubts. Such doubts, as our prior cases teach, are enough to secure the continuing availability of antitrust or other judicial remedies as additional safeguards for protection of the public interest. 'Repeals of the antitrust laws by implication from a regulatory statute are strongly disfavored.' United States v. Philadelphia National Bank, supra, 374 U.S., at 350, 83 S.Ct., at 1734, United States v. Borden Co., 308 U.S., at 198, 60 S.Ct., at 188 ('a cardinal principle of construction that repeals by implication are not favored'). See United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 226—228, 60 S.Ct. 811, 846 847, 84 L.Ed. 1129 (1940); Georgia v. Pennsylvania R. Co., 324 U.S., at 456—457, 65 S.Ct., at 725—726; California v. Federal Power Comm'n, 369 U.S., at 485, 82 S.Ct., at 903, and 14 additional cases cited in Mr. Justice Brennan's opinion for the Court of United States v. Philadelphia National Bank, supra, 374 U.S., at 350 n. 28, 83 S.Ct., at 1734. The traditional aversion to implied repeal of the antitrust laws should have particular force in the context of the Federal Aviation Act, which explicitly states that '(n)othing contained in this chapter shall in any way abridge nor alter the remedies now existing at common law or by statute, but the provisions of this chapter are in addition to such remedies.' 49 U.S.C. § 1506; and see Pan American World Airways, supra, 371 U.S., at 321, 83 S.Ct., at 490 (Brennan, J., dissenting).
83
Nor does not Court's result seem justifiable for practical reasons of regulatory accommodation. Indeed, I find the Court's expansive reading of the Board's antitrust responsibilities inconsistent with our duty 'to make the (regulatory scheme) work.' Silver v. New York Stock Exchange, 373 U.S., at 357, 83 S.Ct., at 1257. Section 408 of the Act has now been amended to require Board approval when any person, whether or not engaged in any aspect of aeronautics, acquires a controlling interest in an air carrier. In this age of conglomerate mergers, the time may soon arrive when another industrial corporation seeks to acquire control of an air carrier. It may well be that some similar future acquisition may be in the best interests of American air transportation. It may likewise pose serious anticompetitive dangers. The Court's decision today will, I think, provide a serious obstacle to proper consideration of any such transaction that may be proposed in future years, since the Board will be faced with a difficult dilemma. If it approves the control acquisition, under the terms of the Court's decision the Board engages itself to exercise continuing supervision over all aspects of the control relationship, including the anticompetitive impact of the relationship in the computer market, the hotel market, the insurance market, the credit market, or whatever market happens to be affected by the control transaction. Quite understandably, the Board's response may be to play it safe, in keeping with its own advice to this Court that it cannot effectively function as the ombudsman of the American economy whenever that economy touches air transportation in any way. On the other hand, the Board may feel obliged to heed the Court's yawning interpretation of § 408. This course of action poses the threat that the Board will have extended itself so far beyond its competence and manpower that it is diverted from those central tasks of regulation imposed on it by § 408 of the Act. In either event, I cannot imagine that the Court's new reading of § 408 will contribute to the effective enforcement of the congressional scheme for promoting a sound national system of air transportation.
84
Returning to the 1964 efforts of Toolco to have the Court resolve the issue of the Board's authority with respect to the antitrust issue, it is elementary, of course, that a denial of a petition for certiorari decides nothing. It is also true that dismissal of a petition as improvidently granted, after full oral argument and briefing, is not a judgment on the merits in any sense. But when parties to litigation reach that stage and the Court fails to respond with a decision on the merits, lawyers read that as a signal that the case should proceed. These parties did so—for nine years and more than 15 million dollars in legal expense—only to be told by the Court now that on the facts there is no legal liability—the very issue that could as well have been decided in 1964 as today. All of the litigation since 1964 has been confined to the massive task of determining damages and it will not do to say that the Court could not resolve the legal issues until damages were ascertained. Precisely the contrary is true.
85
For these reasons, I respectfully dissent from the Court's judgment. I would hold that actions permitted by the Board under § 408 of the Federal Aviation Act are 'authorized, approved, or required' by the Board's action (and thereby immunized by § 414 from antitrust liability) only to the extent that the antitrust claim falls within the core of the Board's statutory responsibility to regulate air transportation while maintaining, in that market, the maximum degree of competition consistent with the public interest. In view of the Court's disposition, it would not be fruitful for me to express at length my views on the other issues pressented to the Court, other than to note that, with modifications not relevant to the overriding issue, I would affirm the judgment of the Court of Appeals. At the very least, I would set the cases for reargument so the dispositive issue might be fully explored by the Court.
1
The District Court's judgment on entry of a default and certifying a controlling question of law is reported at 32 F.R.D. 604. The Court of Appeals affirmed, 332 F.2d 602. We granted certiorari, 379 U.S. 912, 85 S.Ct. 261, 265, 13 L.Ed.2d 184, but after argument dismissed the writ as improvidently granted. 380 U.S. 248, 249, 85 S.Ct. 934, 13 L.Ed.2d 817, 818. Moreover, our dismissal as improvidently granted was in 1965 and involved the 1964 judgment of the Court of Appeals. In 1971 a different panel of the Court of Appeals ruled that its 1964 decision was not binding. It noted that prior to its 1971 decision there had been no 'final judgment' with respect to the merits of TWA's cause of action against Toolco and therefore res judicata did not apply. 449 F.2d 51, at 58. It went on to say that collateral estoppel likewise did not apply, since the only relevant issue that was actually litigated and determined in the 1964 appeal was that the District Court 'properly entered the default on Toolco's counterclaims.' Ibid. That issue, it said, was 'a sharply distinguishable issue from the propriety of a different default judgment in favor of Toolco's adversary.' Ibid.
No party has suggested that our prior dismissal forecloses us from reaching the issue now presented.
The prior dismissal did not establish the law of the case or amount to res judicata on the points raised. Indianapolis v. Chase National Bank, 314 U.S. 63, 62 S.Ct. 15, 86 L.Ed. 47 (1941), was a diversity action in which the District Court, after realigning the parties, dismissed the action for want of jurisdiction. The Court of Appeals reversed and this Court denied certiorari. Two years later, after the Court of Appeals sustained plaintiff's claims on the merits, certiorari was granted and this Court reversed, holding that proper realignment 'precludes assumption of jurisdiction based upon diversity of citizenship.' 314 U.S., at 74, 62 S.Ct., at 19. Similarly, in Mercer v. Theriot, 377 U.S. 152, 84 S.Ct. 1157, 12 L.Ed.2d 206 (1964), a diversity action for wrongful death, certiorari was initially denied after the Court of Appeals had set aside a jury verdict on the grounds of various trial errors and insufficiency of the evidence. On remand, the District Court denied a motion for a new trial and the
Court of Appeals affirmed. We then granted certiorari and reversed because the trial errors did not affect substantial rights and the evidence at the trial was sufficient to sustain a verdict in petitioner's favor. See also Hanover Shoe, Inc. v. United Shoe Machinery Corp., 392 U.S. 481, 488 n. 6, 88 S.Ct. 2224, 2228, 20 L.Ed.2d 1231 (1968).
For the well-settled view that denial of certiorari imparts no implication or inference concerning the Court's view of the merits, see Maryland v. Baltimore Radio Show, Inc., 338 U.S. 912, 919, 70 S.Ct. 252, 255, 94 L.Ed. 562 (Frankfurter, J.).
2
See 449 F.2d, at 71.
3
Section 408, 72 Stat. 767, as amended, 49 U.S.C. § 1378, reads in pertinent part as follows:
'(a) Prohibited acts.
'It shall be unlawful unless approved by order of the Board as provided in this section—
'(2) For any air carrier, any person controlling an air carrier, any other common carrier, or any person engaged in any other phase
of aeronautics, to purchase, lease, or contract to operate the properties, or any substantial part thereof, of any air carrier;
'(5) For any air carrier or person controlling an air carrier, any other common carrier, any person engaged in any other phase of aeronautics, or any other person to acquire control of any air carrier in any manner whatsoever: Provided, That the Board may by order exempt any such acquisition of a noncertificated air carrier from this requirement to the extent and for such periods as may be in the public interest;
'(b) Application to Board; hearing; approval; disposal without hearing.
'Any person seeking approval of a consolidation, merger, purchase, lease, operating contract, or acquisition of control, specified in subsection (a) of this section. shall present an application to the Board, and thereupon the Board shall notify the persons involved in the consolidation, merger, purchase, lease, operating contract, or acquisition of control, and other persons known to have a substantial interest in the proceeding, of the time and place of a public hearing. Unless, after such hearing, the Board finds that the consolidation, merger, purchase, lease, operating contract, or acquisition of control will not be consistent with the public interest or that the conditions of this section will not be fulfilled, it shall by order approve such consolidation, merger, purchase, lease, operating contract, or acquisition of control, upon such terms and conditions as it shall find to be just and reasonable and with such modifications as it may prescribe: Provided, That the Board shall not approve any consolidation, merger, purchase, lease, operating contract, or acquisition of control which would result in creating a monopoly or monopolies and thereby restrain competition or jeopardize another air carrier not a party to the consolidation, merger, purchase, lease, operating contract, or acquisition of control . . ..'
In 1969, § 408(a)(5) was amended to include 'any other person' acquiring control of an air carrier.
4
Section 102, 49 U.S.C. § 1302, reads:
'In the exercise and performance of its powers and duties under this chapter, the Board shall consider the following, among other things, as being in the public interest, and in accordance with the public convenience and necessity.
'(a) The encouragement and development of an air-transportation system properly adapted to the present and future needs of the foreign and domestic commerce of the United States, of the Postal Service, and of the national defense;
'(b) The regulation of air transportation in such manner as to recognize and preserve the inherent advantages of, assure the highest degree of safety in, and foster sound economic conditions in, such transportation, and to improve the relations between, and coordinate transportation by, air carriers;
'(c) The promotion of adequate, economical, and efficient service by air carriers at reasonable charges, without unjust discriminations, undue preferences or advantages, or unfair or destructive competitive practices;
'(d) Competition to the extent necessary to assure the sound development of an air-transportation system properly adapted to the needs of the foreign and domestic commerce of the United States, of the Postal Service, and of the national defense;
'(e) The promotion of safety in air commerce; and
'(f) The promotion, encouragement, and development of civil aeronautics.'
5
Section 414, 49 U.S.C. § 1384, reads:
'Any person affected by any order made under sections 1378, 1379, or 1382 of this title shall be, and is hereby, relieved from the operations of the 'antitrust laws', as designated in section 12 of Title 15, and of all other restraints or prohibitions made by, or imposed under, authority of law, insofar as may be necessary to enable such person to do naything authorized, approved, or required by such order.'
See also §§ 1002(b), (c), of the Act, 49 U.S.C. §§ 1482(b), (c).
6
The Board's public counsel had opposed such a condition on approval as 'imposing far too great a burden upon the Board to ask it to pass upon the wisdom and propriety, in both a technical and business way, of every bargain made by a carrier for the purchase of equipment from a particular manufacturer.' Brief for Examiner 25 (filed Apr. 22, 1944). Public counsel's alternative proposed condition required Toolco to forfeit control in the event Toolco should manufacture or sell certain commercial aircraft or Highes 'should attempt to influence TWA with regard to the purchase, acceptance, or use by it of any aircraft or aircraft parts in the development or design of which he himself may have participated to a substantial degree.' 6 C.A.B., at 157. The Board rejected this proposal, reasoning as follows:
'The conditions proposed by public counsel are complicated and seem to be somewhat indefinite and difficult of enforcement. The object of any condition . . . should be to protect the public interest from any improper coercion of the air carrier by a controlling company on account of any interest which that controlling company may have in some other phase of aeronautics. This can be accomplished by a reasonable limit upon commercial transactions between the acquirer and the acquired which may be had without further consideration in this proceeding by the Board.' Ibid.
7
References to the Board's 1950 opinion are actually to the opinion of the Trial Examiner. But the Board adopted as its own 'the findings, conclusions, and recommended decision of the examiner' without modification. 12 C.A.B. 192, 193.
8
The Examiner found that it was 'necessary' for Toolco to acquire aircraft initially and then resell them to TWA on a conditional sales basis because TWA 'could not have purchased (the aircraft) directly without the specific consent of its principal creditors.' 12 C.A.B., at 218.
9
For example, the Examiner found that:
'Even before TWA's financial crisis of late 1946, the financial resources of Toolco were used to provide credit for the carrier. For example, the credit arrangements provided by Toolco made possible the placing of the original order for the Constellation airplane with the Lockheed Aircraft Corporation. There is little doubt that the Constellation would not have been developed as early as it had without the aid of Mr. Hughes and his company. In addition to the technical assistance from Mr. Hughes and his engineers in Toolco, the financial commitment which was necessary to undertake and continue the project could never have been made and met by TWA.' 12 C.A.B., at 216.
10
For example: On May 15, 1959, the Board authorized Toolco to lease 11 Boeing jets and 30 spare jet engines to TWA. The Board required that a separate lease be executed for each aircraft and modified the previous order under § 408 to permit aircraft lease transactions between TWA and Toolco and to authorize an agreement covering $3 1/2 million worth of spare parts.
On July 1, 1959, Toolco asked that 10 leases of Boeing aircraft to TWA be modified so as to permit the extension of the 10 leases under the same rental until no later than September 30, 1959, and to permit the lease under identical terms of four additional Boeing jets and to permit the purchase from Toolco at actual cost of additional spare parts necessary for the operation of the leased jet airliners. This order of the Board also constituted a modification of the original order of control granted under § 408.
On September 30, 1959, Toolco asked permission to extend the leases of 10 Boeing jets. The extension was to be under the identical terms of the original leases, the new leases to be terminated by either party within 24 hours on written notice. Here again the Board modified the original transaction under § 408.
On January 29, 1959, Toolco asked permission to lease to TWA on a day-to-day basis up to eight Boeing aircraft and up to eight Convairs, and for TWA to purchase from Toolco at actual cost such spare parts as were necessary and such other equipment as might be required. Here again the Board entered an order that qualified its original 'control' order under § 408.
11
In a footnote, the Board amplified what it meant by public-interest factors through reference to the following excerpt from its 1950 decision (12 C.A.B., at 196):
'Aside from any undesirable influence on an air carrier which might arise because of the acquirer's interest in a given phase of aeronautics, an acquirer of an air carrier is not without responsibility in other respects for an air carrier's general capacity to perform its public responsibilities. For inevitably the controlling company, by virtue of its investment in the acquired carrier, will endeavor to make itself accountable . . . for the managerial efficiency, the operating economy, and the financial integrity of the controlled carrier. Accordingly, in determining whether or not a particular acquisition should be approved, it is necessary to consider the over-all impact of the acquirer's plans and policies with respect to the controlled carrier.'
12
See also § 415 of the Act, 49 U.S.C. § 1385, which provides that:
'For the purpose of exercising and performing its powers and duties under this chapter, the Board is empowered to inquire into the management of the business of any air carrier and, to the extent reasonably necessary for any such inquiry, to obtain from such carrier, and from any person controlling . . . such air carrier, full and complete reports and other information.' (Emphasis added.)
13
The Board in an early decision refused to approve a joint agreement among carriers because of its antitrust aspects:
'Agreements of this nature, whereby a carrier operating in a particular territory obtains from a prospective competitor an undertaking, express or implied, not to attempt competitive operations, are likely to tend to impede the development of competition to the extent required by the present and future needs of the nation. Accordingly, we are of the opinion that such agreements thwart the purposes of the Act, and that their formation should in general be discouraged.' Pan American Airways, 3 C.A.B. 540, 546—547.
14
The Pan American case is consistent with the view expressed in Silver v. New York Stock Exchange, 373 U.S. 341, 360 361, 83 S.Ct. 1246, 1258—1259, 10 L.Ed.2d 389, that a statutory scheme that does not create a total exception from antitrust laws may, nonetheless, in particular and discrete instances by implication grant immunity from an antitrust claim.
To the same effect is United States v. Borden Co., 308 U.S. 188, 200, 60 S.Ct. 182, 189, 84 L.Ed. 181, where the Court said:
'That the field covered by the Agricultural Act is not coterminous with that covered by the Sherman Act is manifest from the fact that the former is thus delimited by the prescribed action participated in and directed by an officer of government proceeding under the authority specifically conferred by Congress. As to agreements and arrangements not thus agreed upon or directed by the Secretary, the Agricultural Act in no way impinges upon the prohibitions and penalties of the Sherman Act, and its condemnation of private action in entering into combinations and conspiracies which impose the prohibited restraint upon interstate commerce remains untouched.'
1
32 F.R.D. 604.
2
332 F.2d 602.
3
379 U.S. 912, 85 S.Ct. 261, 265, 13 L.Ed.2d 184.
4
380 U.S. 248, 249, 85 S.Ct. 934, 13 L.Ed.2d 817, 818.
5
Herbert Brownell replaced J. Lee Rankin as Special Master when Rankin resigned in December 1965 to become Corporation Counsel for New York City.
6
308 F.Supp. 679.
7
449 F.2d 51.
8
405 U.S. 915, 92 S.Ct. 960, 30 L.Ed.2d 785.
9
Toolco's 1964 petition for certiorari posed three questions, the first being as follows:
'1. Where the Civil Aeronautics Board has approved the acquisition of a controlling stock interest in an air carrier by a person engaged in a phase of aeronautics and has further approved or has jurisdiction to approve all relevant transactions between them under an Act which immunizes the approved transactions from the antitrust laws, does the district court have jurisdiction to entertain a complaint by such air carrier alleging that the transactions between the subsidiary air carrier and its parent violated the antitrust laws in that they constituted a conspiracy, an attempt to monopolize and an acquisition in violation of the antitrust laws?'
Toolco's petition in the present case posed seven questions, the fourth of which was as follows:
'4. When the Civil Aeronautics Board has approved an acquisition of control over an air carrier by a person engaged in a phase of aeronautics and has further approved all relevant transactions between them, is the exercise of that control to determine how the air carrier acquires aircraft and the necessary financing therefor immunized from the operation of the antitrust laws under Section 414 of the Federal Aviation Act?'
10
It is not unreasonable to assume that the battalions of lawyers for these adversaries devoted substantially the same effort and time, thus bringing counsel fees in the aggregate to the sum of $15 million.
11
Section 408, 49 U.S.C. § 1378, reads in pertinent part as follows:
'(a) Prohibited acts.
'It shall be unlawful unless approved by order of the Board as provided in this section—
'(2) For any air carrier, any person controlling an air carrier, any other common carrier, or any person engaged in any other phase of aeronautics, to purchase, lease, or contract to operate the properties, or any substantial part thereof, of any air carrier;
'(5) For any air carrier of persons controlling an air carrier, any other common carrier, any person engaged in any other phase of aeronautics, or any other person to acquire control of any air carrier in any manner whatsoever: Provided, That the Board may by order exempt any such acquisition of a noncertificated air carrier from this requirement to the extent and for such periods as may be in the public interest;
'Application to Board; hearing; approval; disposal without hearing.
'(b) Any person seeking approval of a consolidation, merger, purchase, lease, operating contract, or acquisition of control, specified in subsection (a) of this section, shall present an application to the Board, and thereupon the Board shall notify the persons involved in the consolidation, merger, purchase, lease, operating contract, or acquisition of control, and other persons known to have a substantial interest in the proceeding, of the time and place of a public hearing. Unless, after such hearing, the Board finds that the consolidation, merger, purchase, lease, operating contract, or acquisition of control will not be consistent with the public interest or that the conditions of this section will not be fulfilled, it shall by order approve such consolidation,
merger, purchase, lease, operating contract, or acquisition of control, upon such terms and conditions as it shall find to be just and reasonable and with such modifications as it may prescribe: Provided, That the Board shall not approve any consolidation, merger, purchase, lease, operating contract, or acquisition of control which would result in creating a monopoly or monopolies and thereby restrain competition or jeopardize another air carrier not a party to the consolidation, merger, purchase, lease, operating contract or acquisition of control . . ..'
12
Section 408(a)(5) was amended in 1969 to require Board approval of an acquisition of control of an air carrier by 'any other person.' 83 Stat. 103, 49 U.S.C. § 1378(a)(5). Prior to 1969, the Act required Board approval only for acquisition of control of an air carrier by another air carrier, by persons having other specified transportation interest, or by a 'person engaged in any other phase of areonautics.'
13
Section 102, 49 U.S.C. § 1302, reads:
'In the exercise and performance of its powers and duties under this chapter, the Board shall consider the following, among other
things, as being in the public interest, and in accordance with the public convenience and necessity:
'(a) The encouragement and development of an air-transportation system properly adapted to the present and future needs of the foreign and domestic commerce of the United States, of the Postal Service, and of the national defense;
'(b) The regulation of air transportation in such manner as to recognize and preserve the inherent advantages of, assure the highest degree of safety in, and foster sound economic conditions in, such transportation, and to improve the relations between, and coordinate transportation by, air carriers;
'(c) The promotion of adequate, economical, and efficient service by air carriers at reasonable charges, without unjust discriminations, undue preferences or advantages, or unfair or destructive competitive practices;
'(d) Competition to the extent necessary to assure the sound development of an air-transportation system properly adapted to the needs of the foreign and domestic commerce of the United States, of the Postal Services, and of the national defense;
'(e) The promotion of safety in air commerce; and
'(f) The promotion, encouragement, and development of civil aeronautics.'
14
Section 414, 49 U.S.C. § 1384, reads:
'Any person affected by any order made under sections 1378, 1379, or 1382 of this title shall be, and is hereby, relieved from the operations of the 'antitrust laws', as designated in section 12 of Title 15, and of all other restraints or prohibitions made by, or imposed under, authority of law, insofar as may be necessary to enable such person to do anything authorized, approved, or required by such order.'
15
Testimony of Joseph B. Eastman, Member, Interstate Commerce Commission, on S. 2 and S. 1760 before a Subcommittee of the Senate Committee on Interstate Commerce, 75th Cong., 1st Sess., 334—335 (1937).
16
At the House hearings, Colonel Edgar Gorrell, President of the Air Transport Assn. of America, testified that a major element of uncertainty that kept money from flowing into commercial aviation was 'cutthroat competition, . . . where one company went out to make warfare against another and wound up by destroying the capital of both. . . . That is a fact. It has happened, and the only agency or agent in America today that can stop it is myself; and the moment I stick my neck out to stop it, if I did, I would face a jail sentence and a fine for violating the antitrust laws. Our companies today cannot lawfully agree on prices.' Hearings on H.R. 9738, before the House Committee on Interstate and Foreign Commerce, 75th Cong., 3d Sess., 309.
See Silver v. New York Stock Exchange, 373 U.S. 341, 347, 83 S.Ct. 1246, 1252, 10 L.Ed.2d 389 (1963), where we noted that the relevant 'collective action . . . would, had it occurred in a context free from other federal regulation, constitute a per se violation of § 1 of the Sherman Act.'
17
83 Cong.Rec. 6730—6731.
18
Between 1956 and 1960, the Board entered various modification orders permitting Toolco and TWA to enter into short-term leases of jets and permitting various limited extensions of those leases. Specifically, the record shows that the Board approved 12 transactions between Toolco and TWA from 1956 to 1960:
—on May 17, 1956, the Board approved sale of 33 Lockheed aircraft, and spare parts, by Toolco to TWA;
—on Dec. 18, 1956, the Board approved a proposal for TWA to borrow some $10 million in operating capital from Toolco;
—on June 11, 1957, the Board approved a proposal whereby Toolco would refinance TWA's May 17, 1956, purchase of Lockheed aircraft;
—on Dec. 30, 1958, the Board again approved a transaction relating to the nonjet Lockheed aircraft;
—on Feb. 26, 1959, the Board approved a proposal whereby TWA would lease one Boeing 707—131 aircraft from Toolco, plus spare parts, for the purpose of training its crews to fly jet aircraft;
—on May 15, 1959, the Board approved the lease by Toolco to
TWA of 11 Boeing 707—131 jet aircraft, with provision for obtaining spare parts from Toolco and leasing spare jet engines;
—on July 1, 1959, the Board approved the lease of four additional aircraft by Toolco to TWA, and the extension of the leases on the previous jet aircraft. The leases were prolonged pending the working out of 'definitive financing arrangements' which, presumably, would enable TWA to acquire ownership of the aircraft;
—on Sept. 30, 1959, the Board again approved extension of the jet leases upon the representation of Toolco and TWA that financing arrangements had not yet been completed;
—on Jan. 29, 1960, the Board approved the lease by Toolco to TWA of eight 707—131's and eight Convair 880's (all jet aircraft), on a day-to-day basis, and again with provision for spare parts. This approval was again premised on completion in the near future of 'definitive financing arrangements permitting (TWA) to operate these aircraft on a permanent basis';
—on June 23, 1960, the Board approved acquisition—i.e., purchase—by TWA of 25 Boeing 707 and 20 Convair 880 jet aircraft, with $260 million to be raised by an offering of bonds and junior securities. Toolco was to guarantee the subscription and would lend $50 million to TWA to enable it to make the offering;
—on July 21, 1960, the Board approved acquisition of title to two additional jet aircraft by TWA from Toolco; and
—finally, on December 29, 1960, the Board approved creation of a voting trust for the placement of Toolco's holdings in TWA.
As the Court's opinion observes, damages were awarded for those allegations of the TWA complaint that charged that TWA had been damaged by the diversion of six Convairs by Toolco to Northeast Airlines; by the temporary retention by Toolco of four Convairs and the ultimate lease of these aircraft to Northeast; by the diversion of six Boeing jet aircraft, of 33 ordered, to Pan American Airways, TWA's principal trans-Atlantic competitor; by the lease of planes to TWA, in lieu of sales that would have been more to TWA's financial interest; and by the late delivery of 47 of the 63 jets procured for TWA by Toolco.
With the exception of the decision to lease planes to TWA rather than sell them, the actions alleged to have damaged TWA related, not to the documented structure of Toolco's transactions with TWA as presented to and approved in fact by the Board, but rather to
the manner in which Toolco executed the paper transactions, without Board approval or knowledge. The leases were never considered in relation to other means of aircraft acquisition, as the complaint required they be viewed. The Court dismisses these discrepancies by observing that the restraint alleged in Pan American was held to be immune 'even though the CAB had taken no action to investigate, let alone act on, the alleged misfeasance as the Board has done here for over 16 years.' In other words, if the Board were responsible for complete supervision of the Toolco-TWA transactions, immunity would not be undermined by the Board's failure to undertake such supervision in fact.
At best, though, the Court's historical recitation is irrelevant since it in no way explains why it was the Board's statutory responsibility to consider the transactions between Toolco and TWA as components of an antitrust conspiracy allegedly pointed toward the aircraft supply and manufacturing market.
19
The Board's 1950 proceeding undertook 'to consider the over-all impact of the acquirer's plans and policies with respect to the controlled carrier.' 12 C.A.B. 192, 196. The Board reviewed the past transactions involving the financing of aircraft. In particular, the Board considered whether Toolco had properly resolved, in favor of debt financing, a longstanding dispute between the Toolco and TWA managements over the relative merits of debt or equity financing of new aircraft. The Board concluded that Toolco's financial and technical contributions to TWA had been of considerable benefit to the carrier. On the other hand, the Board viewed TWA's capitalization as 'neither reasonable nor sound' since '(i)ts proportion of debt to total capitalization is far too large.' Id., at 218. Yet 'the extent to which Toolco and its principal officers can be held directly or principally responsible for TWA's present capital structure poses a most difficult problem,' since '(n)umerous factors . . . operate to complicate and often delay agreement on a financial plan.' Id., at 221. On balance, the Board concluded that Toolco control of TWA had been in the public interest, and it approved the additional acquisition by Toolco of TWA stock.
While it is true that the Board's evaluation of Toolco's 'stewardship' over TWA involved decisions regarding the acquisition of
aircraft, including the method of financing and the timing of purchase and lease decisions, there is nothing in the Board's decision to indicate that the Board's 1950 proceeding undertook to analyze Toolco's control of TWA from the perspective of Toolco's own market position. Consequently, the 1950 proceeding in no way suggests that the Board has deviated from its consistent position that Congress did not entrust it with the exclusive responsibility for policing anti-competitive effects of § 408 transactions.
| 78
|
409 U.S. 434
93 S.Ct. 631
34 L.Ed.2d 626
UNITED STATES, Appellant,v.Robert William KRAS.
No. 71-749.
Argued Oct. 18, 1972.
Decided Jan. 10, 1973.
Syllabus
Appellee, an indigent who filed a voluntary petition in bankruptcy, sought discharge without payment of the fees, aggregating no more than $50, that are a precondition to discharge in such a proceeding. The District Court, relying primarily on Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113 (where the Court held that a State could not consistently with due process and equal protection requirements, deny access to divorce courts to indigents unable to pay filing and other fees), held the bankruptcy fee provisions, as applied to appellee, an unconstitutional denial of Fifth Amendment rights of due process, including equal protection. Held: This case is not controlled by Boddie, supra, For here access to courts is not the only conceivable relief available to bankrupts; the filing-fee requyirement does not deny an indigent the equal protection of the laws, since there is no constitutional right to obtain a discharge of one's debts in bankruptcy; the right to a discharge in bankruptcy is not a 'fundamental' right demanding a compelling governmental interest as a precondition to regulation; and there is a rational basis for the fee requirement. Pp. 443—450.
331 F.Supp. 1207, reversed.
Edward R. Korman, New York City, for appellant.
Kalman Finkel, New York City, for appellee.
Mr. Justice BLACKMUN delivered the opinion of the Court.
1
The Bankruptcy Act and one of this Court's complementary Orders in Bankruptcy impose fees and make the payment of those fees a condition to a discharge in voluntary bankruptcy.
2
Appellee Kras, an indigent petitioner in bankruptcy, challenged the fees on Fifth Amendment grounds. Upon receiving notice of the constitutional issue in the District Court, the Government moved to intervene as of right under 28 U.S.C. § 2403 and Rule 24(a) of the Federal Rules of Civil Procedure. Leave to intervene was granted. The District Court held the fee provisions to be unconstitutional as applied to Kras. 331 F.Supp. 1207 (EDNY 1971). It reached this conclusion in the face of an earlier contrary holding by a unanimous First Circuit. In re Garland, 428 F.2d 1185 (1 Cir. 1970), cert. denied, 402 U.S. 966, 91 S.Ct. 1624, 29 L.Ed.2d 130 (1971). Pursuant to 28 U.S.C. § 1252, the Government appealed. We noted probable jurisdiction. 405 U.S. 915, 92 S.Ct. 955, 30 L.Ed.2d 784 (1972).
3
* Section 14(b)(2) of the Bankruptcy Act, 11 U.S.C. § 32(b)(2), provides that, upon the expiration of the time fixed by the court for filing of objections, 'the court shall discharge the bankrupt if no objection has been filed and if the filing fees required to be paid by this title have been paid in full.' Section 14(c), 11 U.S.C. § 32(c), similarly provides that the court 'shall grant the discharge unless satisfied that the bankrupt . . . (8) has failed to pay the filing fees required to be paid by this title in full.' Section 59(g), 11 U.S.C. § 95(g), relates to the dismissal of a petition in bankruptcy and states that 'in the case of a dismissal for failure to pay the costs,' notice to creditors shall not be required. Three separate sections of the Act thus contemplate the imposition of fees and condition a discharge upon payment of those fees.
4
Three charges are imposed: $37 for the referee's salary and expense fund, $10 for compensation of the trustee,1 and $3 for the clerk's services. §§ 40(c) (1), 48(c), and 52(a), 11 U.S.C. §§ 68(c)(1), 76(c), and 80(a). These total $50.2 The fees are payable upon the filing of the petition. Section 40(c) (1), however, contains a proviso that in cases of voluntary bankruptcy, all the fees 'may be paid in installments, if so authorized by General Order of the Supreme Court of the United States.'
5
The Court's General Order in Bankruptcy No. 35(4), as amended June 23, 1947, 331 U.S. 873, 876—877, 11 U.S.C.App., p. 2210, complements § 40(c)(1) and provides that, upon a proper showing by the bankrupt, the fees may be paid in installments within a six-month period, which may be extended not to exceed three months.3
II
6
Robert William Kras presented his voluntary petition in bankruptcy to the United States District Court for the Eastern District of New York on May 28, 1971. The petition was accompanied by Kras' motion for leave to file and proceed in bankruptcy without payment of any of the filing fees as a condition precedent to discharge. The motion was supported by Kras' affidavit containing the following allegations that have not been controverted by the Government:
7
1. Kras resides in a 2 1/2-room apartment with his wife, two children, ages 5 years and 8 months, his mother, and his mother's 6-year-old dauthter. His younger child suffers from cystic fibrosis and is undergoing treatment in a medical center.
8
2. Kras has been unemployed since May 1969 except for odd jobs producing about $300 in 1969 and a like amount in 1970. His last steady job was as an insurance agent with Metropolitan Life Insurance Company. He was discharged by Metropolitan in 1969 when premiums he had collected were stolen from his home and he was unable to make up the amount to his employer. Metropolitan's claim against him has increased to over $1,000 and is one of the debts listed in his bankruptcy petition. He has diligently sought steady employment in New York City, but, because of unfavorable references from Metropolitan, he has been unsuccessful. Mrs. Kras was employed until March 1970, when she was forced to stop because of pregnancy. All her attention now will be devoted to caring for the younger child who is coming out of the hospital soon.
9
3. The Kras household subsists entirely on $210 per month public assistance received for Kras' own family and $156 per month public assistance received for his mother and her daughter. These benefis are all expended for rent and day-to-day necessities. The rent is $102 per month. Kras owns no automobile and no asset that is non-exempt under the bankruptcy law. He receives no unemployment or disability benefit. His sole assets are wearing apparel and $50 worth of essential houselhold goods that are exempt under § 6 of the Act, 11 U.S.C. § 24, and under New York Civil Practice Laws and Rules § 5205 (1963). He has a couch of negligible value in storage on which a $6 payment is due monthly.
10
4. Because of his poverty, Kras is wholly unable to pay or promise to pay the bankruptcy fees, even in small installments. He has been unable to borrow money. The New York City Department of Social Services refuses to allot money for payment of the fees. He has no prospect of immediate employment.
11
5. Kras seeks a discharge in bankruptcy of $6,428.69 in total indebtedness in order to relieve himself and his family of the distress of financial insolvency and creditor harassment and in order to make a new start in life. It is especially important that he obtain a discharge of his debt to Metropolitan soon 'because until that is cleared up Metropolitan will continue to falsely charge me with fraud and give me bad references which prevent my getting employment.'
12
The District Court's opinion contains an order, 331 F.Supp., at 1215, granting Kras' motion for leave to file his petition in bankruptcy without prepayment of fees. He was adjudged a bankrupt on September 13, 1971. Later, the referee, upon consent of the parties, entered an order allowing Kras to conduct all necessary proceedings in bankruptcy up to but not including discharge. The referee stayed the discharge pending disposition of this appeal.
III
13
In the District Court Kras first presented a statutory argument—and, alternatively, one based in common law—that he was entitled to relief from payment of the bankruptcy charges because of the provisions of 28 U.S.C. § 1915(a).4 This is the in forma pauperis statute that has its origin in the Act of July 20, 1892, c. 209, 27 Stat. 252. See also 28 U.S.C. §§ 832—836 (1940 ed.).
14
The District Court rejected the argument despite the seeming facial application of § 1915(a) to a bankruptcy proceeding as well as to any other. It reached this result by noting that § 51(2) of the Bankruptcy Act, as originally adopted in 1898, 30 Stat. 558, had provided for a waiver of fees upon the filing of an affidavit of inability to pay; that by the passage of the Referees' Salary Bill in 1946, 60 Stat. 326, bankruptcy petitions in forma pauperis were abolished, H.R.Rep. No. 1037, 79th Cong., 1st Sess., 6 (1945); S.Rep. No. 959, 79th Cong., 2d Sess., 7 (1946); and that the 1946 statute, being later and having a positive and specific provision for postponement of fees in cases of indigency, overrode the earlier general provisions of § 1915(a). 331 F.Supp., at 1209 s1210. To the same effect are In re Garland, 428 F.2d, at 1186—1187, and In re Smith, 323 F.Supp. 1082, 1084—1085 (Colo.1971), the reasoning of which the District Court adopted. So also is In re Smith, 341 F.Supp. 1297, 1298 (ND Ill.1972).
15
The appellee may well have abandoned the argument on this appeal. Tr. of Oral Arg. 44—45. In any event, we agree, for the reasons stated by the District Court and by the courts in Garland and in the two Smith cases, supra, that § 1915(a) is not now available in bankruptcy. See 2 W. Collier, Bankruptcy 51.01, pp. 1873—1874 (14th ed. 1971). Neither do we perceive any common-law right to proceed without payment of fees. Congress, of course, sometime might conclude that § 1915(a) should be made applicable to bankruptcy and legislate accordingly.
16
The District Court went on to hold, however, 331 F.Supp., at 1210—1215, that the prescribed fees, payment of which was required as a condition precedent to discharge, served to deny Kras 'his Fifth Amendment right of due process, including equal protection.' Id., at 1212. It held that a discharge in bankruptcy was a 'fundamental interest' that could be denied only when a 'compelling government interest' was demonstrated. It noted, id., at 1213, that provision should be made by the referee for the survival, beyond bankruptcy, of the bankrupt's obligation to pay the fees. The court rested its decision primarily upon Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971), which came down after the First Circuit's decision in Garland, supra. A number of other district courts and bankruptcy referees have reached the same result.5
17
Kras contends that his case falls squarely within Boddie. The Government, on the other hand, stresses the differences between divorce (with which Boddie was concerned) and bankruptcy, and claims that Boddie is not controlling and that the fee requirements constitute a reasonable exercise of Congress' plenary power over bankruptcy.
IV
18
Boddie was a challenge by welfare recipients to certain Connecticut procedures, including the payment of court fees and costs, that allegedly restricted their access to the courts for divorce. The plaintiffs, simply by reason of their indigency, were unable to bring their actions. The Court reversed a district court judgment that a State could limit access to its courts by fees 'which effectively bar persons on relief from commencing actions therein.' 286 F.Supp. 986, 972. Mr. Justice Harlan, writing for the Court, stressed state monopolization of the means for legally dissolving marriage and identified the would-be indigent divorce plaintiff with any other action's impoverished defendant forced into court by the institution of a lawsuit against him. He declared that 'a meaningful opportunity to be heard' was firmly imbedded in our due process jurisprudence, 401 U.S., at 377, 91 S.Ct., at 785, and that this was to be protected against denial by laws that operate to jeopardize it for particular individuals, id., at 379—380, 91 S.Ct., at 786—787. The Court then concluded that Connecticut's refusal to admit these good-faith divorce plaintiffs to its courts equated with the denial of an opportunity to be heard and, in the absence of a sufficient countervailing justification for the State's action, a denial of due process, id., at 380—381, 91 S.Ct., at 787
19
But the Court emphasized that 'we go no further than necessary to dispose of the case before us.' Id., at 382, 91 S.Ct., at 788.
20
'We do not decide that access for all individuals to the courts is a right that is, in all circumstances, guaranteed by the Due Process Clause of the Fourteenth Amendment so that its exercise may not be placed beyond the reach of any individual, for, as we have already noted, in the case before us this right is the exclusive precondition to the adjustment of a fundamental human relationship. The requirement that these appellants resort to the judicial process is entirely a state-created matter. Thus we hold only that a State may not, consistent with the obligations imposed on it by the Due Process Clause of the Fourteenth Amendment, pre-empt the right to dissolve this legal relationship without affording all citizens access to the means it has prescribed for doing so.' Id., at 382—383, 91 S.Ct., at 788—789.
21
Mr. Justice Douglas, concurring in the result, rested his conclusion on equal protection rather than due process. 'I do not see the length of the road we must follow if we accept my Brother Harlan's invitation.' Id., at 383, 385, 91 S.Ct., at 790. Mr. Justice Brennan concurred in part, for he discerned no distinction between divorce and 'any other right arising under federal or state law' and he, also, found a denial of equal protection. Id., at 386, 387, 91 S.Ct., at 791. Mr. Justice Black dissented, id., at 389, 91 S.Ct., at 792, feeling that the Connecticut court costs were barred by neither the Due Process Clause nor the Equal Protection Clause of the Fourteenth Amendment.
22
Just two months after Boddie was decided, the Court denied certiorari in Garland. 402 U.S. 966, 91 S.Ct. 1624, 29 L.Ed.2d 130. Mr. Justice Brennan was of the opinion that certiorari should have been granted. Mr. Justice Black, in an opinion applicable to Garland and to seven other then-pending cases, 402 U.S. 954, 91 S.Ct. 1624, 29 L.Ed. 124, dissented and would have heard argument in all eight cases 'or reverse them outright on the basis of the decision in Boddie.' Id., at 955, 91 S.Ct., at 1625. For him 'the need . . . to file for a discharge in bankruptcy seem(ed) . . . more 'fundamental' than a person's right to seek a divorce.' Id., at 958, 91 S.Ct., at 1626. And Mr. Justice Douglas similarly dissented from the denial of certiorari in Garland and in four other cases because 'obtaining a fresh start in life through bankruptcy proceedings . . . (seemingly come(s) within) the Equal Protection Clause.' 402 U.S. 960, 961, 91 S.Ct. 1627.
23
Thus, although a denial of certiorari normally carries no implication or inference, Chessman v. Teets, 354 U.S. 156, 164 n. 13, 77 S.Ct. 1127, 1131, 1 L.Ed.2d 1253 (1957); Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469 (1953), the pointed dissents of Mr. Justice Black and Mr. Justice Douglas to the denial in Garland so soon after Boddie, and Mr. Justice Harlan's failure to join the dissenters, surely are not without some significance as to their and the Court's attitude about the application of the Boddie principle to bankruptcy fees.
V
24
We agree with the Government that our decision in Boddie does not control the disposition of this case and that the District Court's reliance upon Boddie is misplaced.
25
A. Boddie was based on the notion that a State cannot deny access, simply because of one's poverty, to a 'judicial proceeding (that is) the only effective means of resolving the dispute at hand.' 401 U.S., at 376, 91 S.Ct., at 785. Throughout the opinion there is constant and recurring reference to Connecicut's exclusive control over the establishment, enforcement, and dissolution of the marital relationship. The Court emphasized that 'marriage involves interests of basic importance in our society,' ibid., and spoke of 'state monopolization of the means for legally dissolving this relationship,' id., at 374, 91 S.Ct., at 784. '(R)esort to the state courts (was) the only avenue to dissolution of . . . marriages,' id., at 376, 91 S.Ct., at 785, which was 'not only the paramount dispute-settlement technique, but, in fact, the only available one,' id., at 377, 91 S.Ct., at 785. The Court achknowledged that it knew 'of no instance where two consenting adults may divorce and mutually liberate themselves from the constraints of legal obligations that go with marriage, and more fundamentally the prohibition against remarriage, without invoking the State's judicial machinery,' id., at 376, 91 S.Ct., at 785. In the light of all this, we concluded that resort to the judicial process was 'no more voluntary in a realistic sense than that of the defendant called upon to defend his interests in court' and we resolved the case 'in light of the principles enunciated in our due process decisions that delimit rights of defendants compelled to litigate their differences in the judicial forum,' id., at 376 377, 91 S.Ct., at 785.
26
B. The appellants in Boddie, on the one hand, and Robert Kras, on the other, stand in materially different postures. The denial of access to the judicial forum in Boddie touched directly, as has been noted, on the marital relationship and on the associational interests that surround the establishment and dissolution of that relationship. On many occasions we have recognized the fundamental importance of these interests under our Constitution. See, for example, Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967); Skinner v. Oklahoma, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942); Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965); Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972); Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923). The Boddie appellants' inability to dissolve their marriages seriously impaired their freedom to pursue other protected associational activities. Kras' alleged interest in the elimination of his debt burden, and in obtaining his desired new start in life, although important and so recognized by the enactment of the Bankruptcy Act, does not rise to the same constitutional level. See Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970); Richardson v. Belcher, 404 U.S. 78, 92 S.Ct. 254, 30 L.Ed.2d 231 (1971). If Kras is not discharged in bankruptcy, his position will not be materially altered in any constitutional sense. Gaining or not gaining a discharge will effect no change with respect to basic necessities.6 We see no fundamental interest that is gained or lost depending on the availability of a discharge in bankruptcy.
27
C. Nor is the Government's control over the establishment, enforcement, or dissolution of debts nearly so exclusive as Connecticut's control over the marriage relationship in Boddie. In contrast with divorce, bankruptcy is not the only method available to a debtor for the adjustment of his legal relationship with his creditors. The utter exclusiveness of court access and court remedy, as has been noted, was a potent factor in Boddie. But '(w)ithout a prior judicial imprimatur, individuals may freely enter into and rescind commercial contracts . . ..' 401 U.S., at 376, 91 S.Ct., at 785.
28
However unrealistic the remedy may be in a particular situation, a debtor, in theory, and often in actuality, may adjust his debts by negotiated agreement with his creditors. At times the happy passage of the applicable limitation period, or other acceptable creditor arrangement, will provide the answer. Government's role with respect to the private commercial relationship is qualitatively and quantitatively different from its role in the establishment, enforcement, and dissolution of marriage.
29
Resort to the court, therefore, is not Kras' sole path to relief. Boddie's emphasis on exclusivity finds no counterpart in the bankupt's situation. See Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 547—555, 69 S.Ct. 1221, 1226—1229, 93 L.Ed. 1528 (1949).
30
D. We are also of the opinion that the filing fee requirement does not deny Kras the equal protection of the laws. Bankruptcy is hardly akin to free speech or marriage or to those other rights, so many of which are imbedded in the First Amendment, that the Court has come to regard as fundamental and that demand the lofty requirement of a compelling governmental interest before they may be significantly regulated. See Shapiro v. Thompson, 394 U.S. 618, 638, 89 S.Ct. 1322, 1333, 22 L.Ed.2d 600 (1969). Neither does it touch upon what have been said to be the suspect criteria of race, nationality, or alienage. Graham v. Richardson, 403 U.S. 365, 375, 91 S.Ct. 1848, 1853, 29 L.Ed.2d 534 (1971). Instead, bankruptcy legislation is in the area of economics and social welfare. See Dandridge v. Williams, 397 U.S., at 484—485, 90 S.Ct., at 1161; Richardson v. Belcher, 404 U.S., at 81, 92 S.Ct., at 256; Lindsey v. Normet, 405 U.S. 56, 74, 92 S.Ct. 862, 874, 31 L.Ed.2d 36 (1972); Jefferson v. Hackney, 406 U.S. 535, 546, 92 S.Ct. 1724, 1731, 32 L.Ed.2d 285 (1972). This being so, the applicable standard, in measuring the propriety of Congress' classification, is that of rational justification. Flemming v. Nestor, 363 U.S. 603, 611—612, 80 S.Ct. 1367, 1372—1373, 4 L.Ed.2d 1435 (1960); Dandridge v. Williams, 397 U.S., at 485—486, 90 S.Ct., at 1161, 1162; Richardson v. Belcher, 404 U.S., at 81, 92 S.Ct., at 256.
31
E. There is no constitutional right to obtain a discharge of one's debts in bankruptcy. The Constitution, Art. I, § 8, cl. 4, merely authorizes the Congress to 'establish . . . uniform Laws on the subject of Bankruptcies throughout the United States.' Although the first bankruptcy law in England was enacted in 1542, 34 & 35 Hen. 8, c. 4, and a discharge provision first appeared in 1705, 4 Anne, c. 17, primarily as a reward for cooperating debtors, J. MacLachlan, Bankruptcy 20—21 (1956), voluntary bankruptcy was not known in this country at the adoption of the Constitution. Indeed, for the entire period prior to the present Act of 1898, the Nation was without a federal bankruptcy law except for three short periods aggregating about 15 1/2 years. The first statute was the Act of April 4, 1800, c. 19, 2 Stat. 19, and it was repealed by the Act of December 19, 1803, c. 6, 2 Stat. 248. The second was the Act of August 19, 1841, c. 9, 5 Stat. 440, repealed less than two years later by the Act of March 3, 1843, c. 82, 5 Stat. 614. The third was the Act of March 2, 1867, c. 176, 14 Stat. 517; it was repealed by the Act of June 7, 1878, c. 160, 20 Stat. 99. Voluntary petitions were permitted under the 1841 and 1867 Acts. See 1 W. Collier, Bankruptcy 0.03—0.05, pp. 6—9 (14th ed. 1971). Professor MacLachlan has said that the development of the discharge 'represents an independent . . . public policy in favor of extricating an insolvent debtor from what would otherwise be a financial impasse.' J. MacLachlan, Bankruptcy 88 (footnote omitted). But this obviously is a legislatively created benefit, not a constitutional one, and, as noted, it was a benefit withheld, save for three short periods, during the first 110 years of the Nation's life. The mere fact that Congress has delegated to the District Court supervision over the proceedings by which a petition for discharge is processed does not convert a statutory benefit into a constitutional right of access to a court. Then, too, Congress might have delegated the responsibility to an administrative agency.
32
F. The rational basis for the fee requirement is readily apparent. Congressional power over bankruptcy, of course, is plenary and exclusive. Kalb v. Feuerstein, 308 U.S. 433, 438—439, 60 S.Ct. 343, 345—346, 84 L.Ed. 370 (1940). By the 1946 Amendment, 60 Stat. 326, Congress, as has been noted, abolished the theretofore existing practices of the pauper petition and of compensating the referee from the fees he collected. It replaced that system with one for salaried referees and for fixed fees for every petition filed and a specified percentage of distributable assets. It sought to make the system self-sustaining and paid for by those who use it rather than by tax revenues drawn from the public at large. H.R.Rep. No. 1037, 79th Cong., 1st Sess., 4—6 (1945); S.Rep. No. 959, 79th Cong., 2d Sess., 2, 5—6 (1946).7 The propriety of the requirement that the fees be paid ultimately has been recognized even by those district courts that have held the payment of the fee as a precondition to a discharge to be unconstitutional, for those courts would make the payments survive the bankruptcy as a continuing obligation of the bankrupt. In re Smith, 323 F.Supp., at 1093; In re Ottman, 336 F.Supp. 746, 748 (E.D.Wis.1972); see O'Brien v. Trevethan, 336 F.Supp. 1029, 1034 (Conn.1972).
33
Further, the reasonableness of the structure Congress produced, and congressional concern for the debtor, are apparent from the provisions permitting the debtor to file his petition without payment of any fee, with consequent freedom of subsequent earnings and of after-acquired assets (with the rare exception specified in § 70(a) of the Act, 11 U.S.C. § 110(a)) from the claims of then-existing obligations. These provisions, coupled with the bankrupt's ability to obtain a stay of all debt enforcement actions pending at the filing of the petition or thereafter commenced, §§ 11(a) and 2(a)(15), 11 U.S.C. §§ 29(a) and 11(a)(15); 1A W. Collier, Bankruptcy 11.03 (14th ed. 1972); 1 id., 2.62(4) (14th ed. 1971), enable a bankrupt to terminate his harassment by creditors, to protect his future earnings and property, and to have his new start with a minimum of effort and financial obligation. They serve also, as an incidental effect, to promote and not to defeat the purpose of making the bankruptcy system financially self-sufficient. Cf. Lindsey v. Normet, 405 U.S., at 74—79, 92 S.Ct., at 874—877.
34
G. If the $50 filing fees are paid in installments over six months as General Order No. 35(4) permits on a proper showing, the required average weekly payment is $1.92. If the payment period is extended for the additional three months as the Order permits, the average weekly payment is lowered to $1.28.8 This is a sum less than the payments Kras makes on his couch of negligible value in storage, and less than the price of a movie and little more than the cost of a pack or two of cigarettes. If, as Kras alleges in his affidavit, a discharge in bankruptcy will afford him that new start he so desires, and the Metropolitan then no longer will charge him with fraud and give him bad references,9 and if he really needs and desires that discharge, this much available revenue should be within his able-bodied reach when the adjudication in bankruptcy has stayed collection and has brought to a halt whatever harassment, if any, he may have sustained from creditors.
VI
35
Mr. Justice Harlan, in his opinion for the Court in Boddie, meticulously pointed out, as we have noted above, that the Court went 'no further than necessary to dispose of the case before us' and did 'not decide that access for all individuals to the courts is a right that is, in all circumstances, guaranteed by the Due Process Clause of the Fourteenth Amendment so that its exercise may not be placed beyond the reach of any individual.' 401 U.S., at 382—383, 91 S.Ct., at 788. The Court obviously stopped short of an unlimited rule that an indigent at all times and in all cases has the right to relief without the payment of fees.
36
We decline to extend the principle of Boddie to the no-asset bankruptcy proceeding. That relief, if it is to be forthcoming, should originate with Congress. See Shaeffer, Proceedings in Bankruptcy In Forma Pauperis, 69 Col.L.Rev. 1203 (1969).
37
Reversed.
38
Mr. Cheif Justice BURGER, concurring.
39
I concur fully in the Court's opinion. The painstaking and precise delineation by Mr. Justice Harlan of the interests involved in Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971), ought not to be ignored as the dissenting opinions would do. Moreover, the exclusivity of a State's control of marriage and divorce is a far cry from the degree of government control over relations between debtor and creditor, as Mr. Justice BLACKMUN has pointed out. In a bankruptcy proceeding the government, through the court, is no more than the overseer and the administrator of the process; it is not the absolute and exclusive controller as with the dissolution of marriage. Like the descent and distribution of property for which all States have provided statutes and probate courts, the bankruptcy court is but one mode of orderly adjustment with creditors; it is not the only one since many debtors work out binding private adjustments with creditors.
40
Surely there are strong arguments, as a matter of policy, for the result the dissenting view asserts. But Congress has not yet seen fit to declare the policy that the dissenters now find in the Constitution. In 1970 Congress authorized a tripartite commission to review the bankruptcy laws.1 The commission has been engaged in its task for more than two years and it is hardly likely that this problem will escape its consideration.2 The Constitution is not the exclusive source of law reform, even needed reform, in our system.
41
Mr. Justice STEWART, with whom Mr. Justice DOUGLAS, Mr. Justice BRENNAN, and Mr. Justice MARSHALL join, dissenting.
42
On May 28, 1971, Robert Kras, the appellee, sought to file a voluntary petition in bankruptcy. In an accompanying affidavit, he described his economic plight. He resided in a 2 1/2-room apartment with his wife, his two young children, his mother, and her child. His eight-month-old son had cystic fibrosis and at the time of the
1
Pub.L. 91—354, 84 Stat. 468.
2
The commission's mandate requires it to 'study, analyze, evaluate, and recommend changes' in the Bankruptcy Act 'in order for such Act to reflect and adequately meet the demands of present technical, financial, and commercial activities. The commission's study . . . shall include a consideration of the basic philosophy of bankruptcy, the causes of bankruptcy, the possible alternatives to the present system of bankruptcy administration, the applicability of advanced management techniques to achieve economies in the administration of the Act, and all other matters which the Commission shall deem relevant.' Of particular relevance is the preamble to the Act creating the commission, which recites in part that 'the technical aspects of the Bankruptcy Act are interwoven with the rapid expansion of credit which has reached proportions far beyond anything previously experienced by the citizens of the United States.'
43
The report of the commission is to be submitted prior to June 30, 1973. Pub.L. 92—251, 86 Stat. 63. affidavit was undergoing hospital treatment. Unemployed since May 1969, except for odd jobs, he supported his household on a total public assistance allotment of $366 per month—all of which was consumed on rent and the most basic necessities of life. His sole assets consisted of $50 worth of clothing and essential household goods.1
44
He sought a discharge from over $6,000 in debts, particularly his indebtedness to a former employer that he contended hampered his present efforts to find a permanent job: 'I earnestly seek a discharge in bankruptcy . . . in order to relieve myself and my family of the distress of financial insolvency and creditor harassment and in order to make a new start in life. . . . When I do get a job I want to be able to spend my wages for the support of myself and my family and for the medical care of my son, instead of paying them to my creditors and forcing my family to remain dependent on welfare.'
45
He indicated that he was unable to pay the $50 bankruptcy filing fee in a lump sum,2 and could not promise to pay it in installments, as required before the petition could be filed.3 He contended that the fee requirement was unconstitutional as applied to him,4 and moved for leave to proceed without paying the fee.
46
The District Court held that under the doctrine of Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113, the statutory requirement of a prepaid bankruptcy filing fee would violate Kras' Fifth Amendment right to due process of law. 331 F.Supp. 1207, 1212.5 The court ordered the petition filed and directed the referee in bankruptcy to make provision for the survival of the appellee's obligation to pay the filing fee. We noted probable jurisdiction of the Government's appeal. 405 U.S. 915, 92 S.Ct. 955, 30 L.Ed.2d 130. I agree with the District Court and would, therefore, affirm its judgment.
47
Boddie held that a Connecticut statute requiring the payment of an average $60 fee as a prerequisite to a divorce action was unconstitutional under the Due Process Clause of the Fourteenth Amendment, as applied to indigents unable to pay the fee. The Court reasoned that due process protections are traditionally viewed as safeguards for a defendant, because at the point when a plaintiff invokes the governmental power of a court, the judicial proceeding is 'the only effective means of resolving the dispute at hand and denial of a defendant's full access to that process raises grave problems for its legitimacy.' 401 U.S., at 376, 91 S.Ct., at 785. But a party to a marriage remains under serious and continuing obligation imposed by the State, which cannot be removed except by judicial dissolution of the marital bond. Thus, we concluded that:
48
'(A)lthough they assert here due process rights as would-be plaintiffs, we think appellants' plight, because resort to the state courts is the only avenue to dissolution of their marriages, is akin to that of defendants faced with exclusion from the only forum effectively empowered to settle their disputes. Resort to the judicial process by these plaintiffs is no more voluntary in a realistic sense than that of the defendants called upon to defend his interests in court. For both groups this process is not only the paramount dispute-settlement technique, but, in fact, the only available one.' Id., at 376—377, 91 S.Ct., at 785.
49
The violation of due process seems to me equally clear in the present case. It is undisputed that Kras is making a good-faith attempt to obtain a discharge in bankruptcy, and that he is in fact indigent. As was true in Boddie, the 'welfare income . . . barely suffices to meet the costs of the daily essentials of life and includes no allotment that could be budgeted for the expense to gain access to the courts . . ..' Id., at 372—373, 91 S.Ct., at 783.6
50
Similarly, the debtor, like the married plaintiffs in Biddie, originally entered into his contract freely and voluntarily. But it is the Government nevertheless that continues to enforce that obligation, and under our 'legal system' that debt is effective only because the judicial machinery is there to collect it. The bankrupt is bankrupt precisely for the reason that the State stands ready to exact all of his debts through garnishment, attachment, and the panoply of other creditor remedies. The appellee can be pursued and harassed by his creditors since they hold his legally enforceable debts.
51
And in the unique situation of the indigent bankrupt, the Government provides the only effective means of his ever being free of these Government-imposed obligations. As in Boddie, there are no 'recognized, effective alternatives,' id., at 376, 91 S.Ct., at 785. While the creditors of a bankrupt with assets might well desire to reach a compromise settlement, that possibility is foreclosed to the truly indigent bankrupt. With no funds and not even a sufficient prospect of income to be able to promise the payment of a $50 fee in weekly installments of $1.28, the assetless bankrupt has absolutely nothing to offer his creditors. And his creditors have nothing to gain by allowing him to escape or reduce his debts; their only hope is that eventually he might make enough income for them to attach. Unless the Government provides him access to the bankruptcy court, Kras will remain in the totally hopeless situation he now finds himself. The Government has thus truly pre-empted the only means for the indigent bankrupt to get out from under a lifetime burden of debt.7
52
The Government contends that the filing fee is justified by the congressional decision to make the bankruptcy system self-supporting.8 But in Boddie we rejected this same 'pay as you go' argument, finding it an insufficient justification for excluding the poor from the only available process to dissolve a marriage. 401 U.S., at 382, 91 S.Ct., at 788. The argument is no more persuasive here. The Constitution cannot tolerate achievement of the goal of self-support for a bankruptcy system, any more than for a domestic relations court, at the price of denying due process of law to the poor. In re Naron, 334 F.Supp. 1150, 1151; In re Smith, 323 F.Supp. 1082, 1088.9
53
In my view, this case, like Boddie, does not require us to decide 'that access for all individuals to the courts is a right that is, in all circumstances, guaranteed by the Due Process Clause . . . so that its exercise may not be placed beyond the reach of any individual . . ..' 401 U.S., at 382—383, 91 S.Ct., at 788. It is sufficient to hold, as Boddie did, that 'a State may not, consistent with the obligations imposed on it by the Due Process Clause . . ., pre-empt the right to dissolve this legal relationship without affording all citizens access to the means it has prescribed for doing so.' Id., at 383, 91 S.Ct., at 789.
54
The Bankruptcy Act relieves 'the honest debtor from the weight of oppressive indebtedness, and (permits) him to start afresh free from the obligations and responsibilities consequent upon business misfortunes,' Williams v. United States Fidelity & Guaranty Co., 236 U.S. 549, 554—555, 35 S.Ct. 289, 290, 59 L.Ed. 713. It holds out a promise to the debtor of 'a new opportunity in life and a clear field for future effort, unhampered by the pressure and discouragement of pre-existing debt.' Local Loan Co. v. Hunt, 292 U.S. 234, 244, 54 S.Ct. 695, 699, 78 L.Ed. 1230. Yet the Court today denies that promise to those who need it most, to those who every day must live face-to-face with abject poverty—who cannot spare even $1.28 a week.
55
The Court today holds that Congress may say that some of the poor are too poor even to go bankrupt. I cannot agree.
56
Mr. Justice DOUGLAS and Mr. Justice BRENNAN, dissenting.
57
While we join Mr. Justice STEWART'S dissenting opinion we do so with this explicit statement of reasons. We said in Bolling v. Sharpe, 347 U.S. 497, 499, 74 S.Ct. 693, 694, 98 L.Ed. 884, when holding that segregation of students in the District of Columbia violated the Due Process Clause of the Fifth Amendment:
58
'The Fifth Amendment, which is applicable in the District of Columbia, does not contain an equal protection clause as does the Fourteenth Amendment which applies only to the states. But the concepts of equal protection and due process, both stemming from our American ideal of fairness, are not mutually exclusive. The 'equal protection of the laws' is a more explicit safeguard of prohibited unfairness than 'due process of law,' and, therefore, we do not imply that the two are always interchangeable phrases. But, as this Court has recognized, discrimination may be so unjustifiable as to be violative of due process.'
59
The invidious discrimination in the present case is a denial of due process because it denies equal protection within our decisions which make particularly 'invidious' discrimination based on wealth or race.
60
Mr. Justice MARSHALL, dissenting.
61
The dissent of Mr. Justice STEWART, in which I have joined, makes clear the majority's failure to distinguish this case from Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971). I add only some comments on the extraordinary route by which the majority reaches its conclusion.
62
A. The majority notes that the minimum amount that appellee Kras must pay each week if he is permitted to pay the filing fees in installments is only $1.28. It says that 'this much available revenue should be within his able-bodied reach.' Ante, at 449.
63
Appellee submitted an affidavit in which he claimed that he was 'unable to pay or promise to pay the filing fees, even in small installments.' App. 5. This claim was supported by detailed statements of his financial condition. The affidavit was unchallenged below, but the majority does challenge it. The District Judge properly accepted the factual allegations as true. See e.g., Poller v. Columbia Broadcasting System, 368 U.S. 464, 82 S.Ct. 486, 7 L.Ed.2d 458 (1962); First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968); 35B C.J.S. Federal Civil Procedure § 1197 n. 4 (1960). The majority seems to believe that it is not restrained by the traditional notion that judges must accept unchallenged, credible affidavits as true, for it disregards the factual allegations and the inferences that necessarily follow from them. I cannot treat that notion so cavalierly.1
64
Even if Kras' statement that he was unable to pay the fees was an honest mistake, surely he cannot have been mistaken in saying that he could not promise to pay the fees. The majority does not directly impugn his good faith in making that statement. Yet if he cannot promise to pay the fees, he cannot get the interim relief from creditor harassment that, the majority says, may enable him to pay the fees.
65
But beyond all this, I cannot agree with the majority that it is so easy for the desperately poor to save $1.92 each week over the course of six months. The 1970 Census found that over 800,000 families in the Nation had annual incomes of less than $1,000 or $19.23 a week. U.S. Bureau of Census, Current Population Reports, series P—60, No. 80; U.S. Bureau of Census, Statistical Abstract of the United States 1972, p. 323. I see no reason to require that families in such straits sacrifice over 5% of their annual income as a prerequisite to getting a discharge in bankruptcy.2
66
It may be easy for some people to think that weekly savings of less than $2 are no burden. But no one who has had close contact with poor people can fail to understand how close to the margin of survival many of them are. A sudden illness, for example, may destroy whatever savings they may have accumulated, and by eliminating a sense of security may destroy the incentive to save in the future. A pack or two of cigarettes may be, for them, not a routine purchase but a luxury indulged in only rarely. The desperately poor almost never go to see a movie, which the majority seems to believe is an almost weekly activity. They have more important things to do with what little money they have—like attempting to provide some comforts for a gravely ill child, as Kras must do.
67
It is perfectly proper for judges to disagree about what the Constitution requires. But it is disgraceful for an interpretation of the Constitution to be premised upon unfounded assumptions about how people live.
68
B. The majority derives some solace from the denial of certiorari in In re Garland, 402 U.S. 966, 91 S.Ct. 1624, 29 L.Ed.2d 130 (1971). Reliance on denial of certiorari for any proposition impairs the vitality of the discretion we exercise in controlling the cases we hear. See Brown v. Allen, 344 U.S. 443, 491—492, 73 S.Ct. 397, 438 439, 97 L.Ed. 469 (1953) (opinion of Frankfurter, J.). For all that the legal community knows, Mr. Justice Harlan did not join the dissent from denial of certiorari in that case for reasons different from those that the majority uses to distinguish this case from Boddie. Perhaps he believed that lower courts should have some time to consider the implications of Boddie. Most of the lower courts have refused to follow the First Circuit's decision in Garland, 428 F.2d 1185. See ante, at 453 n. 5 (STEWART, J., dissenting). Perhaps he thought that the record in that case made inappropriate any attempt to determine the scope of Boddie in that particular case. Or perhaps he had some other reason.
69
The point of our use of a discretionary writ is precisely to prohibit that kind of speculation. When we deny dertiorari, no one, not even ourselves, should think that the denial indicates a view on the merits of the case. It ill serves judges of the courts throughout the country to tell them, as the majority does today, that in attempting to determine what the law is, they must read, not only the opinions of this Court, but also the thousands of cases in which we annually deny certiorari.3
70
C. The majority says that '(t)he denial of access to the judicial forum in Boddie touched directly . . . on the marital relationship.' It sees 'no fundamental interest that is gained or lost depending on the availability of a discharge in bankruptcy.' Ante, at 444, 445. If the case is to turn on distinctions between the role of courts in divorce cases and their role in bankruptcy cases,4 I agree with Mr. Justice STEWART that this case and Boddie cannot be distinguished; the role of the Government in standing ready to enforce an otherwise continuing obligation is the same.
71
However, I would go further than Mr. Justice STEWART. I view the case as involving the right of access to the courts, the opportunity to be heard when one claims a legal right, and not just the right to a discharge in bankruptcy.5 When a person raises a claim of right or entitlement under the laws, the only forum in our legal system empowered to determine that claim is a court. Kras, for example, claims that he has a right under the Bankruptcy Act to be free of any duty to pay his creditors. There is no way to determine whether he has such a right except by adjudicating his claim.6 Failure to do so denies him access to the courts.
72
The legal system is, of course, not so pervasive as to preclude private resolution of disputes. But private settlements do not determine the validity of claims of right. Such questions can be authoritatively resolved only in courts. It is in that sense, I believe, that we should consider the emphasis in Boddie on the exclusiveness of the judicial forum—and give Kras his day in court.
1
Additional compensation to the trustee in an appropriate case is allowable under § 48(c), 11 U.S.C. § 76(c), but these provisions have no application for a noasset or fully exempt estate.
2
General Order in Bankruptcy No. 15, 305 U.S. 687 (1939), 11 U.S.C.App., p. 2203, provides that a trustee need not be appointed in a no-asset case. When a trustee is not appointed, the aggregate fees are $40.
3
'(4) The petition in a voluntary proceeding under Chapters I to VII . . . of the Act may be accepted for filing by the clerk if accompanied by a verified petition of the bankrupt . . . stating that the petitioner is without and cannot obtain the money with which to pay the filing fees in full at the time of filing. Such petition shall state the facts showing the necessity for the payment of the filing fees in installments and shall set forth the terms upon which the peitioner proposes to pay the filing fees.
'a. At the first meeting of creditors or any adjournment thereof, the court . . . shall enter an order fixing the amount and date of payment of such installments. The final installment shall be payable not more than six months after the date of filing of the original petition; provided, however, that for cause shown the court may extend the time of payment of any installment for a period not to exceed three months.
'b. Upon the failure of a bankrupt . . . to pay any installment as ordered, the court may dismiss the proceeding for failure to pay costs as provided in Section 59, sub. g. of the Act. . . .
'c. No proceedings upon the discharge of a babkrupt . . . shall be instituted until the filing fees are paid in full.'
4
'Any court of the United States may authorize the commencement, prosecution or defense of any suit, action or proceeding, civil or criminal, or appeal therein, without prepayment of fees and costs or security therefor, by a person who makes affidavit that he is unable to pay such costs or give security therefor. Such affidavit shall state the nature of the action, defense or appeal and affiant's belief that he is entitled to redress.'
5
In re Smith, 323 F.Supp. 1082 (Colo.1971) (decided before Boddie); In re Naron, 334 F.Supp. 1150 (Or.1971); In re Ottman, 336 F.Supp. 746 (ED Wis.1972); In re Smith, 341 F.Supp. 1297 (ND Ill.1972); In re Haddock and Beeman, Nos. 14810 and 14811 (Conn.1972); In re Passwater, Nos. IP70—B—3697 and IP70—B—3698 (SD Ind.1971); In re Ripley, .no. Bk 71—o—1003 (Neb.1972); In re Read, No. Bk 71—826 (WDNY 1971). See O'Brien v. Trevethan, 336 F.Supp. 1029 (Conn.1972). But see In re Partilla, No. 71—B—380 (SDNY 1971); In re Malevich, No. Bk 29—71 (NJ 1971).
6
See N.Y. CPLR § 5205 (1963); N.Y. Labor Law § 595 (1965); N.Y. Social Welfare Law § 137 (1966), and § 137—a (Supp.1972 1973).
7
For the decade ended June 30, 1959, the Referee's Salary and Expense Fund showed surpluses for the first five fiscal years and deficits for the last five. For fiscal 1969, 107,481 no-asset cases were terminated (as compared with 169,500 nonbusiness cases filed). Administrative Office of the United States Courts, Tables of Bankruptcy Statistics for Fiscal Year Ending June 30, 1969, pp. 5, 10 (1971). This means, of course, that the fees were paid in those terminated no-asset cases. Undue hardship and denial of access to the courts are not apparent from this record of achievement.
8
If the fees total $40, as they may under General Order No. 15, 305 U.S. 687 (1939), 11 U.S.C.App., p. 2203, these average weekly figures are reduced to $1.54 and $1.03 respectively.
9
We fail to see how a discharge in bankruptcy in itself will prevent the Metropolitan from issuing an unfavorable reference letter about Kras.
1
These items are exempt from distribution in bankruptcy pursuant to 11 U.S.C. § 24 and N.Y. CPLR § 5205 (1963).
2
The fee consists of $37 for the referees' salary and expense fund, $10 compensation for the trustees, and $3 to the clerk as a filing fee. 11 U.S.C. §§ 68(c)(1), 76(c), 80(a).
3
This Court's General Order in Bankruptcy No. 35(4), authorized by 11 U.S.C. § 68(c)(1), permits fees to be paid in installments over a six-month period, amounting to $1.92 a week; and, for cause, this period may be extended for an additional three months, so that the debtor would only be required to pay $1.28 per week. But before the bankruptcy petition can be filed, the petitioner must both indicate that he is without, and cannot obtain, money with which to pay the fee in advance, and set forth the terms upon which he proposes to make installment payments.
4
The appellee also contended that the filing fee should be waived under the general federal in forma pauperis statute, 28 U.S.C. § 1915(a). That contention was rejected by the District Court on the grounds that, in 1946, Congress expressly eliminated bankruptcy petitions in forma pauperis, and substituted installment payments. 11 U.S.C. § 68(c). In light of the clear congressional intent to eliminate pauper petitions, the court concluded, Congress did not intend to allow bankrupts to proceed under the general in forma pauperis statute. See also In re Garland, (1 Cir.) 428 F.2d 1185, 1186—1187; In re Smith, 323 F.Supp. 1082, 1084—1085. The appellee does not queston that conclusion here.
5
Other federal courts have reached the same conclusion. See In re Haddock, No. 14810 (Conn., May 22, 1972); In re Smith, 341 S.Supp. 1297; In re Ripley, No. Bk 71—o—1003 (Neb., Apr. 28, 1972); In re Ottman, 336 F.Supp. 746; In re Naron, 334 F.Supp. 1150; In re Read, No. Bk 71—826 (WDNY, Oct. 19, 1971). See also In re Shropshire (ND Ia., Mar. 28, 1972); In re Passwater, Nos. IP70 B—3697 and IP70—B—3698 (SD Ind. 1971). But see In re Partilla, No. 71—B—380 (SDNY Oct. 15, 1971); In re Malevich, No. Bk 29—71 (NJ 1971). In re Garland, supra, upon which the Government relies, was decided before our decision in Boddie.
6
The appellee indicated in the affidavit submitted with his petition:
'Because of my poverty, I am wholly unable to pay or promise to pay the filing fees, even in small installments, as a condition precedent to discharge and also provide myself and my dependents with day-to-day necessities. I have been unable to borrow money from my family, relatives, or friends. One of the debts of which I seek a discharge in bankruptcy is a loan from my wife's grandmother. The New York City Department of Social Services refuses to allot money for payment of the bankruptcy filing fees. I have no prospect of immediate employment.'
7
In Boddie, the Court recognized that marriage was a 'fundamental human relationship,' 401 U.S., at 383, 91 S.Ct., at 788, which involved interests 'of basic importance in our society.' Id., at 376, 91 S.Ct., at 785. But it was not any subjective conception of the 'fundamentality' of marriage, or divorce for that matter, that led the Court to find a due process violation in Boddie; rather, the significant factor about marriage was that '(w)ithout a prior judicial imprimatur, individuals may freely enter into and rescind commercial contracts, for example, but we are unaware of any jurisdiction where private citizens may covenant for or dissolve marriages without state approval.' Id., at 376, 91 S.Ct., at 785. It is the existence of judicially enforced obligations coupled with monopolization of the means of dissolution that similarly besets the indigent bankrupt.
8
Prior to 1946, while pauper petitioners were accepted without payment of fees, the referees whose compensation depended on fees, often demanded payment before granting a discharge. S.Rep.No.959, 79th Cong., 2d Sess., 6—7 (1946); H.R.Rep.No.1037, 79th Cong., 1st Sess., 6 (1945). The 1946 Amendments to the Bankruptcy Act eliminated pauper petitions and provided for the payment of fixed fees for every petition filed, and the payment of a fixed percentage of all distributable assets. See H.R.Rep.No.1037, supra, at 4, 5—6.
9
See Fuentes v. Shevin, 407 U.S. 67, 90 n. 22, 92 S.Ct. 1983, 1999, 32 L.Ed.2d 556; Bell v. Burson, 402 U.S. 535, 540—541, 91 S.Ct. 1586, 1589—1590, 29 L.Ed.2d 90; Goldberg v. Kelly, 397 U.S. 254, 261, 90 S.Ct. 1011, 1016, 25 L.Ed.2d 287; Cf. Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891.
Moreover, there is no evidence that a substantial amount of revenue would be lost by allowing assetless indigents with no present prospects of paying the fee to file without prepayment. Any loss in fees that did result could be partly recouped by allowing the filing-fee debt to survive bankruptcy.
1
The majority also misrepresents appellee's financial condition. It says that $1.28 'is a sum less than the payments Kras makes on his couch of negligible value in storage.' Ante, at 449. Nowhere in the slender record of this case can I find any statement that appellee is actually paying anything for the storage of the couch. He said only that he 'owed payments of $6 per mouth' for storage. App. 5 (emphasis added). He also stated that he owed $6,428.69, but I would hardly read that to mean that he was paying that much to anyone.
2
The majority, in citing the 'record of achievement' of the bankruptcy system in terminating 107,481 no-asset cases in the fiscal year 1969, ante, at 448 n. 7, relies on spectral evidence. Because the filing fees bar relief through the bankruptcy system, statistics showing how many people got relief through that system are unenlightening on the question of how many people could not use the system because they were too poor. I do not know how many people cannot afford to pay a $50 fee in installments. But I find nothing in the majority's opinion to convince me that due process is afforded a person who cannot receive a discharge in bankruptcy because he is too poor. Even if only one person is affected by the filing fees, he is denied due process.
3
That one of us undertook to write a dissent, even a 'pointed dissent,' from the denial of certiorari should suggest, again, nothing at all about the views of any other Members of the Court on the merits of the petition. Surely each of us has seen many cases in which a colleague's dissent from the denial of certiorari pointed to an issue of great concern that we thought should be decided by this Court, but in which we did not join because we did not consider the case to be an appropriate vehicle for determination of that issue.
4
I am intrigued by the majority's suggestion that, because the granting of a divorce impinges on 'associational interests,' the right to a divorce is constitutionally protected. Are we to require that state divorce laws serve compelling state interests? For example, if a State chooses to allow divorces only when one party is shown to have committed adultery, must its refusal to allow them when the parties claim irreconcilable differences be justified by some compelling state interest? I raise these questions only to suggest that the majority's focus on the relative importance in the constitutional scheme of divorce and bankruptcy is misplaced. What is involved is the importance of access to the courts, either to remove an obligation that other branches of the government stand ready to enforce, as Mr. Justice STEWART sees it, or to determine claims of right, as I see it.
5
The majority suggests that no such right is involved, because Congress could have committed the administration of the Bankruptcy Act to a nonjudicial agency. Ante, at 447. I have some doubt about the proposition that a statutorily created right can be finally determined by an agency, with no method for a disappointed claimant to secure judicial review. But I have no doubt that Congress could not provide that only the well-off had the right to present their claims to the agency. As should be clear, the question is one of access to the forum empowered to determine the claim of right; it is only shorthand to call this a question of access to the courts.
6
It might be said that the right he claims does not come into play until he has fulfilled a condition precedent by paying the filing fees. But the distinction between procedure and substance is not unknown in the law and can be drawn on to counter that argument.
| 12
|
409 U.S. 418
93 S.Ct. 602
34 L.Ed.2d 613
DISTRICT OF COLUMBIA, Petitioner,v.Melvin CARTER.
No. 71-564.
Argued Nov. 6, 1972.
Decided Jan. 10, 1973.
Rehearing Denied Feb. 26, 1973.
See 410 U.S. 959, 93 S.Ct. 1411.
Syllabus
The District of Columbia is not a 'State or Territory' within the meaning of 42 U.S.C. § 1983, and the Court of Appeals therefore erred insofar as that court sustained respondent's claims for deprivation of civil rights pursuant to that statute. Pp. 420—433.
144 U.S.App.D.C. 388, 447 F.2d 358, reversed.
Richard W. Barton Washington, D.C., for petitioner.
Warren K. Kaplan, Washington, D.C., for respondent.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
On February 12, 1969, respondent filed this civil action in the United States District Court for the District of Columbia alleging that in 1968 Police Officer John R. Carlson of the Metropolitan Police Department of the District of Columbia arrested him without probable cause and, while he was being held by two other officers, beat him with brass knuckles. The complaint alleged further that Carlson's precinct captain, the chief of police, and the District of Columbia each had negligently failed to train, instruct, supervise, and control Carlson with regard to the circumstances in which an arrest may be made and the extent to which various degrees of force may be used to effect an arrest. Respondent sought damages against each defendant upon several theories, including a common-law theory of tort liability and an action for deprivation of civil rights pursuant to 42 U.S.C. § 1983, which provides:1
2
'Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State of Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.'
3
The District Court dismissed the complaint against all defendants without opinion.2 On appeal, the United States Court of Appeals for the District of Columbia Circuit reversed, holding that the allegations of the complaint were sufficient to state causes of action under both the common-law and federal statutory theories of liability. Carter v. Carlson, 144 U.S.App.D.C. 388, 447 F.2d 358 (1971). In sustaining respondent's claims under § 1983, the court held that '(a)cts under color of the law of the District of Columbia are under color of the law of a 'State or Territory' for the purpose of § 1983'. Id., at 391 n. 3, 447 F.2d, at 361 n. 3. We granted certiorari. District of Columbia v. Carter, 404 U.S. 1014, 92 S.Ct. 683, 30 L.Ed.2d 661. For the reasons stated below, we hold that the District of Columbia is not a 'State or Territory' within the meaning of § 1983. We therefore reverse the judgment of the Court of Appeals insofar as that judgment sustained respondent's claims under § 1983.3
4
* Whether the District of Columbia constitutes a 'State or Territory' within the meaning of any particular statutory or constitutional provision depends upon the character and aim of the specific provision involved.4 Indeed, such '(w)ords generally have different shades of meaning, and are to be construed if reasonably possible to effectuate the intent of the lawmakers; and this meaning in particular instances is to be arrived at, not only by a consideration of the words themselves, but by considering, as wellThe context, the purposes of the law, and the circumstances under which the words were employed.' Puerto Rico v. Shell Co. (P.R.), Ltd., 302 U.S. 253, 258, 58 S.Ct. 167, 169, 82 L.Ed. 235 (1937); see Helvering v. Stockholms Enskilda Bank, 293 U.S. 84, 86, 87—88, 55 S.Ct. 50, 51—52, 79 L.Ed. 211 (1934); Atlantic Cleaners & Dyers v. United States, 286 U.S. 427, 433, 52 S.Ct. 607, 608—609, 76 L.Ed. 1204 (1932).
5
The Court of Appeals' conclusion that the District of Columbia is a 'State or Territory' for the purpose of § 1983 was premised almost exclusively upon this Court's earlier determination that 'the District of Columbia is included within the phrase 'every State and Territory" as employed in 42 U.S.C. § 1982. Hurd v. Hodge, 334 U.S. 24, 31, 68 S.Ct. 847, 851, 92 L.Ed. 1187 (1948).5 At first glance, it might seem logical simply to assume, as did the Court of Appeals, that identical words used in two related statutes were intended to have the same effect. Nevertheless, '(w)here the subject-matter to which the words refer is not the same in the several places where they are used, or the conditions are different, or the scope of the legislative power exercised in one case is broader than that exercised in another, the meaning well may vary to meet the purposes of the law . . ..' Atlantic Cleaners & Dyers v. United States, supra, 286 U.S., at 433, 52 S.Ct., at 609. And the logic underlying the Court of Appeals' assumption breaks down completely where, as here, 'there is such variation in the connection in which the words are used as reasonably to warrant the conclusion that they were employed . . . with different intent.' Ibid.
6
Section 1982, which first entered our jurisprudence as § 1 of the Civil Rights Act of 1866, Act of Apr. 9, 1866, 14 Stat. 27, provides:
7
'All citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property.'
8
This provision was enacted as a means to enforce the Thirteenth Amendment's proclamation that '(n)either slavery nor involuntary servitude . . . shall exist within the United States, or any place subject to their jurisdiction.' See Jones v. Alfred H. Mayer Co., 392 U.S. 409, 437—438, 88 S.Ct. 2186, 2202, 20 L.Ed.2d 1189 (1968). 'As its text reveals, the Thirteenth Amendment 'is not a mere prohibition of state laws establishing or upholding slavery, but an absolute declaration that slavery or involuntary servitude shall not exist in any part of the United States." Civil Rights Cases, 109 U.S. 3, 20, 3 S.Ct. 18, 27—28, 27 L.Ed. 835 (1883); see Griffin v. Breckenridge, 403 U.S. 88, 105, 91 S.Ct. 1790, 1800, 29 L.Ed.2d 338 (1971); Jones v. Alfred H. Mayer Co., supra, 392 U.S., at 437—440, 88 S.Ct., at 2202—2203; Clyatt v. United States, 197 U.S. 207, 216, 218, 25 S.Ct. 429, 430, 431, 49 L.Ed. 726 (1905). Thus, it cannot be doubted that the power vested in Congress to enforce this Amendment includes the power to enact laws of nationwide application.
9
Moreover, like the Amendment upon which it is based, § 1982 is not a 'mere prohibition of state laws establishing or upholding' racial discrimination in the sale or rental of property but, rather, an 'absolute' bar to all such discrimination, private as well as public, federal as well as state. Cf. Jones v. Alfred H. Mayer Co., supra, 392 U.S., at 413, 437, 88 S.Ct., at 2189, 2202. With this in mind, it would be anomalous indeed if Congress chose to carve out the District ofColumbia as the sole exception to an act of otherwise universal application. And this is all the more true where, as here, the legislative purposes underlying § 1982 support its applicability in the District. The dangers of private discrimination, for example, that provided a focal point of Congress' concern in enacting the legislation,6 were, and are, as present in the District of Columbia as in the States, and the same considerations that led Congress to extend the prohibitions of § 1982 to the Federal Government apply with equal force to the District, which is a mere instrumentality of that Government. Thus, in the absence of some express indication of legislative intent to the contrary,7 there was ample justification for the holding in Hurd that § 1982 was intended to outlaw racial discrimination in the sale or rental of property in the District of Columbia as well as elsewhere in the United States.
10
The situation is wholly different, however, with respect to § 1983. Unlike § 1982, which derives from the Civil Rights Act of 1866, § 1983 has its roots in § 1 of the Ku Klux Klan Act of 1871, Act of Apr. 20, 1871, § 1, 17 Stat. 13. This distinction has great significance, for unlike the 1866 Act, which was passed as a means to enforce the Thirteenth Amendment, the primary purpose of the 1871 Act was 'to enforce the Provisions of the Fourteenth Amendment.' 17 Stat. 13; see, e.g., Lynch v. Household Finance Corp., 405 U.S. 538, 545, 92 S.Ct. 1113, 1118, 31 L.Ed.2d 424 (1972); Monroe v. Pape, 365 U.S. 167, 171, 81 S.Ct. 473, 475—476, 5 L.Ed.2d 492 (1961); see also Cong. Globe, 42 Cong., 1st Sess., App. 68, 80, 83—85. And it has long been recognized that '(d)ifferent problems of statutory meaning are presented by two enactments deriving from different constitutional sources. See the Civil Rights Cases, 109 U.S. 3 (3 S.Ct. 18, 27 L.Ed. 835). Compare United States v. Williams, (341 U.S. 70, 71 S.Ct. 581, 95 L.Ed. 758), with Screws v. United States, 325 U.S. 91 (65 S.Ct. 1031, 89 L.Ed. 1495).' Monroe v. Pape, supra, 365 U.S., at 205—206, 81 S.Ct., at 494 (separate opinion of Frankfurter, J.).
11
In contrast to the reach of the Thirteenth Amendment, the Fourteenth Amendment has only limited applicability; the commands of the Fourteenth Amendment are addressed only to the State or to those acting uner color of its authority. See, e.g., Civil Rights Cases, supra; United States v. Harris, 106 U.S. 629, 1 S.Ct. 601, 27 L.Ed. 290 (1883); United States v. Cruikshank, 92 U.S. 542, 23 L.Ed. 588 (1876). The Fourteenth Amendment itself 'erects no shield against merely private conduct, however discriminatory or wrongful.'8 Shelley v. Kraemer, 334 U.S. 1, 13, 68 S.Ct. 836, 842, 92 L.Ed. 1161 (1948); see also United States v. Price, 383 U.S. 787, 86 S.Ct. 1152, 16 L.Ed.2d 267 (1966); Evans v. Newton, 382 U.S. 296, 86 S.Ct. 486, 15 L.Ed.2d 373 (1966); Hodges v. United States, 203 U.S. 1, 27 S.Ct. 6, 51 L.Ed. 65 (1906). Similarly, actions of the Federal Government and its officers are beyond the purview of the Amendment. And since the District of Columbia is not a 'State' within the meaning of the Fourteenth Amendment see Bolling v. Sharpe, 347 U.S. 497, 499, 74 S.Ct. 693, 694, 98 L.Ed. 884 (1954); Shelley v. Kraemer, supra, 334 U.S., at 8, 68 S.Ct., at 839—840; Wight v. Davidson, 181 U.S. 371, 384, 21 S.Ct. 616, 621, 45 L.Ed. 900 (1901), neither the District nor its officers are subject to its restrictions.9
12
Like the Amendment upon which it based, § 1983 is of only limited scope. The statute deals only with those deprivations of rights that are accomplished under the color of the law of 'any State or Territory.'10 It does not reach purely private conduct and, with the exception of the Territories,11 actions of the Federal Government and its officers are at least facially exempt from its proscriptions. Thus, unlike the situation presented in Hurd, the instant case does not involve a constitutional provision and related statute of universal applicability. This being so, the considerations that led to an expansive reading of § 1982 so as to include the District of Columbia simply do not apply with respect to § 1983. We must therefore examine the legislative history of § 1983 to determine whether the purposes for which the Act was adopted support a similarly broad construction.
II
13
Any analysis of the purposes and scope of § 1983 must take cognizance of the events and passions of the time at which it was enacted.12 After the Civil War ended in 1865, race relations in the South became increasingly turbulent. The Ku Klux Klan was organized by southern whites in 1866, and a wave of murders and assaults was launched against both blacks and Union sympathizers.13 Thus, at the opening of the 42d Congress, considerable apprehension was expressed by Republicans about the insecurity of life and property in the South,14 and on March 23, 1871, President Grant sent a message to Congress requesting additional federal legislation to curb this rising tide of violence. Such legislation was deemed essential in light of the inability of the state governments to control the situation.15 Five days later, Congressman Shellabarger of Ohio introduced the bill that eventually was to become the Ku Klux Klan Act of 1871.16
14
Although there are threads of many thoughts running through the debates on the 1871 Act, it seems clear that § 1 of the Act, with which we are here concerned, was designed primarily in response to the unwillingness or inability of the state governments to enforce their own laws against those violating the civil rights of others.17 Thus, while the Klan itself provided the principal catalyst for the legislation, the remedy created in § 1 'was not a remedy against (the Klan) or its members but against those who representing a State in some capacity were unable or unwilling to enforce a state law.' Monroe v. Pape, 365 U.S., at 175—176, 81 S.Ct., at 478 (emphasis in original). Senator Pratt of Indiana summarized this concern when he said:18
15
'(O)f the hundreds of outrages committed upon loyal people through the agency of this Ku Klux organization not one has been punished. This defect in the administration of the laws does not extend to other cases. Vigorously enough are the laws enforced against Union people. They only fail in efficiency when a man of known Union sentiments, white or black, invokes their aid. Then Justice closes the door of her temples.'
16
Similarly, Congressman Hoar of Massachusetts stated:19
17
'Now, it is an effectual denial by a State of the equal protection of the laws when any class of officers charged under the laws with their administration permanently and as a rule refuse to extend that protection. If every sheriff in South Carolina refuses to serve a writ for a colored man and those sheriffs are kept in office year after year by the people of South Carolina, and no verdict against them for their failure of duty can be obtained before a South Carolina jury, the State of South Carolina, through the class of officers who are its representatives to afford the equal protection of the laws to that class of citizens, has denied that protection.'
18
To the Reconstruction Congress, the need for some form of federal intervention was clear. It was equally clear, however, that Congress had neither the means nor the authority to exert any direct control, on a day-to-day basis, over the actions of state officials. The solution chosen was to involve the federal judiciary. At the time this Act was adopted, it must be remembered, there existed no general federal-question jurisdiction in the lower federal courts.20 Rather, 'Congress relied on the state courts to vindicate essential rights arising under the Constitution and federal laws.'21 Zwickler v. Koota, 389 U.S. 241, 245, 88 S.Ct. 391, 394, 19 L.Ed.2d 444 (1967). With the growing awareness that this reliance had been misplaced, however, Congress recognized the need for original federal court jurisdiction as a means to provide at least indirect federal control over the unconstitutional actions of state officials.22 Congressman Coburn explained:23
19
'The United States courts are further above mere local influence than the county courts; their judges can act with more independence, cannot be put under terror, as local judges can; their sympathies are not so nearly identified with those of the vicinage; the jurors are taken from the State, and not the neighborhood; they will be able to rise above prejudices or bad passions or terror more easily. . . . We believe that we can trust our United States courts, and we propose to do so.'
20
Thus, in the final analysis, § 1 of the 1871 Act may be viewed as an effort 'to afford a federal right in federal courts because, by reason of prejudice, passion, neglect, intolerance or otherwise, state laws might not be enforced and the claims of citizens to the enjoyment of rights, privileges, and immunities guaranteed by the Fourteenth Amendment might be denied by the state agencies.' Monroe v. Pape, 365 U.S., at 180, 81 S.Ct., at 480.
21
There was no need, however, to create federal court jurisdiction for the District of Columbia. Even prior to 1871, the courts of the District possessed general jurisdiction over both federal and local matters. Act of Mar. 3, 1863, c. 91, 12 Stat. 762. Thus, the jurisdictional aspects of § 1 of the 1871 Act were entirely superfluous with respect to the District. Moreover, while Congress was unable to exert any direct control over the actions of state officials, it was authorized under Art. I, § 8, cl. 17, of the Constitution to exercise plenary power over the District of Columbia and its officers.24 Indeed, '(t)he power of Congress over the District of Columbia includes all the legislative powers which a state may exercise over its affairs.' Berman v. Parker, 348 U.S. 26, 31, 75 S.Ct. 98, 102, 99 L.Ed. 27 (1954); see District of Columbia v. John R. Thompson, Co., Inc., 346 U.S. 100, 108, 73 S.Ct. 1007, 1011—1012, 97 L.Ed. 1480 (1953); National Mutual Insurance Co. v. Tidewater Transfer Co., 337 U.S. 582, 602, 69 S.Ct. 1173, 1183, 93 L.Ed. 1556 (1949); Kendall v. United States, 12 Pet. 524, 619, 9 L.Ed. 1181 (1838). And since the District is itself the seat of the National Government, Congress was in a position to observe and, to a large extent, supervise the activities of local officials.25 Thus, the rationale underlying Congress' decision not to enact legislation similar to § 1983 with respect to federal officials—the assumption that the Federal Government could keep its own officers under control—is equally applicable to the situation then existing in the District of Columbia.
22
It is true, of course, that Congress also possessed plenary power over the Territories.26 For practical reasons, however, effective federal control over the activities of territorial officials was virtually impossible. Indeed, 'the territories were not ruled immediately from Washington; in a day of poor roads and slow mails, it was unthinkable that they should be. Rather, Congress left municipal law to be developed largely by the territorial legislatures, within the framework of organic acts and subject to a retained power of veto. The scope of selfgovernment exercised under these delegations was nearly as broad as that enjoyed by the States. . . .' Glidden Co. v. Zdanok, 370 U.S. 530, 546, 82 S.Ct. 1459, 1470, 8 L.Ed.2d 671 (1962); see also E. Pomeroy, The Territories and the United States 1861—1890, p. 92 (1947); H.R.Rep.No.440, 48th Cong., 1st Sess. (1884); S.Rep.No.1249, 49th Cong., 1st Sess. (1886). Thus, although the Constitution vested control over the Territories in the Congress, its practical control was both 'confused and ineffective,'27 making the problem of enforcement of civil rights in the Territories more similar to the problem as it existed in the States than in the District of Columbia.28
23
Moreover, the effort to analogize the District of Columbia to the Territories in this context faces strong theoretical obstacles. The territorial state has aptly been described as 'one of pupilage at best.' Nelson v. United States, 30 F. 112, 115 (Or. 1887). From the moment of their creation, the Territories were destined for admission as States into the Union, and 'as a preliminary step toward that foreordained end—to tide over the period of ineligibility—Congress, from time to time, created territorial governments, the existence of which was necessarily limited to the period of pupilage.' O'Donoghue v. United States, 289 U.S. 516, 537, 53 S.Ct. 740, 745, 77 L.Ed. 1356 (1933); see McAllister v. United States, 141 U.S. 174, 188, 11 S.Ct. 949, 954, 35 L.Ed. 693 (1891). Thus, in light of the transitory nature of the territorial condition, Congress could reasonably treat the Territories as inchoate States, quite similar in many respects to the States themselves, to whose status they would inevitably ascend.
24
The District of Columbia, on the other hand, 'is an exceptional community . . . established under the Constitution as the seat of the National Government.' District of Columbia v. Murphy, 314 U.S. 441, 452, 62 S.Ct. 303, 308, 86 L.Ed. 329 (1941). As such, it 'is as lasting as the states from which it was carved or the union whose permanent capital it became.' O'Donoghue v. United States, supra, 289 U.S., at 538, 53 S.Ct., at 746. Indeed, it is 'the very heart—of the Union itself, to be maintained as the 'permanent' abiding place of all its supreme departments, and within which the immense powers of the general government were destined to be exercised . . ..' Id., at 539, 53 S.Ct., at 746. Unlike either the States or Territories, the District is truly sui generis i our governmental structure.
25
With this unique status of the District of Columbia in mind, and in the absence of any indication in the language, purposes, or history of § 1983 of a legislative intent to include the District within the scope of its coverage, the conclusion is compelled that the Court of Appeals erred in holding that the District of Columbia constitutes a 'States or Territory' within the meaning of § 1983. Just as '(w)e are not at liberty to seek ingenious analytical instruments' to avoid giving a congressional enactment the broad scope its language and origins may require, United States v. Price, 383 U.S., at 801, 86 S.Ct., at 1160 so too are we not at liberty to recast this statute to expand its application beyond the limited reach Congress gave it. This is not to say, of course, that a claim, such as a possible claim against Officer Carlson, of alleged deprivation of constitutional rights is not litigable in the federal courts of the District. See Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971); Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939 (1946). But insofar as the judgment of the Court of Appeals sustaining respondent's claims rested on § 1983, that judgment must be, and is, reversed.
26
Judgment reversed.
1
Ku Klux Klan Act of 1871, Act of Apr. 20, 1871, § 1, 17 Stat. 13, Rev.Stat. § 1979, 42 U.S.C. § 1983.
2
Officer Carlson was never found for service of process. The precinct captain and police chief moved to dismiss the complaint on the ground that it failed to state a claim or which relief could be granted. Their supporting memorandum argued that no tort on their part had been committed, and that in any event they were protected by the doctrine of official immunity. The District of Columbia moved to dismiss the complaint for failure to state a claim, and also on the ground of sovereign immunity.
3
We therefore have no occasion to determine whether, as urged by petitioner, the District is not a 'person' for the purpose of 42 U.S.C. § 1983. In addition, we intimate no view on the merits of respondent's claims insofar as they are predicated on other theories of liability.
4
Compare Hurd v. Hodge, 334 U.S. 24, 68 S.Ct. 847, 92 L.Ed. 1187 (1948); Talbott v. Silver Bow County, 139 U.S. 438, 11 S.Ct. 594, 35 L.Ed. 210 (1891); Geofroy v. Riggs, 133 U.S. 258, 10 S.Ct. 295, 33 L.Ed. 642 (1890); Callan v. Wilson, 127 U.S. 540, 8 S.Ct. 1301, 32 L.Ed. 223 (1888), with Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884 (1954); Wight v. Davidson, 181 U.S. 371, 21 S.Ct. 616, 45 L.Ed. 900 (1901); Hepburn v. Ellzey, 2 Cranch 445, 2 L.Ed. 332 (1805).
5
The Court of Appeals also cited Sewell v. Pegelow, 291 F.2d 196 (CA4 1961), which, relying upon Hurd, also held that the District of Columbia is a 'State or Territory' within the meaning of § 1983. That decision is likewise disapproved.
6
See Jones v. Alfred H. Mayer Co., 392 U.S. 409, 422—436, 88 S.Ct. 2186, 2194—2201, 20 L.Ed.2d 1189 (1968).
7
Although the legislative debate over the 1866 Act did not focus specifically on the District, there are numerous indications that the Act was designed to 'extend to all parts of the country.' Cong. Globe, 39th Cong., 1st Sess., 322 (Sen. Trumbull); see e.g., id., at 426, 474.
8
This is not to say, of course, that Congress may not proscribe purely private conduct under § of the Fourteenth Amendment. See United States v. Guest, 383 U.S. 745, 762, 86 S.Ct. 1170, 1180, 16 L.Ed.2d 239 (1966) (Clark, J., concurring); id., at 782—784, 86 S.Ct., at 1190—1192 (Brennan, J., concurring and dissenting). Cf. Katzenbach v. Morgan, 384 U.S. 641, 86 S.Ct. 1717, 16 L.Ed.2d 828 (1966).
9
Thus, unlike the situation with respect to § 1982 and the Thirteenth Amendment, inclusion of the District of Columbia in § 1983 cannot be subsumed under Congress' power to enforce the Fourteenth Amendment but, rather, would necessitate a wholly separate exercise of Congress' power to legislate for the District under Art. I, § 8, cl. 17.
10
It should be observed that, unlike § 1982, which uses the phrase 'every State and Territory' as a mere geographical description, the expression 'any State or Territory' in § 1983 constitutes a substantive limitation upon the types of conduct that are prohibited.
11
As initially enacted, § 1 of the 1871 Act applied only to action under color of the law of any 'State.' 17 Stat. 13. The phrase 'or Territory' was added, without explanation, in the 1874 codification and revision of the United States Statutes at Large. Rev.Stat. § 1979 (1874). Since the Territories are not 'States' within the meaning of the Fourteenth Amendment, see South Porto Rico Sugar Co. v. Buscaglia, 154 F.2d 96, 101 (CA1 1946); Anderson v.Scholes, 83 F.Supp. 681, 687 (Alaska 1949), this addition presumably was an exercise of Congress' power to regulate the Territories under Art. IV, § 3, cl. 2.
12
See generally K. Stampp, The Era of Reconstruction, 1865 1877 (1965); A. Nevins, The Emergence of Modern America, 1865—1878 (1927).
13
See Nevins, supra, n. 12, at 351. For an appreciation of the nature and character of the Ku Klux Klan as it appeared to Congress in 1871, see S.Rep. No. 1, 42d Cong., 1st Sess. (1871), and the voluminous report of the Joint Select Committee to inquire into the Condition of Affairs in the late Insurrectionary States, published as S.Rep. No. 41, pts. 1—13 and H.R.Rep. No. 22, pts. 1 13, 42d Cong., 2d Sess. (1872).
14
See Cong. Globe, 42d Cong., 1st Sess., 116—117.
15
See id., at App. 226.
16
See Cong. Globe, 42d Cong., 1st Sess., 317.
17
See, e.g., id., at 154—159 (Sen. Sherman), 322 (Cong. Stoughton), 374 (Cong. Lowe), 428 (Cong. Beatty), 516—519 (Cong. Shellabarger), 653 (Sen. Osborn), id., at App. 72 (Cong. Blair), 78 (Cong. Perry), 100—110 (Sen. Pool).
18
Cong. Globe, 42d Cong., 1st Sess., 505.
19
Id., at 334.
20
Original 'arising under' jurisdiction, pursuant to Art. III, § 2, cl. 1, was vested in the federal courts by § 11 of the Act of Feb. 13, 1801, 2 Stat. 92, but was repealed only a year later by § 1, of the Act of Mar. 8, 1802, c. 8, § 1, 2 Stat. 132. It was not until 1875 that Congress granted the federal courts 'original cognizance, concurrent with the courts of the several States, of all suits of a civil nature at common law or in equity, where the matter in dispute exceeds, exclusive of costs, the sum or value of five hundred dollars, and arising under the Constitution or laws of the United States . . ..' Act of Mar. 3, 1875, § 1, 18 Stat. 470. The jurisdictional amount has since been raised from $500 to $2,000 by the Act of Mar. 3, 1887, § 1, 24 Stat. 552; to $3,000 by the Act of Mar. 3, 1911, § 24, 36 Stat. 1091; and to $10,000 by the Act of July 25, 1958, 72 Stat. 415. The provision is now codified as 28 U.S.C. § 1331(a).
21
The only exception was § 25 of the Judiciary Act of 1789, 1 Stat. 85, providing for Supreme Court review whenever a claim of federal right was denied by a state court.
22
Thus, as originally enacted, § 1 of the 1871 Act provided that the proceedings authorized by the Act are 'to be prosecuted in the several district or circuit courts of the United States. . . .' 17 Stat. 13. This aspect of § 1 is now codified as 28 U.S.C. § 1343(3).
23
Cong. Globe, 42d Cong., 1st Sess., 460.
24
In pertinent part, Art. I, § 8, cl. 17, of the Constitution provides that Congress shall have power '(t)o exercise exclusive Legislation in all Cases whatsoever, over such District . . . as may . . . become the Seat of Government of the United States . . ..'
25
The District of Columbia police system, for example, was operated under the direction of a board of five commissioners appointed by the President with the advice and consent of the Senate. The statutes creating the metropolitan police system established a network of regulations and reporting requirements that enabled the Federal Government to keep a watchful eye over police conduct. See Act of Aug. 6, 1861, 12 Stat. 320; Act of July 16, 1862, 12 Stat. 578.
Respondent seeks to make much of the fact that, in 1871, Congress established a 'territorial' form of government for the District of Columbia, with a governor and legislative assembly, to which the general administration of the affairs of the District was committed. Act of Feb. 21, 1871, 16 Stat. 419. In light of this development, respondent argues, Congress must have intended the word 'Territory' in § 1 of the Ku Klux Klan Act to include the District of Columbia. What respondent apparently overlooks, however, is that on June 20, 1874, the very day that the phrase 'or Territory' was formally enacted into the revised version of § 1 of the Ku Klux Klan Act, see n. 11, supra, Congress also abolished the 'territorial' form of government in the District and, in its stead, authorized the President, with the advice and consent of the Senate, to appoint a commission of three members to exercise the power previously vested in the governor and assembly. Act of June 20, 1874, c. 337, 18 Stat. 116.
26
Article IV, § 3, cl. 2, provides: 'The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States . . ..'
27
E. Pomeroy, The Territories and the United States 1861 1890, p. 4 (1947).
28
Moreover, unlike the courts of general jurisdiction in the District of Columbia, which were created under the authority vested in Congress by Art. III, § 1, see O'Donoghue v. United States, 289 U.S. 516, 53 S.Ct. 740, 77 L.Ed. 1356 (1933), the federal courts in the Territories were established under Art. IV, § 3, cl. 2, see Glidden Co. v. Zdanok, 370 U.S. 530, 82 S.Ct. 1459, 8 L.Ed.2d 671 (1962); American Insurance Co. v. Canter, 1 Pet. 511, 7 L.Ed. 242 (1828). This distinction also has significance for our problem for, unlike judges in the District, territorial judges were appointed for terms of only four years. Rev.Stat. § 1864 (1874). As a result, the territorial judges were peculiarly susceptible to local pressures, since their reappointments were often dependent upon favorable recommendations of the territorial legislatures. See Pomeroy, supra, n. 27, at 98 102.
| 12
|
409 U.S. 413
93 S.Ct. 590
34 L.Ed.2d 608
Doris PHILPOTT and William Wilkes, Petitioners,v.ESSEX COUNTY WELFARE BOARD.
No. 71-5656.
Argued Dec. 4, 1972.
Decided Jan. 10, 1973.
Syllabus
A Social Security Act provision, 42 U.S.C. § 407, which prohibits subjecting federal disability insurance benefits and other benefits to any legal process bars a State from recovering such benefits retroactively paid to a beneficiary, and in this case no exception can be implied on the ground that if the federal payments had been made monthly there would have been a corresponding reduction in the state payments. Pp. 415—417.
59 N.J. 75, 279 A.2d 806, reversed.
George Charles Bruno, Newark, N.J., for petitioners.
Ronald Reichstein, Montclair, N.J., for respondent.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
Wilkes,1 one of the petitioners, applied to respondent, one of New Jersey's welfare agencies, for financial assistance based upon need by reason of permanent and total disability. As a condition of receiving assistance, a recipient is required by New Jersey law to execute an agreement to reimburse the county welfare board for all payments received thereunder.2 The purpose apparently is to enable the board to obtain reimbursement out of subsequently discovered or acquired real and personal property of the recipient.
2
Wilkes applied to respondent for such assistance in 1966 and he executed the required agreement. Respondent determined Wilkes' monthly maintenance needs to be $108; and, finding that he had no other income, respondent fixed the monthly benefits at that amount and began making assistance payments, no later than January 1, 1967. The payments would have been less if Wilkes had been receiving federal disability insurance benefits under the Social Security Act, and respondent advised him to apply for those federal benefits.
3
In 1968 Wilkes was awarded retroactive disability insurance benefits under § 223 of the Social Security Act, 70 Stat. 815, as amended, 42 U.S.C. § 423, covering the period from May 1966 into the summer of 1968. Those benefits, calculated on the basis of $69.60 per month for 20 months and $78.20 per month for six months, amounted to $1,864.20. A check in that amount was deposited in the account which Philpott holds as trustee for Wilkes. Under New Jersey law, we are told, the filing of a notice of such a reimbursement agreement has the same force and effect as a judgment. 59 N.J. 75, 80, 279 A.2d 806, 809.
4
Respondent sued to reach the bank account under the agreement to reimburse. The trial court held that respondent was barred by the Social Security Act, 49 Stat. 624, as amended, 42 U.S.C. § 407, from recovering any amount from the account.3 104 N.J.Super. 280, 249 A.2d 639. The Appellate Division affirmed. 109 N.J.Super. 48, 262 A.2d 227. The Supreme Court reversed.4 59 N.J. 75, 279 A.2d 806. The case is here on a petition for a writ of certiorari which we granted. 406 U.S. 917, 92 S.Ct. 1779, 32 L.Ed.2d 115.
5
On its face, the Social Security Act in § 407 bars the State of New Jersey from reaching the federal disability payments paid to Wilkes. The language is all-inclusive:5 '(N)one of the moneys paid or payable . . . under this subchapter shall be subject to execution, levy, attachment, garnishment, or other legal process . . ..' The moneys paid as retroactive benefits were 'moneys paid . . . under this subchapter'; and the suit brought was an attempt to subject the money to 'levy, attachment . . . or other legal process.'
6
New Jersey argues that if the amount of social security benefits received from the Federal Government had been made monthly, the amount of state welfare benefits could have been reduced by the amount of the federal grant. We see no reason to base an implied exemption from § 407 on that ground. We see no reason why a State, performing its statutory duty to take care of the needy, should be in a preferred position as compared with any other creditor. Indeed, since the Federal Government provides one-half of the funds for assistance under the New Jersey program of disability relief, the State, concededly, on recovery of any sums by way of reimbursement, would have to account to the Federal Government for the latter's share.
7
The protection afforded by § 407 is to 'moneys paid' and we think the analogy to veterans' benefits exemptions which we reviewed in Porter v. Aetna Casualty and Surety Co., 370 U.S. 159, 82 S.Ct. 1231, 8 L.Ed.2d 407, is relevant here. We held in that case that veterans' benefits deposited in a savings and loan association on behalf of a veteran retained the 'quality of moneys' and had not become a permanent investment. Id., at 161 162, 82 S.Ct., at 1232.
8
In the present case, as in Porter, the funds on deposit were readily withdrawable and retained the quality of 'moneys' within the purview of § 407. The Supreme Court of New Jersey referred to cases6 where a State which has provided care and maintenance to an incompetent veteran at times is a 'creditor' for purposes of 38 U.S.C. § 3101, and at other times is not. But § 407 does not refer to any 'claim of creditors'; it imposes a broad bar against the use of any legal process to reach all social security benefits. That is broad enough to include all claimants, including a State.
9
The New Jersey court also relied on 42 U.S.C. § 404, a provision of the Social Security Act which permits the Secretary to recover overpayments of old age, survivors, or disability insurance benefits. But there has been no overpayment of federal disability benefits here and the Secretary is not seeking any recovery here. And the Solicitor General, speaking for the Secretary, concedes that the pecuniary interest of the United States in the outcome of this case, which would be its aliquot share of any recovery, is not within the ambit of § 404.
10
By reason of the Supremacy Clause the judgment below is reversed.
11
Judgment reversed.
1
The payment in controversy is in a bank account under the name of petitioner Philpott in trust for Wilkes.
2
N.J.Stat.Ann. § 44:7—14(a) (Supp. 1972—1973) provides:
'Every county welfare board shall require, as a condition to granting assistance in any case, that all or any part of the property, either real or personal, of a person applying for old age assistance, be pledged to said county welfare board as a guaranty for the reimbursement of the funds so granted as old age assistance pursuant to the provisions of this chapter. The county welfare board shall take from each applicant a properly acknowledged agreement to reimburse for all advances granted, and pursuant to such agreement, said applicant shall assign to the welfare board, as collateral security for such advances, all or any part of his personal property as the board shall specify.'
3
Title 42 U.S.C. § 407 provides:
'The right of any person to any future payment under this subchapter shall not be transferable or assignable, at law or in equity, and none of the moneys paid or payable or rights existing under this subchapter shall be subject to execution, levy, attachment, garnishment, or other legal process, or to the operation of any bankruptcy or insolvency law.'
4
Since respondent did not claim a right to the entire federal payment but only to the amount by which its own payments would have been reduced had the federal benefits been received currently rather than retroactively and because the stipulated facts were ambiguous as to when respondent actually began making assistance payments, the court remanded for a determination of the precise amount of respondent's claim.
5
Supra, n. 3.
6
See Savoid v. District of Columbia, 110 U.S.App.D.C. 39, 288 F.2d 851; District of Columbia v. Reilly, 102 U.S.App.D.C., 9, 249 F.2d 524. See decision below, 59 N.J. 75, 85, 279 A.2d 806, 812.
| 12
|
409 U.S. 467
93 S.Ct. 627
34 L.Ed.2d 651
AMERICAN TRIAL LAWYERS ASSOCIATION, NEW JERSEY BRANCH, et al.v.NEW JERSEY SUPREME COURT.
No. 72-691.
Jan. 15, 1973.
PER CURIAM.
1
On December 21, 1971, the Supreme Court of New Jersey announced the adoption of Rule 1:21—7, effective Januay o1, 1972, establishing a graduated schedule of maximum contingent fees applicable to tort litigation conducted by New Jersey attorneys.1 Appellants, representing members of the New Jersey bar, brought this action to enjoin the enforcement of the rules on the grounds that they violate several provisions of the Constitution, including the Due Process and Equal Protection Clauses of the Fourteenth Amendment. The trial judge convened a three-judge court. 28 U.S.C. § 2281.2
2
After hearing argument on the merits, the District Court pointed out that:
3
'Essentially the case poses a dispute between a state's highest court and those persons authorized by that court to practice law in the state. The relationship between the parties thus is an extremely delicate one. Under such circumstances federal courts generally have considered it appropriate, before attempting any direct ferderal intervention at the outset, first to permit the state courts to process the dispute. Cf. Reetz v. Bozanich, 397 U.S. 82, 85—87 (90 S.Ct. 788, 25 L.Ed.2d 68) (1970).'
4
The court added that '(a)s was true in Reetz the initial issue is whether the state constitution authorized the enactment challenged.' The court therefore granted defendant-appellee's motion to dismiss.
5
By timely motion under Fed.Rule Civ.Proc. 59(e), appellants sought an order amending the judgment by either
6
'(A) Retaining jurisdiction, but staying proceedings in this Court pending determination to the issues of state law in the courts of New Jersey, or until efforts to obtain such a determimnation have been exhausted; or
7
'(B) Ordering that the dismissal be without prejudice, so that the suits for determination of the federal constitutional issues may be reinstituted after exhausting state recouse with respect to state law issues.' Jurisdictional Statement 10.
8
The motion was denied and appellants brought this appeal.3
9
'(A)bstention 'does not, of course, involve the abdication of federal jurisdiction, but only the postponement of its exercise." England v. Louisiana State Board of Medical Examiners, 375 U.S. 411, 416, 84 S.Ct. 461, 465, 11 L.Ed.2d 440 (1964), quoting from Harrison v. NAACP, 360 U.S. 167, 177, 79 S.Ct. 1025, 1030, 3 L.Ed.2d 1152 (1959). For that reason, we have held that a dismissal on grounds of abstention so as to permit a state court to pass on an issue of state law must not be with prejudice. Doud v. Hodge, 350 U.S. 485, 76 S.Ct. 491, 100 L.Ed. 577 (1956); Lake Carriers' Assn. v. MacMullan, 406 U.S. 498, 92 S.Ct. 1749, 32 L.Ed.2d 257 (1972). The proper course is for the District Court to retain jurisdiction pending the proceedings in the state courts. Lake Carriers' Assn. v. MacMullan, supra, at 512—513, 92 S.Ct. at 1758; Zwickler v. Koota, 389 U.S. 241, 244—245, n. 4, 88 S.Ct. 391, 393, 394, 19 L.Ed.2d 444 (1967).4 Although the District Court may have intended its judgment of dismissal to be without prejudice to the right of appellants to litigate their federal claims in federal court at the concludsion of the state proceeding, the court did deny appellants' motion for an amendment to the judgment making clear that no prejudice would attach. The motion should have been granted. Accordingly, we vacate the judgment of the District Court and remand the case for proceedings consistent with this opinion.
10
Vacated and remanded.
1
Rule 1:21—7 provides in part:
'(c) In any matter where a client's claim for damages is based upon the alleged tortious conduct of another, including products liability claims, and the client is not a subrogee, an attorney shall not contract for, charge, or collect a contingent fee in excess of the following limits:
'(1) 50% on the first $1000 recovered;
'(2) 40% on the next $2000 recovered;
'(3) 33 1/3% on the next $47,000 recovered;
'(b) 20% on the next $50,000 recovered;
'(5) 10% on any amount recovered over $100,000; . . ..'
2
Appellee maintained below, as it maintains before this Court, that a three-judge court need not have been convened because the constitutional question presented is insubstantial. Bailey v. Patterson, 369 U.S. 31, 82 S.Ct. 549, 7 L.Ed.2d 512 (1962). It insists, however, that if the claim is substantial then it must be heard by a court of three judges. 28 U.S.C. § 2281. In view of the posture of the case on this appeal, we do not, of course, express any view on the merits of the question presented.
3
The validity of the District Court's decision to abstain is not at issue on this appeal.
4
'It is better practice, in a case raising a federal constitutional or statutory claim (where the doctrine of abstention is applied), to retain jurisdiction, rather than to dismiss . . ..' Zwickler, supra, at 244 n. 4, 88 S.Ct. at 393.
| 89
|
409 U.S. 505
93 S.Ct. 876
35 L.Ed.2d 29
Samuel Ed ROBINSON, Petitioner,v.William S. NEIL, Warden.
No. 71-6272.
Argued Dec. 6, 1972.
Decided Jan. 16, 1973.
Rehearing Denied Feb. 26, 1973.
See 410 U.S. 959, 93 S.Ct. 1423.
Syllabus
Waller v. Florida, 397 U.S. 387, 90 S.Ct. 1184, 25 L.Ed.2d 435, which bars on the ground of double jeopardy two prosecutions, state and municipal, based on the same act or offense, is fully retroactive. Pp. 506—511.
452 F.2d 370, vacated and remanded.
James D. Robinson, Chattanooga, Tenn., for petitioner.
Bart C. Durham, III, Nashville, Tenn., for respondent.
Mr. Justice REHNQUIST delivered the opinion of the Court.
1
In 1962 petitioner was tried and convicted in the Chattanooga municipal court of three counts of assault and battery in violation of a city ordinance. He was fined $50 and costs on each count. He was later indicted by the grand jury of Hamilton County, Tennessee, which, out of the same circumstances giving rise to the municipal trial, charged him with three offenses of assault with intent to commit murder in violation of state law. The petitioner pleaded guilty to the state charges and received consecutive sentences of three to 10 years for two offenses and three to five years for the third offense. He is presently in the custody of the respondent warden of the Tennessee State Penitentiary.
2
In 1966 the petitioner unsuccessfully sought habeas corpus relief in state courts on the ground that the second convictions for state offenses violated his federal constitutional guarantee against twice being placed in jeopardy for the same offense. In 1967 federal courts denied a similar request for habeas corpus relief. Robinson v. Henderson, 268 F.Supp. 349 (ED Tenn.1967), aff'd, 391 F.2d 933 (CA6 1968). In 1970 the petitioner renewed his claims for habeas relief, basing his arguments on this Court's intervening decisions in Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), and Waller v. Florida, 397 U.S. 387, 90 S.Ct. 1184, 25 L.Ed.2d 435 (1970). Holding that Waller was to be accorded retrospective effect, the District Court granted the petitioner habeas corpus relief. 320 F.Supp. 894 (ED Tenn.1971). The Sixth Circuit reversed (452 F.2d 370 (1971)) and we granted certiorari to decide the retroactivity of Waller v. Florida. Robinson v. Neil, 406 U.S. 916, 92 S.Ct. 1800, 32 L.Ed.2d 115 (1972).
3
The Fifth Amendment's guarantee that no person be twice put in jeopardy for the same offense was first held binding on the States in Benton v. Maryland, supra. Our subsequent decision in Waller v. Florida, supra, held that the scope of this guarantee precluded the recognition of the 'dual sovereignty' doctrine with respect to separate state and municipal prosecutions. Waller involved the theft of a mural from the City Hall of St. Petersburg, Florida. The petitioner there was first tried and convicted of violating city ordinances with respect to the destruction of city property and breach of the peace. Subsequently, he was convicted of grand larceny in violation of state law involving the same theft. The Court stated:
4
'the Florida courts were in error to the extent of holding that—
5
"even if a person has been tried in a municipal court for the identical offense with which he is charged in a state court, this would not be a bar to the prosecution of such person in the proper state court." 397 U.S. at 395, 90 S.Ct., at 1189.
6
Prior to this Court's 1965 decision in Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601, there would have been less doubt concerning the retroactivity of the Waller holding. For, until that time, both the common law and our own decisions recognized a general rule of retrospective effect for the constitutional decisions of this Court, e.g., Norton v. Shelby County, 118 U.S. 425, 442, 6 S.Ct. 1121, 1125, 30 L.Ed. 178 (1886), subject to limited exceptions of a nature such as those stated in Chicot County Drainage District v. Baxter State Bank, 308 U.S. 371, 60 S.Ct. 317, 84 L.Ed. 329 (1940). In Linkletter, the Court, declaring that it was charting new ground (381 U.S., at 628 and n. 13, 85 S.Ct., at 1737), held that with respect to new constitutional interpretations involving criminal rights 'the Constitution neither prohibits nor requires retrospective effect.' Id., at 629, 85 S.Ct., at 1737. Linkletter and succeeding cases established a set of factors for determining which constitutional rules were to be accorded retrospective and which prospective effect only.* The District Court and the Sixth Circuit in this case applied the factors enunciated by these cases to the Waller holding. The Sixth Circuit held, contrary to the conclusion of the District Court, that Waller is not to be applied retroactively.
7
We do not believe that this case readily lends itself to the analysis established in Linkletter. Certainly, there is nothing in Linkletter or those cases following it to indicate that all rules and constitutional interpretations arising under the first eight Amendments must be subjected to the analysis there enunciated. Linkletter itself announced an exception to the general rule of retroactivity in a decision announcing that the exclusionary rule of Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), would be given prospective effect only. Linkletter, and the other cases relied upon by the Sixth Circuit, dealt with those constitutional interpretations bearing on the use of evidence or on a particular mode of trial. Those procedural rights and methods of conducting trials, however, do not encompass all of the rights found in the first eight Amendments. Guarantees that do not relate to these procedural rules cannot, for retroactivity purposes, be lumped conveniently together in terms of analysis. For the purpose and effect of the various constitutional guarantees vary sufficiently among themselves so as to affect the necessity for prospective rather than retrospective application.
8
Linkletter indicated, for instance, that only those procedural rules affecting 'the very integrity of the factfinding process' would be given retrospective effect. 381 U.S., at 639, 85 S.Ct., at 1743. In terms of some nonprocedural guarantees, this test is simply not appropriate. In Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), for example, this Court held that in the situation there presented imposition of the death penalty was not constitutionally permissible. Yet, while this holding does not affect the integrity of the factfinding process, we have not hesitated to apply it retrospectively without regard to whether the rule meets the Linkletter criteria. E.g., Walker v. Georgia, 408 U.S. 936, 92 S.Ct. 2845, 33 L.Ed.2d 753.
9
The prohibition against being placed in double jeopardy is likewise not readily susceptible of analysis under the Linkletter line of cases. Although the Court has not handed down a fully reasoned opinion on the retroactivity of Benton v. Maryland, it has indicated that it is retroactive without examination of the Linkletter criteria. North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969); Ashe v. Swenson, 397 U.S. 436, 437 n. 1, 90 S.Ct. 1189, 1191, 25 L.Ed.2d 469 (1970). These decisions do not directly control the question of whether Waller should be given retrospective effect but they bear upon its disposition.
10
The guarantee against double jeopardy is significantly different from procedural guarantees held in the Linkletter line of cases to have prospective effect only. While this guarantee, like the others, is a constitutional right of the criminal defendant, its practical result is to prevent a trial from taking place at all, rather than to prescribe procedural rules that govern the conduct of a trial. A number of the constitutional rules applied prospectively only under the Linkletter cases were found not to affect the basic fairness of the earlier trial, but to have been directed instead to collateral purposes such as the deterrence of unlawful police conduct, Mapp v. Ohio, supra. In Waller, however, the Court's ruling was squarely directed to the prevention of the second trial's taking place at all, even though it might have been conducted with a scrupulous regard for all of the constitutional procedural rights of the defendant.
11
We would not suggest that the distinction that we draw is an ironclad one that will invariably result in the easy classification of cases in one category or the other. The element of reliance embodied in the Linkletter analysis will not be wholly absent in the case of constitutional decisions not related to trial procedure, as indeed this case when contrasted with Furman illustrates.
12
In Furman v. Georgia, supra, our mandate was tailored so as to deny to the State only the authority to impose a punishment that we held unconstitutional, without the necessity of a redetermination of the factual question of whether the offense had in fact been committed. Thus, the prejudice to the State resulting from the necessity of an entirely new trial because of procedures newly found to be constitutionally defective, with the attendant difficulties of again assembling witnesses whose memories would of necessity be dimmer for the second trial than for the first, was not present. That which was constitutionally invalid could be isolated and excised without requiring the State to begin the entire factfinding process anew.
13
The application of Waller retrospectively may, on the other hand, result in a form of prejudice to the State because, in reliance upon the 'dual sovereignty' analogy, the municipal prosecution may have occurred first and the sentence already have been served prior to the commencement of the state prosecution. If the offense involved was a serious one under state law, as it apparently was in this case, the defendant may have been unintentionally accorded a relatively painless form of immunity from the state prosecution. But the Court's opinion in Waller makes clear that the analogy between state and municipal prosecutions, and federal and state prosecutions permitted in Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959), had never been sanctioned by this Court and was not analytically sound. Since the issue did not assume federal constitutional proportions until after Benton v. Maryland held the Double Jeopardy Clause applicable to the States, this Court had not earlier had occasion to squarely pass on the issue. But its decision in Waller cannot be said to have marked a departure from past decisions of this Court. Therefore, while Waller-type cases may involve a form of practical prejudice to the State over and above the refusal to permit the trial that the Constitution bars, the justifiability of the State's reliance on lower court decisions supporting the dual sovereignty analogy was a good deal more dubious than the justification for reliance that has been given weight in our Linkletter line of cases. We intimate no view as to what weight should be accorded to reliance by the State that was justifiable under the Linkletter test in determining retroactivity of a nonprocedural constitutional decision such as Waller.
14
We hold, therefore, that our decision in Waller v. Florida, is to be accorded full retroactive effect. We refrain from an outright reversal of the judgment below, however, because statements of counsel at oral argument raised the issue of whether the state and municipal prosecutions were actually for the same offense. We therefore vacate the judgment of the Court of Appeals and remand the case so that respondent may have an opportunity to present this issue there or in the District Court.
15
It is so ordered.
16
Judgment of the Court of Appeals vacated and case remanded.
17
Mr. Justice BRENNAN, with whom Mr. Justice DOUGLAS and Mr. Justice MARSHALL concur.
18
Although I otherwise join the opinion of the Court, I would reverse the judgment of the Court of Appeals outright. I adhere to my view that, regardless of the similarity of the offenses, the Double Jeopardy Clause of the Fifth Amendment, which is applicable to the States through the Fourteenth Amendment, Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), requires the prosecution, except in most limited circumstances not present here, 'to join at one trial all the charges against a defendant that grow out of a single criminal act, occurrence, episode, or transaction.' Ashe v. Swenson, 397 U.S. 436, 453—454, 90 S.Ct. 1189, 1199, 25 L.Ed.2d 469 (1970) (Brennan, J., concurring); see Grubb v. Oklahoma, 409 U.S. 1017, 93 S.Ct. 450, 34 L.Ed.2d 309 (1972) (Brennan, J., dissenting); Miller v. Oregon, 405 U.S. 1047, 92 S.Ct. 1321, 31 L.Ed.2d 590 (1972) (Brennan, J., dissenting); Harris v. Washington, 404 U.S. 55, 57, 92 S.Ct. 183, 184, 30 L.Ed.2d 212 (1971) (separate statement of Douglas, Brennan, and Marshall, JJ.). Under this 'same transaction' test, all charges against petitioner should have been brought in a single prosecution.
*
See Desist v. United States, 394 U.S. 244, 89 S.Ct. 1030, 22 L.Ed.2d 248 (1969), which carefully examined all of the cases decided since Linkletter and more fully enunciated the guiding criteria of those cases.
| 01
|
409 U.S. 470
93 S.Ct. 791
35 L.Ed.2d 1
ALMOTA FARMERS ELEVATOR AND WAREHOUSE COMPANY, Petitioner,v.UNITED STATES.
No. 71-951.
Argued Oct. 18, 1972.
Decided Jan. 16, 1973.
Syllabus
Before and during the last of several successive leases, petitioner made substantial and permanent improvements that had a useful life in excess of the remaining lease term. With 7 1/2 years to run on the then-current lease term, the United States contracted to acquire the underlying fee and began condemnation proceedings for the leasehold. The Court of Appeals reversed the District Court's ruling that just compensation required that the improvements be valued in place over their useful life, without limitation to the remainder of the lease term. Held: In a condemnation proceeding, the concept of 'just compensation' is measured by what a willing buyer would have paid for the improvements, taking into account the possibility that the lease might be renewed as well as that it might not. Pp. 794—797.
450 F.2d 125, reversed and District Court judgment reinstated.
Lawrence Earl Hickman, Colfax, Wash., for the petitioner.
Kent Frizzell, Washington, D.C., for respondent.
Mr. Justice STEWART delivered the opinion of the Court.
1
Since 1919 the petitioner, Almota Farmers Elevator & Warehouse Co., has conducted grain elevator operations on land adjacent to the tracks of the Oregon-Washington Railroad and Navigation Company in the State of Washington. It has occupied the land under a series of successive leases from the railroad. In 1967, the Government instituted this eminent domain proceeding to acquire the petitioner's property interest by condemnation. At that time there were extensive buildings and other improvements that had been erected on the land by the petitioner, and the thencurrent lease had 7 1/2 years to run.
2
In the District Court the Government contended that just compensation for the leasehold interest, including the structures, should be 'the fair market value of the legal rights possessed by the defendant by virtue of the lease as of the date of taking,' and that no consideration should be given to any additional value based on the expectation that the lease might be renewed. The petitioner urged that, rather than this technical 'legal rights theory,' just compensation should be measured by what a willing buyer would pay in an open market for the petitioner's leasehold.
3
As a practical matter, the controversy centered upon the valuation to be placed upon the structures and their appurtenances. The parties stipulated that the Government had no need for these improvements and that the petitioner had a right to remove them. But that stipulation afforded the petitioner only what scant salvage value the buildings might bring. The Government offered compensation for the loss of the use and occupancy of the buildings only over the remaining term of the lease. The petitioner contended that this limitation upon compensation for the use of the structures would fail to award what a willing buyer would have paid for the lease with the improvements, since such a buyer would expect to have the lease renewed and to continue to use the improvements in place. The value of the buildings, machinery, and equipment in place would be substantially greater than their salvage value at the end of the lease term, and a purchaser in an open market would pay for the anticipated use of the buildings and for the savings he would realize from not having to construct new improvements himself. In sum, the dispute concerned whether Almota would have to be satisfied with its right to remove the structures with their consequent salvage value or whether it was entitled to an award reflecting the value of the improvements in place beyond the lease term.
4
In a pretrial ruling, the District Court accepted the petitioner's theory and held that Almota was to be compensated for the full market value of its leasehold 'and building improvements thereon as of the date of taking . . ., the total value of said leasehold and improvements . . . to be what the interests of said company therein could have been then sold for upon the open market considering all elements and possibilities whatsoever found to then affect the market value of those interests including, but not exclusive of, the possibilities of renewal of the lease and of the landlord requiring the removal of the improvements in the event of there being no lease renewal.' The court accordingly ruled that the petitioner was entitled to the full fair market value of the use of the land and of the buildings in place as they stood at the time of the taking, without limitation of such use to the remainder of the term of the existing lease.
5
On appeal, the Court of Appeals for the Ninth Circuit reversed, 450 F.2d 125; it accepted the Government's theory that a tenant's expectancy in a lease renewal was not a compensable legal interest and could not be included in the valuation of structures that the tenant had built on the property. It rejected any award for the use of improvements beyond the lease term as 'compensation for expectations disappointed by the exercise of the sovereign power of eminent domain, expectations not based upon any legally protected right, but based only . . . upon 'a speculation on a chance." 450 F.2d, at 129. The court explicitly refused to follow an en banc decision of the Court of Appeals for the Second Circuit, relied upon by the District Court, which had held that for condemnation purposes improvements made by a lessee are to be assessed at their value in place over their useful life without regard to the term of the lease. United States v. Certain Property, Borough of Manhattan, etc., 388 F.2d 596, 601.
6
In view of this conflict in the circuits, we granted certiorari, 405 U.S. 1039, 92 S.Ct. 1312, 31 L.Ed.2d 579, to decide an important question of eminent domain law: 'Whether, upon condemnation of a leasehold, a lessee with no right of renewal is entitled to receive as compensation the market value of its improvements without regard to the remaining term of its lease, because of the expectancy that the lease would have been renewed.'1 We find that the view of the Court of Appeals for the Second Circuit is in accord with established principles of just-compensation law under the Fifth Amendment, and therefore reverse the judgment before us and reinstate the judgment of the District Court.
7
The Fifth Amendment provides that private property shall not be taken for public use without 'just compensation.' 'And 'just compensation' means the full monetary equivalent of the property taken. The owner is to be put in the same position monetarily as he would have occupied if his property had not been taken.' United States v. Reynolds, 397 U.S. 14, 16, 90 S.Ct. 803, 805, 25 L.Ed.2d 12 (footnotes omitted). See also United States v. Miller, 317 U.S. 369, 373, 63 S.Ct. 276, 279, 87 L.Ed. 336. To determine such monetary equivalence, the Court early established the concept of 'market value': the owner is entitled to the fair market value of his property at the time of the taking. New York v. Sage, 239 U.S. 57, 61, 36 S.Ct. 25, 26, 60 L.Ed. 143. See also United States v. Reynolds, supra, 397 U.S., at 16, 90 S.Ct., at 805; United States v. Miller, supra, 317 U.S., at 374, 63 S.Ct., at 280. And this value is normally to be ascertained from 'what a willing buyer would pay in cash to a willing seller.' Ibid. See United States v. Virginia Electric & Power Co., 365 U.S. 624, 633, 81 S.Ct. 784, 790, 5 L.Ed.2d 838.
8
By failing to value the improvements in place over their useful life—taking into account the possibility that the lease might be renewed as well as the possibility that it might not—the Court of Appeals in this case failed to recognize what a willing buyer would have paid for the improvements. If there had been no condemnation, Almota would have continued to use the improvements during a renewed lease term, or if it sold the improvements to the fee owner or to a new lessee at the end of the lease term, it would have been compensated for the buyer's ability to use the improvements in place over their useful life. As Judge Friendly wrote for the Court of Appeals for the Second Circuit:
9
'Lessors do desire, after all, to keep their properties leased, and an existing tenant usually has the inside track to a renewal for all kinds of reasons—avoidance of costly alterations, saving of brokerage commissions, perhaps even ordinary decency on the part of landlords. Thus, even when the lease has expired, the condemnation will often force the tenant to remove or abandon the fixtures long before he would otherwise have had to, as well as deprive him of the opportunity to deal with the landlord or a new tenant the only two people for whom the fixtures would have a value unaffected by the heavy costs of disassembly and reassembly. The condemnor is not entitled to the benefit of assumptions, contrary to common experience, that the fixtures would be removed at the expiration of the stated term.' United States v. Certain Property, Borough of Manhattan, 388 F.2d, at 601 602 (footnote omitted).
10
It seems particularly likely in this case that Almota could have sold the leasehold at a price that would have reflected the continued ability of the buyer to use the improvements over their useful life. Almota had an unbroken succession of leases since 1919, and it was in the interest of the railroad, as fee owner, to continue leasing the property, with its grain elevator facilities, in order to promote grain shipments over its lines. In a free market, Almota would hardly have sold the leasehold to a purchaser who paid only for the use of the facilities over the remainder of the lease term, with Almota retaining the right thereafter to remove the facilities—in effect, the right of salvage. 'Because these fixtures diminish in value upon removal, a measure of damages less than their fair market value for use in place would constitute a substantial taking without just compensation. '(I)t is intolerable that the state, after condemning a factory or warehouse, should surrender to the owner a stock of secondhand machinery and in so doing discharge the full measure of its duty." United States v. 1,132.50 Acres of Land, Etc., Upper Allegheny Sand & Gravel Co., 2 Cir., 441 F.2d 356, 358.2
11
United States v. Petty Motor Co., 327 U.S. 372, 66 S.Ct. 596, 90 L.Ed. 729, upon which the Government primarily relies, does not lead to a contrary result. The Court did indicate that the measure of damages for the condemnation of a leasehold is to be measured in terms of the value of its use and occupancy for the remainder of the lease term, and the Court refused to elevate an expectation of renewal into a compensable legal interest. But the Court was not dealing there with the fair market value of improvements. Unlike Petty Motor, there is no question here of creating a legally cognizable value where none existed, or of compensating a mere incorporeal expectation.3 The petitioner here has constructed the improvements and seeks only their fair market value. Petty Motor should not be read to allow the Government to escape paying what a willing buyer would pay for the same property.
12
The Government argues that it would be unreasonable to compensate Almota for the value of the improvements measured over their useful life, since the Government could purchase the fee and wait until the expiration of the lease term to take possession of the land.4 Once it has purchased the fee, the argument goes, there is no further expectancy that the improvements will be used during their useful life since the Government will assuredly require their removal at the end of the term. But the taking for the dam was one act requiring proceedings against owners of two interests.5 At the time of that 'taking' Almota had an expectancy of continued occupancy of its grain elevator facilities. The Government must pay just compensation for those interests 'probably within the scope of the project from the time the Government was committed to it.' United States v. Miller, 317 U.S., at 377, 63 S.Ct., at 281. Cf. United States v. Reynolds, 397 U.S., at 16—18, 90 S.Ct., at 805—806. It may not take advantage of any depreciation in the property taken that is attributable to the project itself. Id., at 16, 90 S.Ct., at 805; United States v. Virginia Electric & Power Co., 365 U.S., at 635—636, 81 S.Ct., at 791—792. At the time of the taking in this case, there was an expectancy that the improvements would be used beyond the lease term. But the Government has sought to pay compensation on the theory that at that time there was no possibility that the lease would be renewed and the improvements used beyond the lease term. It has asked that the improvements be valued as though there were no possibility of continued use.6 That is not how the market would have valued such improvements; it is not what a private buyer would have paid Almota.
13
'The constitutional requirement of just compensation derives as much content from the basic equitable principles of fairness, United States v. Commodities Trading Corp., 339 U.S. 121, 124, 70 S.Ct. 547, 549, 94 L.Ed. 707 (1950), as it does from technical concepts of property law.' United States v. Fuller, 409 U.S., at 490, 90 S.Ct., at 803. It is, of course, true that Almota should be in no better position than if it had sold its leasehold to a private buyer. But its position should surely be no worse.
14
The judgment before us is reversed and the judgment of the District Court reinstated.
15
Reversed and District Court judgment reinstated.
16
Mr. Justice POWELL, with whom Mr. Justice DOUGLAS joins, concurring.
17
I join the opinion of the Court, but add a few words to indicate what I find implicit in its rejection of the Government's claim to act as if it were Almota's landlord.
18
It is clear, first of all, that the market value of improvements placed on a leasehold interest will vary depending in major part upon the probable future conduct of the landlord. In this case, based on the experience of nearly half a century and the evident self-interest of the landlord railroad, this conduct could be predicted with considerable confidence. There was every expectation that the improvements would continue to have significant value beyond the term of the present lease. In a transaction between a willing buyer and a willing seller, there can be no doubt that this value would have been accorded appropriate weight.
19
On different facts, the market value of Almota's interest might have been significantly lower. If, for example, the railroad had relocated its tracks before the Government entered the picture, the leasehold improvements would have been nearly valueless in the market. A risk which Almota took in erecting those improvements, the risk that the railroad would relocate its tracks, would have proved a poor one. The risk would have been substantially the same if, independently of the present navigation project, the Government had purchased the railroad with the intention of operating it, and thereafter had decided to relocate it or to discontinue operation. Under those circumstances, the Government could properly have acted as an ordinary landlord, and its lessees could have been expected to bear the risk that it would put its land to a new use.
20
Here, however, the Government held no interest in the land until its navigation project required the acquisition of both the fee and the leasehold interests. If, at that point, the Government had condemned both interests in a single proceeding, or in separate proceedings, Almota would have been entitled to compensation for the value of the improvements beyond the present lease term. Almota bore the risk that the railroad would change its plans, but should not be forced to bear the risk that the Government would condemn the fee and change its use. Where multiple properties or property interests are condemned for a particular public project, the Government must pay pre-existing market value for each. Neither the Government nor the condemnee may take advantage of 'an alteration in market value attributable to the project itself.' United States v. Reynolds, 397 U.S. 14, 16, 90 S.Ct. 803, 805, 25 L.Ed.2d 12 (1970); cf. United States v. Virginia Electric & Power Co., 365 U.S. 624, 635—636, 81 S.Ct. 784, 791—792, 5 L.Ed.2d 838 (1961); United States v. Miller, 317 U.S. 369, 377, 63 S.Ct. 276, 281, 87 L.Ed. 336. (1943).
21
The result should not be different merely because the Government arranged to acquire the fee interest by negotiation rather than by condemnation. Apart from cases where, as in United States v. Rands, 389 U.S. 121, 88 S.Ct. 265, 19 L.Ed.2d 329 (1967), the Government has a property interest antedating but within the bounds of its present project, it would be unjust to allow the Government to use 'salami tactics' to reduce the amount of one property owner's compensation by first acquiring an adjoining piece of property or another interest in the same property from another property owner. While United States v. Petty Motor Co., 327 U.S. 372, 66 S.Ct. 596, 90 L.Ed. 729 (1946), arguably establishes an exception to this principle, I subscribe to the Court's narrow construction of that case.
22
Mr. Justice REHNQUIST, with whom THE CHIEF JUSTICE, Mr. Justice WHITE, and Mr. Justice BLACKMUN join, dissenting.
23
Petitioner is entitled to compensation for so much of its private 'property' as was taken for public use. The parties concede that petitioner's property interest here taken was the unexpired portion of a 20-year lease on land owned by the Oregon-Washington Railroad & Navigation Co. near Colfax, Washington. The Court recognizes the limited nature of petitioner's interest in the real property taken, but concludes that it was entitled to have its leasehold and improvements valued in such a way as to include the probability that petitioner's 20-year lease would have been renewed by the railroad at its expiration.
24
There is a plausibility about the Court's resounding endorsement of the concept of 'fair market value' as the touchstone for valuation, but the result reached by the Court seems to me to be quite at odds with our prior cases. Even in its sharply limited reading of United States v. Petty Motor Co., 327 U.S. 372, 66 S.Ct. 596, 90 L.Ed. 729 (1946), the Court concedes that the petitioner's expectation of having its lease renewed upon expiration is not itself an interest in property for which it may be compensated. But the Court permits the same practical result to be reached by saying that, at least in the case of improvements, the fair market value may be computed in terms of a willing buyer's expectation that the lease would be renewed.
25
In United States v. Petty Motor Co., supra, the Government acquired by condemnation the use of a structure occupied by tenants inpossession under leases for various unexpired terms. The Court held that the measure of damages for condemnation of a leasehold is the value of the tenant's use of the leasehold for the remainder of the agreed term, less the agreed rent. The Court considered the argument, essentially the same raised by petitioner here, that a history of past renewal of the leases to existing tenants creates a compensable expectancy, but held that the right to compensation should be measured solely on the basis of the remainder of the tenant's term under the lease itself. Id., at 380, 66 S.Ct., at 600. In so deciding, the Court stated:
26
'The fact that some tenants had occupied their leaseholds by mutual consent for long periods of years does not add to their rights. Emery v. Boston Terminal Co., 178 Mass. 172, 185, 59 N.E. 763 (per Holmes, C.J.):
27
"It appeared that the owners had been in the habit of renewing the petitioners' lease from time to time . . .. Changeable intentions are not an interest in land, and although no doubt such intentions may have added practically to the value of the petitioners' holding, they could not be taken into account in determining what the respondent should pay. They added nothing to the tenants' legal rights, and legal rights are all that must be paid for. Even if such intentions added to the saleable value of the lease, the addition would represent a speculation on a chance, not a legal right." Id., at 380 n. 9, 66 S.Ct., at 601.
28
The holding in Petty was consistent with a long line of cases to the effect that the Fifth Amendment does not require, on a taking of a property interest, compensation for mere expectancies of profit, or for the frustration of licenses or contractual rights that pertain to the land, but that are not specifically taken and that are not vested property interests. Omnia Commercial Co. v. United States, 261 U.S. 502, 510, 43 S.Ct. 437, 438, 67 L.Ed. 773 (1923); Sinclair Pipe Line Co. v. United States, 152 Ct.Cl. 723, 728, 287 F.2d 175, 178 (1961); Chicago, M., St. P. & P.R. Co. v. Chicago, R.I. & P.R. Co., 138 F.2d 268, 270—271 (C.A.8 1943), cert. denied, 320 U.S. 804, 64 S.Ct. 437, 88 L.Ed. 486 (1944).
29
While the inquiry as to what property interest is taken by the condemnor and the inquiry as to how that property interest shall be valued are not identical ones, they cannot be divorced without seriously undermining a number of rules dealing with the law of eminent domain that this Court has evolved in a series of decisions through the years. The landowner, after all, is interested, not in the legal terminology used to describe the property taken from him by the condemnor, but in the amount of money he is to be paid for that property. It will cause him little remorse to learn that his hope for a renewal of a lease for a term of years is not a property interest for which the Government must pay, if in the same breath he is told that the lesser legal interest which he owns may be valued to include the hoped-for renewal.
30
The notion of 'fair market value' is not a universal formula for determining just compensation under the Fifth Amendment. In United States v. Miller, 317 U.S. 369, 374, 63 S.Ct. 276, 280, 87 L.Ed. 336 (1943), the Court said of market value:
31
'Respondents correctly say that value is to be ascertained as of the date of taking. But they insist that no element which goes to make up value as at that moment is to be discarded or eliminated. We think the proposition is too broadly stated.'
32
It is quite apparent that the property on which the owner operates a prosperous retail establishment would command more in an open market sale than the fair value of so much of the enterprise as was 'private property' within the meaning of the Fifth Amendment. Yet Mitchell v. United States, 267 U.S. 341, 45 S.Ct. 293, 69 L.Ed. 644 (1925), stands squarely for the proposition that the value added to the property taken by the existence of a going business is no part of the just compensation for which the Government must pay for taking the property:
33
'No recovery therefor can be had now as for a taking of the business. There is no finding as a fact that the government took the business, or that what it did was intended as a taking. If the business was destroyed, the destruction was an unintended incident of the taking of land.' Id., at 345, 45 S.Ct., at 294.
34
More recently, in United States ex rel. TVA v. Powelson, 319 U.S. 266, 283, 63 S.Ct. 1047, 1056, 87 L.Ed. 1390 (1943), the Court generalized further:
35
'That which is not 'private property within the meaning of the Fifth Amendment likewise may be a thing of value which is destroyed or impaired by the taking of lands by the United States. But like the business destroyed but not 'taken' in the Mitchell case it need not be reflected in the award due the landowner unless Congress so provides.'
36
In either Mitchell or Powelson, the result would in all probability have been different had the Court applied the reasoning that it applies in this case. Here, too, the improvements on the property are not desired by the Government for the project in question, but the taking of petitioner's leasehold interest prevents its continuing to have their use for the indefinite future as it had anticipated. The Court says that although its 'property' interest would have expired in 7 1/2 years, the market value of that interest may be computed on the basis of expectancies that do not rise to the level of a property interest under the Fifth Amendment.
37
If permissible mothods of valuation are to be thus totally set free from the property interest that they purport to value, it is difficult to see why the same standards should not be applied to a going business. Although the Government does not take the going business, and although the business is not itself a 'property' interest within the Fifth Amendment, since purchasers on the open market would have paid an added increment of value for the property because a business was located on it, it may well be that such increment of value is properly included in a condemnation award under the Court's holding today. And it will assuredly make no difference to the property owner to learn that destruction of a going business is not compensable, if he be assured that the property concededly taken upon which the business was located may be valued in such a way as to include the amount a purchaser would have paid for the business.
38
The extent to which the Court's decision in this case will unsettle condemnation law is obscured by the fact that the parties, motivated no doubt by condemnation lawyers' well-known propensity to enter into factual stipulations that present abstract questions of valuation theory for decision, have stipulated as to amounts to be awarded depending on which party prevails. But the underlying difficulty with petitioner's theory was lucidly demonstrated by the late Judge Madden in his opinion for the Court of Appeals in this case, referring to the similar holding of the Court of Appeals for the Tenth Circuit in Scully v. United States, 409 F.2d 1061 (1969):
39
'If the law were to go into the business of awarding compensation for an expectancy which never materialized, because the sovereign 'took' the subject of the expectancy, should, in Scully, supra, e.g., the one year lessees be compensated for the loss of a five year occupancy, a 50 year occupancy, a perpetual occupancy? In our instant case, was the stipulation based upon some actuarial computation such as the prospective life of the buildings and machinery, or the life of the railroad, or upon free-ranging guesswork?' United States v. 22.95 Acres of Land, 450 F.2d 125, 129 (C.A.9 1971).
40
The Court's conclusion gains no support from its citation of the recognized principle that the Government may not take advantage of any depreciation in the property taken that is attributable to the project itself, United States v. Reynolds, 397 U.S. 14, 90 S.Ct. 803, 25 L.Ed.2d 12 (1970); United States v. Miller, 317 U.S. 369, 63 S.Ct. 276, 87 L.Ed. 336 (1943). The value of petitioner's property taken could not be diminished by the fact that the river improvement and navigation for which the Government took its property might have had a depressing effect on pre-existing market value. But the Government makes no such contention here. While, under existing principles of constitutional eminent domain law, the value of petitioner's property was not subject to diminution resulting from the effect on market value of the improvement that the Government proposed to construct, it was subject to the hazard of nonrenewal of petitioner's leasehold interest. The fact that the Government has condemned the underlying fee for the same project, and has therefore made the risk of non-renewal a certainty, undoubtedly diminishes the market value of petitioner's leasehold interest. But the diminution results, not from any depressing effect of the improvement that the Government will construct after having taken the leasehold, but from a materialization of the risk of transfer of ownership of the underlying fee to which its value was always subject.
41
In at least partially cutting loose the notion of 'just compensation' from the notion of 'private property' that has developed under the Fifth Amendment, the Court departs from the settled doctrine of numerous prior cases that have quite rigorously adhered to the principle that destruction of value by itself affords no occasion for compensation. United States v. Fuller, 409 U.S. 488, 93 S.Ct. 801, 35 L.Ed.2d 16; United States v. Rands, 389 U.S. 121, 88 S.Ct. 265, 19 L.Ed.2d 329 (1967). '(D)amage alone gives courts no power to require compensation where there is not an actual taking of property.' United States v. Willow River Power Co., 324 U.S. 499, 510, 65 S.Ct. 761, 767, 89 S.Ct. 1101 (1945). '(T)he existence of value alone does not generate interests protected by the Constitution against diminution by the government . . ..' Reichelderfer v. Quinn, 287 U.S. 315, 319, 53 S.Ct. 177, 178, 77 L.Ed. 331 (1932). While the Court purports to follow this well-established principle by requiring the compensation paid to be determined on the basis of private property actually taken, its endorsement of valuation computed in part on an expectancy that is no part of the property taken represents a departure from this settled doctrine. I therefore dissent.
1
This was the statement of the question presented by the Government in opposing the grant of the petition for certiorari. As the petitioner phrased the question, the Court was asked to decide: 'In awarding just compensation to a tenant in the condemnation of a leasehold interest in real property, including tenant owned building improvements and fixtures situated thereon, may an element of great inherent value in the improvements be excluded merely because it does not, by itself, rise to the status of a legal property right.' (Emphasis added.)
2
The compensation to which Almota is entitled is hardly 'totally set free from (its) property interest,' as the dissent suggests. Post, at 484. The improvements are assuredly 'private property' that the Government has 'taken' and for which it acknowledges it must pay compensation. The only dispute in this case is over how those improvements are to be valued, not over whether Almota is to receive additional compensation for business losses. Almota may well be unable to operate a grain elevator business elsewhere; it may well lose the profits and other values of a going business, but it seeks compensation for none of that. Mitchell v. United States, 267 U.S. 341, 45 S.Ct. 293, 69 L.Ed. 644, did hold that the Government was not obliged to pay for business losses caused by condemnation. But it assuredly did not hold that the Government could fail to provide fair compensation for business improvements that are taken—dismiss them as worth no more than scrap value—simply because it did not intend to use them. Indeed, in Mitchell the Government paid compensation both for the land, including its 'adaptability for use in a particular business,' id., at 344, 45 S.Ct., at 294, and for the improvements thereon.
3
Hence, this is not a case where the petitioner is seeking compensation for lost opportunities, see United States ex rel. TVA v. Powelson, 319 U.S. 266, 281—282, 63 S.Ct. 1047, 1055—1056, 87 L.Ed. 1390, Omnia Commercial Co. v. United States, 261 U.S. 502, 43 S.Ct. 437, 67 L.Ed. 773. The petitioner seeks only the fair value of the property taken by the Government.
Nor is this a case where compensation is to be paid for 'the value added to fee lands by their potential use in connection with (Government) permit lands,' United States v. Fuller, 409 U.S. 488, at 494, 93 S.Ct. 801, at 805, 35 L.Ed.2d 16, for neither action by the Government nor location adjacent to public property contributed any element of value to Almota's leasehold interest.
4
It was established at oral argument that while the Government had contracted to acquire the railroad's interest, it had not acquired the fee at the time of the taking of the leasehold, nor did it have possession at the time of the trial or appeal.
5
'It frequently happens in the case of a lease for a long term of years that the tenant erects buildings or puts fixtures into the buildings for his own use. Even if the buildings or fixtures are attached to the real estate and would pass with a conveyance of the land, as between landlord and tenant they remain personal property. In the absence of a special agreement to the contrary, such buildings or fixtures may be removed by the tenant at any time during the continuation of the lease, provided such removal may be made without injury to the freehold. This rule, however, exists entirely for the protection of the tenant, and cannot be invoked by the condemnor. If the buildings or fixtures are attached to the real estate, they must be treated as real estate in determining the total award. But in apportioning the award, they are treated as personal property and credited to the tenant,' 4 P. Nichols, Eminent Domain § 13.121(2) (3d rev. ed. 1971) (footnotes omitted).
6
Similarly, the dissent today would value the petitioner's interest after the Government has condemned the underlying fee, and thus after the value of the petitioner's interest has been diminished because the risk of nonrenewal of the lease has materialized. But there was only one 'taking,' and at the time of that 'taking' there was not only a risk that the lease would not be renewed, but a possibility that it would be and that the improvements would be used over their useful life.
| 34
|
409 U.S. 488
93 S.Ct. 801
35 L.Ed.2d 16
UNITED STATES, Petitioner,v.Chester FULLER et ux.
No. 71-559.
Argued Oct. 18, 1972.
Decided Jan. 16, 1973.
Syllabus
In a condemnation proceeding brought by the United States, respondents made a claim, which the District Court and Court of Appeals upheld, to compensation for enhanced value on the open market because of use of the condemned fee lands in conjunction with adjoining federal lands for which respondents held permits under the Taylor Grazing Act. Held: The Fifth Amendment requires no compensation for any value added to the fee lands by the permits, which are revocable and, by the Act's terms, create no property rights. Pp. 490-494.
442 F.2d 504, reversed.
Harry R. Sachse, New Orleans, La., for petitioner.
Frank Haze Burch, Phoenix, Ariz., for respondents.
Mr. Justice REHNQUIST delivered the opinion of the Court.
1
Respondents operated a large-scale 'cow-calf' ranch near the confluence of the Big Sandy and Bill Williams Rivers in western Arizona. Their activities were conducted on lands consisting of 1,280 acres that they owned in fee simple (fee lands), 12,027 acres leased from the State of Arizona, and 31,461 acres of federal domain held under Taylor Grazing Act permits issued in accordance with § 3 of the Act, 48 Stat. 1270, as amended, 43 U.S.C. § 315b. The Taylor Grazing Act authorizes the Secretary of the Interior to issue permits to livestock owners for grazing their stock on Federal Government lands. These permits are revocable by the Government The Act provides, moreover, that its provisions 'shall not create any right, title, interest, or estate in or to the lands.' Ibid.
2
The United States, petitioner here, condemned 920 acres of respondents' fee lands. At the trial in the District Court for the purpose of fixing just compensation for the lands taken, the parties disagreed as to whether the jury might consider value accruing to the fee lands as a result of their actual or potential use in combination with the Taylor Grazing Act 'permit' lands. The Government contended that such element of incremental value to the fee lands could neither be taken into consideration by the appraisers who testified for the parties nor considered by the jury. Respondents conceded that their permit lands could not themselves be assigned any value in view of the quoted provisions of the Taylor Grazing Act. They contended, however, that if on the open market the value of their fee lands was enhanced because of their actual or potential use in conjunction with permit lands, that element of value of the fee lands could be testified to by appraisers and considered by the jury. The District Court substantially adopted respondents' position, first in a pretrial order and then in its charge to the jury over appropriate objection by the Government.
3
On the Government's appeal, the Court of Appeals for the Ninth Circuit affirmed the judgment and approved the charge of the District Court. 442 F.2d 504. That court followed the earlier case of United States v. Jaramillo, 190 F.2d 300 (CA10 1951), and distinguished our holding in United States v. Rands, 389 U.S. 121, 88 S.Ct. 265, 19 L.Ed.2d 329 (1967). The dissenting judge in the Ninth Circuit thought the issue controlled by Rands, supra. We granted certiorari. 404 U.S. 1037, 92 S.Ct. 710, 30 L.Ed.2d 728 (1972).
4
Our prior decisions have variously defined the 'just compensation' that the Fifth Amendment requires to be made when the Government exercises its power of eminent domain. The owner is entitled to fair market value, United States v. Miller, 317 U.S. 369, 374, 63 S.Ct. 276, 87 L.Ed. 336 (1943), but that term is 'not an absolute standard nor an exclusive method of valuation.' United States v. Virginia Electric & Power Co., 365 U.S. 624, 633, 81 S.Ct. 784, 790, 5 L.Ed.2d 838 (1961). The constitutional requirement of just compensation derives as much content from the basic equitable principles of fairness, United States v. Commodities Trading Corp., 339 U.S. 121, 124, 70 S.Ct. 547, 549, 94 L.Ed. 707 (1950), as it does from technical concepts of property law.
5
The record shows that several appraiser witnesses for respondents testified that they included as an element of the value that they ascribed to respondents' fee lands the availability of respondents' Taylor Grazing Act permit lands to be used in conjunction with the fee lands. Under the District Court's charge to the jury, the jury was entitled to consider this element of value testified to by the appraisers. This Court has held that generally the highest and best use of a parcel may be found to be a use in conjunction with other parcels, and that any increment of value resulting from such combination may be taken into consideration in valuing the parcel taken. Olson v. United States, 292 U.S. 246, 256, 54 S.Ct. 704, 709, 78 L.Ed. 1236 (1934). The question presented by this case is whether there is an exception to that general rule where the parcels to be aggregated with the land taken are themselves owned by the condemnor and used by the condemnee only under revocable permit from the condemnor.
6
To say that this element of value would be considered by a potential buyer on the open market, and is therefore a component of 'fair market value,' is not the end of the inquiry. In United States v. Miller, supra, this Court held that the increment of fair market value represented by knowledge of the Government's plan to construct the project for which the land was taken was not included within the constitutional definition of 'just compensation.' The Court there said:
7
'But [respondents] insist that no element which goes to make up value . . . is to be discarded or eliminated. We think the proposition is too broadly stated. . . .' 317 U.S., at 374, 63 S.Ct. at 280.
8
United States v. Cors, 337 U.S. 325, 69 S.Ct. 1086, 93 L.Ed. 1392 (1949), held that the just compensation required to be paid to the owner of a tug requisitioned by the Government in October 1942, during the Second World War, could not include the appreciation in market value for tugs created by the Government's own increased wartime need for such vessels. The Court said: 'That is a value which the government itself created and hence in fairness should not be required to pay.' Id., at 334, 69 S.Ct. at 1091. A long line of cases decided by this Court dealing with the Government's navigational servitude with respect to navigable waters evidences a continuing refusal to include, as an element of value in compensating for fast lands which are taken, any benefits conferred by access to such benefits as a potential portsite or a potential hydroelectric site. United States v. Rands, supra; United States v. Twin City Power Co., 350 U.S. 222, 76 S.Ct. 259, 100 L.Ed. 240 (1956); United States v. Commondore Park, Inc., 324 U.S. 386, 65 S.Ct. 803, 89 L.Ed. 1017 (1945).
9
These cases go far toward establishing the general principle that the Government as condemnor may not be required to compensate a condemnee for elements of value that the Government has created, or that it might have destroyed under the exercise of governmental authority other than the power of eminent domain. If, as in Rands, the Government need not pay for value that it could have acquired by exercise of a servitude arising under the commerce power, it would seem a fortiori that it need not compensate for value which it could remove by revocation of a permit for the use of lands that it owned outright.
10
We do not suggest that such a general principle can be pushed to its ultimate logical conclusion. In United States v. Miller, supra, the Court held that 'just compensation' did include the increment of value resulting from the completed project to neighboring lands originally outside the project limits, but later brought within them. Nor may the United States 'be excused from paying just compensation measured by the value of the property at the time of the taking' because the State in which the property is located might, through the exercise of its lease power, have diminished that value without paying compensation. United States ex rel. TVA v. Powelson, 319 U.S. 266, 284, 63 S.Ct. 1047, 1057, 87 L.Ed. 1390 (1943).
11
'Courts have had to adopt working rules in order to do substantial justice in eminent domain proceedings.' United States v. Miller, supra, 317 U.S., at 375, 63 S.Ct., at 281. Seeking as best we may to extrapolate from these prior decisions such a 'working rule,' we believe that there is a significant difference between the value added to property by a completed public works project, for which the Government must pay, and the value added to fee lands by a revocable permit authorizing the use of neighboring lands that the Government owns. The Government may not demand that a jury be arbitrarily precluded from considering as an element of value the proximity of a parcel to a post office building, simply because the Government at one time built the post office. But here respondents rely on no mere proximity to a public building or to public lands dedicated to, and open to, the public at large. Their theory of valuation aggregates their parcel with land owned by the Government to form a privately controlled unit from which the public would be excluded. If, as we held in Rands, a person may not do this with respect to property interests subject to the Government's navigational servitude, he surely may not do it with respect to property owned outright by the Government. The Court's statement in Rands respecting portsite value is precisely applicable to respondents' contention here that they may aggregate their fee lands with permit lands owned by the Government for valuation purposes:
12
'[I]f the owner of the fast lands can demand port site value as part of his compensation, 'he gets the value of a right that the Government in the exercise of its dominant servitude can grant or withhold as it chooses. . . . To require the United States to pay for this . . . value would be to create private claims in the public domain." 389 U.S., at 125, 88 S.Ct., at 268, quoting United States v. Twin City Power Co., 350 U.S., at 228, 76 S.Ct., at 263.
13
We hold that the Fifth Amendment does not require the Government to pay for that element of value based on the use of respondents' fee lands in combination with the Government's permit lands.
14
The Court of Appeals based its holding in part on its conclusion that although the Fifth Amendment might not have required the Government to pay compensation of the sort permitted by the trial court's charge to the jury, the history of the Taylor Grazing Act indicated that Congress had intended that such compensation be paid. Congress may, of course, provide in connection with condemnation proceedings that particular elements of value or particular rights be paid for even though in the absence of such provision the Constitution would not require payment. United States v. Gerlach Live Stock Co., 339 U.S. 725, 70 S.Ct. 955, 94 L.Ed. 1231 (1950). But we do think the factors relied upon by the Court of Appeals fall far short of the direction contained in the Reclamation Act of 1902, 32 Stat. 388, as amended, that payment be made for rights recognized under state law, which was determinative of the outcome in Gerlach. The provisions of the Taylor Grazing Act quoted supra make clear the congressional intent that no compensable property might be created in the permit lands themselves as a result of the issuance of the permit. Given that intent, it would be unusual, we think, for Congress to have turned around and authorized compensation for the value added to fee lands by their potential use in connection with permit lands. We find no such authorization in the applicable congressional enactments.
15
Reversed.
16
Mr. Justice POWELL, with whom Mr. Justice DOUGLAS, Mr. Justice BRENNAN, and Mr. Justice MARSHALL join, dissenting.
17
I dissent from a decision which, in my view, dilutes the meaning of the just compensation required by the Fifth Amendment when property is condemned by the Government. As a full understanding of the facts is necessary, I will begin by restating them.
18
This is a condemnation proceeding brought by the United States to acquire title to 920 of 1,280 acres of land, owned in fee by respondents, which is within the area to be flooded by a dam and reservoir project in Arizona. At the time of the taking respondents used this fee land as a base for a cattle operation known as a 'cow-calf' ranch. A dependable source of water allowed intense cultivation of the fee land to provide the basic source of feed for the cattle. In connection with their fee land, respondents used 31,461 acres of adjacent public land on which they held revocable grazing permits issued under the Taylor Grazing Act. 43 U.S.C. § 315 et seq.1 The public land was used for grazing during favorable seasons, and roads running across the public land connected respondents' three parcels of fee land.
19
The permits held by respondents on the public land accorded exclusive but revocable grazing rights to respondents. By the terms of the Act, the issuance of a permit does not 'create any right, title, interest, or estate in or to the lands.' 43 U.S.C. § 315B. Nonetheless, grazing permits are of considerable value to ranchers and serve a corresponding public interest in assuring the 'most beneficial use' of range lands. Hatahley v. United States, 351 U.S. 173, 177, 76 S.Ct. 745, 749-750, 100 L.Ed. 1065 (1956). Respondents' permits had not been revoked at the time of the taking, nor, so far as the record reveals, have they yet been revoked. The record also shows that only a small fraction of the public grazing land will be flooded in the dam and reservoir project. Thus, the public land which respondents assert gave added value to their fee land remains substantially intact and available for Taylor Grazing Act purposes.
20
The District Court allowed respondents to introduce testimony as to the market value of the fee land which took into consideration its proximity to this public land. In relevant part, the District Court instructed the jury as follows:
21
'During the course of this trial, reference has been made to grazing permits held by the defendants on public land. You are instructed that such permits are mere licenses which may be revoked and are not compensable as such. However, should you determine that the highest and best use of the property taken is a use in conjunction with those permit lands, you may take those permits into consideration in arriving at your value of the subject land, keeping in mind the possibility that they may be withdrawn or canceled at any time without a constitutional obligation to pay the compensation therefor.
22
'Evidence has been introduced of defendants' use of their deeded land which is being taken, in conjunction with surrounding land owned by the United States, for which defendants have grazing permits, and land belonging to the State of Arizona, which defendants leased. In fixing the fair market value of the fee land being taken and the compensation to be awarded, you are not to award defendants any compensation for the land owned by the United States or the State of Arizona. However, in determining the value of the fee land and in awarding compensation to the owners, you should consider the availability and accessibility of the permit and leased land and its use in conjunction with the fee land taken and give to the fee land such value as, in your judgment, according to the evidence, should be given on account of such availability and accessibility of the permit and leased land, if any. You should also consider the possibility that the permits on the United States land could be withdrawn at any time without constitutional obligation to pay compensation therefor and determine the effect you feel such possibility, according to the evidence, would have upon the value of the fee land.' App. 26-27.
23
I have reproduced this extensive excerpt to underline the careful manner in which the condemnation jury was instructed. Contrary to the implication in the Government's framing of the question in this case,2 the jury was not allowed to include 'the value of revocable grazing permits.'. The instruction expressly stated that 'such permits are mere licenses which may be revoked and are not compensable as such.' The emphasis of the instruction was on the location of the fee land, with the resulting 'availability and accessibility' of the adjacent public grazing land. I find the instruction to be an appropriate statement of the applicable principles of just compensation.
24
The opinion of the Court recognizes that the just compensation required by the Fifth Amendment when the Government exercises its power of eminent domain is ordinarily the market value of the property taken. United States v. Miller, 317 U.S. 369, 374, 63 S.Ct. 276, 280, 87 L.Ed. 336 (1943). It is commonplace, in determining market value—whether in condemnation or in private transactions—to consider such elements of value as derive from the location of the land. But today the Court enunciates an exception to these recognized principles where the value of the land to be condemned may be enhanced by its location in relation to Government-owned property. The Court relies on two lines of cases which, indeed, are said to go far toward establishing.
25
'the general principle that the Government as condemnor may not be required to compensate a condemnee for elements of value that the Government has created, or that it might have destroyed under the exercise of governmental authority other than the power of eminent domain.' Ante, at 492.
26
Applying this new principle to the present case, the Court now holds that since the Government 'created' an element of value by owning grazing land and making it available under the Taylor Grazing Act, and since it has the power to 'destroy' this element of value by barring respondents and others from the land, the condemnation jury must ignore the fact that respondents' land is adjacent to public land. Under this formulation, it is quite immaterial that the grazing land remains substantially intact, and that the Government has taken no action—and none is shown to be contemplated in the record—to convert such land to some other use. The test is not whether the Government has in fact put its property to some other use or removed it entirely; rather, it is quite simply whether the Government has the power to do this.
27
Neither of the lines of cases on which the Court relies seems apposite. The first includes United States v. Miller, supra, in which the Court held that the Government need not pay for an increase in value occasioned by the very project for which the land was condemned, and United States v. Cors, 337 U.S. 325, 69 S.Ct. 1086, 93 L.Ed. 1392 (1949), in which the Court held that in condemning tugboats during wartime the Government need not offer compensation for an increase in value attributable to its own extraordinary wartime demand for such craft. These cases support only the modest generalization that compensation need not be afforded for an increase in market value stemming from the very Government undertaking which led to the condemnation.
28
The other cases on which the Court relies, United States v. Rands, 389 U.S. 121, 88 S.Ct. 265, 19 L.Ed.2d 329 (1967), and United States v. Twin City Power Co., 350 U.S. 222, 76 S.Ct. 259, 100 L.Ed. 240 (1956), deal with the condemnation of lands adjacent to navigable waters. In Rands, the condemnee owned land on the Columbia River which the United States condemned 'in connection with the John Day Lock and Dam Project, authorized by Congress as part of a comprehensive plan for the development of the Columbia River.' 389 U.S., at 122, 88 S.Ct. at 265. Relying on the 'unique position' of the Government 'in connection with navigable waters,' ibid., the Court held that no special element of value could be accorded the land by virtue of its possible use as a port. In Twin City, the condemnee was holding land on the Savannah River as a potential hydroelectric powersite. The Government condemned the land as part of a major flood control, navigation, and hydroelectric project. By a bare majority vote, the Court held that the condemnee was not entitled to the 'special water-rights value' of the land as a potential powersite, distinguishing other cases with the comment:
29
'We have a different situation here, one where the United States displaces all competing interests and appropriates the entire flow of the river . . ..' 350 U.S., at 225, 76 S.Ct. at 261.
30
The water rights cases may be subject to varying interpretations, but it is important to remember when interpreting them that they cut sharply against the grain of the fundamental notion of just compensation, that a person from whom the Government takes land is entitled to the market value, including location value, of the land. They could well be confined to cases involving the Government's 'unique position' with respect to 'navigable waters.'3 At most, these cases establish a principle no broader than that the Government need not compensate for location value attributable to the proximity of Government property utilized in the same project. In Rands, as in Twin City, the river adjacent to the property condemned was the focal point of the development project which led to the condemnation. The Government simply decided to put the river to a new use and in connection with that new use condemned adjacent land.
31
To understand why compensation is not required in such cases, it is important to distinguish the Government's role as condemnor from its role as property owner. While as condemnor the Government must pay market value, as property owner it may change the use of its property as if it were a private party, without paying compensation for the loss in value suffered by neighboring land.
32
When the Government condemns adjoining parcels of privately owned land for the same project, it may not take advantage of a drop in market value of one parcel resulting from the decision to condemn another. When, however, as in Rands and Twin City, a project encompasses not only parcels of private land, but also the public property which enhances the value of the private land, a more difficult question is presented. In each of those cases, the Government held a dominant servitude over the flow of a river, and it condemned adjacent private lands in connection with a decision to exercise its servitude. Arguably, the measure of compensation for the taking of the private lands should have included the value of the riparian location unaffected by the Government's decision to exercise its own rights in the river. But this result would have impinged on the Government's right to use the river by raising the cost of any new use which required the condemnation of private land.
33
Accordingly, in those cases the Court excluded evidence of riparian location value since the Government was exercising its lawful power to appropriate 'the entire flow of the river.'
34
'The proper exercise of this power [over navigable waters] is not an invasion of any private property rights in the stream or the lands underlying it, for the damage sustained does not result from taking property from riparian owners within the meaning of the Fifth Amendment but from the lawful exercise of a power to which the interests of riparian owners have always been subject.' United States v. Rands, 389 U.S., at 123, 88 S.Ct., at 267.
35
In any event, the present case is quite different. Respondents' lands were condemned not because the Government as property owner decided to put its grazing land to some other use and needed additional land, but rather because the Government wanted respondents' land for a project which left the grazing land substantially intact and available.4
36
The Government's role here is not an ambiguous one—it is simply a condemnor of private land which happens to adjoin public land. If the Government need not pay location value in this case, what are the limits upon the principle today announced? Will the Government be relieved from paying location value whenever it condemns private property adjacent to or favorably located with respect to Government property?5 Does the principle apply, for example, to the taking of a gasoline station at an interchange of a federal highway, or to the taking of a farm which in private hands could continue to be irrigated with water from a federal reservoir? The majority proposes to distinguish such cases with the 'working rule' that
37
'there is a significant difference between the value added to property by a completed public works project, for which the Government must pay, and the value added to fee lands by a revocable permitauthorizing the use of neighboring lands which the Government owns.' Ante, at 492.
38
The Court can hardly be drawing a distinction between Government-owned 'completed public works' and Government-owned parks and grazing lands in their natural state. The 'working rule' as articulated can, therefore, only mean that the respondents' revocable permit to use the neighboring lands is regarded by the Court as the distinguishing element. This is an acceptance of the Government's argument that the added value derives from the permit and not from the favorable location with respect to the grazing land.6 The answer to this, not addressed either by the Government or the Court, is that the favorable location is the central fact. Even if no permit had been issued to these respondents, their three tracts of land—largely surrounded by the grazing land—were strategically located and logical beneficiaries of the Taylor Grazing Act. In determining the market value of respondents' land, surely this location—whether or not a permit had been issued7 would enter into any rational estimate of value. This is precisely the rationale of the District Court's jury instruction, which carefully distinguished between the revocable permits 'not compensable as such' and the 'availability and accessibility' of the grazing land. It is this distinction which the Court's opinion simply ignores.
39
Finally, I do not think the Court's deviation from the market value rule can be justified by invocation of long-established 'basic equitable principles of fairness.' Ante, at 490. It hardly serves the principles of fairness as they have been understood in the law of just compensation to disregard what respondents could have obtained for their land on the open market in favor of its value artificially denuded of its surroundings.8
40
I would affirm the judgment of the Court of Appeals.
1
In addition, respondents grazed their cattle on 12,027 acres of land leased from the State, but this land is not relevant to the controversy now before us.
2
As stated by the Government, the question presented by this case is:
'Whether the owner of land taken by the United States is entitled to have included in the measure of his compensation the value of revocable grazing permits on adjoining federal land issued under an Act of Congress which specifies that such grazing permits create no 'right, title, interest, or estate in or to the lands." Brief for United States 2. More accurate, in light of the District Court's instruction, is respondents' statement of the question:
'Whether, in determining the compensation due an owner of land taken by the United States, the jury may consider the availability and accessibility of public lands, so long as consideration is also given the possibility that the grazing permits on the public land may be withdrawn.' Brief for Respondents 1-2.
3
Arguably, then, these are water rights cases and nothing more. Suitable sites for hydroelectric plants or port facilities are important natural resources, highly valuable but limited in number, over which the Government has peculiar historical and constitutional sway. On this view, while the Government has equal authority over Taylor Grazing Act land and other Government-owned property, proximity to such property may appropriately be treated differently from proximity to navigable water for the purpose of measuring just compensation. This was one of the bases on which the court below distinguished the water cases from the present case, 442 F.2d 504, 507 (CA9 1971), and in my view is an alternative ground for affirming the judgment below.
4
In two cases decided together involving the condemnation of ranch land used in connection with Taylor Grazing Act land, a panel of the Court of Appeals for the Tenth Circuit followed a similar analysis in awarding location value in one case. United States v. Jaramillo, 190 F.2d 300 (1951), but not in the other, United States v. Cox, 190 F.2d 293 (1951). In Jaramillo, the court stated:
'By appropriate condemnation proceedings . . . the Government took appellee's fee and leased land as a part of a total of 20,061 acres, to be used for war purposes. But, unlike the Cox and Beasley cases, the project did not contemplate the acquisition of the forest land covered by appellee's permit.' (Emphasis added.) 190 F.2d, at 301.
5
If so, the contrast between condemnation proceedings and other transactions would be stark: the enhancement of value stemming from public highways, parks, buildings, and recreational facilities is commonly recognized for purposes of taxation, mortgaging, and private sales.
6
See n. 2, supra.
7
Even if, as the Government's argument suggests is possible, the permits held by respondents had been withdrawn as a prelude to this condemnation, the Taylor Grazing Act contemplates their issuance in the public interest and the record discloses no other private landowners as favorably located to qualify for permits as these respondents.
8
Respondents' witnesses valued the land at figures up to nearly a million dollars, while the Government's expert witness assigned it a value of $136,500. In what was manifestly a compromise, the jury awarded $350,000.
| 34
|
409 U.S. 524
93 S.Ct. 848.
35 L.Ed.2d 46
Gene HAM, Petitioner,v.State of SOUTH CAROLINA.
No. 71-5139.
Argued Nov. 6, 1972.
Decided Jan. 17, 1973.
Petitioner, a civil rights worker, claims that the trial resulting in his drug conviction (which was affirmed by the South Carolina Supreme Court) was not fair because of the trial court's refusal to examine jurors on voir dire as to possible prejudice arising from the fact that petitioner is a Negro and that he wears a beard. Held: The trial court's refusal to make any inquiry of the jurors as to racial bias after petitioner's timely request therefor denied petitioner a fair trial in violation of the Due Process Clause of the Fourteenth Amendment. Its refusal to inquire as to particular bias against beards, after it had made inquiries as to bias in general, was not constitutional error. Pp. 526—529.
256 S.C. 1, 180 S.E.2d 628, reversed.
Jonathan Shapiro, New York City, for petitioner.
Timothy G. Quinn, Columbia, S.C., for respondent, pro hac vice, by special leave of Court.
Mr. Justice REHNQUIST delivered the opinion of the Court.
1
Petitioner was convicted in the South Carolina trial court of the possession of marihuana in violation of state law.1 He was sentenced to 18 months' confinement, and on appeal his conviction was affirmed by a divided South Carolina Supreme Court. 256 S.C. 1, 180 S.E.2d 628 (1971). We granted certiorari limited to the question of whether the trial judge's refusal to examine jurors on voir dire as to possible prejudice against petitioner violated the latter's federal constitutional rights. 404 U.S. 1057, 92 S.Ct. 744, 30 L.Ed.2d 745 (1972).
2
Petitioner is a young, bearded Negro who has lived most of his life in Florence County, South Carolina. He appears to have been well known locally for his work in such civil rights activities as the Southern Christian Leadership Conference and the Bi-racial Committee of the City of Florence. He has never previously been convicted of a crime. His basic defense at the trial was that law enforcement officers were 'out to get him' because of his civil rights activities, and that he had been framed on the drug charge.
3
Prior to the trial judge's voir dire examination of prospective jurors, petitioner's counsel requested the judge to ask jurors four questions relating to possible prejudice against petitioner.2 The first two questions sought to elicit any possible racial prejudice against Negroes; the third question related to possible prejudice against beards; and the fourth dealt with pretrial publicity relating to the drug problem. The trial judge, while putting to the prospective jurors three general questions as to bias, prejudice, or partiality that are specified in the South Carolina statutes,3 declined to ask any of the four questions posed by petitioner.
4
The dissenting justices in the Supreme Court of South Carolina thought that this Court's decision in Aldridge v. United States, 283 U.S. 308, 51 S.Ct. 470, 75 L.Ed. 1054 (1931), was binding on the State. There a Negro who was being tried for the murder of a white policeman requested that prospective jurors be asked whether they entertained any racial prejudice. This Court reversed the judgment of conviction because of the trial judge's refusal to make such an inquiry. Mr. Chief Justice Hughes, writing for the Court, stated that the 'essential demands of fairness' required the trial judge under the circumstances of that case to interrogate the veniremen with respect to racial prejudice upon the request of counsel for a Negro criminal defendant. Id., at 310, 51 S.Ct., at 471.
5
The Court's opinion relied upon a number of state court holdings throughout the country to the same effect, but it was not expressly grounded upon any constitutional requirement. Since one of the purposes of the Due Process Clause of the Fourteenth Amendment is to insure these 'essential demands of fairness,' e.g., Lisenba v. California, 314 U.S. 219, 236, 62 S.Ct. 280, 289, 86 L.Ed. 166 (1941), and since a principal purpose of the adoption of the Fourteenth Amendment was to prohibit the States from invidiously discriminating on the basis of race, Slaughter-House Cases, 16 Wall. 36, 81, 21 L.Ed. 394 (1873), we think that the Fourteenth Amendment required the judge in this case to interrogate the jurors upon the subject of racial prejudice. South Carolina law permits challenges for cause, and authorizes the trial judge to conduct voir dire examination of potential jurors. The State having created this statutory framework for the selection of juries, the essential fairness required by the Due Process Clause of the Fourteenth Amendment requires that under the facts shown by this record the petitioner be permitted to have the jurors interrogated on the issue of racial bias. Cf. Groppi v. Wisconsin, 400 U.S. 505, 508, 91 S.Ct. 490, 492, 27 L.Ed.2d 571 (1971); Bell v. Burson, 402 U.S. 535, 541, 91 S.Ct. 1586, 1590, 29 L.Ed.2d 90 (1971).
6
We agree with the dissenting justices of the Supreme Court of South Carolina that the trial judge was not required to put the question in any particular form, or to ask any particular number of questions on the subject, simply because requested to do so by petitioner. The Court in Aldridge was at pains to point out, in a context where its authority within the federal system of courts allows a good deal closer supervision than does the Fourteenth Amendment, that the trial court 'had a broad discretion as to the questions to be asked,' 283 U.S., at 310, 51 S.Ct., at 471. The discretion as to form and number of questions permitted by the Due Process Clause of the Fourteenth Amendment is at least as broad. In this context, either of the brief, general questions urged by the petitioner would appear sufficient to focus the attention of prospective jurors on any racial prejudice they might entertain.
7
The third of petitioner's proposed questions was addressed to the fact that he wore a beard. While we cannot say that prejudice against people with beards might not have been harbored by one or more of the potential jurors in this case, this is the beginning and not the end of the inquiry as to whether the Fourteenth Amendment required the trial judge to interrogate the prospective jurors about such possible prejudice. Given the traditionally broad discretion accorded to the trial judge in conducting voir dire, Aldridge v. United States, supra, and our inability to constitutionally distinguish possible prejudice against beards from a host of other possible similar prejudices, we do not believe the petitioner's constitutional rights were violated when the trial judge refused to put this question. The inquiry as to racial prejudice derives its constitutional statute from the firmly established precedent of Aldridge and the numerous state cases upon which it relied, and from a principal purpose as well as from the language of those who adopted the Fourteenth Amendment. The trial judge's refusal to inquire as to particular bias against beards, after his inquiries as to bias in general, does not reach the level of a constitutional violation.
8
Petitioner's final question related to allegedly prejudicial pretrial publicity. But the record before us contains neither the newspaper articles nor any description of the television program in question. Because of this lack of material in the record substantiating any pretrial publicity prejudicial to this petitioner, we have no occasion to determine the merits of his request to have this question posed on voir dire.4
9
Because of the trial court's refusal to make any inquiry as to racial bias of the prospective jurors after petitioner's timely request therefor, the judgment of the Supreme Court of South Carolina is reversed.
10
Judgment reversed.
11
Mr. Justice DOUGLAS, concurring in part and dissenting in part.
12
I concur in that portion of the majority's opinion that holds that the trial judge was constitutionally compelled to inquire into the possibility of racial prejudice on voir dire. I think, however, that it was an abuse of discretion for the trial judge to preclude the defendant from an inquiry by which prospective jurors' prejudice to hair growth could have been explored.
13
It is unquestioned that a defendant has the constitutional right to a trial by a neutral and impartial jury. Criminal convictions have been reversed when the limitations on voir dire have unreasonably infringed the exercise of this right. Aldridge v. United States, 283 U.S. 308, 51 S.Ct. 470, 75 L.Ed. 1054. Such reversals have not been limited to incidents where the defendant was precluded from inquiring into possible racial prejudice. In both Morford v. United States, 339 U.S. 258, 70 S.Ct. 586, 94 L.Ed. 815 and Dennis v. United States, 339 U.S. 162, 70 S.Ct. 519, 94 L.Ed. 734, defendants were held to have the right to inquire into possible prejudices concerning the defendants' alleged ties with the Communist party. In Aldridge v. United States, supra, 283 U.S. 308, at 313, 51 S.Ct. 470, at 472, 75 L.Ed. 1054, this Court made it clear that voir dire aimed at disclosing 'prejudices of a serious character' must be allowed.
14
Prejudices involving hair growth unquestionably of a 'serious character.' Nothing is more indicative of the importance currently being attached to hair growth by the general populace than the barrage of cases reaching the courts evidencing the attempt by one segment of society officially to control the plumage of another. On the issue of a student's right to wear long hair alone there are well over 50 reported cases, Olff v. East Side Union High School District, 404 U.S. 1042, 92 S.Ct. 703, 30 L.Ed.2d 736. In addition, the issue of plumage has surfaced in the employment-discrimination context, Roberts v. General Mills, Inc., 337 F.Supp. 105 (N.D.Ohio); Conard v. Goolsby, 350 F.Supp. 713 (N.D.Miss.) as well as the military area, Friedman v. Froehlke, 5 SSLR 3179 (Mass).
15
The prejudices invoked by the mere sight of non-conventional hair growth are deeply felt. Hair growth is symbolic to many of rebellion against traditional society and disapproval of the way the current power structure handles social problems. Taken as an affirmative declaration of an individual's commitment to a change in social values, nonconventional hair growth may become a very real personal threat to those who support the status quo. For those people, nonconventional hair growth symbolizes an undesirable life-style characterized by unreliability, dishonesty, lack of moral values, communal ('communist') tendencies, and the assumption of drug use. If the defendant, especially one being prosecuted for the illegal use of drugs, is not allowed even to make the most minimal inquiry to expose such prejudices, can it be expected that he will receive a fair trial?
16
Since hair growth is an outward manifestation by which many people determine whether to apply deep-rooted prejudices to an individual, to deny a defendant the right to examine this aspect of a prospective juror's personality is to deny him his most effective means of voir dire examination.
17
Mr. Justice MARSHALL, concurring in part and dissenting in part.
18
I, too, concur in that portion of the majority's opinion which holds that the trial judge was constitutionally compelled to inquire into the possibility of racial prejudice on voir dire. I also agree that, on this record, we cannot say that the judge was required to ask questions about pretrial publicity. I cannot agree, however, that the judge acted properly in totally foreclosing other reasonable and relevant avenues of inquiry as to possible prejudice.
19
Long before the Sixth Amendment was made applicable to the States through the Due Process Clause of the Fourteenth Amendment, see Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1948), this Court held that the right to an 'impartial' jury was basic to our system of justice.
20
'In essence, the right to jury trial guarantees to the criminally accused a fair trial by a panel of impartial, 'indifferent' jurors. The failure to accord an accused a fair hearing violates even the minimal standards of due process. . . . In the language of Lord Coke, a juror must be as 'indifferent as he stands unsworne.' Co. Litt. 155b. His verdict must be based upon the evidence developed at the trial. Cf. Thompson v. City of Louisville, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654. This is true, regardless of the heinousness of the crime charged, the apparent guilt of the offender or the station in life which he occupies. It was so written into our law as early as 1807 by Chief Justice Mashall in 1 Burr's Trial 416 (1807). 'The theory of the law is that a juror who has formed an opinion cannot be impartial.' Reynolds v. United States, 98 U.S. 145, 155, 25 L.Ed. 244.' Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751 (1961) (footnote omitted).
21
See also Turner v. Louisiana, 379 U.S. 466, 471—473, 85 S.Ct. 546, 548—550, 13 L.Ed.2d 424 (1965); Glasser v. United States, 315 U.S. 60, 84—86, 62 S.Ct. 457, 471—472, 86 L.Ed. 680 (1942).
22
We have never suggested that this right to impartiality and fairness protects against only certain classes of prejudice or extends to only certain groups in the population. It makes little difference to a criminal defendant whether the jury has prejudged him because of the color of his skin or because of the length of his hair. In either event, he has been deprived of the right to present his case to neutral and detached observers capable of rendering a fair and impartial verdict. It is unsurprising, then, that this Court has invalidated decisions reached by juries with a wide variety of different prejudices. See, e.g., Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968); Irvin v. Dowd, supra; Morford v. United States, 339 U.S. 258, 70 S.Ct. 586, 94 L.Ed. 815 (1950).
23
Moreover, the Court has also held that the right to an impartial jury carries with it the concomitant right to take reasonable steps designed to insure that the jury is impartial. A variety of techniques is available to serve this end, see Groppi v. Wisconsin, 400 U.S. 505, 509—511, 91 S.Ct. 490, 492—494, 27 L.Ed.2d 571 (1971); Sheppard v. Maxwell, 384 U.S. 333, 357—363, 86 S.Ct. 1507, 1519—1523, 16 L.Ed.2d 600 (1966), but perhaps the most important of these is the jury challenge. See e.g., Johnson v. Louisiana, 406 U.S. 356, 379, 92 S.Ct. 1620, 1642, 32 L.Ed.2d 152 (1972) (opinion of Powell, J.); Swain v. Alabama, 380 U.S. 202, 209—222, 85 S.Ct. 824, 829—837, 13 L.Ed.2d 759 (1965). Indeed, the first Mr. Justice Harlan, speaking for a unanimous Court, thought that the right to challenge was 'one of the most important of the rights secured to the accused' and that '(a)ny system for the impaneling of a jury that prevents or embarrasses the full, unrestricted exercise by the accused of that right must be condemned.' Pointer v. United States, 151 U.S. 396, 408, 14 S.Ct. 410, 414, 38 L.Ed. 208 (1894). See also Lewis v. United States, 146 U.S. 370, 376, 13 S.Ct. 136, 138, 36 L.Ed. 1011 (1892).
24
Of course, the right to challenge has little meaning if it is unaccompanied by the right to ask relevant questions on voir dire upon which the challenge for cause can be predicated. See Swain v. Alabama, supra, 380 U.S., at 221, 85 S.Ct., at 836. It is for this reason that the Court has held that '(p) reservation of the opportunity to prove actual bias is a guarantee of a defendant's right to an impartial jury,' Dennis v. United States, 339 U.S. 162, 171—172, 70 S.Ct. 519, 523, 94 L.Ed. 734 (1950), and that the Court has reversed criminal convictions when the right to query on voir dire has been unreasonably infringed. See, e.g., Aldridge v. United States, 283 U.S. 308, 51 S.Ct. 470, 75 L.Ed. 1054 (1931). Contrary to the majority's suggestion, these reversals have not been confined to cases where the defendant was prevented from asking about racial prejudice. See, e.g., Morford v. United States, supra. Cf. Dennis v. United States, supra.1
25
I do not mean to suggest that a defendant must be permitted to propound any question or that limitless time must be devoted to preliminary voir dire. Although the defendant's interest in a jury free of prejudice is strong, there are countervailing state interests in the expeditious conduct of criminal trials and the avoidance of jury intimidation. These interests bulk larger as the possibility of uncovering prejudice becomes more attenuated. The trial judge has broad discretion to refuse to ask questions that are irrelevant or vexatious.2 Thus, where the claimed prejudice is of a novel character, the judge might require a preliminary showing of relevance or of possible prejudice before allowing the questions.
26
But broad as the judge's discretion is in these matters, I think it clear that it was abused in this case. The defense attorney wished to ask no more than four questions, which would have required a scant 15 additional minutes of the court's time. The inquiries, directed inter alia to possible prejudice against people with beards, were obviously relevant, since the defendant was in fact bearded. Moreover, the judge afforded petitioner no opportunity to show that there were a significant number of potential jurors who might be prejudiced against people with beards. At minimum, I think such an opportunity should have been provided. I cannot believe that in these circumstances an absolute ban on questions designed to uncover such prejudice represents a proper balance between the competing demands of fairness and expedition.
27
It may be that permitting slightly more extensive voir dire examination will put an additional burden on the administration of justice. But, as Mr. Chief Justice Hughes argued 40 years ago, 'it would be far more injurious to permit it to be thought that persons entertaining a disqualifying prejudice were allowed to serve as jurors and that inquiries designed to elicit the fact of disqualification were barred. No surer way could be devised to bring the processes of justice into disrepute.' Aldridge v. United States, 283 U.S., at 315, 51 S.Ct., at 473.
28
I would therefore hold that the defendant in this case, and subject to the limitations set out above, had a constitutionally protected interest in having the judge propound the additional question, in some form, to the jury.
1
S.C. Code § 32—1506 (1962).
2
The four questions sought to be asked are the following:
'1. Would you fairly try this case on the basis of the evidence and disregarding the defendant's race?
'2. You have no prejudice against negroes? Against black people? You would not be influenced by the use of the term 'black'?
'3. Would you disregard the fact that this defendant wears a beard in deciding this case?
'4. Did you watch the television show about the local drug problem a few days ago when a local policeman appeared for a long time? Have you heard about that show? Have you read or heard about recent newspaper articles to the effect that the local drug problem is bad? Would you try this case solely on the basis of the evidence presented in this courtroom? Would you be influenced by the circumstances that the prosecution's witness, a police officer, has publicly spoken on TV about drugs?'
3
S.C. Code § 38—202 (1962). The three questions asked of all prospective jurors in this case were, in substance, the following:
'1. Have you formed or expressed any opinion as to the guilt or innocence of the defendant, Gene Ham?
'2. Are you conscious of any bias or prejudice for or against him?
'3. Can you give the State and the defendant a fair and impartial trial?'
4
The record indicates that there was a brief colloquy between petitioner's counsel and the trial judge, in which the former apparently offered newspaper accounts and an editorial in support of his request that the question be propounded; the judge responded that he did not consider the items submitted prejudicial. The Supreme Court of South Carolina, discussing prejudicial publicity in the context of petitioner's claim that he was entitled to a change of venue, stated that '(t)he two newspaper clippings and one editorial concerning drug abuse did not name the defendant or refer in any way to his trial.'
1
Indeed, it was not so confined in Aldridge itself, upon which the majority heavily relies. Aldridge pointed out that '(t)he right to examine jurors on the voir dire as to the existence of a disqualifying state of mind has been upheld with respect to other races than the black race, and in relation to religious and other prejudices of a serious character.' 283 U.S. 308, 313, 51 S.Ct. 470, 472, 75 L.Ed. 1054 (1931).
2
I also agree with the majority that the judge may properly decline to ask the question in any particular form or ask any particular number of questions on a subject.
| 01
|
409 U.S. 535
93 S.Ct. 872
35 L.Ed.2d 56
Linda GOMEZ, Individually and as Next Friend of Zoraida Gomez, Appellant,v.Francisco Ocasio PEREZ.
No. 71-575.
Argued Dec. 6, 1972.
Decided Jan. 17, 1973.
Stanley Dalton Wright, Houston, Tex., for appellant.
Joseph Jaworski, Houston, Tex., as amicus curiae, in support of the judgment below.
PER CURIAM.
1
The issue presented by this appeal is whether the laws of Texas may constitutionally grant legitimate children a judicially enforceable right to support from their natural fathers and at the same time deny that right to illegitimate children.
2
In 1969, appellant filed a petition in Texas District Court seeking support from appellee on behalf of her minor child. After a hearing, the state trial judge found that appellee is 'the biological father' of the child, and that the child 'needs the support and maintenance of her father,' but concluded that because the child was illegitimate 'there is no legal obligation to support the child and the Plaintiff take nothing.' The Court of Civil Appeals affirmed this ruling over the objection that this illegitimate child was being denied equal protection of law. 466 S.W.2d 41. The Texas Supreme Court refused application for a writ of error, finding no 'reversible error.' We noted probable jurisdiction. 408 U.S. 920, 92 S.Ct. 2479, 33 L.Ed.2d 331.
3
In Texas, both at common law and under the statutes of the State, the natural father has a continuing and primary duty to support his legitimate children. See Lane v . Phillips, 69 Tex. 240, 243, 6 S.W. 610, 611 (1887); Tex.Fam.Code § 4.02 (1970) (husband's duty).1 That duty extends even beyond dissolution of the marriage, Tex.Rev.Civ.Stat., Art. 4639a (Supp.1972—1973); Hooten v. Hooten, 15 S.W.2d 141 (Tex.Civ.App.1929), and is enforceable on the child's behalf in civil proceedings and, further, is the subject of criminal sanctions. Tex. Penal Code § 602. The duty to support exists despite the fact that the father may not have custody of the child. Hooten v. Hooten, supra. The Court of Civil Appeals has held in this case that nowhere in this elaborate statutory scheme does the State recognize any enforceable duty on the part of the biological father to support his illegitimate children and that, absent a statutory duty to support, the controlling law is the Texas common-law rule that illegitimate children, unlike legitimate children, have no legal right to support from their fathers. See also Home of the Holy Infancy v. Kaska, 397 S.W.2d 208 (Tex.1965); Lane v. Phillips, supra, at 243, 6 S.W., at 611; Bjorgo v. Bjorgo, 391 S.W.2d 528 (Tex.Civ.App.1965). It is also true that fathers may set up illegitimacy as a defense to prosecutions for criminal nonsupport of their children. See Curtin v. State, 155 Tex.Cr.R. 625, 238 S.W.2d 187 (1950); Beaver v. State, 96 Tex.Cr.R. 179, 256 S.W. 929 (1923).
4
In this context appellant's claim, on behalf of her daughter that the child has been denied equal protection of the law is unmistakably presented. Indeed, at argument here, the attorney for the State of Texas, appearing as amicus curiae, conceded that but for the fact that this child is illegitimate she would be entitled to support from appellee under the laws of Texas.2
5
We have held that under the Equal Protection Clause of the Fourteenth Amendment a State may not create a right of action in favor of children for the wrongful death of a parent and exclude illegitimate children from the benefit of such a right. Levy v. Louisiana, 391 U.S. 68, 88 S.Ct. 1509, 20 L.Ed.2d 436 (1968). Similarly, we have held that illegitimate children may not be excluded from sharing equally with other children in the recovery of workmen's compensation benefits for the death of their parent. Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 92 S.Ct. 1400, 31 L.Ed.2d 768 (1972).3 Under these decisions, a State may not invidiously discriminate against illegitimate children by denying them substantial benefits accorded children generally. We therefore hold that once a State posits a judicially enforceable right on behalf of children to needed support from their natural fathers there is no constitutionally sufficient justification for denying such an essential right to a child simply because its natural father has not married its mother. For a State to do so is 'illogical and unjust.' Id., at 175, 92 S.Ct., at 1406. We recognize the lurking problems with respect to proof of paternity. Those problems are not to be lightly brushed aside, but neither can they be made into an impenetrable barrier that works to shield otherwise invidious discrimination. Stanley v. Illinois, 405 U.S. 645, 656—657, 92 S.Ct. 1208, 1215—1216, 31 L.Ed.2d 551 (1972); Carrington v. Rash, 380 U.S. 89, 85 S.Ct. 775, 13 L.Ed.2d 675 (1965).
6
The judgment is reversed and the case remanded for further proceedings not inconsistent with this opinion.
7
It is so ordered.
8
Reversed and remanded.
9
Mr. Justice STEWART, with whom Mr. Justice REHNQUIST joins, dissenting.
10
This case came here as an appeal, on the representation that the Texas courts had sustained the constitutionality of § 4.02 of the Texas Family Code and Articles 602 and 602—A of the Texas Penal Code, over a challenge to those statutes under the Equal Protection Clause of the Fourteenth Amendment. We noted probable jurisdiction, 408 U.S. 920, 92 S.Ct. 2479, 33 L.Ed.2d 331, to consider whether the alleged discrimination between legitimate and illegitimate children, in terms of the support obligations of their biological fathers, denied equal protection to illegitimate children under the principles of Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 92 S.Ct. 1400, 31 L.Ed.2d 768; Glona v. American Guarantee & Liability Insurance Co., 391 U.S. 73, 88 S.Ct. 1515, 20 L.Ed.2d 441; and Levy v. Louisiana, 391 U.S. 68, 88 S.Ct. 1509, 20 L.Ed.2d 436.
11
Upon the submission of briefs and oral argument, it became clear that neither statute had been the actual subject of litigation in the courts of Texas. Hence, this is not properly an appeal under 28 U.S.C. § 1257(2). I would, therefore, dismiss the appeal for want of jurisdiction, and treat 'the papers whereon the appeal was taken' as a petition for writ of certiorari. 28 U.S.C. § 2103.
12
The parties were not prepared to submit this case as one challenging the common-law treatment of illegitimates in Texas, and failed to provide this Court with a sufficient understanding of Texas law with respect to such matters as custodial versus noncustodial support obligations, legitimation, common-law marriage, and the effect of a Texas statute, § 4.02 of the Family Code, which became law after this litigation had begun. With the issues so vaguely drawn and the alleged discriminations so imprecise, I would dismiss the writ of certiorari as improvidently granted.
1
Section 4.02 became effective after the commencement of appellant's suit, but the provision is identical (except for punctuation) to its predecessor, Tex.Civ.Stat., Husband and Wife, Art. 4614, n. 1 Tex.Laws, c. 309, p. 736 (60th Legislature, Reg.Sess.1967). Section 4.02 was enacted as part of a codification of Texas family law.
2
Tr. of Oral Arg. 24. There was some question at argument whether the statutory scheme relating to paternal support of children was properly drawn into question in the state courts. In the circumstances of this case, we need not resolve the question. First, the State of Texas asserts no prejudice from appellant's apparent failure to explicitly draw attention to the individual statutes that make up the so-called Texas rule regarding support of legitimate and illegitimate children. On the contrary, the State asserted here that it was prepared to meet appellant's constitutional attack on its statutes on the merits. Tr. of Oral Arg. 28. Second, under our cases, 'the unrestricted notation of probable jurisdiction of the appeal is to be understood as a grant of the writ' of certiorari on 'nonappealable' issues presented in the case. Mishkin v. New York, 383 U.S. 502, 512, 86 S.Ct. 958, 965, 16 L.Ed.2d 56 (1966). Appellant's federal claim, which was rejected in the state courts, that her child was being denied equal protection of laws is, therefore, properly before us in any event.
3
See also Davis v. Richardson, 342 F.Supp. 588 (Conn.), aff'd, 409 U.S. 1069, 93 S.Ct. 678, 34 L.Ed.2d 659 (1972); Griffin v. Richardson, 346 F.Supp. 1226 (Md.), aff'd, 409 U.S. 1069, 93 S.Ct. 689, 34 L.Ed.2d 660 (1972).
| 12
|
409 U.S. 540
93 S.Ct. 883
35 L.Ed.2d 62
INDIANA EMPLOYMENT SECURITY DIVISION et al., Appellants,v.Essie D. BURNEY.
No. 71-1119.
Argued Dec. 7, 1972.
Decided Jan. 17, 1973.
Rehearing Denied Mar. 5, 1973.
See 410 U.S. 970, 93 S.Ct. 1435.
Darrel K. Diamond, Indianapolis, Ind., for appellants.
Ivan E. Bodensteiner, Valparaiso, Ind., for appellee.
PER CURIAM.
1
We noted probable jurisdiction in this case, 406 U.S. 956, 92 S.Ct. 2058, 32 L.Ed.2d 342, to review the judgment of a three-judge district court, 347 F.Supp. 218, holding that Indiana's system of administering unemployment insurance was in conflict with § 303(a)(1) of the Social Security Act, 49 Stat. 626, as amended, 42 U.S.C. § 503(a)(1).1 Before the three-judge court entered its injunction, Indiana's practice was to discontinue unemployment benefits upon a determination of ineligibility, that determination taking place without the benefit of a full hearing for the erstwhile beneficiary.
2
After several months of effort, however, the class representative in this litigation, Mrs. Burney, succeeded in obtaining a reversal of the initial determination of ineligibility.2 She has now received full retroactive compensation.
3
The full settlement of Mrs. Burney's financial claim raises the question whether there continues to be a case or controversy in this lawsuit. Though the appellee purports to represent a class of all present and future recipients of unemployment insurance, there are no named representatives of the class except Mrs. Burney, who has been paid. Cf. Bailey v. Patterson, 369 U.S. 31, 32—33, 82 S.Ct. 549, 550—551, 7 L.Ed.2d 512. Accordingly, the judgment is vacated and the case is remanded to the District Court to consider whether it has become moot.
4
It is so ordered.
5
Mr. Justice MARSHALL, with whom Mr. Justice BRENNAN joins, dissenting.
6
I consider the remand ordered by the Court to be pointless. The only issue in this case is the right of a recipient of unemployment insurance benefits to a full evidentiary hearing before those benefits are terminated as the result of an administrative determination of ineligibility. The Court evidently concludes that this action may be moot as to Mrs. Burney since she has now received a full evidentiary hearing and settlement of her claim, and as to the affected class since Mrs. Burney is its only named representative in this action. I think it clear on the record before us, however, that nothing has occurred at either the administrative or judicial level since Mrs. Burney entered this suit that would suffice to moot her claim or that of the class.
7
Mrs. Burney's benefits were suspended beginning the week of March 23, 1971. On April 2, 1971, some three weeks before Mrs. Burney sought leave to intervene in this action,1 she invoked the existing Indiana appeal procedure, see Ind.Stat.Ann. § 52—1542a(e) (Supp.1970), now Ind.Stat.Ann. § 52—1542a(e) (Supp.1972), and requested an administrative hearing. She received such a hearing on July 1, 1971, while this action was still pending in the District Court. Although the hearing referee affirmed the suspension order, on December 6, 1971, the Division Review Board reversed the referee and held that Mrs. Burney's benefits had been erroneously suspended. Meanwhile, on October 27, 1971, the District Court granted summary judgment in favor of Mrs. Burney and the affected class.
8
Certainly the full administrative hearing that Mrs. Burney received during the pendency of this case in the District Court cannot be considered to be an indication that Indiana has voluntarily chosen to provide henceforth the pre-termination hearing that Mrs. Burney claims is required under both § 303(a) (1) of the Social Security Act, 42 U.S.C. § 503(a)(1), and the Due Process Clause. So far as appears, the hearing afforded Mrs. Burney was nothing more than the post-termination hearing for which provision is already made in Indiana law.2
9
Nor can I accept any suggestion that Mrs. Burney's attack upon appellants' failure to provide a pre-termination hearing may be moot merely because she has received a full post-termination hearing and settlement of her claim since entering this litigation.3 A determination of mootness based on this line of reasoning would effectively bar the full and final litigation of whether a pre-termination hearing is legally required, while leaving Indiana free to continue to provide Mrs. Burney and other beneficiaries of unemployment insurance with only post-term termination hearings.
10
It is, by now, clear that a claim is not moot if it is 'capable of repetition, yet evading review.' Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed. 310 (1911); see Moore v. Ogilvie, 394 U.S. 814, 816, 89 S.Ct. 1493, 1494, 23 L.Ed.2d 1 (1969). It is entirely possible that Mrs. Burney will, in the future, become employed and them once more became unemployed. If this action is deemed to be moot and the existing state procedure remains intact, she then may encounter the same problem of suspension of benefits without a prior hearing that she has encountered in this instance. And, inevitably, the post-termination administrative process will again be completed before final legal relief may be obtained as to the pretermination hearing question. Indeed, this sequence of events might repeat itself any number of times for Mrs. Burney if the mere provision of the post-termination hearing and settlement of her particular claim were considered sufficient to moot the issue whether a pre-termination hearing is required. The principle that a federal court will not pass upon a moot controversy does not require us to set in motion such a litigious merry-go-round where, as here, there is a shortlived controversy of a potentially recurring character.
11
It is no answer that there are other beneficiaries of unemployment insurance whose benefits may be terminated in advance of a full hearing and who might therefore institute litigation concerning the timing issue. Such litigation can be expected to fare no better, or worse, in terms of problems of mootness, than this case. As with Mrs. Burney's claim, the post-termination administrative process will invariably be completed before a final adjudication is obtained. In fact, appellants indicate that the post-termination hearing procedure has been speeded up significantly since Mrs. Burney's administrative appeal was processed.4
12
It is true that the District Court entered an injunction ordering Indiana to provide pre-termination hearings, and that injunction is currently in effect since no stay has been entered. As a result, pre-termination hearings are presently being provided in Indiana.5 But this certainly does not moot the case, for it is well established that compliance with a court order pendente lite does not moot the underlying controversy, see, e.g., Bakery Sales Drivers Local Union No. 33 v. Wagshal, 333 U.S. 437, 442, 68 S.Ct. 630, 632, 92 L.Ed. 792 (1948); Dakota County v. Glidden, 113 U.S. 222, 224, 5 S.Ct. 428, 429, 28 L.Ed. 981 (1885). A determination of mootness would require that the decision below be vacated and the action dismissed. See, e.g., SEC v. Medical Committee for Human Rights, 404 U.S. 403, 407, 92 S.Ct. 577, 579, 30 L.Ed.2d 560 (1972); United States v. W. T. Grant Co., 345 U.S. 629, 632, 73 S.Ct. 894, 897, 97 L.Ed. 1303 (1953). Under such circumstances, appellants would be 'free to return to (their) old ways.' Ibid. For a case to be moot it must be 'absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.' United States v. Concentrated Phosphate Export Assn., 393 U.S. 199, 203, 89 S.Ct. 361, 364, 21 L.Ed.2d 344 (1968). In this case, appellants have hardly provided such assurance—as is evident from the very fact that this appeal was taken from the adverse decision below.
13
In my view, then, this case remains viable as to both Mrs. Burney and the affected class. Accordingly, I see no need for the remand ordered by the Court.6 On the merits, I would affirm the judgment of the District Court in light of our decision in Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970). See Torres v. New York Dept. of Labor, 405 U.S. 949, 92 S.Ct. 1185, 31 L.Ed.2d 228 (1972) (statement of Douglas, Brennan, and Marshall, JJ.).
1
The three-judge court was convened pursuant to 28 U.S.C. §§ 2281, 2284, to consider the prayer for an injunction against enforcement of the Indiana statute, Ind.Ann.Stat. § 52—1542a(e) (Supp.1970), IC 1971, 22—4—17—2, on the grounds that it violated the appellee's right to due process under the Fourteenth Amendment. The District Court did not reach this issue.
2
The District Court entered a temporary restraining order against the appellants on May 7, 1971. Presumably, the appellee's payments were then restored pending the outcome of her hearing before a referee, which took place on July 1, 1971. On July 13, 1971, the referee affirmed the determination of ineligibility. Mrs. Burney then appealed to the Division Review Board. After the judgment and injunction were entered by the District Court, the Review Board reversed the referee and awarded payments to Mrs. Burney. This latter determination was unrelated to the injunction.
1
This action was originally brought to declare invalid the Indiana statutory provision that an unemployed individual found initially to be eligible by the Division authorities would have his benefits suspended upon appeal by the employer of the eligibility determination. That issue was effectively resolved against the Division by this Court's decision in California Department of Human Resources Development v. Java, 402 U.S. 121, 91 S.Ct. 1347, 28 L.Ed.2d 666 (1971), which was handed down while this case was pending in the District Court, and it is not presented on this appeal. On May 7, 1971, the District Court allowed Mrs. Burney to intervene in this action in order to raise the further issue whether a pre-termination hearing is necessary where the Division seeks to suspend payment of benefits because it has determined that a person who was initially eligible to receive unemployment benefits has since become ineligible.
2
At the same time Mrs. Burney sought to intervene, she requested a temporary restraining order reinstating her benefits. On May 7, 1971, the District Court issued such an order directing that Mrs. Burney's benefits be reinstated and not be again suspended 'without a prior, due process hearing.' In light of the chronology of events in this case it appears that Mrs. Burney received only the regular post-termination hearing for which Indiana law provides. But even if the July 1 hearing was the product of the temporary restraining order, such compliance with the court order would not moot this case. See, e.g., Bakery Sales Drivers Local Union No. 33 v. Wagshal, 333 U.S. 437, 442, 68 S.Ct. 630, 632, 92 L.Ed. 792 (1948); Dakota County v. Glidden, 113 U.S. 222, 224, 5 S.Ct. 428, 429, 28 L.Ed. 981 (1885).
3
It particularly bears noting that in California Department of Human Resources Development v. Java, supra, 402 U.S., at 123 124, 91 S.Ct., at 1349—1350, which involved a related pre-termination hearing claim, see n. 1, supra, the Court never even suggested that there was any problem of mootness, although both appellees had received full post-termination administrative hearings during the pendency of the litigation.
4
See Reply Brief for Appellants 8.
5
See Brief for Appellee 6.
6
I can see the purpose of a remand to a district court for consideration of possible mootness where the Court identifies disputed factual issues the resolution of which affects the continuing viability of the particular claim. See e.g., Johnson v. New York State Education Dept., 409 U.S. 75, 93 S.Ct. 259, 34 L.Ed.2d 290. But here the Court fails to identify any such factual issue. Indeed, there do not appear to be any factual issues in dispute as to the administrative developments subsequent to Mrs. Burney's intervention in this suit. Under such circumstances, this Court is as competent as a district court to resolve initially the issue of mootness, and in the past it has proceeded to do so, see, e.g., SEC v. Medical Committee for Human Rights, 404 U.S. 403, 92 S.Ct. 577, 30 L.Ed.2d 560 (1972); United States v. Concentrated Phosphate Export Assn., 393 U.S. 199, 202—204, 89 S.Ct. 361, 363 364, 21 L.Ed.2d 344 (1968).
| 89
|
409 U.S. 512
93 S.Ct. 854
35 L.Ed.2d 36
Andrew C. GOOSBY et al., Petitioners,v.Maurice OSSER et al.
No. 71-6316.
Argued Dec. 6 and 7, 1972.
Decided Jan. 17, 1973.
Syllabus
Philadelphia County prisoners unable to make bail or being held on nonbailable offenses brought this class action, asserting the unconstitutionality of Pennsylvania Election Code provisions denying them the right to vote. When the Commonwealth (but not the municipal) officials who were named as defendants conceded the Code provisions' unconstitutionality, the District Judge (deeming the Commonwealth officials the principal defendants) ruled the case nonjusticiable as not involving an Art. III case or controversy, and dismissed the complaint. The Court of Appeals, though differing as to justiciability, affirmed on the ground that petitioners' constitutional claims were wholly insubstantial under McDonald v. Board of Election Commissioners of Chicago, 394 U.S. 31, 802, 89 S.Ct. 1404, 22 L.Ed.2d 739, and ruled that a three-judge district court was therefore not required under 28 U.S.C. § 2281. Held:
1. The Commonwealth officials' concession did not foreclose the existence of an Art. III case or controversy since the municipal officials continue to assert the right to enforce the challenged Code provisions. Pp. 516—517.
2. McDonald, supra, unlike the situation alleged here, did not deal with an absolute prohibition against voting by the prisoners there involved, and that decision does not 'foreclose the subject' of petitioners' challenge to the Pennsylvania statutory scheme. The case may, if appropriate, therefore be heard by a three-judge district court. Pp. 518—523.
3. Cir., 452 F.2d 39, reversed and remanded.
Ann S. Torregrossa, Philadelphia, Pa., for petitioners, pro hac vice, by special leave of Court.
Peter W. Brown, Philadelphia, Pa., for respondents Commonwealth of Pennsylvania and others.
John Mattioni, Philadelphia, Pa., for municipal respondents.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
The question is whether 28 U.S.C. § 22811 required the convening of a three-judge court in the District Court for the Eastern District of Pennsylvania to hear this case. It is a class action brought by and on behalf of persons awaiting trial and confined in Philadelphia County prisons because either unable to afford bail or because charged with nonbailable offenses. The complaint alleges that provisions of the Pennsylvania Election Code, in violation of the Equal Protection and Due Process Clauses of the Fourteenth Amendment, absolutely deny petitioners' class the right to vote in that they neither permit members of the class to leave prison to register and vote, nor provide facilities for the purpose at the prisons, and in that they expressly prohibit persons 'confined in penal institutions' from voting by absentee ballot.2 The complaint names as defendants two Commonwealth officials, the Attorney General and Secretary of State of Pennsylvania, and certain municipal officials of the County and City of Philadelphia: the City Commissioners of Philadelphia who constitute the Board of Elections and Registration Commission of the City and County of Philadelphia, the Voting Registration Supervisor for the City and County, and the Superintendent of Prisons for the County.
2
On oral argument before a single judge on petitioners' motion for a temporary restraining order, the Commonwealth officials appeared by a Deputy Attorney General, who conceded that the challenged provisions of the Election Code, as applied to petitioners' class, were unconstitutional under the Fourteenth Amendment. The municipal officials, on the other hand, vigorously defended the constitutionality of the provisions as so applied. The single judge deemed the contrary view of the municipal officials to be irrelevant, as he regarded the Commonwealth officials to be the 'principal defendants.' See n. 3, infra. He therefore ruled that the concession on behalf of the Commonwealth officials meant there was no case or controversy before the court as required by Art. III of the Constitution, and dismissed the complaint.3 On petitioners' appeal, the Court of Appeals for the Third Circuit affirmed. 452 F.2d 39 (1971). We do not, however, read the per curiam opinion of the Court of Appeals as resting the affirmance on agreement with the single judge that the concession of the Commonwealth officials meant there was no case or controversy before the court. Rather, we read the per curiam opinion as either implying disagreement with the single judge on that question, or as at least assuming that a case or controversy existed, for the opinion states that, in the view of the Court of Appeals, petitioners' constitutional claims were wholly insubstantial under McDonald v. Board of Election Comm'rs., 394 U.S. 802, 89 S.Ct. 1493, 23 L.Ed.2d 1 (1969), in which circumstance, the Court of Appeals held, Bailey v. Patterson, 369 U.S. 31, 82 S.Ct. 549, 7 L.Ed.2d 512 (1962), was authority that 28 U.S.C. § 2281 did not require the assembly of a three-judge court and that dismissal by the single judge was therefore proper, 452 F.2d, at 40. A petition for rehearing en banc was denied, three judges dissenting. We granted certiorari, 408 U.S. 922, 92 S.Ct. 2504, 33 L.Ed.2d 332 (1972). We reverse the judgment of the Court of Appeals and remand with direction to enter an appropriate order pursuant to 28 U.S.C. § 2281 for the convening of a three-judge court to hear this case.
3
* The single judge clearly erred in holding that the concession of the Commonwealth officials foreclosed the existence of a case or controversy. All parties are in accord that Pennsylvania law did not oblige the municipal officials to defer to the concession of the Commonwealth officials, or otherwise give the Commonwealth officials a special status as 'principal defendants.'4 Indeed, the brief filed in this Court by the Commonwealth officials forthrightly argues that '(t)he District Court made an egregious error. The Attorney General and the Secretary of the Commonwalth are not the only defendants in this case. The City Commissioners of Philadelphia, the Voting Registration Supervisor, the Registration Commission, and the Superintendent of Prisons for Philadelphia County are also parties. These parties have contested vigorously the issues raised by petitioners both in the District Court and on appeal. They have provided adversity of interest, and will sharply define the issues, to the extent they are not already clear.' Brief for Respondents Commonwealth of Pennsylvania et al. 4—5.5
4
Thus, there is satisfied the requisite of Art. III that '(t)he constitutional question . . . be presented in the context of a specific live grievance.' Golden v. Zwickler, 394 U.S. 103, 110, 89 S.Ct. 956, 960, 22 L.Ed.2d 113 (1969). As between petitioners and the municipal officials, the District Court was 'called upon to adjudge the legal rights of litigants in actual controversies,' Liverpool, N.Y. & P.S.S. Co. v. Commissioners of Emigration, 113 U.S. 33, 39, 5 S.Ct. 352, 355, 28 L.Ed. 899 (1885), and 'the interests of (petitioners' class) require the use of . . . judicial authority for (petitioners') protection against actual interference.' United Public Workers of America v. Mitchell, 330 U.S. 75, 90, 67 S.Ct. 556, 564, 91 L.Ed. 754 (1947). Since the municipal officials persist in their asserted right to enforce the challenged provisions of the Election Code, there is a 'real and substantial controversy' 'touching the legal relations of parties having adverse legal interests,' Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240—241, 57 S.Ct. 461, 464, 81 L.Ed. 617 (1937), in which circumstance the concession of the Commonwealth officials could not have the effect of dissipating the existence of a case or controversy. Cf. In re Metropolitan Railway Receivership, 208 U.S. 90, 107—108, 28 S.Ct. 219, 223—224, 52 L.Ed. 403 (1908).
II
5
The Court of Appeals also erred. We disagree with its holding that McDonald v. Board of Election Comm'rs, supra, rendered petitioners' constitutional claims wholly insubstantial.
6
Title 28 U.S.C. § 2281 does not require the convening of a three-judge court when the constitutional attack upon the state statutes is insubstantial. 'Constitutional insubstantiality' for this purpose has been equated with such concepts as 'essentially fictitious,' Bailey v. Patterson, 369 U.S., at 33, 82 S.Ct., at 551, 'wholly insubstantial,' ibid.; 'obviously frivolous,' Hannis Distilling Co. v. Baltimore, 216 U.S. 285, 288, 30 S.Ct. 326, 327, 54 L.Ed. 482 (1910); and 'obviously without merit,' Ex parte Poresky, 290 U.S. 30, 32, 54 S.Ct. 3, 4—5, 78 L.Ed. 152 (1933). The limiting words 'wholly' and 'obviously' have cogent legal significance. In the context of the effect of prior decisions upon the substantiality of constitutional claims, those words import that claims are constitutionally insubstantial only if the prior decisions inescapably render the claims frivolous; previous decisions that merely render claims of doubtful or questionable merit do not render them insubstantial for the purposes of 28 U.S.C. § 2281. A claim is insubstantial only if "its unsoundness so clearly results from the previous decisions of this court as to foreclose the subject and leave no room for the inference that the questions sought to be raised can be the subject of controversy." Ex parte Poresky, supra, at 32, 54 S.Ct., at 4, quoting from Hannis Distilling Co. v. Baltimore, supra, 216 U.S., at 288, 30 S.Ct., at 327; see also Levering & Garrigues Co. v. Morrin, 289 U.S. 103, 105—106, 53 S.Ct. 549, 550, 77 L.Ed. 1062 (1933); McGilvra v. Ross, 215 U.S. 70, 80, 30 S.Ct. 27, 31, 54 L.Ed. 95 (1909). Under this test, it is clear that McDonald is not a prior decision of this Court that 'foreclose(s) the subject' of petitioners' constitutional attack upon the Pennsylvania statutory scheme; it is demonstrably not a decision that 'leave(s) no room for the inference that the question sought to be raised (by petitioners) can be the subject of controversy.'
7
In McDonald, appellants were a class of pretrial detainees in Cook County, Illinois, already registered to vote, who sought to vote only by absentee ballot. Their timely applications to the Cook County Board of Election Commissioners for absentee ballots were denied on the ground that pretrial detainees were not included among those persons specifically permitted by the Illinois Election Code to vote by absentee ballot. Appellants brought suit alleging that in that circumstance the Illinois Election Code denied them equal protection of the laws, particularly as the Code provided absentee ballots for those 'medically incapacitated,' and for pretrial detainees who were residents of Cook County but incarcerated outside of Cook County.6
8
The threshold question presented in McDonald was 'how stringent a standard to use in evaluating the classifications made (by the Illinois absentee ballot provisions) and whether the distinctions must be justified by a compelling state interest . . ..' 394 U.S., at 806, 89 S.Ct., at 1407. In resolving this question, the Court analyzed the Illinois scheme in light of our decisions that required the application of the more stringent compelling state interest test when either a fundamental right, such as the right to vote, was allegedly infringed, Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964); Harper v. Virginia State Board of Elections, 383 U.S. 663, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966); Carrington v. Rash, 380 U.S. 89, 85 S.Ct. 775, 13 L.Ed.2d 675 (1965), or when the statutory classifications were drawn on the basis of suspect criteria, such as wealth or race, Harper v. Virginia State Board of Elections, supra; McLaughlin v. Florida, 379 U.S. 184, 192, 85 S.Ct. 283, 288—289, 13 L.Ed.2d 222 (1964); Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963). 394 U.S., at 807, 89 S.Ct., at 1407—1408. Our analysis led us to conclude that neither situation was presented by the Illinois absentee voting provisions. We held that 'the distinctions made by Illinois' absentee provisions are not drawn on the basis of wealth or race,' ibid., and, with respect to the alleged infringement of appellants' right to vote, that:
9
'(T)here is nothing in the record to indicate that the Illinois statutory scheme has an impact on appellants' ability to exercise the fundamental right to vote. It is thus not the right to vote that is at stake here but a claimed right to receive absentee ballots. Despite appellants' claim to the contrary, the absentee statutes, which are designed to make voting more available to some groups who cannot easily get to the polls, do not themselves deny appellants the exercise of the franchise; nor, indeed, does Illinois' Election Code so operate as a whole, for the State's statutes specifically disenfranchise only those who have been convicted and sentenced, and not those similarly situated to appellants. (Citation omitted.) Faced as we are with a constitutional question, we cannot lightly assume, with nothing in the record to support such an assumption, that Illinois has in fact precluded appellants from voting.' Id., at 807—808, 89 S.Ct., at 1408. (Emphasis supplied.)
10
For all that appeared, Illinois might make the franchise available by other means:
11
'Appellants agree that the record is barren of any indication that the State might not, for instance, possibly furnish the jails with special polling booths or facilities on election day, or provide guarded transportation to the polls themselves for certain inmates, or entertain motions for temporary reductions in bail to allow some inmates to get to the polls on their own.' Id., at 808 n. 6, 89 S.Ct., at 1408.
12
Thus, '(s)ince there is nothing in the record to show that appellants are in fact absolutely prohibited from voting by the State . . .' Id., at 808 n. 7, 89 S.Ct., at 1408, we concluded that the Illinois absentee ballot provisions were to be tested by the 'more traditional standards for evaluating . . . equal protection claims,' id., at 808, 89 S.Ct., at 1408 and that under those standards the provisions could not be said to be arbitrary or unreasonable, particularly since 'there is nothing to show that a judicially incapacitated, pretrial detainee is absolutely prohibited from exercising the franchise.' Id., at 809, 89 S.Ct., at 1409.
13
Petitioners' constitutional challenges to the Pennsylvania scheme are in sharp contrast. Petitioners allege7 that, unlike the appellants in McDonald, the Pennsylvania statutory scheme absolutely prohibits them from voting, both because a specific provision affirmatively excludes 'persons confined in a penal institution' from voting by absentee ballot, Pa.Stat.Ann., Tit. 25, § 2602(w) (12) (Supp.1972—1973), and because requests by members of petitioners' class to register and to vote either by absentee ballot, or by personal or proxy appearance at polling places outside the prison, or at polling booths and registration facilities set up at the prisons, or generally by any means satisfactory to the election officials, had been denied. Thus petitioners' complaint alleges a situation that McDonald itself suggested might make a different case.
14
This is not to say, of course, that petitioners are as a matter of law entitled to the relief sought. We neither decide nor intimate any view upon the merits.8 It suffices that we hold that McDonald does not 'foreclose the subject' of petitioners' challenge to the Pennsylvania statutory scheme. The significant differences between that scheme and the Illinois scheme leave ample 'room for the inference that the questions sought to be raised (by petitioners) can be the subject of controversy.' See supra, at 518, 519.
15
We therefore conclude that this case must be 'heard and determined by a district court of three judges . . .' 28 U.S.C. § 2281. The judgment of the Court of Appeals is therefore reversed and the case is remanded with direction to enter an appropriate order pursuant to that section for the convening of a three-judge court to hear and determine the merits of petitioners' constitutional claims, see Kennedy v. Mendoza-Martinez, 372 U.S. 144, 153, 83 S.Ct. 554, 559, 9 L.Ed.2d 644 (1963); Idlewild Bon Voyage Liquor Corp. v. Epstein, 370 U.S. 713, 82 S.Ct. 1294, 8 L.Ed.2d 794 (1962); Borden Co. v. Liddy, 309 F.2d 871, 876 (CA8 1962), cert. denied, 372 U.S. 953, 83 S.Ct. 951, 9 L.Ed.2d 977 (1963); Riss & Co. v. Hoch, 99 F.2d 553, 555 (CA 10 1938); see also C. Wright, The Law of Federal Courts 190—191 (2d ed. 1970), or, if deemed appropriate, to abstain from such determination pending state court proceedings. See Lake Carriers' Assn. v. MacMullan, 406 U.S. 498, 509—513, 92 S.Ct. 1749, 1756—1759, 32 L.Ed.2d 257 (1972).
16
Reversed and remanded with directions.
1
Title 28 U.S.C. § 2281 provides:
'An interlocutory or permanent injunction restraining the enforcement, operation or execution of any State statute by restraining the action of any officer of such State in the enforcement or execution of such statute or of an order made by an administrative board or commission acting under State statutes, shall not be granted by any district court or judge thereof upon the ground of the unconstitutionality of such statute unless the application therefor is heard and determined by a district court of three judges under section 2284 of this title.'
2
Pa.Stat.Ann., Tit. 25, § 623—1 et seq. (1963 and Supp.1972 1973); § 2602(w)(12) (Supp.1972—1973). Several elections, including the 1972 presidential election, have been held since this action was filed, but this does not render the case moot. See Moore v. Ogilvie, 394 U.S. 814, 89 S.Ct. 1493, 23 L.Ed.2d 1 (1969). Similarly, the case is not rendered moot because some of the named petitioners have lost their status as class members by being released on bail, discharged, acquitted, or convicted. See McDonald v. Board of Election Commissioners of Chicago, 394 U.S. 802, 803 n. 1, 89 S.Ct. 1404, 1405, 22 L.Ed.2d 739 (1969); Lee v. Washington, 390 U.S. 333, 88 S.Ct. 994, 19 L.Ed.2d 1212 (1968), aff'g 263 F.Supp. 327 (MD Ala. 1966).
3
The unpublished transcript of the oral opinion of the single judge reads in pertinent part as follows:
'It has been stated that no Federal Court has jurisdiction to pronounce any statute, either of the State or of the United States void because irreconcilable with the Constitution except as it is called upon to adjudge the legal rights of litigants in actual controversies.
'Now, in the instant case the Attorney General, as the chief legal officer of the Commonwealth, obviously represents, as Counsel have stated in their arguments this morning, the 'principal' Defendant or Defendants. The position taken by the remaining Defendants seems to be the result of the fact that the Attorney General has not, in accordance with his past practice, rendered an opinion together with suggested procedures, plans, etc., covering the subject matter of the opinion.
'It is, therefore, our conclusion that in the posture of this case as it presently exists . . . there is no controversy in the sense in which that term is used by the Courts, and we find ourselves compelled to, therefore, dismiss the complaint. It is so ordered.' App. 85.
4
Thus, this is not a situation in which a State confesses error and represents that the error will be corrected without need for further court action. See, e.g., Titmus v. Tinsley, 370 U.S. 964, 82 S.Ct. 1590, 8 L.Ed.2d 830 (1962); McKissick v. Durham City Board of Education, 176 F.Supp. 3 (MDNC 1959); Jeffers v. Whitley, 197 F.Supp. 84 (MDNC 1961); Kelley v. Board of Education, 139 F.Supp. 578 (MD Tenn.1956).
5
We also read respondents' brief as rejecting the view of the single judge that the municipal officials must defer to the commonwealth officials' concession pending the issuance of a formal opinion of the Attorney General on the question of the constitutionality of the statutes.
Insofar as the single judge may have rested his finding of the absence of a case or controversy on the alleged difficulty of formulating a remedy, he also erred. See Louisiana v. United States, 380 U.S. 145, 154, 85 S.Ct. 817, 822, 13 L.Ed.2d 709 (1965); Brown v. Board of Education, 349 U.S. 294, 300, 75 S.Ct. 753, 756, 99 L.Ed. 1083 (1955).
6
The Illinois absentee voting statute, Ill.Rev.Stat., c. 46, §§ 19—1 to 19—3 (1971), made absentee voting available to four classes of persons: (1) those who were absent from their county of residence for any reason; (2) those who were 'physically incapacitated'; (3) those whose observance of a religious holiday prevented attendance at the polls; and (4) those who served as poll watchers in precincts other than their own on election day. McDonald v. Board of Election Comm'rs, supra, 394 U.S., at 803 804, 89 S.Ct., at 1405—1406.
7
'The existence of a substantial question of constitutionality must be determined by the allegations of the bill of complaint.' Ex parte Poresky, 290 U.S. 30, 32, 54 S.Ct. 3, 4, 78 L.Ed. 152 (1933). In the present procedural posture of petitioners' case, the allegations of their complaint must be deemed to be true. Boddie v. Connecticut, 401 U.S. 371, 373, 91 S.Ct. 780, 783—784, 28 L.Ed.2d 113 (1971); Gomillion v. Lightfoot, 364 U.S. 339, 341, 81 S.Ct. 125, 127, 5 L.Ed.2d 110 (1960). In addition to the allegations that they are absolutely prohibited from voting, petitioners allege that the Pennsylvania statute creates classifications based on wealth and race, that the denial of the right to vote is an impermissible consequence of pretrial detention in violation of due process of law, and that the Pennsylvania statute's specific exclusion of pretrial detainees from the definition of a 'qualified absentee voter' is unconstitutional even under the less stringent rational relationship test applied in McDonald.
8
The per curiam opinion of the Court of Appeals states: 'We have carefully considered each of the contentions raised by the (petitioners) and find them to be without merit.' 452 F.2d 39, 41. In view of the result we reach, the Court of Appeals was without jurisdiction to render this holding insofar as it implies an adjudication of the merits of petitioners' constitutional contentions. Stratton v. St. Louis Southwestern R. Co., 282 U.S. 10, 51 S.Ct. 8, 75 L.Ed. 135 (1930). C. Wright, The Law of Federal Courts 193 (2d ed. 1970).
| 12
|
409 U.S. 285
93 S.Ct. 889
34 L.Ed.2d 522
State of NEBRASKAv.State of IOWA.
No. 17, Orig.
Supreme Court of the United States
January 8, 1973
DECREE
PER CURIAM.
1
The Special Master, as directed in Nebraska v. Iowa, 406 U.S. 117, 127, 92 S.Ct. 1379, 31 L.Ed.2d 733 (1972), has submitted a proposed Decree. Nebraska accepts it but Iowa filed five Exceptions, to which Nebraska replied. Upon consideration of the Exceptions in light of our opinion and the Report of the Special Master, Iowa's Exceptions II and III are overruled and Exceptions I, IV, and V are sustained insofar as paragraphs 11 and 12 of the Proposed Decree are revised in the following Decree, the entry of which is directed:
It is ordered, adjudged, and decreed that:
2
1. The Missouri River was the boundary between the States of Iowa and Nebraska which was subject to the general rules of accretion and avulsion until 1943 when the states determined to agree by compact upon a permanent location of the boundary line.
3
2. By 1943 the shifts of the Missouri River channel had been so numerous and intricate, both in its natural state and as a result of the work of the Corps of Engineers, that it was practically impossible to locate the original boundary line between the states.
4
3. The Compact between the states effective July 12, 1943, provides in Section 3 as adopted by Iowa:
5
'Titles, mortgages and other liens good in Nebraska shall be good in Iowa as to any lands Nebraska may cede to Iowa and any pending suits or actions concerning said lands may be prosecuted to final judgment in Nebraska and such judgment shall be accorded full force and effect in Iowa.'
6
4. Under Section 2 of the Compact, each state 'cedes' to the other state 'and relinquishes jurisdiction over' all such lands then located within the Compact boundary of the other.
7
The word 'cedes' in Section 2 was meant by the states to describe all areas formed before July 12, 1943, regardless of their location with reference to the original boundary, whose 'titles, mortgages and other liens' were, at the date of the Compact, 'good in' the ceding state. Under Section 3, the state is bound to recognize such 'titles, mortgages and other liens' to be 'good in' its state, and not to claim ownership in itself.
8
5. Sections 2 and 3 are not to be construed as relating only to areas formed before July 12, 1943 that can be proved by clear, satisfactory, and convincing evidence to have been on the Nebraska side of the original boundary before the Compact fixed the permanent boundary. Such a construction would require the claimant who proves title 'good in Nebraska' also to shoulder the burden of proving the location of the original boundary before 1943, as well as proving that the lands were on the Nebraska side of that boundary which would be placing a burden upon the land owner which the states themselves refused to undertake in 1943 and agreed would not be necessary.
9
6. The State of Iowa does not own Nottleman Island and Schemmel Island. The proofs sufficed to establish title 'good in Nebraska' to Nottleman Island which was the land involved in the case of State of Iowa, Plaintiff, v. Darwin Merritt Babbitt, et al., Equity No. 17433 in the District Court for Mills County, Iowa, and to Schemmel Island which was the land involved in the case of State of Iowa, Plaintiff, v. Henry E. Schemmel, et al., Defendants, Equity No. 19765 filed in the District Court of Fremont County, Iowa, on March 26, 1963, and that Nottleman Island and Schemmel Island formed before July 12, 1943.
10
7. Under Section 3 of the Compact, titles 'good in Nebraska' include private titles to riparian lands that under Nebraska law, differing from Iowa law, run to the thread of the contiguous stream.
11
8. Titles 'good in Nebraska' are found to include and embrace titles obtained by ten years' open, notorious and adverse possession under claim of right without any requirement of a record title or of 'color of title.'
12
9. As to areas formed before July 12, 1943, Sections 2 and 3 of the Compact limit the State of Iowa to contesting with private litigants in State or Federal Courts the question whether the private claimants can prove title 'good in Nebraska' and when private litigants prove such title, Iowa cannot interpose Iowa's doctrine of state ownership as defeating such title.
13
10. In the presently pending cases of State of Iowa, Plaintiff v. Darwin Merritt Babbitt, et al., Equity No. 17433, (District Court of Mills County, Iowa), and State of Iowa, Plaintiff v. Henry E. Schemmel, et al., Equity No. 19765, (District Court of Fremont County, Iowa, it having been proved that there are titles 'good in Nebraska' as to those islands, there is no reason for an injunction against Iowa, its officers, agents and servants, at this stage, unless it be shown that the State of Iowa will not abide by this determination of the issues as embodied in our opinion of April 24, 1972.
14
11. Generally, ownership of the twenty-one areas and part of the twenty-second area north of Omaha—claimed by Iowa to be state owned by Iowa because allegedly formed wholly on the Iowa side of the Compact boundary after the Compact date—shall be determined by the law of the state in which they are found to have formed, the Compact boundary being the line which shall determine in which state they formed. Claimants of title to these areas as against Iowa may have the opportunity to show title 'good in Nebraska' on the Compact date.
15
12. Although under the Nebraska law of accretion private titles to riparian land run to the thread of the contiguous stream, whether a Nebraska riparian owner has title to the accretions that cross the boundary into Iowa is determined by Iowa law.
16
13. The counterclaim of Iowa is dismissed.
17
14. The parties having paid their own costs and having contributed equally to a fund for expenses of the Special Master, any amounts remaining in said fund after deduction of all expenses by the Special Master shall be divided equally and returned to each state by the Special Master.
18
It is so ordered.
| 1011
|
410 U.S. 1
93 S.Ct. 764
35 L.Ed.2d 67
UNITED STATES, Petitioner,v.Antonio DIONISIO.
No. 71—229.
Argued Nov. 6, 1972.
Decided Jan. 22, 1973.
Syllabus
A grand jury subpoenaed about 20 persons, including respondent, to give voice exemplars for identification purposes. Respondent, on Fourth and Fifth Amendment grounds, refused to comply. The District Court rejected both claims and adjudged respondent in contempt. The Court of Appeals agreed in rejecting respondent's Fifth Amendment claim but reversed on the ground that the Fourth Amendment required a preliminary showing of reasonableness before a grand jury witness could be compelled to furnish a voice exemplar and that here the proposed 'seizures' would be unreasonable because of the large number of witnesses subpoenaed to produce the exemplars. Held:
1. The compelled production of the voice exemplars would not violate the Fifth Amendment privilege against compulsory self-incrimination, since they were to be used only for identification purposes, and not for the testimonial or communicative content of the utterances. Pp. 5—7.
2. Respondent's Fourth Amendment claim is also invalid. Pp. 8 18.
(a) A subpoena to compel a person to appear before a grand jury does not constitute a 'seizure' within the meaning of the Fourth Amendment, and the fact that many others besides respondent were ordered to give voice recordings did not render the subpoena unconstitutional. Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676, distinguished. Pp. 8—13.
(b) The grand jury's directive to make the voice recording infringed no valid Fourth Amendment interest. Pp. 13—15.
(c) Since neither the summons to appear before the grand jury, nor its directive to give a voice exemplar contravened the Fourth Amendment, the Court of Appeals erred in requiring a preliminary showing of reasonableness before respondent could be compelled to furnish the exemplar. Pp. 15—16.
442 F.2d 276, reversed and remanded.
Philip A. Lacovara, New York City, for petitioner.
John Powers Crowley, Chicago, Ill., for respondent.
Mr. Justice STEWART delivered the opinion of the Court.
1
A special grand jury was convened in the Northern District of Illinois in February 1971, to investigate possible violations of federal criminal statutes relating to gambling. In the course of its investigation, the grand jury received in evidence certain voice recordings that had been obtained pursuant to court orders.1
2
The grand jury subpoenaed approximately 20 persons, including the respondent Dionisio, seeking to obtain from them voice exemplars for comparison with the recorded conversations that had been received in evidence. Each witness was advised that he was a potential defendant in a criminal prosecution. Each was asked to examine a transcript of an intercepted conversation, and to go to a nearby office of the United States Attorney to read the transcript into a recording device. The witnesses were advised that they would be allowed to have their attorneys present when they read the transcripts. Dionisio and other witnesses refused to furnish the voice exemplars, asserting that these disclosures would violate their rights under the Fourth and Fifth Amendments.
3
The Government then filed separate petitions in the United States District Court to compel Dionisio and the other witnesses to furnish the voice exemplars to the grand jury. The petitions stated that the exemplars were 'essential and necessary' to the grand jury investigation, and that they would 'be used solely as a standard of comparison in order to determine whether or not the witness is the person whose voice was intercepted . . ..'
4
Following a hearing, the District Judge rejected the witnesses' constitutional arguments and ordered them to comply with the grand jury's request. He reasoned that voice exemplars, like handwriting exemplars or fingerprints, were not testimonial or communicative evidence, and that consequently the order to produce them would not compel any witness to testify against himself. The District Judge also found that there would be no Fourth Amendment violation, because the grand jury subpoena did not itself violate the Fourth Amendment, and the order to produce the voice exemplars would involve no unreasonable search and seizure within the proscription of that Amendment:
5
'The witnesses are lawfully before the grand jury pursuant to subpoena. The Fourth Amendment prohibition against unreasonable search and seizure applies only where identifying physical characteristics, such as fingerprints, are obtained as a result of unlawful detention of a suspect, or when an intrusion into the body, such as a blood test, is undertaken without a warrant, absent an emergency situation. E.g., Davis v. Mississippi, 394 U.S. 721, 724—728 (89 S.Ct. 1394, 1396—1398, 22 L.Ed.2d 676;) (1969); Schmerber v. California, 384 U.S. 757, 770—771 (86 S.Ct. 1826, 1835—1836, 16 L.Ed.2d 908.) (1966).'2
6
When Dionisio persisted in his refusal to respond to the grand jury's directive, the District Court adjudged him in civil contempt and ordered him committed to custody until he obeyed the court order, or until the expiration of 18 months.3
7
The Court of Appeals for the Seventh Circuit reversed. 442 F.2d 276. It agreed with the District Court in rejecting the Fifth Amendment claims,4 but concluded that to compel the voice recordings would violate the Fourth Amendment. In the court's view, the grand jury was 'seeking to obtain the voice exemplars of the witnesses by the use of its subpoena powers because probable cause did not exist for their arrest or for some other, less unusual, method of compelling the production of the exemplars.' Id., at 280. The court found that the Fourth Amendment applied to grand jury process, and that 'under the fourth amendment law enforcement officials may not compel the production of physical evidence absent a showing of the reasonableness of the seizure. Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 . . ..' Ibid.
8
In Davis this Court held that it was error to admit the petitioner's fingerprints into evidence at his trial for rape, because they had been obtained during a police detention following a lawless wholesale roundup of the petitioner and more than 20 other youths. Equating the procedures followed by the grand jury in the present case to the fingerprint detentions in Davis, the Court of Appeals reasoned that '(t)he dragnet effect here, where approximately twenty persons were subpoenaed for purposes of identification, has the same invidious effect on fourth amendment rights as the practice condemned in Davis.' Id., at 281.
9
In view of a clear conflict between this decision and one in the Court of Appeals for the Second Circuit,5 we granted the Government's petition for certiorari. 406 U.S. 956, 92 S.Ct. 2056, 32 L.Ed.2d 343.
10
* The Court of Appeals correctly rejected the contention that the compelled production of the voice exemplars would violate the Fifth Amendment. It has long been held that the compelled display of identifiable physical characteristics infringes no interest protected by the privilege against compulsory self-incrimination. In Holt v. United States, 218 U.S. 245, 252, 31 S.Ct. 2, 6, 54 L.Ed. 1021, Mr. Justice Holmes, writing for the Court, dismissed as an 'extravagant extension of the Fifth Amendment' the argument that it violated the privilege to require a defendant to put on a blouse for identification purposes. He explained that 'the prohibition of compelling a man in a criminal court to be witness against himself is a prohibition of the use of physical or moral compulsion to extort communications from him, not an exclusion of his body as evidence when it may be material.' Id., at 252—253, 31 S.Ct., at 6.
11
More recently, in Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908, we relied on Holt, and noted that:
12
'(B)oth federal and state courts have usually held that (the privilege) it offers no protection against compulsion to submit to fingerprinting, photographing, or measurements, to write or speak for identification, to appear in court, to stand, to assume a stance, to walk, or to make a particular gesture. The distinction which has emerged, often expressed in different ways, is that the privilege is a bar against compelling 'communications' or 'testimony,' but that compulsion which makes a suspect or accused the source of 'real or physical evidence' does not violate it.' Id., at 764, 86 S.Ct., at 1832 (footnote omitted).
13
The Court held that the extraction and chemical analysis of a blood sample involved no 'shadow of testimonial compulsion upon or enforced communication by the accused.' Id., at 765, 86 S.Ct., at 1832.
14
These cases led us to conclude in Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178, that handwriting exemplars were not protected by the privilege against compulsory self-incrimination. While '(o)ne's voice and handwriting are, of course, means of communication,' we held that a 'mere handwriting exemplar, in contrast to the content of what is written, like the voice or body itself, is an identifying physical characteristic outside its protection.' Id., at 266—267, 87 S.Ct., at 1953. And similarly in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, we found no error in compelling a defendant accused of bank robbery to utter in a lineup words that had allegedly been spoken by the robber. The accused there was 'required to use his voice as an identifying physical characteristic, not to speak his guilt.' Id., at 222—223, 87 S.Ct., at 1930.
15
Wade and Gilbert definitively refute any contention that the compelled production of the voice exemplars in this case would violate the Fifth Amendment. The voice recordings were to be used solely to measure the physical properties of the witnesses' voices, not for the testimonial or communicative content of what was to be said.6
II
16
The Court of Appeals held that the Fourth Amendment required a preliminary showing of reasonableness before a grand jury witness could be compelled to furnish a voice exemplar, and that in this case the proposed 'seizures' of the voice exemplars would be unreasonable because of the large number of witnesses summoned by the grand jury and directed to produce such exemplars. We disagree.
17
The Fourth Amendment guarantees that all people shall be 'secure in their persons, houses, papers, and effects, against unreasonable searches and seizures . . ..' Any Fourth Amendment violation in the present setting must rest on a lawless governmental intrusion upon the privacy of 'persons' rather than on interference with 'property relationships or private papers.' Schmerber v. California, 384 U.S., at 767, 86 S.Ct., at 1833; see United States v. Doe (Schwartz), 2 Cir., 457 F.2d 895, 897. In Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889, the Court explained the protection afforded to 'persons' in terms of the statement in Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576, that 'the Fourth Amendment protects people, not places,' id., at 351, 88 S.Ct., at 511, and concluded that 'wherever an individual may harbor a reasonable 'expectation of privacy,' . . . he is entitled to be free from unreasonable governmental intrusion.' Terry v. Ohio, supra, 392 U.S., at 9, 88 S.Ct., at 1873.
18
As the Court made clear in Schmerber, supra, the obtaining of physical evidence from a person involves a potential Fourth Amendment violation at two different levels—the 'seizure' of the 'person' necessary to bring him into contact with government agents, see Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676, and the subsequent search for and seizure of the evidence. In Schmerber, we found the initial seizure of the accused justified as a lawful arrest, and the subsequent seizure of the blood sample from his body reasonable in light of the exigent circumstances. And in Terry, we concluded that neither the initial seizure of the person, an investigatory 'stop' by a policeman, nor the subsequent search, a 'patdown' of his outer clothing for weapons, constituted a violation of the Fourth and Fourteenth Amendments. The constitutionality of the compulsory production of exemplars from a grand jury witness necessarily turns on the same dual inquiry—whether either the initial compulsion of the person to appear before the grand jury, or the subsequent directive to make a voice recording is an unreasonable 'seizure' within the meaning of the Fourth Amendment.
19
It is clear that a subpoena to appear before a grand jury is not a 'seizure' in the Fourth Amendment sense, even though that summons may be inconvenient or burdensome. Last Term we again acknowledged what has long been recognized,7 that '(c)itizens generally are not constitutionally immune from grand jury subpoenas . . ..' Branzburg v. Hayes, 408 U.S. 665, 682, 92 S.Ct. 1646, 2656, 33 L.Ed.2d 626. We concluded that:
20
'Although the powers of the grand jury are not unlimited and are subject to the supervision of a judge, the longstanding principle that 'the public . . . has a right to every man's evidence,' except for those persons protected by a constitutional, commonlaw, or statutory privilege, United States v. Bryan, 339 U.S. 323, 331, 70 S.Ct. 724, 730, 94 L.Ed. 884 (1950); Blackmer v. United States, 284 U.S. 421, 438, 52 S.Ct. 252, 255, 76 L.Ed. 375 (1932); 8 J. Wigmore, Evidence § 2192 (McNaughton rev. 1961), is particularly applicable to grand jury proceedings.' Id., at 688, 92 S.Ct., at 2660.
21
These are recent reaffirmations of the historically grounded obligation of every person to appear and give his evidence before the grand jury. 'The personal sacrifice involved is a part of the necessary contribution of the individual to the welfare of the public.' Blair v. United States, 250 U.S. 273, 281, 39 S.Ct. 468, 471, 63 L.Ed. 979. See also Garland v. Torre, 2 Cir., 259 F.2d 545, 549. And while the duty may be 'onerous' at times, it is 'necessary to the administration of justice.' Blair v. United States, supra, at 281, 39 S.Ct., at 471.8
22
The compulsion exerted by a grand jury subpoena differs from the seizure effected by an arrest or even an investigative 'stop' in more than civic obligation. For, as Judge Friendly wrote for the Court of Appeals for the Second Circuit:
23
'The latter is abrupt, is effected with force or the threat of it and often in demeaning circumstances, and, in the case of arrest, results in a record involving social stigma. A subpoena is served in the same manner as other legal process; it involves no stigma whatever; if the time for appearance is inconvenient, this can generally be altered; and it remains at all times under the control and supervision of a court.' United States v. Doe (Schwartz) 457 F.2d, at 898.
24
Thus the Court of Appeals for the Seventh Circuit correctly recognized in a case subsequent to the one now before us, that a 'grand jury subpoena to testify is not that kind of governmental intrusion on privacy against which the Fourth Amendment affords protection once the Fifth Amendment is satisfied.' Fraser v. United States, 452 F.2d 616, 620; cf. United States v. Weinberg, 9 Cir., 439 F.2d 743, 748—749.
25
This case is thus quite different from Davis v. Mississippi, supra, on which the Court of Appeals primarily relied. For in Davis it was the initial seizure—the lawless dragnet detention that violated the Fourth and Fouteenth Amendments, not the taking of the fingerprints. We noted that '(i)nvestigatory seizures would subject unlimited numbers of innocent persons to the harassment and ignominy incident to involuntary detention,' 394 U.S., at 726, 89 S.Ct., at 1397, and we left open the question whether, consistently with the Fourth and Fourteenth Amendments, narrowly circumscribed procedures might be developed for obtaining fingerprints from people when there was no probable cause to arrest them. Id., at 728, 89 S.Ct., at 1398.9 Davis is plainly inapposite to a case where the initial restraint does not itself infringe the Fourth Amendment.
26
This is not to say that a grand jury subpoena is some talisman that dissolves all constitutional protections. The grand jury cannot require a witness to testify against himself. It cannot require the production by a person of private books and records that would incriminate him. See Boyd v. United States, 116 U.S. 616, 633—635, 6 S.Ct. 524, 533—535, 29 L.Ed. 746.10 The Fourth Amendment provides protection against a grand jury subpoena duces tecum too sweeping in its terms 'to be regarded as reasonable.' Hale v. Henkel, 201 U.S. 43, 76, 26 S.Ct. 370, 379, 50 L.Ed. 652; cf. Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186, 208, 217, 66 S.Ct. 494, 505, 509, 90 L.Ed. 614. And last Term, in the context of a First Amendment claim, we indicated that the Constitution could not tolerate the transformation of the grand jury into an instrument of oppression: 'Official harassment of the press undertaken not for purposes of law enforcement but to disrupt a reporter's relationship with his news sources would have no justification. Grand juries are subject to judicial control and subpoenas to motions to quash. We do not expect courts will forget that grand juries must operate within the limits of the First Amendment as well as the Fifth.' Branzburg v. Hayes, 408 U.S., at 707—708, 92 S.Ct., at 2669—2670. See also, id., at 710, 92 S.Ct., at 2671 (Powell, J., concurring).
27
But we are here faced with no such constitutional infirmities in the subpoena to appear before the grand jury or in the order to make the voice recordings. There is, as we have said, no valid Fifth Amendment claim. There was no order to produce private books and papers, and no sweeping subpoena duces tecum. And even if Branzburg be extended beyond its First Amendment moorings and tied to a more generalized due process concept, there is still no indication in this case of the kind of harassment that was of concern there.
28
The Court of Appeals found critical significance in the fact that the grand jury had summoned approximately 20 witnesses to furnish voice exemplars.11 We think that fact is basically irrelevant to the constitutional issues here. The grand jury may have been attempting to identify a number of voices on the tapes in evidence, or it might have summoned the 20 witnesses in an effort to identify one voice. But whatever the case, '(a) grand jury's investigation is not fully carried out until every available clue has been run down and all witnesses examined in every proper way to find if a crime has been committed . . ..' United States v. Stone, 2 Cir., 429 F.2d 138, 140. See also Wood v. Georgia, 370 U.S. 375, 392, 82 S.Ct. 1364, 1374, 8 L.Ed.2d 569. As the Court recalled last Term, 'Because its task is to inquire into the existence of possible criminal conduct and to return only well-founded indictments, its investigative powers are necessarily broad.' Branzburg v. Hayes, supra, 408 U.S., at 688, 92 S.Ct., at 2659.12 The grand jury may well find it desirable to call numerous witnesses in the course of an investigation. It does not follow that each witness may resist a subpoena on the ground that too many witnesses have been called. Neither the order to Dionisio to appear nor the order to make a voice recording was rendered unreasonable by the fact that many others were subjected to the same compulsion.
29
But the conclusion that Dionisio's compulsory appearance before the grand jury was not an unreasonable 'seizure' is the answer to only the first part of the Fourth Amendment inquiry here. Dionisio argues that the grand jury's subsequent directive to make the voice recording was itself an infringement of his rights under the Fourth Amendment. We cannot accept that argument.
30
In Katz v. United States, supra, we said that the Fourth Amendment provides no protection for what 'a person knowingly exposes to the public, even in his own home or office . . ..' 389 U.S., at 351, 88 S.Ct., at 511. The physical characteristics of a person's voice, its tone and manner, as opposed to the content of a specific conversation, are constantly exposed to the public. Like a man's facial characteristics, or handwriting, his voice is repeatedly produced for others to hear. No person can have a reasonable expectation that others will not know the sound of his voice, any more than he can reasonably expect that his face will be a mystery to the world. As the Court of Appeals for the Second Circuit stated:
31
'Except for the rare recluse who chooses to live his life in complete solitude, in our daily lives we constantly speak and write, and while the content of a communication is entitled to Fourth Amendment protection . . . the underlying identifying characteristics—the constant factor throughout both public and private communications—are open for all to see or hear. There is no basis for constructing a wall of privacy against the grand jury which does not exist in casual contacts with strangers. Hence no intrusion into an individual's privacy results from compelled execution of handwriting or voice exemplars; nothing is being exposed to the grand jury that has not previously been exposed to the public at large.' United States v. Doe (Schwartz), 2 Cir., 457 F.2d, at 898—899.
32
The required disclosure of a person's voice is thus immeasurably further removed from the Fourth Amendment protection than was the intrusion into the body effected by the blood extraction in Schmerber. 'The interests in human dignity and privacy which the Fourth Amendment protects forbid any such intrusions on the mere chance that desired evidence might be obtained.' Schmerber v. California, 384 U.S., at 769—770, 86 S.Ct., at 1835. Similarly, a seizure of voice exemplars does not involve the 'severe, though brief, intrusion upon cherished personal security,' effected by the 'pat down' in Terry—'surely . . . an annoying, frightening, and perhaps humiliating experience.' Terry v. Ohio, 392 U.S., at 24—25, 88 S.Ct., at 1882. Rather, this is like the fingerprinting in Davis, where, though the initial dragnet detentions were constitutionally impermissible, we noted that the fingerprinting itself 'involves none of the probing into an individual's private life and thoughts that marks an interrogation or search.' Davis v. Mississippi, 394 U.S., at 727, 89 S.Ct., at 1398; cf. Thom v. New York Stock Exchange, D.C., 306 F.Supp. 1002, 1009.
33
Since neither the summons to appear before the grand jury nor its directive to make a voice recording infringed upon any interest protected by the Fourth Amendment, there was no justification for requiring the grand jury to satisfy even the minimal requirement of 'reasonableness' imposed by the Court of Appeals.13 See United States v. Doe (Schwartz), supra, 457 F.2d, at 899—900. A grand jury has broad investigative powers to determine whether a crime has been committed and who has committed it. The jurors may act on tips, rumors, evidence offered by the prosecutor, or their own personal knowledge. Branzburg v. Hayes, 408 U.S., at 701, 92 S.Ct., at 2666. No grand jury witness is 'entitled to set limits to the investigation that the grand jury may conduct.' Blair v. United States, 250 U.S., at 282, 39 S.Ct., at 471. And a sufficient basis for an indictment may only emerge at the end of the investigation when all the evidence has been received.
34
'It is impossible to conceive that . . . the examination of witnesses must be stopped until a basis is laid by an indictment formally preferred, when the very object of the examination is to ascertain who shall be indicted.' Hale v. Henkel, 201 U.S., at 65, 26 S.Ct., at 375.
35
Since Dionisio raised no valid Fourth Amendment claim, there is no more reason to require a preliminary showing of reasonableness here than there would be in the case of any witness who, despite the lack of any constitutional or statutory privilege, declined to answer a question or comply with a grand jury request. Neither the Constitution nor our prior cases justify any such interference with grand jury proceedings.14
36
The Fifth Amendment guarantees that no civilian may be brought to trial for an infamous crime 'unless on a presentment or indictment of a Grand Jury.' This constitutional guarantee presupposes an investigative body 'acting independently of either prosecuting attorney or judge,' Stirone v. United States, 361 U.S. 212, 218, 80 S.Ct. 270, 273, 4 L.Ed.2d 252, whose mission is to clear the innocent, no less than to bring to trial those who may be guilty.15 Any holding that would saddle a grand jury with minitrials and preliminary showings would assuredly impede its investigation and frustrate the public's interest in the fair and expeditious administration of the criminal laws. Cf. United States v. Ryan, 402 U.S. 530, 532 533, 91 S.Ct. 1580, 1581—1582, 29 L.Ed.2d 85; Costello v. United States, 350 U.S. 359, 363—364, 76 S.Ct. 406, 408—409, 100 L.Ed. 397; Cobbledick v. United States, 309 U.S. 323, 327—328.16 60 S.Ct. 540, 542—543, 84 L.Ed. 783. The grand jury may not always serve its historic role as a protective bulwark standing solidly between the ordinary citizen and an overzealous prosecutor, but if it is even to approach the proper performance of its constitutional mission, it must be free to pursue its investigations unhindered by external influence or supervision so long as it does not trench upon the legitimate rights of any witness called before it.
37
Since the Court of Appeals found an unreasonable search and seizure where none existed, and imposed a preliminary showing of reasonableness where none was required, its judgment is reversed and this case is remanded to that court for further proceedings consistent with this opinion.
38
It is so ordered.
39
Judgment reversed and case remanded.
1
The court orders were issued pursuant to 18 U.S.C. § 2518, a statute authorizing the interception of wire communications upon a judicial determination that '(a) there is probable cause for belief that an individual is committing, has committed, or is about to commit a particular offense enumerated in section 2516 of this chapter (including the transmission of wagering information); (b) there is probable cause for belief that particular communications concerning that offense will be obtained through such interception; (c) normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous; (d) there is probable cause for belief that the facilities from which, or the place where, the wire or oral communications are to be intercepted are being used, or are about to be used, in connection with the commission of such offense, or are leased to, listed in the name of, or commonly used by such person.'
2
The decision of the District Court is unreported.
3
The life of the special grand jury was 18 months, but could be extended up to an additional 18 months. 18 U.S.C. § 3331.
4
The court also rejected the argument that the grand jury procedure violated the witnesses' Sixth Amendment right to counsel. It found the contention particularly without merit in view of the option afforded the witnesses to have their attorneys present while they made the voice recordings. 442 F.2d 276, 278.
5
United States v. Doe (Schwartz), 2 Cir., 457 F.2d 895 (affirming civil contempt judgment against grand jury witness for refusal to furnish handwriting exemplars).
6
The Court of Appeals for the Seventh Circuit appears to have recanted somewhat from its clear and correct holding in the present case that the compelled production of voice exemplars would not violate the privilege against compulsory self-incrimination. In subsequently explaining that holding, the Court qualified it:
'Nevertheless, the witnesses were potential defendants, and since the purpose of the voice exemplars was to identify the voices obtained by FBI agents pursuant to a court-ordered wiretap, the self-incriminatory impact of the compelled exemplars was clear. Thus the compelled exemplars were at odds with the spirit of the Fifth Amendment. Because the Fifth Amendment illuminates the Fourth (see . . . Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 . . .), the Fourth Amendment violation appears more readily than where immunity is granted, and in Dionisio immunity had not yet been granted.' Fraser v. United States, 7 Cir., 452 F.2d 616, 619 n. 5.
But Boyd dealt with the compulsory production of private books and records, testimonial sources, a circumstance in which the 'Fourth and Fifth Amendments run almost into each other.' 116 U.S., at 630, 6 S.Ct., at 532. In the present case, by contrast, no Fifth Amendment interests are jeopardized; there is no hint of testimonial compulsion. The Court of Appeals' subsequent attempt to read the 'spirit of the Fifth Amendment' into the production of voice exemplars cannot survive comparison with Wade, Gilbert, and Schmerber.
7
See generally Kastigar v. United States, 406 U.S. 441, 443 444, 92 S.Ct. 1653, 1655—1656, 32 L.Ed.2d 212; Blair v. United States, 250 U.S. 273, 279—281, 39 S.Ct. 468, 470—471, 63 L.Ed. 979; 8 J. Wigmore, Evidence § 2191 (J. McNaughton rev. 1961).
8
The obligation to appear is no different for a person who may himself be the subject of the grand jury inquiry. See United States v. Doe (Schwartz), 2 Cir., 457 F.2d, at 898; United States v. Winter, 2 Cir., 348 F.2d 204, 207—208.
9
Judge Weinfeld correctly characterized Davis as 'but another application of the principle that the Fourth Amendment applies to all searches and seizures of the person no matter what the scope or duration. It held that in the circumstances there presented the detention for the sole purpose of fingerprinting was in violation of the Fourth Amendment ban against unreasonable search and seizure.' Thom v. New York Stock Exchange, D.C., 306 F.Supp. 1002, 1007 (footnote omitted). See also Allen v. Cupp, 9 Cir., 426 F.2d 756, 760.
10
While Boyd was concerned with a motion to produce invoices at a forfeiture trial, the Court treated it as the equivalent of a subpoena duces tecum, and Hale v. Henkel, 201 U.S. 43, 76, 26 S.Ct. 370, 379, 50 L.Ed. 652, applied Boyd in the context of a grand jury subpoena.
11
As noted above, supra, at 11, there is no valid comparison between the detentions of the 24 youths in Davis, and the grand jury subpoenas of the witnesses here. While the dragnet detentions by the police did constitute substantial intrusions into the Fourth and Fourteenth Amendment rights of each of the youths in Davis, no person has a justifiable expectation of immunity from a grand jury subpoena.
12
'(The grand jury) is a grand inquest, a body with powers of investigation and inquisition, the scope of whose inquiries is not to be limited narrowly by questions of propriety or forecasts of the probable result of the investigation, or by doubts whether any particular individual will be found properly subject to an accusation of crime. As has been said before, the identity of the offender, and the precise nature of the offense, if there be one, normally are developed at the conclusion of the grand jury's labors, not at the beginning. Hendricks v. United States, 223 U.S. 178, 184, 32 S.Ct. 313, 56 L.Ed. 394.' Blair v. United States, 250 U.S., at 282, 39 S.Ct., at 471.
13
In Hale v. Henkel, 201 U.S., at 77, 26 S.Ct., at 380, the Court found that such a standard had not been met, but as noted supra, at 11—12, that was a case where the Fourth Amendment had been infringed by an overly broad subpoena to produce books and papers.
14
Mr. Justice MARSHALL, in dissent 410 U.S. 31, 93 S.Ct. 781, suggests that a preliminary showing of 'reasonableness' is required where the grand jury subpoenas a witness to appear and produce handwriting or voice exemplars, but not when it subpoenas him to appear and testify. Such a distinction finds no support in the Constitution. His dissent argues that there is a potential Fourth Amendment violation in the case of a subpoenaed grand jury witness because of the asserted intrusiveness of the initial subpoena to appear—the possible stigma from a grand jury appearance and the inconvenience of the official restraint. But the initial directive to appear is as intrusive if the witness is called simply to testify as it is if he is summoned to produce physical evidence.
15
'(T)he institution was adopted in this country, and is continued from considerations similar to those which give to it its chief value in England, and is designed as a means, not only of bringing to trial persons accused of public offences upon just grounds, but also as a means of protecting the citizen against unfounded accusation, whether it comes from government, or be prompted by partisan passion or private enmity. No person shall be required, according to the fundamental law of the country, except in the cases mentioned, to answer for any of the higher crimes unless this body, consisting of not less than sixteen nor more than twenty-three good and lawful men, selected from the body of the district, shall declare, upon careful deliberation, under the solemnity of an oath, that there is good reason for his accusation and trial.' Ex parte Bain, 121 U.S. 1, 11, 7 S.Ct. 781, 786, 30 L.Ed. 849 (quoting grand jury charge of Mr. Justice Field). See also Wood v. Georgia, 370 U.S. 375, 390, 82 S.Ct. 1364, 1373, 8 L.Ed.2d 569.
16
The possibilities for delay caused by requiring initial showings of 'reasonableness' are illustrated by the Court of Appeals' subsequent decision in In re September 1971 Grand Jury, 7 Cir., 454 F.2d 580, rev'd sub nom. United States v. Mara, 410 U.S. 19, 93 S.Ct. 774, 35 L.Ed.2d 99, where the Court held that the Government was required to show in an adversary hearing that its request for exemplars was reasonable, and 'reasonableness' included proof that the exemplars could not be obtained from other sources.
| 01
|
410 U.S. 113
93 S.Ct. 705
35 L.Ed.2d 147
Jane ROE, et al., Appellants,v.Henry WADE.
No. 70-18.
Argued Dec. 13, 1971.
Reargued Oct. 11, 1972.
Decided Jan. 22, 1973.
Rehearing Denied Feb. 26, 1973.
See 410 U.S. 959, 93 S.Ct. 1409.
Syllabus
A pregnant single woman (Roe) brought a class action challenging the constitutionality of the Texas criminal abortion laws, which proscribe procuring or attempting 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 pending 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, unpreparedness for parenthood, and impairment of the wife's health. A three-judge District Court, which consolidated the actions, held that Roe and Hallford, and members of their classes, had standing to sue and presented justiciable controversies. Ruling that declaratory, though not injunctive, relief was warranted, the court declared the abortion statutes void as vague and overbroadly infringing those plaintiffs' Ninth and Fourteenth Amendment rights. The court ruled the Does' complaint not justiciable. Appellants directly appealed to this Court on the injunctive rulings, and appellee cross-appealed from the District Court's grant of declaratory 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 foreclose when the case is properly before the Court on appeal from specific denial of injunctive relief and the arguments as to both injunctive and declaratory relief are necessarily identical. P. 123.
2. Roe has standing to sue; the Does and Hallford do not. Pp. 123-129.
(a) Contrary to appellee's contention, the natural termination of Roe's pregnancy did not moot her suit. Litigation involving pregnancy, which is 'capable of repetition, yet evading review,' is an exception to the usual federal rule that an actual controversy must exist at review stages and not simply when the action is initiated. Pp. 124-125.
(b) The District Court correctly refused injunctive, but erred in granting declaratory, relief to Hallford, who alleged no federally protected right not assertable as a defense against the good-faith state prosecutions pending against him. Samuels v. Mackell, 401 U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d 688. Pp. 125-127.
(c) The Does' complaint, based as it is on contingencies, any one or more of which may not occur, is too speculative to present an actual case or controversy. Pp. 127-129.
3. State criminal abortion laws, like those involved here, that except from criminality only a life-saving procedure on the mother's behalf without regard to the stage of her pregnancy and other interests involved violate the Due Process Clause of the Fourteenth Amendment, which protects against state action the right to privacy, including a woman's qualified right to terminate her pregnancy. Though the State cannot override that right, it has legitimate interests in protecting 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. 147-164.
(a) For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician. Pp. 163-164.
(b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health. Pp. 163-164.
(c) For the stage subsequent to viability the State, in promoting its interest in the potentiality of human life, may, if it chooses, regulate, and even proscribe, abortion except where necessary, in appropriate medical judgment, for the preservation of the life or health of the mother. Pp. 163-164; 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 physician as so defined. P. 165.
5. It is unnecessary to decide the injunctive relief issue since the Texas authorities will doubtless fully recognize the Court's ruling that the Texas criminal abortion statutes are unconstitutional. P. 166.
314 F.Supp. 1217, affirmed in part and reversed in part.
Sarah R. Weddington, Austin, Tex., for appellants.
Robert C. Flowers, Asst. Atty. Gen. of Texas, Austin, Tex., for appellee on reargument.
Jay Floyd, Asst. Atty. Gen., Austin, Tex., for appellee on original argument.
Mr. Justice BLACKMUN delivered the opinion of the Court.
1
This Texas federal appeal and its Georgia companion, Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201, present constitutional challenges to state criminal abortion legislation. The Texas statutes under attack here are typical of those that have been in effect in many States for approximately a century. The Georgia statutes, in contrast, have a modern cast and are a legislative product that, to an extent at least, obviously reflects the influences of recent attitudinal change, of advancing medical knowledge and techniques, and of new thinking about an old issue.
2
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. One's philosophy, one's experiences, one's exposure to the raw edges of human existence, one's religious training, one's attitudes toward life and family and their 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.
3
In addition, population growth, pollution, poverty, and racial overtones tend to complicate and not to simplify the problem.
4
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 do, we have inquired into, and in this opinion place some emphasis upon, medical and medical-legal history and what that history reveals about man's attitudes toward the abortion procedure over the centuries. We bear in mind, too, Mr. Justice Holmes' admonition in his now-vindicated dissent in Lochner v. New York, 198 U.S. 45, 76, 25 S.Ct. 539, 547, 49 L.Ed. 937 (1905):
5
'(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.'
6
* The Texas statutes that concern us here are Arts. 1191-1194 and 1196 of the State's Penal Code,1 Vernon's Ann.P.C. These make it a crime to 'procure an abortion,' as therein defined, or to attempt one, except with respect to 'an abortion procured or attempted by medical advice for the purpose of saving the life of the mother.' Similar statutes are in existence in a majority of the States.2
7
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.Stat., Arts. 1071-1076 (1911). The final article in each of these compilations provided 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.'3
II
8
Jane Roe,4 a single woman who was residing in Dallas County, Texas, instituted this federal action in March 1970 against the District Attorney of the county. She sought a declaratory judgment that the Texas criminal abortion statutes were unconstitutional on their face, and an injunction restraining the defendant from enforcing the statutes.
9
Roe alleged that she was unmarried and pregnant; that she wished to terminate her pregnancy by an abortion 'performed by a competent, licensed physician, under safe, clinical conditions'; that she was unable to get a 'legal' abortion in Texas because her life did not appear to be threatened by the continuation of her pregnancy; and that she could not afford to travel to another jurisdiction in order to secure a legal abortion under safe conditions. She claimed that the Texas statutes were unconstitutionally vague and that they abridged her right of personal privacy, protected by the First, Fourth, Fifth, Ninth, and Fourteenth Amendments. By an amendment to her complaint Roe purported to sue 'on behalf of herself and all other women' similarly situated.
10
James Hubert Hallford, a licensed physician, sought and was granted leave to intervene in Roe's action. In his complaint he alleged that he had been arrested previously for violations of the Texas abortion statutes and 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 he, as a physician, was unable to determine whether they fell within or outside the 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-patient relationship and his own right to practice medicine, rights he claimed were guaranteed by the First, Fourth, Fifth, Ninth, and Fourteenth Amendments.
11
John and Mary Doe,5 a married couple, filed a companion complaint to that of Roe. They also named the District Attorney as defendant, claimed like constitutional deprivations, and sought declaratory and injunctive relief. The Does 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 pregnancy until such time as her condition has materially improved' (although a pregnancy at the present time would not present 'a serious risk' to her life); that, pursuant 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 by an abortion performed by a competent, licensed physician under safe, clinical conditions. By an amendment to their complaint, the Does purported to sue 'on behalf of themselves and all couples similarly situated.'
12
The two actions were consolidated and heard together by a duly convened three-judge district court. The suits thus presented the situations of the pregnant single woman, the childless couple, with the wife not pregnant, and the licensed practicing physician, all joining in the attack on the Texas criminal abortion statutes. Upon the filing of affidavits, motions were made for dismissal and for summary judgment. The court held that Roe and members of her class, and Dr. Hallford, had standing to sue and presented justiciable controversies, but that the Does had failed to allege facts sufficient to state a present controversy and did not have standing. It concluded that, with respect to the requests 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 where 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 they were both unconstitutionally vague and constituted an overbroad infringement of the plaintiffs' Ninth Amendment rights. The court then held that abstention was warranted with respect to the requests for an injunction. It therefore dismissed the Does' complaint, declared the abortion statutes void, and dismissed the application for injunctive relief. 314 F.Supp. 1217, 1225 (N.D.Tex.1970).
13
The plaintiffs Roe and Doe and the intervenor Hallford, pursuant to 28 U.S.C. § 1253, 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-appeal, pursuant to the same statute, from the court's grant of declaratory relief to Roe and Hallford. Both sides also have taken protective appeals to the United States Court of Appeals for the Fifth Circuit. That court ordered the appeals held in abeyance pending decision here. We postponed decision on jurisdiction to the hearing on the merits. 402 U.S. 941, 91 S.Ct. 1610, 29 L.Ed. 108 (1971).
III
14
It might have been preferable if the defendant, pursuant to our Rule 20, had presented to us a petition for certiorari before judgment in the Court of Appeals with respect to the granting of the plaintiffs' prayer for declaratory relief. Our decisions in Mitchell v. Donovan, 398 U.S. 427, 90 S.Ct. 1763, 26 L.Ed.2d 378 (1970), and Gunn v. University Committee, 399 U.S. 383, 90 S.Ct. 2013, 26 L.Ed.2d 684 (1970), are to the effect that § 1253 does not authorize an appeal to this Court from the grant or denial of declaratory relief alone. We conclude, nevertheless, that those decisions do not foreclose our review of both the injunctive and the declaratory aspects of a case of this kind when it is property here, as this one is, on appeal under § 1253 from specific denial of injunctive relief, and the arguments as to both aspects are necessarily identical. See Carter v. Jury Comm'n, 396 U.S. 320, 90 S.Ct. 518, 24 L.Ed.2d 549 (1970); Florida Lime and Avocado Growers, Inc. v. Jacobsen, 362 U.S. 73; 80-81, 80 S.Ct. 568, 573-574, 4 L.Ed.2d 568 (1960). It would be destructive of time and energy for all concerned were we to rule otherwise. Cf. Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201.
IV
15
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 controversy,' Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (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, 101, 88 S.Ct. 1942, 1953, 20 L.Ed.2d 947 (1968), and Sierra Club v. Morton, 405 U.S. 727, 732, 92 S.Ct. 1361, 1364, 31 L.Ed.2d 636 (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? 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 established, her existence; her pregnant state, as of the inception of her suit in March 1970 and as late as May 21 of that year when she filed an alias affidavit with the District Court; and her inability to obtain a legal abortion in Texas.
16
Viewing Roe's case as of the time of its filing and thereafter until as late as May, 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 thwarted by the Texas criminal abortion laws, had standing to challenge those statutes. Abele v. Markle, 452 F.2d 1121, 1125 (CA2 1971); Crossen v. Breckenridge, 446 F.2d 833, 8380-839 (CA6 1971); Poe v. Menghini, 339 F.Supp. 986, 990-991 (D.C.Kan. 1972). See Truax v. Raich, 239 U.S. 33, 36 S.Ct. 7, 60 L.Ed. 131 (1951). Indeed, we do not read the appellee's brief as really asserting anything to the contrary. The 'logical nexus between the status asserted and the claim sought to be adjudicated,' Flast v. Cohen, 392 U.S., at 102, 88 S.Ct., at 1953, and the necessary degree of contentiousness, Golden v. Zwickler, 394 U.S. 103, 89 S.Ct. 956, 22 L.Ed.2d 113 (1969), are both present.
17
The appellee notes, however, that the record does not disclose that Roe was pregnant at the time of the District Court hearing on May 22, 1970,6 or on the following June 17 when the court's opinion and judgment were filed. And he 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.
18
The usual rule in federal cases is that an actual controversy must exist at stages of appellate or certiorari review, and not simply at the date the action is initiated. United States v. Munsingwear, Inc., 340 U.S. 36, 71 S.Ct. 104, 95 L.Ed. 36 (1950); Golden v. Zwickler, supra; SEC v. Medical Committee for Human Rights, 404 U.S. 403, 92 S.Ct. 577, 30 L.Ed.2d 560 (1972).
19
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 case moot, pregnancy litigation seldom will survive much beyond the trial stage, and 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 population, if man is to survive, it will always be with us. Pregnancy provides a classic 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, 515, 31 S.Ct. 279, 283, 55 L.Ed. 310 (1911). See Moore v. Ogilvie, 394 U.S. 814, 816, 89 S.Ct. 1493, 1494, 23 L.Ed.2d 1 (1969); Carroll v. President and Commissioners of Princess Anne, 393 U.S. 175, 178-179, 89 S.Ct. 347, 350, 351, 21 L.Ed.2d 325 (1968); United States v. W. T. Grant Co., 345 U.S. 629, 632-633, 73 S.Ct. 894, 897-898, 97 L.Ed. 1303 (1953).
20
We, therefore, agree with the District Court that Jane Roe had standing to undertake this litigation, that she presented a justiciable controversy, and that the termination of her 1970 pregnancy has not rendered her case moot.
21
B. Dr. Hallford. The doctor's position is different. He entered Roe's litigation as a plaintiff-intervenor, alleging in his complaint that he:
22
'(I)n the past has been arrested for violating the Texas Abortion Laws and at the present time stands charged by indictment with violating said laws in the Criminal District Court of Dallas County, Texas to-wit: (1) The State of Texas vs.
23
James H. Hallford, No. C-69-5307-IH, and (2) The State of Texas vs. James H. Hallford, No. C-69-2524-H. In both cases the defendant is charged with abortion . . .'
24
In his application for leave to intervene, the doctor made like representations as to the abortion charges pending in the state court. These representations were also repeated in the affidavit he executed and filed in support of his motion for summary judgment.
25
Dr. Hallford is, therefore, in the position of seeking, in a federal court, declaratory and injunctive relief with respect to the same statutes under which he stands charged in criminal prosecutions simultaneously pending in state court. Although 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 to any federally protected right that cannot be asserted in his defense against the state prosecutions. Neither is there any allegation of harassment or bad-faith 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 defendant in a pending state criminal case cannot affirmatively challenge in federal court 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 'potential future defendant' and to assert only the latter for standing purposes here.
26
We see no merit in that distinction. Our decision in Samuels v. Mackell, 401 U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d 688 (1971), compels the conclusion that the District Court erred when it granted declaratory relief to Dr. Hallford instead of refraining from so doing. The court, of course, was correct in refusing to grant injunctive relief to the doctor. The reasons supportive of that action, however, are those expressed in Samuels v. Mackell, supra, and in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971); Boyle v. Landry, 401 U.S. 77, 91 S.Ct. 758, 27 L.Ed.2d 696 (1971); Perez v. Ledesma, 401 U.S. 82, 91 S.Ct. 674, 27 L.Ed.2d 701 (1971); and Byrne v. Karalexis, 401 U.S. 216, 91 S.Ct. 777, 27 L.Ed.2d 792 (1971). See also Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965). We note, in passing, that Younger and its companion cases were decided after the three-judge District Court decision in this case.
27
Dr. Hallford's complaint in intervention, therefore, is to be dismissed.7 He is remitted to his defenses in the state criminal proceedings against him. We reverse the judgment of the District Court insofar as it granted Dr. Hallford relief and failed to dismiss his complaint in intervention.
28
C. The Does. In view of our ruling as to Roe's standing in her case, the issue of the Does' standing in their case has little significance. The claims they assert are essentially the same as those of Roe, and they attack the same statutes. Nevertheless, we briefly note the Does' posture.
29
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 having received medical advice that Mrs. Doe should avoid pregnancy, and for 'other highly personal reasons.' But they 'fear . . . they may face the prospect of becoming parents.' And if pregnancy ensues, they 'would want to terminate' it by an abortion. They assert an inability to obtain an abortion legally in Texas and, consequently, the prospect of obtaining an illegal abortion there or of going outside Texas to some place where the procedure could be obtained legally and competently.
30
We thus have as plaintiffs a married couple who have, as their asserted immediate and present injury, only an alleged 'detrimental effect upon (their) marital happiness' because they are forced to 'the choice of refraining from normal sexual relations or of endangering Mary Doe's health through a possible pregnancy.' Their claim is that sometime in the future Mrs. Doe might become pregnant because of possible failure of contraceptive measures, and at that time in the future she might want an abortion that might then be illegal under the Texas statutes.
31
This very phrasing of the Does' position reveals its speculative character. Their alleged injury rests on possible future contraceptive failure, possible future pregnancy, possible future unpreparedness for parenthood, and possible future impairment 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 might have some real or imagined impact upon their marital happiness. But we are not prepared to say that the bare allegation of so indirect an injury is sufficient to present an actual case or controversy. Younger v. Harris, 401 U.S., at 41-42, 91 S.Ct., at 749; Golden v. Zwickler, 394 U.S., at 109-110, 89 S.Ct., at 960; Abele v. Markle, 452 F.2d, at 1124-1125; Crossen v. Breckenridge, 446 F.2d, at 839. The Does' claim falls 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, 91 S.Ct. 1091, 28 L.Ed.2d 367 (1971); Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970); and Epperson v. Arkansas, 393 U.S. 97, 89 S.Ct. 266, 21 L.Ed.2d 228 (1968). See also Truax v. Raich, 239 U.S. 33, 36 S.Ct. 7, 60 L.Ed. 131 (1915).
32
The Does therefore are not appropriate plaintiffs in this litigation. Their complaint was properly dismissed by the District Court, and we affirm that dismissal.
V
33
The principal thrust of appellant's attack on the Texas statutes is that they improperly invade a right, said to be possessed by the pregnant woman, to choose to terminate her pregnancy. Appellant would discover this right in the concept of personal 'liberty' embodied in the Fourteenth Amendment's Due Process Clause; or 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, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965); Eisenstadt v. Baird, 405 U.S. 438 (1972); id., at 460, 92 S.Ct. 1029, at 1042, 31 L.Ed.2d 349 (White, J., concurring in result); or among those rights reserved to the people by the Ninth Amendment, Griswold v. Connecticut, 381 U.S., at 486, 85 S.Ct., at 1682 (Goldberg, J., concurring). 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 criminal abortion laws.
VI
34
It perhaps is not generally appreciated that the restrictive criminal abortion laws in effect in a majority of States today are of relatively recent vintage. Those laws, generally proscribing abortion or its attempt at any time during pregnancy except when necessary to preserve the pregnant woman's life, are not of ancient or even of common-law origin. Instead, they derive from statutory changes effected, for the most part, in the latter half of the 19th century.
35
1. Ancient attitudes. These are not capable of precise determination. We are told that at the time of the Persian Empire abortifacients were known and that criminal abortions were severely punished.8 We are also told, however, that abortion was practiced in Greek times as well as in the Roman Era,9 and that 'it was resorted to without scruple.'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.11 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 violation of the father's right to his offspring. Ancient religion did not bar abortion.12
36
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 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,' who dominated the medical schools of his time, and who typified the sum of the medical knowledge of the past?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,'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 remedy.'15
37
Although the Oath is not mentioned in any of the principal briefs in this case or in Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201, it represents the apex of the development 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:16 The Oath was not uncontested even in Hippocrates' day; only the Pythagorean school of philosophers frowned upon the related act of suicide. Most Greek thinkers, on the other hand, commended abortion, at least prior to viability. See Plato, Republic, V, 461; Aristotle, Politics, VII, 1335b 25. For the Pythagoreans, 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 abortion clause of the Oath, therefore, 'echoes Pythagorean doctrines,' and '(i)n no other stratum of Greek opinion were such views held or proposed in the same spirit of uncompromising austerity.'17
38
Dr. Edelstein then concludes that the Oath originated in a group representing only a small segment of Greek opinion and that it certainly was not accepted by all ancient physicians. He points out that medical writings down to Galen (A.D. 130-200) 'give evidence of the violation of almost every one of its injunctions.'18 But with the end of antiquity a decided change took place. Resistance against suicide and against abortion became common. The Oath came to be popular. The emerging teachings of Christianity were in agreement with the Phthagorean ethic. The Oath 'became the nucleus of all medical ethics' and 'was applauded as the embodiment of truth.' Thus, suggests Dr. Edelstein, it is 'a Pythagorean manifesto and not the expression of an absolute standard of medical conduct.'19
39
This, it seems to us, is a satisfactory and acceptable explanation of the Hippocratic Oath's apparent rigidity. It enables us to understand, in historical context, a long-accepted and reversed statement of medical ethics.
40
3. The common law. It is undisputed that at common law, abortion performed before 'quickening'-the first recognizable movement of the fetus in utero, appearing usually from the 16th to the 18th week of pregnancy20-was not an indictable offense.21 The absence 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 concepts of when life begins. These disciplines variously approached the question in terms of the point at which the embryo or fetus became 'formed' or recognizably human, or in terms of when a 'person' came into being, that is, infused with a 'soul' or 'animated.' A loose concensus evolved in early English law that these events occurred at some point between conception and live birth.22 This was 'mediate animation.' Although Christian theology and the canon law came to fix the point of animation at 40 days for a male and 80 days for a female, a view that persisted until the 19th century, there was otherwise little agreement about the precise time of formation or 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 not homicide. Due to continued uncertainty about the precise time when animation occurred, 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, Bracton focused upon quickening as the critical point. The significance of quickening was echoed by later common-law scholars and found its way into the received common law in this country.
41
Whether abortion of a quick fetus was a felony at common law, or even a lesser crime, is still disputed. Bracton, writing early in the 13th century, thought it homicide.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 frequently cited passage, Coke took the position that abortion of a woman 'quick with childe' is 'a great misprision, and no murder.'24 Blackstone followed, saying that while abortion after quickening had once been considered manslaughter (though not murder), 'modern law' took a less severe view.25 A recent review of the common-law precedents argues, however, that those precedents contradict Coke and that even post-quickening abortion was never established as a common-law crime.26 This is of some importance because while most American courts ruled, in holding or dictum, that abortion of an unquickened fetus was not criminal under their received common law,27 others followed Coke in stating that abortion of a quick fetus was a 'misprision,' a term they translated to mean 'misdemeanor.'28 That their reliance on Coke on this aspect of the law was uncritical and, apparently in all the reported cases, dictum (due probably to the paucity of common-law prosecutions for post-quickening abortion), makes it now appear doubtful that abortion was ever firmly established as a common-law crime even with respect to the destruction of a quick fetus.
42
4. The English statutory law. England's first criminal abortion statute, Lord Ellenborough's Act, 43 Geo. 3, c. 58, came in 1803. It made abortion of a quick fetus, § 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-abortion law until the liberalizing reforms of 1967. In 1929, the Infant Life (Preservation) Act, 19 & 20 Geo. 5, c. 34, came into being. Its emphasis was upon the destruction 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 one was not to be found guilty of the offense 'unless it is proved that the act which caused the death of the child was not done in good faith for the purpose only of preserving the life of the mother.'
43
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 question 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 related to 'the case where a child is killed by a willful act at the time when it is being delivered in the ordinary course of nature.' Id., at 691. He concluded that the 1861 Act's use of the word 'unlawfully,' imported the same meaning expressed 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 'preserving the life of the mother' broadly, that is, 'in a reasonable sense,' to include 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 the abortion was necessary for this purpose. Id., at 693-694. The jury did acquit.
44
Recently, Parliament enacted a new abortion law. This is the Abortion Act of 1967, 15 & 16 Eliz. 2, c. 87. The Act permits a licensed physician to perform an abortion where two other licensed physicians agree (a) 'that the continuance of the pregnancy would involve risk to the life of the pregnant 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 terminated,' or (b) 'that there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as 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 permits a physician, without the concurrence of others, to terminate a pregnancy where he is of the good-faith opinion that the abortion 'is immediately necessary to save the life or to prevent grave permanent injury to the physical or mental health of the pregnant woman.'
45
5. The American law. In this country, the law in effect in all but a few States until mid-19th century was the pre-existing English common law. Connecticut, the first State to enact abortion legislation, adopted in 1821 that part of Lord Ellenborough's Act that related to a woman 'quick with child.'29 The death penalty was not imposed. Abortion before quickening was made a crime in that State only in 1860.30 In 1828, New York enacted legislation31 that, in two respects, was to serve as a model for early anti-abortion statutes. First, while barring destruction of an unquickend fetus as well as a quick fetus, it made the former only a misdemeanor, but the latter second-degree manslaughter. Second, it incorporated a concept of therapeutic abortion by providing that an abortion was excused if it 'shall have been necessary to preserve the life of such mother, or shall have been advised by two physicians to be necessary for such purpose.' By 1840, when Texas had received the common law,32 only eight American States had statutes dealing with abortion.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 but were lenient with it before quickening. Most punished attempts equally with completed abortions. While many statutes included the exception for an abortion thought 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 actually be necessary for that purpose.
46
Gradually, in the middle and late 19th century 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 the 1950's a large majority of the jurisdictions banned abortion, however and whenever performed, unless done to save or preserve the life of the mother.34 The exceptions, Alabama and the District of Columbia, permitted abortion to preserve the mother's health.35 Three States permitted abortions that were not 'unlawfully' performed or that were not 'without lawful justification,' leaving interpretation of those standards to the courts.36 In the past several years, however, a trend toward liberalization of abortion statutes has resulted in adoption, by about one-third of the States, of less stringent laws, most of them patterned after the ALI Model Penal Code, § 230.3,37 set forth as Appendix B to the opinion in Doe v. Bolton, 410 U.S. 205, 93 S.Ct. 754.
47
It is thus apparent that at common law, at the time of the adoption of our Constitution, and throughout the major portion of the 19th century, abortion was viewed with less disfavor than under most American statutes currently in effect. Phrasing it another way, a woman enjoyed a substantially broader right to terminate a pregnancy than she does in most States today. At least with respect to the early stage of pregnancy, and very possibly without such a limitation, the opportunity 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 procured in early pregnancy.
48
6. The position of the American Medical Association. The anti-abortion mood prevalent in this country in the late 19th century was shared by the medical profession. Indeed, the attitude of the profession may have played a significant role in the enactment of stringent criminal abortion legislation during that period.
49
An AMA Committee on Criminal Abortion was appointed in May 1857. It presented its report, 12 Trans. of the Am.Med.Assn. 73-78 (1859), to the Twelfth Annual Meeting. That report observed that the Committee had been appointed to investigate criminal abortion 'with a view to its general suppression.' It deplored abortion and its frequency and it listed three causes of 'this general demoralization':
50
'The first of these causes is a wide-spread popular ignorance of the true character of the crime-a belief, even among mothers themselves, that the foetus is not alive till after the period of quickening.
51
'The second of the agents alluded to is the fact that the profession themselves are frequently supposed careless of foetal life. . . .
52
'The third reason of the frightful extent of this crime is found in the grave defects of our laws, both common and statute, as regards the independent and actual existence of the child before birth, as a living being. These errors, which are 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 purposes; while personally and as criminally affected, it fails to recognize it, and to its life as yet denies all protection.' Id., at 75-76.
53
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 cooperation of state medical societies 'in pressing the subject.' Id., at 28, 78.
54
In 1871 a long and vivid report was submitted by the Committee on Criminal Abortion. It ended with the observation, 'We had to deal with human life. In a matter of less importance we could entertain no compromise. An honest judge on the bench would call things by their proper names. We could do no less.' 22 Trans. of the Am.Med.Assn. 258 (1871). It proffered resolutions, adopted by the Association, id., at 38-39, recommending, among other things, that it 'be unlawful and unprofessional for any physician to induce abortion or premature labor, without the concurrent opinion of at least one respectable consulting physician, and then always with a view to the safety of the child-if that be possible,' and calling 'the attention of the clergy of all denominations to the perverted views of morality entertained by a large class of females-aye, and men also, on this important question.'
55
Except for periodic condemnation of the criminal abortionist, no further formal AMA action took place until 1967. In that year, the Committee on Human Reproduction urged the adoption of a stated policy of opposition to induced abortion, except 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 deformity or mental deficiency,' or that a pregnancy 'resulting from legally established statutory or forcible rape or incest may constitute a threat to the mental or physical health of the patient,' two other physicians 'chosen because of their recognized professional competency have examined the patient and have concurred in writing,' and the procedure 'is performed in a hospital accredited by the Joint Commission on Accreditation of Hospitals.' The providing of medical information by physicians to state legislatures in their consideration of legislation regarding therapeutic abortion was 'to be considered consistent with the principles of ethics of the American Medical Association.' This recommendation was adopted by the House of Delegates. Proceedings of the AMA House of Delegates 40-51 (June 1967).
56
In 1970, after the introduction of a variety of proposed resolutions, and of a report from its Board of Trustees, a reference committee noted 'polarization of the medical profession on this controversial issue'; division among those who had testified; a difference of opinion among AMA councils and committees; 'the remarkable shift in testimony' in six months, felt to be influenced 'by the rapid changes in state laws and by the judicial decisions which tend to make abortion more 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 proposed by the reference committee. The preambles emphasized 'the best interests of the patient,' 'sound clinical judgment,' and 'informed patient consent,' in contrast to 'mere acquiescence to the patient's demand.' The resolutions asserted that abortion is a medical procedure that should be performed by a licensed physician 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.38 Proceedings of the AMA House of Delegates 220 (June 1970). The AMA Judicial Council rendered a complementary opinion.39
57
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:
58
'a. Rapid and simple abortion referral must be readily available through state and local public health departments, medical societies, or other non-profit organizations.
59
'b. An important function of counseling should be to simplify and expedite the provision of abortion services; if should not delay the obtaining of these services.
60
'c. Psychiatric consultation should not be mandatory. As in the case of other specialized medical services, psychiatric consultation should be sought for definite indications and not on a routine basis.
61
'd. A wide range of individuals from appropriately trained, sympathetic volunteers to highly skilled physicians may qualify as abortion counselors.
62
'e. Contraception and/or sterilization should be discussed with each abortion patient.' Recommended Standards for Abortion Services, 61 Am.J.Pub.Health 396 (1971).
63
Among factors pertinent to life and health risks associated with abortion were three that 'are recognized as important':
64
'a. the skill of the physician,
65
'b. the environment in which the abortion is performed, and above all
66
'c. The duration of pregnancy, as determined by uterine size and confirmed by menstrual history.' Id., at 397.
67
It was said that 'a well-equipped hospital' offers more protection 'to cope with unforeseen difficulties than an office or clinic without such resources. . . . The factor of gestational age is of overriding importance.' Thus, it was recommended that abortions in the second trimester and early abortions in the presence of existing medical complications be performed in hospitals as inpatient procedures. For pregnancies in the first trimester, abortion in the hospital with or without overnight stay 'is probably the safest practice.' An abortion in an extramural facility, however, is an acceptable alternative 'provided arrangements exist in advance to admit patients promptly if unforeseen complications develop.' Standards for an abortion facility were listed. It was said that at present abortions should be performed by physicians or osteopaths who are licensed to practice and who have 'adequate training.' Id., at 398.
68
8. The position of the American Bar Association. At its meeting in February 1972 the ABA House of Delegates approved, with 17 opposing votes, the Uniform Abortion Act that had been drafted and approved the preceding August by the Conference of Commissioners on Uniform State Laws. 58 A.B.A.J. 380 (1972). We set forth the Act in full in the margin.40 The Conference has appended an enlightening Prefatory Note.41
VII
69
Three reasons have been advanced to explain historically the enactment of criminal abortion laws in the 19th century and to justify their continued existence.
70
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 advance this justification in the present case, and it appears that no court or commentator has taken the argument seriously.42 The appellants and amici contend, moreover, that this is not a proper state purpose at all and suggest that, if it were, the Texas statutes are overbroad in protecting it since the law fails to distinguish between married and unwed mothers.
71
A second reason is concerned with abortion as a medical procedure. When most criminal abortion laws were first enacted, the procedure was a hazardous one for the woman.43 This was particularly true prior to the development of antisepsis. Antiseptic techniques, of course, were based on discoveries by Lister, Pasteur, and others first announced in 1867, but were not generally accepted and employed until about the turn of the century. Abortion mortality was high. Even after 1900, and perhaps until as late as the development of antibiotics in the 1940's, standard modern techniques such as dilation and curettage were not nearly so safe as they are today. Thus, it has been argued that a State's real concern in enacting a criminal abortion law was to protect the pregnant woman, that is, to restrain her from submitting to a procedure that placed her life in serious jeopardy.
72
Modern medical techniques have altered this situation. Appellants and various amici 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 relatively 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 childbirth.44 Consequently, any interest of the State in protecting the woman from an inherently hazardous procedure, except when it would be equally dangerous for her to forgo it, has largely disappeared. Of course, important state interests in the areas of health and medical standards do remain. The State has a legitimate interest in seeing to it that abortion, like any other medical procedure, is performed under circumstances that insure maximum safety for the patient. This interest obviously extends at least to the performing physician and his staff, to the facilities involved, to the availability of after-care, and to adequate provision for any complication or emergency that might arise. The prevalence of high mortality rates at illegal 'abortion mills' strengthens, 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 the woman's own health and safety when an abortion is proposed at a late stage of pregnancy,
73
The third reason is the State's interest-some phrase it in terms of duty-in 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.45 The State's interest and general obligation to protect life then extends, it is argued, to prenatal life. Only when the life of the pregnant mother herself 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 that life begins at conception or at some other point prior to life birth. In assessing the State's interest, recognition may be given to the less rigid claim that as long as at least potential life is involved, the State may assert interests beyond the protection of the pregnant woman alone.
74
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.46 Pointing to the absence of legislative history to support the contention, they claim that most state laws were designed solely to protect the woman. Because medical advances have lessened this concern, at least with respect to abortion in early pregnancy, they argue that with respect to such abortions the laws can no longer be justified by any state interest. There is some scholarly support for this view of original purpose.47 The few state courts called upon to interpret their laws in the late 19th and early 20th centuries did focus on the State's interest in protecting the woman's health rather than in preserving the embryo and fetus.48 Proponents of this view point out that in many States, including Texas,49 by statute or judicial interpretation, the pregnant woman herself could not be prosecuted for self-abortion or for cooperating in an abortion performed upon her by another.50 They claim that adoption of the 'quickening' distinction through received common law and state statutes tacitly recognizes the greater health hazards inherent in late abortion and impliedly repudiates the theory that life begins at conception.
75
It is with these interests, and the weight to be attached to them, that this case is concerned.
VIII
76
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. Botsford, 141 U.S. 250, 251, 11 S.Ct. 1000, 1001, 35 L.Ed. 734 (1891), the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution. In varying contexts, the Court or individual Justices have, indeed, found at least the roots of that right in the First Amendment, Stanley v. Georgia, 394 U.S. 557, 564, 89 S.Ct. 1243, 1247, 22 L.Ed.2d 542 (1969); in the Fourth and Fifth Amendments, Terry v. Ohio, 392 U.S. 1, 8-9, 88 S.Ct. 1868, 1872-1873, 20 L.Ed.2d 889 (1968), Katz v. United States, 389 U.S. 347, 350, 88 S.Ct. 507, 510, 19 L.Ed.2d 576 (1967); Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1886), see Olmstead v. United States, 277 U.S. 438, 478, 48 S.Ct. 564, 572, 72 L.Ed. 944 (1928) (Brandeis, J., dissenting); in the penumbras of the Bill of Rights, Griswold v. Connecticut, 381 U.S., at 484-485, 85 S.Ct., at 1681-1682; in the Ninth Amendment, id., at 486, 85 S.Ct. at 1682 (Goldberg, J., concurring); or in the concept of liberty guaranteed by the first section of the Fourteenth Amendment, see Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 626, 67 L.Ed. 1042 (1923). These decisions make it clear that only personal rights that can be deemed 'fundamental' or 'implicit in the concept of ordered liberty,' Palko v. Connecticut, 302 U.S. 319, 325, 58 S.Ct. 149, 152, 82 L.Ed. 288 (1937), are included in this guarantee of personal privacy. They also make it clear that the right has some extension to activities relating to marriage, Loving v. Virginia, 388 U.S. 1, 12, 87 S.Ct. 1817, 1823, 18 L.Ed.2d 1010 (1967); procreation, Skinner v. Oklahoma, 316 U.S. 535, 541-542, 62 S.Ct. 1110, 1113-1114, 86 L.Ed. 1655 (1942); contraception, Eisenstadt v. Baird, 405 U.S., at 453-454, 92 S.Ct., at 1038-1039; id., at 460, 463465, 92 S.Ct. at 1042, 1043-1044 (White, J., concurring in result); family relationships, Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 442, 88 L.Ed. 645 (1944); and child rearing and education, Pierce v. Society of Sisters, 268 U.S. 510, 535, 45 S.Ct. 571, 573, 69 L.Ed. 1070 (1925), Meyer v. Nebraska, supra.
77
This right of privacy, whether it be founded in the Fourteenth Amendment's concept 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 rights 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 pregnant 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 unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases, as in this one, the additional difficulties and continuing stigma of unwed motherhood may be involved. All these are factors the woman and her responsible physician necessarily will consider in consultation.
78
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 interest at all in regulating the abortion decision, or no interest strong enough to support any limitation upon the woman's sole determination, are unpersuasive. The Court's decisions recognizing a right of privacy also acknowledge that some state regulation in areas protected by that right is appropriate. As noted above, a State may properly assert important interests in safeguarding health, in maintaining medical standards, and in protecting potential life. At some point in pregnancy, these respective interests become sufficiently compelling to sustain regulation of the factors that govern the abortion decision. The privacy right involved, therefore, cannot be said to be absolute. In fact, it is not clear to us that the claim asserted by some amici that one has an unlimited right to do with one's body as one pleases bears a close relationship to the right of privacy previously articulated in the Court's decisions. The Court has refused to recognize an unlimited right of this kind in the past. Jacobson v. Massachusetts, 197 U.S. 11, 25 S.Ct. 358, 49 L.Ed. 643 (1905) (vaccination); Buck v. Bell, 274 U.S. 200, 47 S.Ct. 584, 71 L.Ed. 1000 (1927) (sterilization).
79
We, therefore, conclude that the right of personal privacy includes the abortion decision, but that this right is not unqualified and must be considered against important state interests in regulation.
80
We note that those federal and state courts that have recently considered abortion law challenges have reached the same conclusion. A majority, in addition to the 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 (D.C.Conn.1972), appeal docketed, No. 72-56; Abele v. Markle, 351 F.Supp. 224 (D.C.Conn.1972), appeal docketed, No. 72-730; Doe v. Bolton, 319 F.Supp. 1048 (N.D.Ga.1970), appeal decided today, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201; Doe v. Scott, 321 F.Supp. 1385 (N.D.Ill.1971), appeal docketed, No. 70-105; Poe v. Menghini, 339 F.Supp. 986 (D.C.Kan.1972); YWCA v. Kugler, 342 F.Supp. 1048 (D.C.N.J.1972); Babbitz v. McCann, 310 F.Supp. 293 (E.D.Wis.1970), appeal dismissed, 400 U.S. 1, 91 S.Ct. 12, 27 L.Ed.2d 1 (1970); People v. Belous, 71 Cal.2d 954, 80 Cal.Rptr. 354, 458 P.2d 194 (1969), cert. denied, 397 U.S. 915, 90 S.Ct. 920, 25 L.Ed.2d 96 (1970); State v. Barquet, 262 So.2d 431 (Fla.1972).
81
Others have sustained state statutes. Crossen v. Attorney General, 344 F.Supp. 587 (E.D.Ky.1972), appeal docketed, No. 72-256; Rosen v. Louisiana State Board of Medical Examiners, 318 F.Supp. 1217 (E.D.La.1970), appeal docketed, No. 70-42; Corkey v. Edwards, 322 F.Supp. 1248 (W.D.N.C.1971), appeal docketed, No. 71-92; Steinberg v. Brown, 321 F.Supp. 741 (N.D.Ohio 1970); Doe v. Rampton, 366 F.Supp. 189 (Utah 1971), appeal 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, S.D., 201 N.W.2d 123 (1972), appeal docketed, No. 72-631.
82
Although the results are divided, most of these courts have agreed that the right of privacy, however based, is broad enough to cover the abortion decision; that the right, nonetheless, is not absolute and is subject to some limitations; and that at some point the state interests as to protection of health, medical standards, and prenatal life, become dominant. We agree with this approach.
83
Where certain 'fundamental rights' are involved, the Court has held that regulation limiting these rights may be justified only by a 'compelling state interest,' Kramer v. Union Free School District, 395 U.S. 621, 627, 89 S.Ct. 1886, 1890, 23 L.Ed.2d 583 (1969); Shapiro v. Thompson, 394 U.S. 618, 634, 89 S.Ct. 1322, 1331, 22 L.Ed.2d 600 (1969); Sherbert v. Verner, 374 U.S. 398, 406, 83 S.Ct. 1790, 1795, 10 L.Ed.2d 965 (1963), and that legislative enactments must be narrowly drawn to express only the legitimate state interests at stake. Griswold v. Connecticut, 381 U.S., at 485, 85 S.Ct., at 1682; Aptheker v. Secretary of State, 378 U.S. 500, 508, 84 S.Ct. 1659, 1664, 12 L.Ed.2d 992 (1964); Cantwell v. Connecticut, 310 U.S. 296, 307-308, 60 S.Ct. 900, 904-905, 84 L.Ed. 1213 (1940); see Eisenstadt v. Baird, 405 U.S., at 460, 463-464, 92 S.Ct., at 1042, 1043-1044 (White, J., concurring in result).
84
In the recent abortion cases, cited above, courts have recognized these principles. Those striking down state laws have generally scrutinized the State's interests in protecting health and potential life, and have concluded that neither interest justified broad limitations on the reasons for which a physician and his pregnant 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 determinations to protect health or prenatal life are dominant and constitutionally justifiable.
IX
85
The District Court held that the appellee failed to meet his burden of demonstrating that the Texas statute's infringement upon Roe's rights was necessary to support a compelling state interest, and that, although the appellee presented 'several compelling justifications for state presence in the area of abortions,' the statutes outstripped these justifications and swept 'far beyond any areas of compelling state interest.' 314 F.Supp., at 1222-1223. Appellant and appellee both contest that holding. Appellant, as has been indicated, claims an absolute right that bars any state imposition of criminal penalties in the area. Appellee argues that the State's determination to recognize and protect prenatal life from and after conception constitutes a compelling state interest. As noted above, we do not agree fully with either formulation.
86
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 outline at length and in detail the well-known facts of fetal development. If this suggestion of personhood is established, the appellant's case, of course, collapses, for the fetus' right to life would then be guaranteed specifically by the Amendment. The appellant conceded as much on reargument.51 On the other hand, the appellee conceded on reargument52 that no case could be cited that holds that a fetus is a person within the meaning of the Fourteenth Amendment.
87
The Constitution does not define 'person' in so many words. Section 1 of the Fourteenth Amendment contains three references to 'person.' The first, in defining 'citizens,' speaks of 'persons born or naturalized in the United States.' The word also appears both in the Due Process Clause and in the Equal Protection Clause. 'Person' is used in other places in the Constitution: in the listing of qualifications for Representatives and Senators, Art, I, § 2, cl. 2, and § 3, cl. 3; in the Apportionment Clause, Art. I, § 2, cl. 3;53 in the Migration and Importation provision, Art. I, § 9, cl. 1; in the Emoulument Clause, Art, I, § 9, cl. 8; in the Electros provisions, Art. II, § 1, cl. 2, and the superseded cl. 3; in the 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 Fugitive Slave Clause 3; and in the Fifth, Twelfth, and Twenty-second Amendments, as well 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 postnatally. None indicates, with any assurance, that it has any possible prenatal application.54
88
All this, together with our observation, supra, that throughout the major portion 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 Amendment, does not include the unborn.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 (W.D.Pa.1972); Byrn v. New York City Health & Hospitals Corp., 31 N.Y.2d 194, 335 N.Y.S.2d 390, 286 N.E.2d 887 (1972), appeal docketed, No. 72-434; Abele v. Markle, 351 F.Supp. 224 (D.C.Conn.1972), appeal docketed, No. 72-730. Cf. Cheaney v. State, Ind., 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, 81 S.Ct. 1336, 6 L.Ed.2d 313 (1961); Keeler v. Superior Court, 2 Cal.3d 619, 87 Cal.Rptr. 481, 470 P.2d 617 (1970); State v. Dickinson, 28 Ohio St.2d 65, 275 N.E.2d 599 (1971). Indeed, our decision in United States v. Vuitch, 402 U.S. 62, 91 S.Ct. 1294, 28 L.Ed.2d 601 (1971), inferentially is to the same effect, for we there would not have indulged in statutory interpretation favorable to abortion in specified circumstances if the necessary consequence was the termination of life entitled to Fourteenth Amendment protection.
89
This conclusion, however, does not of itself fully answer the contentions raised by Texas, and we pass on to other considerations.
90
B. The pregnant woman cannot be isolated in her privacy. She carries an embryo and, later, a fetus, if one accepts the medical definitions of the developing young in the human uterus. See Dorland's Illustrated Medical Dictionary 478-479, 547 (24th ed. 1965). The situation therefore is inherently different from marital intimacy, 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 another interest, that of health of the mother or that of potential human life, becomes significantly involved. The woman's privacy is no longer sole and any right of privacy she possesses must be measured accordingly.
91
Texas urges that, apart from the Fourteenth Amendment, life begins at conception and is present throughout pregnancy, and that, therefore, the State has a compelling interest in protecting that life from and after conception. We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man's knowledge, is not in a position to speculate as to the answer.
92
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.56 It appears to be the predominant, though not the unanimous, attitude of the Jewish faith.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 abortion issue have generally regarded abortion as a matter for the conscience of the individual and her family.58 As we have noted, the common law found greater significance in quickening. Physicians and their scientific colleagues have 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 becomes 'viable,' that is, potentially able to live outside the mother's womb, albeit with artificial aid.59 Viability is usually placed at about seven months (28 weeks) but may occur earlier, even at 24 weeks.60 The Aristotelian theory of 'mediate animation,' that held sway throughout the Middle Ages and the Renaissance in Europe, continued to be official Roman Catholic dogma until the 19th century, despite opposition to this 'ensoulment' theory from those in the Church who would recognize the existence of life from the moment of conception.61 The latter is now, of course, the official 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 embryological data that purport to indicate that conception is a 'process' over time, rather 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.62
93
In areas other than criminal abortion, the law has been reluctant to endorse any theory that life, as we recognize it, begins before life birth or to accord legal rights to the unborn except in narrowly defined situations and except when the rights are contingent upon life birth. For example, the traditional rule of tort law denied recovery for prenatal injuries even though the child was born alive.63 That rule has been changed in almost every jurisdiction. In most States, recovery is said to be permitted only if the fetus was viable, or at least quick, when the injuries were sustained, though few courts have squarely so held.64 In a recent development, generally opposed by the commentators, some States permit the parents of a stillborn child to maintain an action for wrongful death because of prenatal injuries.65 Such an action, however, would appear to be one to vindicate the parents' interest 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 property, and have been represented by guardians ad litem.66 Perfection of the interests involved, again, has generally been contingent upon live birth. In short, the unborn have never been recognized in the law as persons in the whole sense.
X
94
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, however, that the State does have an important and legitimate interest in preserving and protecting the health of the pregnant woman, whether she be a resident of the State or a non-resident who seeks medical consultation and treatment there, and that it has still another important and legitimate interest in protecting the potentiality of human life. These interests are separate and distinct. Each grows in substantiality as the woman approaches term and, at a point during pregnancy, each becomes 'compelling.'
95
With respect to the State's important and legitimate interest in the health of the 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 149, that until the end of the first trimester mortality in abortion may be less than mortality in normal 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 state regulation in this area are requirements as to the qualifications of the person 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.
96
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 judgment, the patient's pregnancy should be terminated. If that decision is reached, the judgment may be effectuated by an abortion free of interference by the State.
97
With respect to the State's important and legitimate interest in potential life, the 'compelling' point is at viability. This is so because the fetus then presumably has the capability of meaningful life outside the mother's womb. State regulation protective of fetal life after viability thus has both logical and biological justifications. If the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion during that period, except when it is necessary to preserve the life or health of the mother.
98
Measured against these standards, Art. 1196 of the Texas Penal Code, in restricting legal abortions to those 'procured or attempted by medical advice for the purpose of saving the life of the mother,' sweeps too broadly. The statute makes no 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 constitutional attack made upon it here.
99
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. Vuitch, 402 U.S., at 67-72, 91 S.Ct., at 1296-1299.
XI
To summarize and to repeat:
100
1. A state criminal abortion statute of the current Texas type, that excepts from criminality only a life-saving procedure on behalf of the mother, without regard to pregnancy stage and without recognition of the other interests involved, is violative of the Due Process Clause of the Fourteenth Amendment.
101
(a) For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician.
102
(b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health.
103
(c) For the stage subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.
104
2. The State may define the term 'physician,' as it has been employed in the preceding paragraphs of this Part XI of this opinion, to mean only a physician currently licensed by the State, and may proscribe any abortion by a person who is not a physician as so defined.
105
In Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201, procedural requirements contained in one of the modern abortion statutes are considered. That opinion and this one, of course, are to be read together.67
106
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 problems of the present day. The decision leaves the State free to place increasing restrictions on abortion as the period of pregnancy lengthens, so long as those restrictions are tailored to the recognized state interests. The decision vindicates the right of the physician to administer medical treatment according to his professional judgment up to the points where important 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
107
Our conclusion that Art. 1196 is unconstitutional means, of course, that the Texas 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 proscribing all abortion procedures no matter how medically urgent the case.
108
Although the District Court granted appellant Roe declaratory relief, it stopped short of issuing an injunction against enforcement of the Texas statutes. The Court has recognized that different considerations enter into a federal court's decision as to declaratory relief, on the one hand, and injunctive relief, on the other. Zwickler v. Koota, 389 U.S 241, 252-255, 88 S.Ct. 391, 397-399, 19 L.Ed.2d 444 (1967); Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965). We are not dealing with a statute that, on its face, appears to abridge free expression, an area of particular concern under Dombrowski and refined in Younger v. Harris, 401 U.S., at 50, 91 S.Ct., at 753.
109
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 that State are unconstitutional.
110
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 of the District Court is affirmed. Costs are allowed to the appellee.
111
It is so ordered.
112
Affirmed in part and reversed in part.
113
Mr. Justice STEWART, concurring.
114
In 1963, this Court, in Ferguson v. Skrupa, 372 U.S. 726, 83 S.Ct. 1028, 10 L.Ed.2d 93, purported to sound the death knell for the doctrine of substantive due process, a doctrine under which 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 bodies, who are elected to pass laws.' Id., at 730, 83 S.Ct., at 1031.1
115
Barely who years later, in Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510, the Court held 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 of the Bill of Rights, nor any other specific provision of the Constitution.2 So it was clear 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 substantively invaded the 'liberty' that is protected by the Due Process Clause of the Fourteenth Amendment.3 As so understood, Griswold stands as one in a long line of pre-Skrupa cases decided under the doctrine of substantive due process, and I now accept it as such.
116
'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, 572, 92 S.Ct. 2701, 2707, 33 L.Ed.2d 548. The Constitution nowhere mentions a specific right of personal choice in matters of marriage and family life, but the 'liberty' protected by the Due Process Clause of the Fourteenth Amendment covers more than those freedoms explicitly named in the Bill of Rights. See Schware v. Board of Bar Examiners, 353 U.S. 232, 238-239, 77 S.Ct. 752, 755-756, 1 L.Ed.2d 796; Pierce v. Society of Sisters, 268 U.S. 510, 534-535, 45 S.Ct. 571, 573-574, 69 L.Ed. 1070; Meyer v. Nebraska, 262 U.S. 390, 399-400, 43 S.Ct. 625, 626-627, 67 L.Ed. 1042. Cf. Shapiro v. Thompson, 394 U.S. 618, 629-630, 89 S.Ct. 1322, 1328-1329, 22 L.Ed.2d 600; United States v. Guest, 383 U.S. 745, 757-758, 86 S.Ct. 1170, 1177-1178, 16 L.Ed.2d 239; Carrington v. Rash, 380 U.S. 89, 96, 85 S.Ct. 775, 780, 13 L.Ed.2d 675; Aptheker v. Secretary of State, 378 U.S. 500, 505, 84 S.Ct. 1659, 1663, 12 L.Ed.2d 992; Kent v. Dulles, 357 U.S. 116, 127, 78 S.Ct. 1113, 1118, 2 L.Ed.2d 1204; Bolling v. Sharpe, 347 U.S. 497, 499-500, 74 S.Ct. 693, 694-695, 98 L.Ed. 884; Truax v. Raich, 239 U.S. 33, 41, 36 S.Ct. 7, 10, 60 L.Ed. 131.
117
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 provided in the Constitution. This 'liberty' is not a series of isolated points priced 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 searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints . . . and which also recognizes, what a reasonable and sensitive judgment must, that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment.' Poe v. Ullman, 367 U.S. 497, 543, 81 S.Ct. 1752, 1776, 6 L.Ed.2d 989 (opinion dissenting from dismissal of 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 fact, 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, 646, 69 S.Ct. 1173, 1195, 93 L.Ed. 1556 (dissenting opinion).
118
Several decisions of this Court make clear that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment. Loving v. Virginia, 388 U.S. 1, 12, 87 S.Ct. 1817, 1823, 18 L.Ed.2d 1010; Griswold v. Connecticut, supra; Pierce v. Society of Sisters, supra; Meyer v. Nebraska, supra. See also Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 442, 88 L.Ed. 645; Skinner v. Oklahoma, 316 U.S. 535, 541, 62 S.Ct. 1110, 1113, 86 L.Ed. 1655. As recently as last Term, in Eisenstadt v. Baird, 405 U.S. 438, 453, 92 S.Ct. 1029, 1038, 31 L.Ed.2d 349, we recognized 'the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person 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 and personal intimacy than the right to send a child to private school protected in Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925), or the right to teach a foreign language protected in Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923).' Abele v. Markle, 351 F.Supp. 224, 227 (D.C.Conn.1972).
119
Clearly, therefore, the Court today is correct in holding that the right asserted by Jane Roe is embraced within the personal liberty protected by the Due Process Clause of the Fourteenth Amendment.
120
It is evident that the Texas abortion statute infringes that right directly. Indeed, it is difficult to imagine a more complete abridgment of a constitutional freedom 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.
121
The asserted state interests are protection of the health and safety of the pregnant woman, and protection of the potential future human life within her. These are legitimate objectives, amply sufficient to permit a State to regulate abortions as it does other surgical procedures, and perhaps sufficient to permit a State 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 Court today has thoroughly demonstrated that these state interests cannot constitutionally support the broad abridgment of personal liberty worked by the existing Texas law. Accordingly, I join the Court's opinion holding that that law is invalid under the Due Process Clause of the Fourteenth Amendment.
122
Mr. Justice REHNQUIST, dissenting.
123
The Court's opinion brings to the decision of this troubling question both extensive historical fact and a wealth of legal scholarship. While the opinion thus commands my respect, I find myself nonetheless in fundamental disagreement with those parts of it that invalidate the Texas statute in question, and therefore dissent.
124
* 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 previous decisions indicate that a necessary predicate for such an opinion is a plaintiff 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 may not seek vindication for the rights of others. Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 92 S.Ct. 1965, 32 L.Ed.2d 627 (1972); Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972). The Court's statement of facts in this case makes clear, however, that the record in no way indicates 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 record, she may have been in her last trimester of pregnancy as of the date the complaint was filed.
125
Nothing in the Court's opinion indicates that Texas might not constitutionally apply its proscription of abortion as written to a woman in that stage of pregnancy. Nonetheless, the Court uses her complaint against the Texas statute as a fulcrum for deciding that States may impose virtually no restrictions on medical abortions performed during the first trimester of pregnancy. In deciding such a hypothetical lawsuit, the Court departs from the longstanding admonition that it should never 'formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.' Liverpool, New York & Philadelphia S.S. Co. v. Commissioners of Emigration, 113 U.S. 33, 39, 5 S.Ct. 352, 355, 28 L.Ed. 899 (1885). See also Ashwander v. TVA, 297 U.S. 288, 345, 56 S.Ct. 466, 482, 80 L.Ed. 688 (1936) (Brandeis, J., concurring).
II
126
Even if there were a plaintiff in this case capable of litigating the issue which 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 'privacy' 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 as 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 the Fourth Amendment to the Constitution, which the Court has referred to as embodying a right to privacy. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967).
127
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 form of 'liberty' protected by the Fourteenth Amendment, there is no doubt that similar claims have been upheld in our earlier decisions on the basis of that liberty. I agree with the statement of Mr. Justice STEWART in his concurring opinion that the 'liberty,' against deprivation of which without due process the Fourteenth Amendment protects, embraces more than the rights found in the Bill of Rights. But that liberty is not guaranteed absolutely against deprivation, only against deprivation without due process of law. The test traditionally applied in the area of social and economic legislation is whether or not a law such as that challenged has a rational relation to a valid state objective. Williamson v. Lee Optical Co., 348 U.S. 483, 491, 75 S.Ct. 461, 466, 99 L.Ed. 563 (1955). The Due Process Clause of the Fourteenth Amendment undoubtedly does place a limit, albeit a broad one, on legislative power to enact laws such as this. If the Texas statute were to prohibit an abortion even where the mother's life is in jeopardy, I have little doubt that such 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 restrictions on abortion during the first trimester is impossible to justify under that standard, and the conscious weighing of competing factors that the Court's opinion apparently substitutes for the established test is far more appropriate to a legislative judgment than to a judicial one.
128
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, 179, 92 S.Ct. 1400, 1408, 31 L.Ed.2d 768 (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 arising under the Due Process Clause of the Fourteenth Amendment. Unless I misapprehend the consequences of this transplanting of the 'compelling state interest test,' the Court's opinion will accomplish the seemingly impossible feat of leaving this area of the law more confused than it found it.
129
While the Court's opinion quotes from the dissent of Mr. Justice Holmes in Lochner v. New York, 198 U.S. 45, 74, 25 S.Ct. 539, 551, 49 L.Ed. 937 (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 economic and social welfare legislation, the adoption of the compelling state interest standard will inevitably require this Court to examine the legislative policies and pass on the wisdom of these policies in the very process of deciding whether 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 permissible restrictions the State may impose in each one, for example, partakes more of judicial legislation than it does of a determination of the intent of the drafters of the Fourteenth Amendment.
130
The fact that a majority of the States reflecting, after all the majority sentiment 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 is not 'so rooted in the traditions and conscience of our people as to be ranked as fundamental,' Snyder v. Massachusetts, 291 U.S. 97, 105, 54 S.Ct. 330, 332, 78 L.Ed. 674 (1934). Even today, when society's views on abortion are changing, the very existence of the debate is evidence that the 'right' to an abortion is not so universally accepted as the appellant would have us believe.
131
To reach its result, the Court necessarily has had to find within the Scope of the Fourteenth Amendment a right that was apparently completely unknown to the drafters 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 Amendment in 1868, there were at least 36 laws enacted by state or territorial legislatures limiting abortion.1 While many States have amended or updated their laws, 21 of the laws on the books in 1868 remain in effect today.2 Indeed, the Texas statute struck down today was, as the majority notes, first enacted in 1857 and 'has remained substantially unchanged to the present time.' Ante, at 119.
132
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 to have the Fourteenth Amendment withdraw from the States the power to legislate with respect to this matter.
III
133
Even if one were to agree that the case that the Court decides were here, and that 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 apparently concedes that at later periods of pregnancy Texas might impose these selfsame statutory limitations on abortion. My understanding of past practice is that a statute found 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, 6 S.Ct. 1064, 30 L.Ed. 220 (1886); Street v. New York, 394 U.S. 576, 89 S.Ct. 1354, 22 L.Ed. 572 (1969).
134
For all of the foregoing reasons, I respectfully dissent.
1
'Article 1191. Abortion
'If any person shall designedly administer to a pregnant woman or knowingly procure to be administered with her consent any drug or medicine, or shall use towards her any violence or means whatever externally or internally applied, and thereby 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 shall 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 intended is guilty as an accomplice.
'Art. 1193. Attempt at abortion
'If the means used shall fail to produce an abortion, the offender is nevertheless guilty of an attempt to produce abortion, provided it be shown that such means were calculated to produce that result, and shall be fined not less than one hundred 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 attempt 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 of 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 otherwise have been born alive, shall be confined in the penitentiary for life or for not less than five years.'
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, § 21-1 (1971); Ind.Code § 35-1-58-1 (1971); Iowa Code § 701.1 (1971); Ky.Rev.Stat. § 436.020 (1962); LaRev.Stat. § 37:1285(6) (1964) (loss of medical license) (but see § 14-87 (Supp.1972) 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)); Mich.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 Rev.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 (1969); 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 Ann. § 61-2-8 (1966); Wis.Stat. § 940.04 (1969); Wyo.Stat.Ann. §§ 6-77, 6-78 (1957).
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 unconstitutional and void, in that it does not sufficiently define or describe the offense of abortion. We do not concur with counsel 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 unconstitutionally vague or overbroad. Thompson v. State, 493 S.W.2d 913 (1971), appeal docketed, No. 71-1200. The court held that 'the State of Texas has a compelling interest to protect fetal life'; that Art. 1191 'is designed to protect fetal life'; that the Texas homicide statutes, particularly Act. 1205 of the Penal Code, are intended to protect a person 'in existence by actual birth' and thereby implicitly 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 Art. 11196 'is more definite that the District of Columbia statute upheld in (United States v.) Vuitch' (402 U.S. 62, 91 S.Ct. 1294, 28 L.Ed.2d 601); and that the Texas statute 'is not vague and indefinite or overbroad.' A physician's abortion conviction was affirmed.
In 493 S.W.2d, at 920 n. 2, the court observed that any issue as to the burden of proof under the exemption of Art. 1196 'is not before us.' But see Veevers v. State, 172 Tex.Cr.R. 162, 168-169, 354 S.W.2d 161, 166-167 (1962). Cf. United States v. Vuitch, 402 U.S. 62, 69-71, 91 S.Ct. 1294, 1298-1299, 28 L.Ed.2d 601 (1971).
4
The name is a pseudonym.
5
These names are pseudonyms.
6
The appellee twice states in his brief that the hearing before the District Court was held on July 22, 1970. Brief for Appellee 13. The docket entries, App. 2, and 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.
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 not 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 interest of the doctor 'and the class of people who are physicians . . . (and) the class 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 Hallford complaint.
8
A Castiglioni, A. History of Medicine 84 (2d ed. 1947), E. Krumbhaar, translator and editor (hereinafter Castiglioni).
9
J. Ricci, The Genealogy of Gynaecology 52, 84, 113, 149 (2d ed. 1950) (hereinafter Ricci); L. Lader, Abortion 75-77 (1966) (hereinafter Lader); K. Niswander, Medical 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, 406-422 (1961) (hereinafter Quay).
10
L. Edelstein, The Hippocratic Oath 10 (1943) (hereinafter Edelstein). But see Castiglioni 227.
11
Edelstein 12; Ricci 113-114, 118-119; Noonan 5.
12
Edelstein 13-14.
13
Castiglioni 148.
14
Id., at 154.
15
Edelstein 3.
16
Id., at 12, 15-18.
17
Id., at 18; Lader 76.
18
Edelstein 63.
19
Id., at 64.
20
Dorland's Illustrated Medical Dictionary 1261 (24th ed. 1965).
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 Concerning 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) (hereinafter Stern); Quay 430-432; Williams 152.
22
Early philosophers believed that the embryo or fetus did not become formed and begin to live until at least 40 days after conception for a male, and 80 to 90 days 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 derived from his three-stage theory of life: vegetable, animal, rational. The vegetable 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 expressed the view that human powers cannot determine the point during fetal development at which the critical change occurs. See Augustine, De Origine Animae 4.4 (Pub.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 Aristotle and his followers. Quay 426-427. Later, Augustine on abortion was incorporated by Gratian into the Decretum, published about 1140. Decretum Magistri Gratiani 2.32.2.7 to 2.32.2.10, in 1 Corpus Juris Canonici 1122, 1123 (A. Friedberg, 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).
23
Bracton took the position that abortion by blow or poison was homicide 'if the foetus 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, especially 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 60-61 (Book 1, c. 23) (Selden Society ed. 1955).
24
E. Coke, Institutes III *50.
25
1 W. Blackstone, Commentaries *129-130.
26
Means, The Phoenix of Abortional Freedom: Is a Penumbral or Ninth-Amendment Right About to Arise from the Nineteenth-Century Legislative Ashes of a Fourteenth-Century Common-Law Liberty?, 17 N.Y.L.F. 335 (1971) (hereinafter Means II). The author examines the two principal precedents cited marginally by Coke, both contrary 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 his determination to assert common-law (secular) jurisdiction to assess penalties for an offense that traditionally had been an exclusively ecclesiastical or canon-law crime. See also Lader 78-79, who notes that some scholars doubt that the common law ever was applied to abortion; that the English ecclesiastical courts seem to have lost interest in the problem after 1527; and that the preamble to the English legislation of 1803, 43 Geo. 3, c. 58, § 1, referred to in the text, infra, at 136, states that 'no adequate means have been hitherto provided for the prevention and punishment of such offenses.'
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, 1016 (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 Va. 162, 169, 56 S.E.2d 217, 221 (1949). Contra, Mills v. Commonwealth, 13 Pa. 631, 633 (1850); State v. Slagle, 83 N.C. 630, 632 (1880).
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).
29
Conn.Stat., Tit. 20, § 14 (1821).
30
Conn.Pub.Acts, c. 71, § 1 (1860).
31
N.Y.Rev.Stat., pt. 4, c. 1, Tit. 2, Art. 1, § 9, p. 661, and Tit. 6, § 21, p. 694 (1829).
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).
33
The early statutes are discussed in Quay 435-438. See also Lader 85-88; Stern 85-86; and Means II 375-376.
34
Criminal abortion statutes in effect in the States as of 1961, together with historical statutory development and important judicial interpretations of the state statutes, are cited and quoted in Quay 447-520. See Comment, A Survey of the Present 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 States as permitting abortion only if necessary to save or preserve the mother's life.
35
Ala.Code, Tit. 14, § 9 (1958); D.C.Code Ann. § 22-201 (1967).
36
Mass.Gen.Laws Ann., c. 272, § 19 (1970); N.J.Stat.Ann. § 2A:87-1 (1969); Pa.Stat.Ann., Tit. 18, §§ 4718, 4719 (1963).
37
Fourteen States have adopted some form of the ALI statute. See Ark.Stat.Ann. §§ 41-303 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, §§ 1790-1793 (Supp.1972); Florida Law of Apr. 13, 1972, c. 72-196, 1972 Fla.Sess.Law Serv., pp. 380-382; Ga.Code §§ 26-1201 to 26-1203 (1972); Kan.Stat.Ann. § 21-3407 (Supp.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); Ore.Rev.Stat. §§ 435.405 to 435.495 (1971); S.C.Code Ann. §§ 16-82 to 16-89 (1962 and Supp.1971); Va.Code Ann. §§ 18.1-62 to 18.1-62.3 (Supp.1972). Mr. Justice Clark described some of these States as having 'led the way.' Religion, Morality, and Abortion: 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 abortions performed in early pregnancy by a licensed physician, subject to stated procedural 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.Code §§ 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.
38
'Whereas, Abortion, like any other medical procedure, should not be performed when contrary to the best interests of the patient since good medical practice requires 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 informed patient consent should be determinative according to the merits of each individual 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 after consultation with two other physicians chosen because of their professional competency and in conformance with standards of good medical practice and the Medical 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 practice requires only that the physician or other professional personnel withdraw from the case so long as the withdrawal is consistent with good medical practice.' Proceedings of the AMA House of Delegates 220 (June 1970).
39
'The Principles of Medical Ethics of the AMA do not prohibit a physician from performing 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 he practices.
'In the matter of abortions, as of any other medical procedure, the Judicial Council becomes involved whenever there is alleged violation of the Principles of Medical Ethics as established by the House of Delegates.'
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 government 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 the (Department of Health) or operated by the United States, this state, or any department, agency, or political subdivision of either;) or by a female upon herself upon the advice of the physician; and
'(2) within (20) weeks after the commencement of the pregnancy (or after (20) weeks only if the physician has reasonable cause to believe (i) there is a substantial risk that continuance of the pregnancy would endanger the life of the mother 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 under the age of 16 years).
'Section 2. (Penalty.) Any person who performs or procures an abortion other than authorized by this Act is guilty of a (felony) and, upon conviction thereof, may 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 effectuate 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 thereof to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of this Act which can be given effect without the invalid provision or application, and to this end the provision of this Act 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 ___.'
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 more liberal trend in laws on this subject. Recognition was given also to the several decisions in state and federal courts which show a further trend toward liberalization of abortion laws, especially during the first trimester of pregnancy.
'Recognizing that a number of problems appeared in New York, a shorter time period for 'unlimited' abortions was advisable. The time period was bracketed to permit the various states to insert a figure more in keeping with the different conditions that might exist among the states. Likewise, the language limiting the place or places in which abortions may be performed was also bracketed to account for different conditions among the states. In addition, limitations on abortions after the initial 'unlimited' period were placed in brackets so that individual states may adopt all or any of these reasons, or place further restrictions upon abortions after the initial period.
'This Act does not contain any provision relating to medical review committees or prohibitions against sanctions imposed upon medical personnel refusing to participate 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 whom abortions may be performed; however, the Act is not drafted to exclude such a provision by a state wishing to enact the same.'
42
See, for example, YWCA v. Kugler, 342 F.Supp. 1048, 1074 (D.C.N.J.1972); Abele v. Markle, 342 F.Supp. 800, 805-806 (D.C.Conn.1972) (Newman, J., concurring in result), appeal docketed, No. 72-56; Walsingham v. State, 250 So.2d 857, 863 (Ervin, J., concurring) (Fla. 1971); State v. Gedicke, 43 N.J.L. 86, 90 (1881); Means II 381-382.
43
See C. Haagensen & W. Lloyd, A. Hundred Years of Medicine 19 (1943).
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); Tietze, United States: Therapeutic Abortions, 1963-1968, 59 Studies in Family Planning 5, 7 (1970); Tietze, Mortality with Contraception and Induced Abortion, 45 Studies in Family Planning 6 (1969) (Japan, Czechoslovakia, Hungary); Tietze & Lehfeldt, Legal Abortion in Eastern Europe, 175 J.A.M.A. 1149, 1152 (April 1961). Other sources are discussed in Lader 17-23.
45
See Brief of Amicus National Right to Life Committee; R. Drinan, The Inviolability of the Right to Be Born, in Abortion and the Law 107 (D. Smith ed. 1967); Louisell, Abortion, The Practice of Medicine and the Due Process of Law, 16 U.C.L.A.L.Rev. 233 (1969); Noonan 1.
46
See, e.g., Abele v. Markle, 342 F.Supp. 800 (D.C.Conn.1972), appeal docketed, No. 72-56.
47
See discussions in Means I and Means II.
48
See, e.g., State v. Murphy, 27 N.J.L. 112, 114 (1858).
49
Watson v. State, 9 Tex.App. 237, 244-245 (1880); Moore v. State, 37 Tex.Cr.R. 552, 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 (1914); 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. State, 84 Tex.Cr.R. 635, 209 S.W. 661 (1919); Thompson v. State, Tex.Cr.App., 493 S.W.2d 913 (1971), appeal pending.
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 No. 9, 1959).
51
Tr. of Oral Rearg. 20-21.
52
Tr. of Oral Rearg. 24.
53
We are not aware that in the taking of any census under this clause, a fetus has ever been counted.
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 abortions prohibited. Despite broad proscription, an exception always exists. The exception contained in Art. 1196, for an abortion procured or attempted by medical advice for the purpose of saving the life of the mother, is typical. But if the fetus is a person who is not to be deprived of life without due process of law, and if the mother's condition is the sole determinant, does not the Texas exception appear to be out of line with the Amendment's command?
There are other inconsistencies between Fourteenth Amendment status and the typical abortion statute. It has already been pointed out, n. 49, supra, that in Texas the woman is not a principal or an accomplice with respect to an abortion upon her. If the fetus is a person, why is the woman not a principal or an accomplice? Further, the penalty for criminal abortion specified by Art. 1195 is significantly 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?
55
Cf. the Wisconsin abortion statute, defining 'unborn child' to mean 'a human being from the time of conception until it is born alive,' Wis.Stat. § 940.04(6) (1969), and the new Connecticut statute, Pub. Act No. 1 (May 1972 Special Session), declaring it to be the public policy of the State and the legislative intent 'to protect and preserve human life from the moment of conception.'
56
Edelstein 16.
57
Lader 97-99; D. Feldman, Birth Control in Jewish Law 251-294 (1968). For a stricter view, see I. Jakobovits, Jewish Views on Abortion, in Abortion and the Law 124 (D. Smith ed. 1967).
58
Amicus Brief for the American Ethical Union et al. For the position of the National Council of Churches and of other denominations, see Lader 99-101.
59
L. Hellman & J. Pritchard, Williams Obstetrics 493 (14th ed. 1971); Dorland's Illustrated Medical Dictionary 1689 (24th ed. 1965).
60
Hellman & Pritchard, supra, n. 59, at 493.
61
For discussions of the development of the Roman Catholic position, see D. Callahan, Abortion: Law, Choice, and Morality 409-447 (1970); Noonan 1.
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-Implantation Birth-Control Methods and the Law, 46 Ore.L.Rev. 211 (1967); G. Taylor, The 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 Mich.L.Rev. 127 (1968); Note, Artificial Insemination and the Law, 1968 U.Ill.L.F. 203.
63
W. Prosser, The Law of Torts 33k-338 (4th ed. 1971); 2 F. Harper & F. James, The Law of Torts 1028-1031 (1956) ; Note, 63 Harv.L.Rev. 173 (1949).
64
See cases cited in Prosser, supra, n. 63, at 336-338; Annotation, Action for Death of Unborn Child, 15 A.L.R.3d 992 (1967).
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).
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).
67
Neither in this opinion nor in Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201, do we discuss the father's rights, if any exist in the constitutional context, in the abortion decision. No paternal right has been asserted in either of the cases, and the 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 circumstances. North Carolina, for example, N.C.Gen.Stat. § 14-45.1 (Supp.1971), requires written permission for the abortion from the husband when the woman is a married minor, 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 required. We need not now decide whether provisions of this kind are constitutional.
1
Only Mr. Justice Harlan failed to join the Court's opinion, 372 U.S., at 733, 83 S.Ct., at 1032.
2
There is no constitutional right of privacy, as such. '(The Fourth) Amendment protects individual privacy against certain kinds of governmental intrusion, but its protections go further, and often have nothing to do with privacy at all. Other provisions of the Constitution protect personal privacy 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 like 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, 350-351, 88 S.Ct. 507, 510-511, 19 L.Ed.2d 576 (footnotes omitted).
3
This was also clear to Mr. Justice Black, 381 U.S., at 507, (dissenting opinion); to Mr. Justice Harlan, 381 U.S., at 499, 85 S.Ct., at 1689 (opinion concurring in the judgment); and to Mr. Justice White, 381 U.S., at 502, 85 S.Ct., at 1691 (opinion concurring 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, 522, 81 S.Ct. 1752, 1765, 6 L.Ed.2d 989.
1
Jurisdictions having enacted abortion laws prior to the adoption of the Fourteenth 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. 296-297 (1861).
6. Connecticut-Conn.Stat. Tit. 20, §§ 14, 16 (1821). By 1868, this statute had been replaced by another abortion law. Conn.Pub.Acts, c. 71, §§ 1, 2, p. 65 (1860).
7. Florida-Fla.Acts 1st Sess., c. 1637, subs. 3, §§ 10, 11, subc. 8, §§ 9, 10, 11 (1868), as amended, now Fla.Stat.Ann. §§ 782.09, 782.10, 797.01, 797.02, 782.16 (1965).
8. Georgia-Ga.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. 441, 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 (Terr.) 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 (1864).
24. Nevada (Terr.)-Nev. (Terr.) Laws, c. 28, § 42, p. 63 (1861).
25. New Hampshire-N.H.Laws, c. 743, § 1, p. 266 (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 1868, this statute had been superseded. N.Y.Laws, c. 260, §§ 1, 2, 3, 4, 5, 6, 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 (1845-1964).
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-Va.Acts, Tit. II, c. 3, § 9, p. 96 (1848).
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).
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 (1848).
21. Wisconsin (1858).
| 45
|
35 L.Ed.2d 247
93 S.Ct. 880
410 U.S. 257
UNITED STATESv.Edward G. CHANDLER and Esther F. Born, etc.
No. 72—438.
Jan. 22, 1973.
PER CURIAM.
1
This case presents a narrow federal estate tax issue: Does a registered co-owner of a United States Savings Bond, Series E, by physical inter vivos delivery of the bond to the other registered co-owner, with intent to effectuate a gift, but without reissuance of the bond, succeed in divesting himself of the incidents of ownership so that, at his subsequent death, the value of the bond is not includable in his gross estate under the joint interests provisions of § 2040 of the Internal Revenue Code of 1954, 26 U.S.C. § 2040?
2
The United States District Court for the Northern District of California ruled that the co-owner had accomplished this divestiture, and it rendered judgment in favor of the taxpayer-estate. 312 F.Supp. 1263 (D.C., 1970). The United States Court of Appeals for the Ninth Circuit affirmed for the reasons set out in the District Court's opinion. 460 F.2d 1281 (9 Cir., 1972). The Sixth Circuit therefore had held to the contrary on a fact situation similar to that of the present case. Estate of Curry v. United States, 409 F.2d 671 (6 Cir., 1969). There are other decisions to like effect. Estate of Elliott v. Commissioner, 57 T.C. 152 (1971), reviewed by the court and now pending on appeal to the Fifth Circuit; Chambless v. United States, 70—1 USTC 12,655, 25 A.F.T.R.2d 70—1512 (SC 1970). The Third Circuit, however, previously had ruled sweepingly along the lines followed by the Ninth Circuit here. Silverman v. McGinnes, 259 F.2d 731 (3 Cir., 1958).
3
We grant certiorari and reverse.
4
* The decedent, Mary E. Baum, purchased several United States Savings Bonds, Series E, in 1954. She had them issued in the familiar co-ownership form. Some were in the names of Mrs. Baum 'or' Patricia Ritter, a granddaughter. Others were in the names of Mrs. Baum 'or' Beatrice Baum, another granddaughter. In 1961 the decedent delivered these bonds to the respective granddaughters, with the intention of making complete, irrevocable, inter vivos gifts.1
5
Mrs. Baum died in 1962. At her death the bonds were still in the original co-ownership form. They had not been redeemed. Neither had they been reissued, as they might have been under the applicable regulations, in the names of the respective graddaughters as sole owners.
6
The respondents, who are executors of the decedent's will, disclosed the bonds in the federal estate tax return filed for the decedent's estate but did not include them in the gross estate. On audit, the Internal Revenue Service ruled that the bonds were includable. A resulting deficiency in estate tax was assessed and was paid by the respondents. The present suit for refund of the tax attributable to the inclusion of the bonds was instituted in due course.
II
7
Section 2040 is the governing statute. At the time of the decedent's death the section provided that there shall be included in a decedent's gross estate, with exceptions not here pertinent, 'the value of all property . . . to the extent of the interest therein held as joint tenants by the decedent and any other person . . . in their joint names and payable to either or the survivor. . . .'
8
Title 31 U.S.C. § 757c(a)2 authorizes the Secretary of the Treasury to issue United States Savings Bonds 'in such manner and subject to such terms and conditions consistent with subsections (b)—(d) of this section, and including any restrictions on their transfer, as the Secretary of the Treasury may from time to time prescribe' (emphasis supplied).
9
Pursuant to this authorization, the Secretary issued Regulations on United States Savings Bonds. The first were those that appeared in Department Circular 571, dated December 16, 1936, 1 Fed.Reg. 2165. They have been revised from time to time. The eighth revision was in effect in 1961 when Mrs. Baum delivered the bonds in question to her respective granddaughters.
10
Section 315.5 of the Regulations, 31 CFR (1959 revision), provided that the 'form of registration used must express the actual ownership of and interest in the bond and . . . will be considered as conclusive of such ownership and interest.' Section 315.7 authorized registration in the names of two persons in the alternative as co-owners, and stated, 'No other form of registration establishing co-ownership is authorized.'
11
Section 315.15 imposed a limitation on transfer: 'Savings Bonds are not transferable . . . except as specifically provided in the regulations . . .' Section 315.20(a) stated, 'No judicial determination will be recognized which would give effect to an attempted voluntary transfer inter vivos of a bond . . .' Section 315.60 provided that a savings bond registered in co-ownership form will be paid, during the lives of both co-owners, 'to either upon his separate request,' in which case the other 'shall cease to have any interest in the bond,' or will be reissued, during the lives of both co-owners, upon the request of both, in the 'name of either, alone or with a new co-owner or beneficiary,' if, in the case of reissuance, the co-owners possessed one of a number of specifically enumerated relationships, including 'grandparent and grandchild.'
12
Section 351.61 related to payment or reissue after the death of a co-owner. The survivor is recognized 'as the sole and absolute owner,' and payment or reissue is 'made as though the bond were registered in the name of the survivor alone,' except that the request must be supported by proof of death of the other co-owner.
13
The regulations thus made the jointly issued bond nontransferable in itself and permitted a change in ownership, so long as both co-owners were alive, only through reissuance at the request of both co-owners.
III
14
Mary E. Baum, the decedent here, whatever the reason may have been, chose not to have the bonds in question reissued in the names of her granddaughters, as she might have done pursuant to the applicable regulations. Instead, she merely delivered the bonds to the granddaughters with donative intent. Our issue is whether that delivery, accompanied by that donative intent, was sufficient to remove the bonds from the decedent's gross estate. We conclude that it was not.
15
We have no reason to rule against the integrity and effect of the regulations. The issuance of the bonds by the Secretary, subject to such 'restrictions on their transfer' as the Secretary may prescribe, was clearly authorized by the Congress in 31 U.S.C. § 757c(a). And the restrictions on their transfer were just as clearly spelled out by the Secretary in his regulations. No claim is made—and none could be made—that the regulations are unclear or are inapplicable to Mrs. Baum's purported transfers. Nor can we view the regulations as an undue or improper restriction of the transfer rights the decedent would otherwise have. The bonds were issued subject to transfer restrictions, and those restrictions, in the eyes of the law at least, were known to her. She could have had the bonds issued originally in the sole names of the grandchildren, but she chose the co-ownership form and, as her later attempts at transfer reveal, she chose to retain possession of them. Having done so, she was obligated to play the game according to the rules.
16
The decisions below also overlook the facts that until her death, the decedent retained the right to redeem each of the bonds in question, the right to succeed to the proceeds if she survived the putative donee, and the right to join or to veto any attempt to have the bond reissued. 31 CFR §§ 315.60 and 315.61 (1959 revision).3
17
We note, in passing, that any other rule could well lead to chaotic conditions with respect to savings bonds and to great potential for abuse. Millions of veto any attempt to have the bonds requirements of Government for uniformity and for proper recordkeeping alone demand and justify something less than absolute freedom of transfer. Considerations of safety and an aspect of permanency of investment are additional factors that demand the same result.
18
Our conclusion, we feel, is required by the holding in Free v. Bland, 369 U.S. 663, 82 S.Ct. 1089, 8 L.Ed.2d 180 (1962). There the Court held that, absent fraud, the regulations creating a right of survivorship in United States Savings Bonds issued in co-ownership form overrode or pre-empted any inconsistent state property law. We stressed there, as we do here, that a contrary result would fail 'to give effect to a term or condition under which a federal bond is issued.' Id., at 669, 82 S.Ct., at 1094. We see nothing in the earlier case of Bank of America National Trust & Savings Assn. v. Parnell, 352 U.S. 29, 77 S.Ct. 119, 1 L.Ed.2d 93 (1956), that implies anything to the contrary. That case was also distinguished in Free v. Bland, 369 U.S., at 669, 82 S.Ct., at 1093—1094.
19
Reversed.
1
It is stipulated that these deliveries were not made in contemplation of death. Section 2035 of the 1954 Code, 26 U.S.C. § 2035, relating to transfers in contemplation of death, therefore has no application.
2
This is § 22(a) of the Second Liberty Bond Act, 40 Stat. 288, as added by § 6 of the Act of Feb. 4, 1935, 49 Stat. 21, and as amended by § 3 of the Public Debt Act of 1941, 55 Stat. 7.
3
The District Court, and the Court of Appeals in adopting the District Court's opinion, stated that either co-owner could have had the bonds 'reissued without even the signature of the other.' 312 F.Supp. 1263, 1268. This ignores the positive requirement of § 315.60 that reissue is to be 'upon the request of both.'
4
The Government in its petition, p. 8, asserts that approximately 500 million Series E Bonds are outstanding, that these are worth over 50 billion dollars, and that 75% of them are registered in coownership form.
| 1112
|
410 U.S. 19
93 S.Ct. 774
35 L.Ed.2d 99
UNITED STATES, Petitioner,v.Richard J. MARA aka Richard J. Marasovich.
No. 71—850.
Argued Nov. 6, 1972.
Decided Jan. 22, 1973.
Syllabus
Respondent, subpoenaed to furnish handwriting exemplars to enable a grand jury to determine whether he was the author of certain writings, was held in contempt after refusing compliance, the District Court having rejected respondent's contention that such compelled production would constitute an unreasonable search and seizure. The Court of Appeals reversed, holding that the Fourth Amendment applied and that the Government had to make a preliminary showing of reasonableness. Held: The specific and narrowly drawn directive to furnish a handwriting specimen, which, like the compelled speech disclosure upheld in United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 involved production of physical characteristics, violated no legitimate Fourth Amendment interest. Pp. 775—776.
454 F.2d 580, reversed and remanded.
Philip A. Lacovara, New York City, for petitioner.
Angelo Ruggiero, Chicago, Ill., for respondent.
Phylis Skloot Bamberger, New York City, for Federal Community Defender Organization of the Legal Aid Society of N.Y., as amicus curiae, by special leave of Court.
Mr. Justice STEWART delivered the opinion of the Court.
1
The respondent, Richard J. Mara, was subpoenaed to appear before the September 1971 Grand Jury in the Northern District of Illinois that was investigating thefts of interstate shipments. On two separate occasions he was directed to produce handwriting and printing exemplars to the grand jury's designated agent. Each time he was advised that he was a potential defendant in the matter under investigation. On both occasions he refused to produce the exemplars.
2
The Government then petitioned the United States District Court to compel Mara to furnish the handwriting and printing exemplars to the grand jury. The petition indicated that the exemplars were 'essential and necessary' to the grand jury investigation and would be used solely as a standard of comparison to determine whether Mara was the author of certain writings. The petition was accompanied by an affidavit of an FBI agent, submitted in camera, which set forth the basis for seeking the exemplars. The District Judge rejected the respondent's contention that the compelled production of such exemplars would constitute an unreasonable search and seizure, and he ordered the respondent to provide them. When the witness continued to refuse to do so, he was adjudged to be in civil contempt and was committed to custody until he obeyed the court order or until the expiration of the grand jury term.
3
The Court of Appeals for the Seventh Circuit reversed. 454 F.2d 580. Relying on its earlier decision in In re Dionisio, 442 F.2d 276, rev'd, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67, the court found that the directive to furnish the exemplars would constitute an unreasonable search and seizure. '(I)t is plain that compelling (Mara) to furnish exemplars of his handwriting and printing is forbidden by the Fourth Amendment unless the Government has complied with its reasonableness requirement. . . .' 454 F.2d, at 582.
4
The court then turned to two issues necessarily generated by its decision in Dionisio—the procedure the Government must follow and the substantive showing it must make to establish the reasonableness of the grand jury's directive. It rejected the in camera procedure of the District Court, and held that the Government would have to present its affidavit in open court in order that Mara might contest its sufficiency. The court ruled that to establish 'reasonableness' the Government would have to make a substantive showing: 'that the grand jury investigation was properly authorized, for a purpose Congress can order, that the information sought is relevant to the inquiry, and that . . . the grand jury process is not being abused. . . . (T)he Government's affidavit must also show why satisfactory handwriting and printing exemplars cannot be obtained from other sources without grand jury compulsion.' 454 F.2d, at 584—585.
5
We granted certiorari, 406 U.S. 956, 92 S.Ct. 2056, 32 L.Ed.2d 343, to consider this case with United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67.
6
We have held today in Dionisio, that a grand jury subpoena is not a 'seizure' within the meaning of the Fourth Amendment and, further, that that Amendment is not violated by a grand jury directive compelling production of 'physical characteristics' that are 'constantly exposed to the public.' Supra, at 9—10, 93 S.Ct., at 769. Handwriting, like speech, is repeatedly shown to the public, and there is no more expectation of privacy in the physical characteristics of a person's script than there is in the tone of his voice. See United States v. Doe (Schwartz), 2 Cir., 457 F.2d 895, 898—899; Bradford v. United States, 5 Cir., 413 F.2d 467, 471—472; cf. Gilbert v. California, 388 U.S. 263, 266—267, 87 S.Ct. 1951, 1953—1954, 18 L.Ed.2d 1178. Consequently the Government was under no obligation here, any more than in Dionisio, to make a preliminary showing of 'reasonableness.'
7
Indeed, this case lacks even the aspects of an expansive investigation that the Court of Appeals found significant in Dionisio. In that case, 20 witnesses were summoned to give exemplars; here there was only one. The specific and narrowly drawn directive requiring the witness to furnish a specimen of his handwriting* violated no legitimate Fourth Amendment interest. The District Court was correct, therefore, in ordering the respondent to comply with the grand jury's request.
8
Accordingly, the judgment of the Court of Appeals is reversed, and this case is remanded to that court for further proceedings consistent with this opinion.
9
It is so ordered.
10
Judgment of Court of Appeals reversed and case remanded.
11
Mr. Justice BRENNAN, concurring in part and dissenting in part in No. 71—229, and dissenting in No. 71—850.
12
I agree, for the reasons stated by the Court, that respondent Dionisio's Fifth Amendment claims are without merit. I dissent, however, from the Court's rejection of the Fourth Amendment claims of Dionisio and Mara as also without merit. I agree that no unreasonable seizure in violation of the Fourth Amendment is effected by a grand jury subpoena limited to requiring the appearance of a suspect to testify. But insofar as the subpoena requires a suspect's appearance in order to obtain voice or handwriting exemplars from him, I conclude, substantially in agreement with Part II of my Brother MARSHALL'S dissent, that the reasonableness under the Fourth Amendment of such a seizure cannot simply be presumed. I would therefore affirm the judgments of the Court of Appeals reversing the contempt convictions and remand with directions to the District Court to afford the Government the opportunity to prove reasonableness under the standard fashioned by the Court of Appeals.
13
Mr. Justice DOUGLAS, dissenting.
14
Judge William Campbell, who has been on the District Court in Chicago for over 32 years, recently made the following indictment against the grand jury:1
15
'This great institution of the past has long ceased to be the guardian of the people for which purpose it was created at Runnymede. Today it is but a convenient tool for the prosecutor—too often used solely for publicity. Any experienced prosecutor will admit that he can indict anybody at any time for almost anything before any grand jury.'
16
It is, indeed, common knowledge that the grand jury, having been conceived as a bulwark between the citizen and the Government, is now a tool of the Executive. The concession by the Court that the grand jury is no longer in a realistic sense 'a protective bulwark standing solidly between the ordinary citizen and an overzealous prosecutor' is reason enough to affirm these judgments.
17
It is not uncommon for witnesses summoned to appear before the grand jury at a designated room to discover that the room is the room of the prosecutor. The cases before us today are prime examples of this perversion.
18
Respondent Dionisio and approximately 19 others were subpoenaed by the Special February 1971 Grand Jury for the Northern District of Illinois in an investigation of illegal gambling operations. During the investigation, the grand jury had received as exhibits voice recordings obtained under court orders, on warrants issued under 18 U.S.C. § 2518 authorizing wiretaps. The witnesses were instructed to go to the United States Attorney's office, with their own counsel if they desired, in the company of an FBI agent who had been appointed as an agent of the grand jury by its foreman, and to read the transcript of the wire interception. The readings were recorded. The grand jury then compared the voices taken from the wiretap and the witnesses' record. Dionisio refused to make the voice exemplars on the ground they would violate his rights under the Fourth and Fifth Amendments. The Government filed petitions in the United States District Court for the Northern District of Illinois to compel the witness to furnish the exemplars to the grand jury. The court rejected the constitutional arguments of the respondent and demanded compliance. Dionisio again refused and was adjudged in civil contempt and placed in prison until he obeyed the court order or until the term of the special grand jury expired. The Court of Appeals reversed, concluding that to compel compliance would violate his Fourth Amendment rights. It held that voice exemplars are protected by the Constitution from unreasonable seizures and that the Government failed to show the reasonableness of its actions.
19
The Special September 1971 Grand Jury, also in the Northern District of Illinois, was convened to investigate thefts of interstate shipments of goods that occurred in the State. Respondent Mara was subpoenaed and was requested to submit a sample of his bandwriting before the grand jury. Mara refused. The Government went to the District Court for the Northern District of Illinois, asserting to the court that the handwriting exemplars were 'essential and necessary' to the investigation. In an in camera proceeding, the Court held that the witness must comply with the request of the grand jury. The Court of Appeals reversed on the basis of its decision in In re Dionisio. 454 F.2d 580. It outlined the procedures the Government must follow in cases of this kind. First, the hearing to determine the constitutionality of the seizure must be held in open court in an adversary manner. Substantially, the Government must show that the grand jury was properly authorized to investigate a matter that Congress had power to regulate, that the information sought was relevant to the inquiry, and that the grand jury's request for exemplars was adequate, but not excessive, for the purposes of the relevant inquiry.
20
Today, the majority overrules this reasoned opinion of the Seventh Circuit.
21
Under the Fourth Amendment, law enforcement officers may not compel the production of evidence, absent a showing of the reasonableness of the seizure. Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676; Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746. The test protects the person's expectation of privacy over the thing. We said in Katz v. United States, 'the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. * * * But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.' 389 U.S. 347, 351—352, 88 S.Ct. 507, 511, 19 L.Ed.2d 576. The Government asserts that handwriting and voice exemplars do not invade the privacy of an individual when taken because they are physical characteristics that are exposed to the public. It argues that, unless the person involved is a recluse, these characteristics are not meant to be private to the individual and thus do not qualify for the aid of the Fourth Amendment.
22
This Court has held that fingerprints are subject to the requirements of the Search and Seizure Clause of the Fourth Amendment, Davis v. Mississippi, supra. On the other hand, facial scars, birthmarks, and other facial features have been said to be 'in plain view' and not protected. United States v. Doe (Schwartz), 2 Cir., 457 F.2d 895.
23
In Davis, the sheriff in Mississippi rounded up 24 blacks when a rape victim described her assailant only as a young Negro. Each was fingerprinted and then released. Davis was presented to the victim but was not identified. He was jailed without probable cause, and only later did the FBI confirm that his fingerprints matched those on the window of the victim's home. The Court held that the fingerprints could not be admitted, as they were seized without reasonable grounds. 'Investigatory seizures would subject unlimited numbers of innocent persons to the harassment and ignominy incident to involuntary detention. Nothing is more clear than that the Fourth Amendment was meant to prevent wholesale intrustions upon the personal security of our citizenry, whether these intrusions be termed 'arrests' or 'investigatory detentions." Davis v. Mississippi, supra, 394 U.S., at 726—727, 89 S.Ct., at 1397—1398. The dragnet effect in Dionisio, where approximately 20 people were subpoenaed for purposes of identification, was just the kind of invasion that the Davis case sought to prevent. Facial features can be presented to the public regardless of the cooperation or compulsion of the owner of the features. But to get the exemplars, the individual must be involved. So, although a person's handwriting is used in everyday life and speech is the vehicle of normal social intercourse, when these personal characteristics are sought for purposes of identification, the Government enters the zone of privacy, and in my view, must make a showing of reasonableness before seizures may be made.
24
The Government contends that since the production was before the grand jury, a different standard of constitutional law exists because the grand jury has broad investigatory powers. Blair v. United States, 250 U.S. 273, 39 S.Ct. 468, 63 L.Ed. 979. Cf. United States v. Bryan, 339 U.S. 323, 70 S.Ct. 724, 94 L.Ed. 884. The Government concedes that the Fourth Amendment applies to the grand jury and prevents it from executing subpoenas duces tecum that are overly broad. Hale v. Henkel, 201 U.S. 43, 76, 26 S.Ct. 370, 379—380, 50 L.Ed. 652. It asserts, however, that that is the limit of its application. But the Fourth Amendment is not so limited, as this Court has held in Davis, supra, and reiterated in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889, where it held that the Amendment comes into effect whether or not there is a fullblown search. The essential purpose is to extend its protection 'wherever an individual may harbor a reasonable 'expectation of privacy." Id., at 1, 9, 88 S.Ct., at 1873.
25
Just as the nature of the Amendment rebels against the limits that the Government seeks to impose on its coverage, so does the nature of the grand jury itself. It was secured at Runnymede from King John as a cornerstone of the liberty of the people. It was to serve as a buffer between the state and the offender. For no matter how obnoxious a person may be, the United States cannot prosecute for a felony without an indictment. The individual is therefore protected by a body of his peers who have no axes to grind or any Government agency to serve. It is the only accusatorial body of the Federal Government recognized by the Constitution. 'The very purpose of the requirement that a man be indicted by grand jury is to limit his jeopardy to offenses charged by a group of his fellow citizens acting independently of either prosecuting attorney or judge.'2 Stirone v. United States, 361 U.S. 212, 218, 80 S.Ct. 270, 273, 4 L.Ed.2d 252. But here, as the Court of Appeals said, 'It is evident that the grand jury is seeking to obtain the voice exemplars of the witnesses by the use of its subpoena powers because probable cause did not exist for their arrest or for some other, less unusual, method of compelling the production of the exemplars.' In re Dionisio, 7 Cir., 442 F.2d 276, 280. See Hannah v. Larche, 363 U.S. 420, 497—499, 80 S.Ct. 1502, 1547—1549, 4 L.Ed.2d 1307 (Douglas, J., dissenting). Are we to stand still and watch the prosecution evade its own constitutional restrictions on its powers by turning the grand jury into its agent? Are we to allow the Government to usurp powers that were granted to the people by the Magna Carta and codified in our Constitution? That will be the result of the majority opinion unless we continue to apply to the grand jury the protection of the Fourth Amendment.
26
As the Court stated in Hale v. Henkel, 201 U.S., at 59, 26 S.Ct., at 373, 'the most valuable function of the grand jury' was 'to stand between the prosecutor and the accused, and to determine whether the charge was founded upon credible testimony or was dictated by malice or personal ill will.'
27
The Court held in that case that the Fourth Amendment was applicable to grand jury proceedings and that a sweeping, all-inclusive subpoena was 'equally indefensible as a search warrant would be if couched in similar terms.' Id., at 77, 26 S.Ct., at 380.
28
Of course, the grand jury can require people to testify. Hale v. Henkel makes plain that proceedings before the grand jury do not carry all of the impedimenta of a trial before a petit jury. To date, the grand jury cases have involved only testimonial evidence. To say, as the Government suggests, that nontestimonial evidence is free from any restraint imposed by the Fourth Amendment is to give those who today manipulate grand juries vast and unconstrollable power.
29
The Executive, acting through a prosecutor, could not have obtained these exemplars as it chose, for as stated by the Court of Appeals for the Eighth Circuit, 'We conclude that the taking of the handwriting exemplars . . . was a search and seizure under the Fourth Amendment.' United States v. Harris, 453 F.2d 1317, 1319. As Katz v. United States, supra, makes plain, the searches that may be made without prior approval by judge or magistrate are 'subject only to a few specifically established and well-delineated exceptions.' 389 U.S., at 357, 88 S.Ct. at 514.
30
The showing required by the Court of Appeals in the Mara case was that the Government's showing of need for the exemplars be 'reasonable,' which 'is not necessarily synonymous with probable cause.' 7 Cir., 454 F.2d 580, 584. When we come to grand juries, probable cause in the strict Fourth Amendment meaning of the term does not have in it the same ingredients pointing toward guilt as it does in the arrest and trial of people. In terms of probable cause in the setting of the grand jury, the question is whether the exemplar sought is in some way connected with the suspected criminal activity under investigation. Certainly less than that showing would permit the Fourth Amendment to be robbed of all of its vitality.
31
In the Mara case, the prosecutor submitted to the District Court an affidavit of a Government investigator stating the need for the exemplar based on his investigation. The District Court passed on the matter in camera, not showing the affidavit to either respondent or his counsel. The Court of Appeals, relying on Alderman v. United States, 394 U.S. 165, 183, 89 S.Ct. 961, 972, 22 L.Ed.2d 176, held that in such cases there should be an adversary proceeding. 454 F.2d, at 582—583. If 'reasonable cause' is to play any function in curbing the executive appetite to manipulate grand juries, there must be an opportunity for a showing that there was no 'reasonable cause.' As we stated in Alderman: 'Adversary proceedings will not magically eliminate all error, but they will substantially reduce its incidence by guarding against the possibility that the trial judge, through lack of time or unfamiliarity with the information contained in and suggested by the materials, will be unable to provide the scrutiny which the Fourth Amendment exclusionary rule demands.' 394 U.S., at 184, 89 S.Ct. at 972.
32
The District Court in the Dionisio case went part way by allowing the witness to have his counsel present when the voice exemplars were prepared in the prosecutor's office. 442 F.2d, at 278. The Court of Appeals acted in a traditionally fair way when it ruled that the reasonableness of a prosecutor's request for exemplars be put down for an adversary hearing before the District Court. It would be a travesty of justice to allow the prosecutor to do under the cloak of the grand jury what he could not do on his own.
33
In view of the disposition which I would make of these cases, I need not reach the Fifth Amendment question. But lest there be any doubt as to where I stand, I adhere to my position in United States v. Wade, 388 U.S. 218, 243, 87 S.Ct. 1926, 1940, 18 L.Ed.2d 1149 (separate statement), and in Schmerber v. California, 384 U.S. 757, 773, 86 S.Ct. 1826, 1837, 16 L.Ed.2d 908 (Black, J., dissenting, joined by Douglas, J.), 778, 86 S.Ct. 1839 (Douglas, J., dissenting), to the effect that the Fifth Amendment is not restricted to testimonial compulsion.
34
Mr. Justice MARSHALL, dissenting.
35
* The Court considers United States v. Wade, 388 U.S. 218, 221 223, 87 S.Ct. 1926, 1929—1930, 18 L.Ed.2d 1149 (1967), and Gilbert v. California, 388 U.S. 263, 265—267, 87 S.Ct. 1951, 1952—1954, 18 L.Ed.2d 1178 (1967), dispositive of respondent Dionisio's contention that compelled production of a voice exemplar would violate his Fifth Amendment privilege against compulsory self-incrimination. Respondent Mara also argued below that compelled production of the handwriting and printing exemplars sought from him would violate his Fifth Amendment privilege. I assume the Court would consider Wade and Gilbert to be dispositive of that claim as well.1 The Court reads those cases as holding that voice and handwriting exemplars may be sought for the exclusive purpose of measuring 'the physical properties' of the witness' voice or handwriting without running afoul of the Fifth Amendment privilege. 410 U.S. 7, 93 S.Ct. 768. Such identification evidence is not within the purview of the Fifth Amendment, the Court says, for, at least since Schmerber v. California, 384 U.S. 757, 764, 86 S.Ct. 1826, 1832, 16 L.Ed.2d 908 (1966), it has been clear that while 'the privilege is a bar against compelling 'communications' or 'testimony,' . . . compulsion which makes a suspect or accused the source of 'real or physical evidence' does not violate it.'
36
I was not a Member of this Court when Wade and Gilbert were decided. Had I been, I would have found it most difficult to join those decisions insofar as they dealt with the Fifth Amendment privilege. Since, as I discuss in Part II, I consider the Fourth Amendment to require affirmance of the decisions below in these cases, I need not rely at this time upon the Fifth Amendment privilege. Nevertheless, I feel constrained to express here at least my serious reservations concerning the Fifth Amendment portions of Wade and Gilbert, since those decisions are so central to the Court's result today.
37
The root of my difficulty with Wade and Gilbert is the testimonial evidence limitation that has been imposed upon the Fifth Amendment privilege in the decisions of this Court. That limitation is at odds with what I have always understood to be the function of the privilege. I would, of course, include testimonial evidence within the privilege, but I have grave difficulty drawing a line there. For I cannot accept the notion that the Government can compel a man to cooperate affirmatively in securing incriminating evidence when that evidence could not be obtained without the cooperation of the suspect. Indeed, until Wade and Gilbert, the Court had never carried the testimonial limitation so far as to allow law enforcement officials to enlist an individual's overt assistance that is, to enlist his will—in incriminating himself. And I remain unable to discern any substantial constitutional footing on which to rest that limitation on the reach of the privilege.
38
Certainly it is difficult to draw very much support for the testimonial limitation from the language of the Amendment itself. The Fifth Amendment provides that '(n)o person . . . shall be compelled in any criminal case to be a witness against himself . . ..' Nowhere is the privilege explicitly restricted to testimonial evidence. To read such a limitation into the privilege through its reference to 'witness' is just the sort of crabbed construction of the provision that this Court has long eschewed. Thus, some 80 years ago the Court rejected the contention that a grand jury witness could not invoke the privilege because it applied, in terms, only in a 'criminal case.' Counselman v. Hitchcock, 142 U.S. 547, 562, 12 S.Ct. 195, 198, 35 L.Ed. 1110 (1892). The Court emphasized that the privilege 'is as broad as the mischief against which it seeks to guard.' Ibid. Even earlier, the Court, in holding that the privilege could be invoked in the context of a civil forfeiture proceeding, had warned that:
39
'(C)onstitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of helf their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance.' Boyd v. United States, 116 U.S. 616, 635, 6 S.Ct. 524, 535, 29 L.Ed. 746 (1886).
40
Moreover, Boyd itself, which involved a subpoena directed at private papers, makes clear that 'witness' is not to be restricted to the act of giving oral testimony against oneself. Rather, that decision suggests what I believe to be the most reasonable construction of the protection afforded by the privilege, namely, protection against being 'compell(ed) . . . to furnish evidence against' oneself, Id., at 637, 6 S.Ct., at 536. See also Schmerber v. California, 384 U.S., at 776—777, 86 S.Ct., at 1838—1839 (Black, J., dissenting).
41
Such a construction is dictated by the purpose of the privilege. In part, of course, the privilege derives from the view that certain forms of compelled evidence are inherently unreliable. See, e.g., In re Gault, 387 U.S. 1, 47, 87 S.Ct. 1428, 1454, 18 L.Ed.2d 527 (1967). But the privilege—as a constitutional guarantee subject to invocation by the individual—is obviously far more than a rule concerned simply with the probative force of certain evidence. Its roots 'tap the basic stream of religious and political principle (and reflect) the limits of the individual's attornment to the state . . ..' Ibid. Its 'constitutional foundation . . . is the respect a government—state or federal—must accord to the dignity and integrity of its citizens. To maintain a 'fair state-individual balance,' to require the government 'to shoulder the entire load' . . ., to respect the inviolability of the human personality, our accusatory system of criminal justice demands that the government seeking to punish an individual produce the evidence against him by its own independent labors, rather than by the cruel, simple expedient of compelling it from his own mouth.' Miranda v. Arizona, 384 U.S. 436, 460, 86 S.Ct. 1602, 1620, 16 L.Ed.2d 694 (1966). Cf. also Rogers v. Richmond, 365 U.S. 534, 540—541, 81 S.Ct. 735, 739—740, 5 L.Ed.2d 760 (1961). It is only by prohibiting the Government from compelling an individual to cooperate affirmatively in securing incriminating evidence which could not be obtained without his active assistance, that 'the inviolability of the human personality' is assured. In my view, the testimonial limitation on the privilege simply fails to take account of this purpose.
42
The root of the testimonial limitation seems to be Mr. Justice Holmes' opinion for the Court in Holt v. United States, 218 U.S. 245, 31 S.Ct. 2, 54 L.Ed. 1021 (1910). In Holt, the defendant challenged the admission at trial of certain testimony that a blouse belonged to the defendant. A witness testified that defendant put on the blouse and that it fitted him. The defendant argued that this testimony violated his Fifth Amendment privilege because he had acted under duress. In the course of disposing of the defendant's argument, Mr. Justice Holmes said that 'the prohibition of compelling a man in a criminal court to be witness against himself is a prohibition of the use of physical or moral compulsion to extort communications from him, not an exclusion of his body as evidence when it may be material.' Id., at 252—253, 31 S.Ct., at 6. This remark can only be considered dictum, however, for the case arose before this Court established the rule that illegally seized evidence may not be admitted in federal court, see Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914), and thus Holt's claim of privilege was ultimately disposed of simply on the ground that 'when (a man) is exhibited, whether voluntarily or by order, and even if the order goes too far, the evidence, if material, is competent. Adams v. New York, 192 U.S. 585, 24 S.Ct. 372, 48 L.Ed. 575.' 218 U.S., at 253, 31 S.Ct., at 6.
43
With its decision in Schmerber, however, the Court elevated the dictum of Holt to full constitutional stature. Mr. Justice Holmes' language was central to the Court's conclusion that the taking of a blood sample, over the objection of the individual, to determine alcoholic content was not barred by the Fifth Amendment privilege since the resulting blood test evidence 'was neither (the individual's) testimony nor evidence relating to some communicative act . . ..' 384 U.S., at 765, 86 S.Ct., at 1833. Indeed, the Court appeared to consider it established since Holt that the Fifth Amendment privilege extended only to "testimony" or "communications," but not to "real or physical evidence," id., at 764, 86 S.Ct., at 1832; and this 'established' principle was sufficient, for the Court, to dispose of any 'loose dicta' in Miranda that might suggest a more extensive purpose for the privilege.
44
After Schmerber, Wade and Gilbert, were relatively easy steps for a Court focusing exclusively on the nature of the evidence compelled. Thus, the Court indicated that 'compelling Wade to speak within hearing distance of the witnesses, even to utter words purportedly uttered by the robber,' was 'no different from compelling Schmerber to provide a blood sample or Holt to wear the blouse.' 388 U.S., at 222, 87 S.Ct., at 1930, 18 L.Ed.2d 1149. Similarly, in Gilbert, 388 U.S., at 266—267, 87 S.Ct., at 1953 1954, 18 L.Ed.2d 1178, the Court reasoned that '(a) mere handwriting exemplar, in contrast to the content of what is written, like the voice or body itself, is an identifying physical characteristic outside (the privilege's) protection.'
45
Yet, if we look beyond the testimonial limitation, Wade and Gilbert clearly were not direct and easy extensions of Schmerber and Holt. For it is only in Wade and Gilbert that the Court, for the first time, held in effect that an individual could be compelled to give to the State evidence against himself which could be secured only through his affirmative cooperation—that is, 'to accuse himself by a volitional act which differs only in degree from compelling him to act out the crime,' Wade v. United States, 388 U.S., at 261, 87 S.Ct., at 1950 (Fortas, J., concurring in part and dissenting in part). The voice and handwriting samples sought in Wade and Gilbert simply could not be obtained without the individual's active cooperation. Holt and Schmerber were certainly not such cases. In those instances the individual was required, at most, to submit passively to a blood test or to the fitting of a shirt. Whatever the reasoning of those decisions, I do not understand them to involve the sort of interference with an individual's personality and will that the Fifth Amendment privilege was intended to prevent. To be sure, in situations such as those presented in Holt and Schmerber the individual may resist and be physically subdued, and in that sense, compulsion may be employed. Or, alternatively, the individual in those situations may elect to yield to the threat of contempt and cooperate affirmatively with his accusers, thus eliminating the need for force and, in that sense, his will may be subverted. But in neither case is the intrusion on an individual's dignity the same or as severe as the affront that occurs when the state secures from him incriminating evidence that can be obtained only by enlisting the cooperation of his will. Thus, I do not necessarily consider the results in Holt and Schmerber to be inconsistent with the purpose and proper reach of the Fifth Amendment privilege.2
46
But so long as we have a Constitution which protects at all costs the integrity of individual volition against subordinating state power, Wade and Gilbert must be viewed as legal anomalies. As Mr. Justice Fortas, joined by Mr. Justice Douglas and the Chief Justice, argued on the day those cases were decided:
47
'Our history and tradition teach and command that an accused may stand mute. The privilege means just that; not less than that. According to the Court, an accused may be jailed—indefinitely—until he is willing to say, for an identifying audience, whatever was said in the course of the commission of the crime. Presumably this would include, 'Your money or your life'—or perhaps, words of assault in a rape case. This is intolerable under our constitutional system.' United States v. Wade, 388 U.S. at 260, 87 S.Ct., at 1949.
48
See also Gilbert v. California, 388 U.S., at 291—292, 87 S.Ct., at 1965—1966 (Fortas, J., concurring in part and dissenting in part).
49
I fear the Court's decisions today are further illustrations of the extent to which the Court has gone astray in defining the reach of the Fifth Amendment privilege and has lost touch with the Constitution's concern for the 'inviolability of the human personality.' In both these cases, the Government seeks to secure possibly incriminating evidence that can be acquired only with respondents' affirmative cooperation. Thus, even if I did not consider the Fourth Amendment to require affirmance of the decisions of the Court of Appeals, I would nevertheless find it extremely difficult to accept a reversal of those decisions in the face of what seems to me the proper construction of the Fifth Amendment privilege.
II
50
The Court concludes that the exemplars sought from the respondents are not protected by the Fourth Amendment because respondents have surrendered their expectation of privacy with respect to voice and handwriting by knowingly exposing those to the public, see Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576 (1967). But, even accepting this conclusion, it does not follow that the investigatory seizures of respondents, accomplished through the use of subpoenas ordering them to appear before the grand jury—and thereby necessarily interfering with their personal liberty—are outside the protection of the Fourth Amendment. To the majority, though, '(i)t is clear that a subpoena to appear before a grand jury is not a 'seizure' in the Fourth Amendment sense, even though that summons may be inconvenient or burdensome.' 410 U.S., at 9, 93 S.Ct., at 769. With due respect, I find nothing 'clear' about so sweeping an assertion.
51
There can be no question that investigatory seizures effected by the police are subject to the constraints of the Fourth and Fourteenth Amendments. In Davis v. Mississippi, 394 U.S. 721, 727, 89 S.Ct. 1394, 1397, 22 L.Ed.2d 676 (1969), the Court observed that only the Term before, in Terry v. Ohio, 392 U.S. 1, 19, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889 (1968), it had rejected 'the notions that the Fourth Amendment does not come into play at all as a limitation upon police conduct if the officers stop short of something called a 'technical arrest' or a 'full-blown search." As a result, the Court held in Davis that investigatory seizures for the purpose of obtaining fingerprints are subject to the Fourth Amendment even though fingerprints themselves are not protected by that Amendment.3 The Court now seems to distinguish Davis from the present cases, in part, on the ground that in Davis the authorities engaged in a lawless dragnet of a large number of Negro youths. Certainly, the peculiarly offensive exercise of investigatory powers in Davis heightened the Court's sensitivity to the dangers inherent in Mississippi's argument that the Fourth Amendment was not applicable to investigatory seizures. But the presence of a dragnet was not the constitutional determinant there; rather, it was police interference with the petitioner's own liberty that brought the Fourth and Fourteenth Amendments into play, as should be evident from the Court's substantial reliance on Terry, which involved no dragnet.
52
Like Davis, the present cases involve official investigatory seizures that interfere with personal liberty. The Court considers dispositive, however, the fact that the seizures were effected by the grand jury, rather than the police. I cannot agree.
53
First, in Hale v. Henkel, 201 U.S. 43, 76, 26 S.Ct. 370, 380, 50 L.Ed. 652 (1906), the Court held that a subpoena duces tecum ordering 'the production of books and papers (before a grand jury) may constitute an unreasonable search and seizure within the 4th Amendment,' and on the particular facts of the case, it concluded that the subpoena was 'far too sweeping in its terms to be regarded as reasonable.' Considered alone, Hale would certainly seem to carry a strong implication that a subpoena compelling an individual's personal appearance before a grand jury, like a subpoena ordering the production of private papers, is subject to the Fourth Amendment standard of reasonableness. The protection of the Fourth Amendment is not, after all, limited to personal 'papers,' but extends also to 'persons,' 'houses,' and 'effects.' It would seem a strange hierarchy of constitutional values that would afford papers more protection from arbitrary governmental intrusion than people.
54
The Court, however, offers two interrelated justifications for excepting grand jury subpoenas directed at 'persons,' rather than 'papers,' from the constraints of the Fourth Amendment. These are a 'historically grounded obligation of every person to appear and give his evidence before the grand jury,' 410 U.S., at 9—10, 93 S.Ct., at 769, and the relative unintrustiveness of the grand jury subpoena on an individual's liberty.
55
In my view, the Court makes more of history than is justified. The Court treats the 'historically grounded obligation' which it now discerns as extending to all 'evidence,' whatever its character. Yet, so far as I am aware, the obligation 'to appear and give evidence' has heretofore been applied by this Court only in the context of testimonial evidence, either oral or documentary. Certainly the decisions relied upon by the Court, despite some dicta, have not recognized an obligation of a broader sweep.
56
Blair v. United States, 250 U.S. 273, 281, 39 S.Ct. 468, 471, 63 L.Ed. 979 (1919), indicated only that 'the giving of testimony and the attendance upon court or grand jury in order to testify are public duties which every person . . . is bound to perform upon being properly summoned . . ..' (Emphasis added.) Similarly, just last Term, the Court reaffirmed only that '(t)he power of government to compel persons to testify in court or before grand juries and other governmental agencies is firmly established in Anglo-American jurisprudence'—nothing more. Kastigar v. United States, 406 U.S. 441, 443, 92 S.Ct. 1653, 1655, 32 L.Ed.2d 212 (1972) (emphasis added). And, Mr. Chief Justice Hughes described 'one of the duties which the citizen owes to his government' to be that of 'attending its courts and giving his testimony whenever he is properly summoned. . . .' Blackmer v. United States, 284 U.S. 421, 438, 52 S.Ct. 252, 255, 76 L.Ed. 375 (1932). (Emphasis added.) In short, history, at least insofar as heretofore reflected in this Court's cases, does not necessarily establish an obligation to appear before a grand jury for other than testimonial purposes. See Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972); Ullmann v. United States, 350 U.S. 422, 439 n. 15, 76 S.Ct. 497, 507, 100 L.Ed. 511 (1956); Piemonte v. United States, 367 U.S. 556, 559 n. 2, 81 S.Ct. 1720, 1722, 6 L.Ed.2d 1028 (1961); Wilson v. United States, 221 U.S. 361, 372, 31 S.Ct. 538, 541, 55 L.Ed. 771 (1911); Hale v. Henkel, 201 U.S., at 65, 26 S.Ct., at 375. See also United States v. Bryan, 339 U.S. 323, 331, 70 S.Ct. 724, 730, 94 L.Ed. 884 (1950); Brown v. Walker, 161 U.S. 591, 600, 16 S.Ct. 644, 648, 40 L.Ed. 819 (1896); Garland v. Torre, 259 F.2d 545, 549 (CA2), cert. denied, 358 U.S. 910, 79 S.Ct. 237, 3 L.Ed.2d 231 (1958).
57
In the present cases—as the Court itself argues in its discussion of the Fifth Amendment privilege—it was not testimony that the grand juries sought from respondents, but physical evidence. The Court glosses over this important distinction from its prior decisions, however, by artificially bifurcating its analysis of what is taking place in these cases—that is, by effectively treating what is done with individuals once they are before the grand jury as irrelevant in determining what safeguards are to govern the procedures by which they are initially compelled to appear. Nonetheless, the fact remains that the historic exception to which the Court resorts is not necessarily as broad as the context in which it is now employed. Hence, I believe that the question we must consider is whether an extension of that exception is warranted, and if so, under what conditions.
58
In approaching these questions, we must keep in mind that '(t)his Court has consistently asserted that the rights of privacy and personal security protected by the Fourth Amendment '. . . are to be regarded as of the very essence of constitutional liberty . . .." Harris v. United States, 331 U.S. 145, 150, 67 S.Ct. 1098, 1101, 91 L.Ed. 1399 (1947). As a rule, the Amendment stands as an essential bulwark against arbitrary and unreasonable governmental intrusion—whatever its form, whatever its purpose, see, e.g., Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967)—upon the privacy and liberty of the individual, see, e.g., Terry v. Ohio, 392 U.S., at 9, 88 S.Ct., at 1873; Jones v. United States, 362 U.S. 257, 261, 80 S.Ct. 725, 731, 4 L.Ed.2d 697 (1960). Given the central role of the Fourth Amendment in our scheme of constitutional liberty, we should not casually assume that governmental action which may result in interference with individual liberty is excepted from its requirements. Cf. Coolidge v. New Hampshire, 403 U.S. 443, 455, 91 S.Ct. 2022, 2032, 29 L.Ed.2d 564 (1971); Katz v. United States, 389 U.S., at 357, 88 S.Ct., at 514; Camara v. Municipal Court, supra, 387 U.S., at 528 529, 87 S.Ct., at 1730—1731. The reason for any exception to the coverage of the Amendment must be fully understood and the limits of the exception should be defined accordingly. To do otherwise would create a danger of turning the exception into the rule and lead to the 'impairment of the rights for the protection of which (the Amendment) was adopted,' Go-Bart Importing Co. v. United States, 282 U.S. 344, 357, 51 S.Ct. 153, 158, 75 L.Ed. 374 (1931); cf. Grau v. United States, 287 U.S. 124, 128, 53 S.Ct. 38, 40, 77 L.Ed. 212 (1932).
59
The Court seems to reason that the exception to the Fourth Amendment for grand jury subpoenas directed at persons is justified by the relative unintrusiveness of the grand jury process on an individual's liberty. The Court, adopting Chief Judge Friendly's analysis in United States v. Doe (Schwartz), 457 F.2d 895, 898 (CA2 1972), suggests that arrests or even investigatory 'stops' are inimical to personal liberty because they may involve the use of force; they may be carried out in demeaning circumstances; and at least an arrest may yield the social stigma of a record. By contrast, we are told, a grand jury subpoena is a simple legal process that is served in an unoffensive manner; it results in no stigma; and a convenient time for appearance may always be arranged. The Court would have us believe, in short, that, unlike an arrest or an investigatory 'stop,' a grand jury subpoena entails little more inconvenience than a visit to an old friend. Common sense and practical experience indicate otherwise.
60
It may be that service of a grand jury subpoena does not involve the same potential for momentary embarrassment as does an arrest or investigatory 'stop.'4 But this difference seems inconsequential in comparison to the substantial stigma that contrary to the Court's assertion—may result from a grand jury appearance as well as from an arrest or investigatory seizure. Public knowledge that a man has been summoned by a federal grand jury investigating, for instance, organized criminal activity can mean loss of friends, irreparable injury to business, and tremendous pressures on one's family life. Whatever nice legal distinctions may be drawn between police and prosecutor, on the one hand, and the grand jury, on the other, the public often treats an appearance before a grand jury as tantamount to a visit to the station house. Indeed, the former is frequently more damaging than the latter, for a grand jury appearance has an air of far greater gravity than a brief visit 'downtown' for a 'talk.' The Fourth Amendment was placed in our Bill of Rights to protect the individual citizen from such potentially disruptive governmental intrusion into his private life unless conducted reasonably and with sufficient cause.
61
Nor do I believe that the constitutional problems inherent in such governmental interference with an individual's person are substantially alleviated because one may seek to appear at a 'convenient time.' In Davis v. Mississippi, 394 U.S., at 727, 89 S.Ct., at 1398 it was recognized that an investigatory detention effected by the police 'need not come unexpectedly or at an inconvenient time.' But this fact did not suggest to the Court that the Fourth Amendment was inapplicable; it was considered to affect, at most, the type of showing a State would have to make to justify constitutionally such a detention. Ibid. No matter how considerate a grand jury may be in arranging for an individual's appearance, the basic fact remains that his liberty has been officially restrained for some period of time. In terms of its effect on the individual, this restraint does not differ meaningfully from the restraint imposed on a suspect compelled to visit the police station house. Thus, the nature of the intrusion on personal liberty caused by a grand jury subpoena cannot, without more, be considered sufficient basis for denying respondents the protection of the Fourth Amendment.
62
Of course, the Fourth Amendment does not bar all official seizures of the person, but only those that are unreasonable and are without sufficient cause. With this in mind, it is possible, at least, to explain, if not justify, the failure to apply the protection of the Fourth Amendment to grand jury subpoenas requiring individuals to appear and testify. Thus, while it is true that we have traditionally given the grand jury broad investigatory powers, particularly in terms of compelling the appearance of persons before it, see, e.g., Branzburg v. Hayes, 408 U.S., at 688, 701—702, 92 S.Ct., at 2569, 2666—2668; Blair v. United States, 250 U.S., at 282, 39 S.Ct., at 471, 63 L.Ed. 679, it must be understood that we have done so in heavy reliance on certain essential assumptions.
63
Certainly the most celebrated function of the grand jury is to stand between the government and the citizen and thus to protect the latter from harassment and unfounded prosecution. See e.g., Wood v. Georgia, 370 U.S. 375, 390, 82 S.Ct. 1364, 1373, 8 L.Ed.2d 569 (1962); Hoffman v. United States, 341 U.S. 479, 485, 71 S.Ct. 814, 817, 95 L.Ed. 1118 (1951); Ex parte Bain, 121 U.S. 1, 11, 7 S.Ct. 781, 786, 30 L.Ed. 849 (1887). The grand jury does not shed those characteristics that give it insulating qualities when it acts in its investigative capacity. Properly functioning, the grand jury is to be the servant of neither the Government nor the courts, but of the people. Hale v. Henkel, 201 U.S., at 61, 26 S.Ct., at 373, 50 L.Ed. 652. As such, we assume that it comes to its task without bias or self-interest. Unlike the prosecutor or policeman, it has no election to win or executive appointment to keep. The anticipated neutrality of the grand jury, even when acting in its investigative capacity, may perhaps be relied upon to prevent unwarranted interference with the lives of private citizens and to ensure that the grand jury's subpoena powers over the person are exercised in only a reasonable fashion. Under such circumstances, it may be justifiable to give the grand jury broad personal subpoena powers that are outside the purview of the Fourth Amendment, for—in contrast to the police—it is not likely that it will abuse those powers.5 Cf. Costello v. United States, 350 U.S. 359, 362, 76 S.Ct. 406, 408, 100 L.Ed. 397 (1956); Stirone v. United States, 361 U.S. 212, 218, 80 S.Ct. 270, 273, 4 L.Ed.2d 252 (1960).
64
Whatever the present day validity of the historical assumption of neutrality that underlies the grand jury process,6 it must at least be recognized that if a grand jury is deprived of the independence essential to the assumption of neutrality—if it effectively surrenders that independence to a prosecutor—the dangers of excessive and unreasonable official interference with personal liberty are exactly those that the Fourth Amendment was intended to prevent. So long as the grand jury carries on its investigatory activities only through the mechanism of testimonial inquiries, the danger of such official usurpation of the grand jury process may not be unreasonably great. Individuals called to testify before the grand jury will have available their Fifth Amendment privilege against self-incrimination. Thus, at least insofar as incriminating information is sought directly from a particular criminal suspect,7 the grand jury process would not appear to offer law enforcement officials a substantial advantage over ordinary investigative techniques.
65
But when we move beyond the realm of a grand jury investigation limited to testimonial inquiries, as the Court does today, the danger increases that law enforcement officials may seek to usurp the grand jury process for the purpose of securing incriminating evidence from a particular suspect through the simple expedient of a subpoena. In view of the Court's Fourth Amendment analysis of the respondents' expectations of privacy concerning their handwriting and voice exemplars, and in view of the testimonial evidence limitation on the reach of the Fifth Amendment privilege, there is essentially no objection to be made once a suspect is before the grand jury and exemplars are requested. Thus, if the grand jury may summon criminal suspects for such purposes without complying with the Fourth Amendment, it will obviously present an attractive investigative tool to prosecutor and police. For what law enforcement officers could not accomplish directly themselves after our decision in Davis v. Mississippi, they may now accomplish indirectly through the grand jury process.
66
Thus, the Court's decisions today can serve only to encourage prosecutorial exploitation of the grand jury process, at the expense of both individual liberty and the traditional neutrality of the grand jury. Indeed, by holding that the grand jury's power to subpoena these respondents for the purpose of obtaining exemplars is completely outside the purview of the Fourth Amendment, the Court fails to appreciate the essential difference between real and testimonial evidence in the context of these cases, and thereby hastens the reduction of the grand jury into simply another investigative device of law enforcement officials. By contrast, the Court of Appeals, in proper recognition of these dangers, imposed narrow limitations on the subpoena power of the grand jury that are necessary to guard against unreasonable official interference with individual liberty but that would not impair significantly the traditional investigatory powers of that body.
67
The Court of Appeals in Mara, No. 71—850, did not impose a requirement that the Government establish probable cause to support a grand jury's request for exemplars. It correctly recognized that 'examination of witnesses by a grand jury need not be preceded by a formal charge against a particular individual,' since the very purpose of the grand jury process is to ascertain probable cause, see, e.g., Blair v. United States, 250 U.S., at 282, 39 S.Ct., at 471; Hendricks v. United States, 223 U.S. 178, 184, 32 S.Ct. 313, 316, 56 L.Ed. 394 (1912). 454 F.2d 580, 584. Consistent with this Court's decision in Hale v. Henkel, the Court of Appeals ruled only that the request for physical evidence such as exemplars should be subject to a showing of reasonableness. See 201 U.S., at 76, 26 S.Ct., at 379. This 'reasonableness' requirement has previously been explained by this Court, albeit in a somewhat different context, to require a showing by the Government that: (1) 'the investigation is authorized by Congress'; (2) the investigation 'is for a purpose Congress can order'; (3) the evidence sought is 'relevant'; and (4) the request is 'adequate, but not excessive, for the purposes of the relevant inquiry.' See Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186, 209, 66 S.Ct. 494, 506, 90 L.Ed. 614 (1946). This was the interpretation of the 'reasonableness' requirement properly adopted by the Court of Appeals. See In re September 1971 Grand Jury, 7 Cir., 454 F.2d, at 584—585. And, in elaborating on the requirement that the request not be 'excessive,' it added that the Government would bear the burden of showing that it was not conducting 'a general fishing expedition under grand jury sponsorship.' Id., at 585.
68
These are not burdensome limitations to impose on the grand jury when it seeks to secure physical evidence, such as exemplars, that has traditionally been gathered directly by law enforcement officials. The essence of the requirement would be nothing more than a showing that the evidence sought is relevant to the purpose of the investigation and that the particular grand jury is not the subject of prosecutorial abuse—a showing that the Government should have little difficulty making, unless it is in fact acting improperly. Nor would the requirement interfere with the power of the grand jury to call witnesses before it, to take their testimony, and to ascertain their knowledge concerning criminal activity. It would only discourage prosecutorial abuse of the grand jury process.8 The 'reasonableness' requirement would do no more in the context of these cases than the Constitution compels—protect the citizen from unreasonable and arbitrary governmental interference, and ensure that the broad subpoena powers of the grand jury which the Court now recognizes are not turned into a tool of prosecutorial oppression.9
69
In Dionisio, No. 71—229, the Government has never made any showing that would establish the 'reasonableness' of the grand jury's request for a voice sample. In Mara, No. 71—850, the Government submitted an affidavit to the District Court to justify the request for the handwriting and printing exemplars. But it was not sufficient to meet the requirements set down by the Court of Appeals. See 454 F.2d, at 584—585. Moreover, the affidavit in Mara was reviewed by the District Court in camera in the absence of respondent Mara and his counsel. Such ex parte procedures should be the exception, not the rule.
70
'Adversary proceedings will not magically eliminate all error, but they will substantially reduce its incidence by guarding against the possibility that the trial judge, though lack of time or unfamiliary with the information contained in and suggested by the materials, will be unable to provide the scrutiny which the Fourth Amendment . . . demands.'10 Alderman v. United States, 394 U.S. 165, 184, 89 S.Ct. 961, 972, 22 L.Ed.2d 176 (1969).
71
See also Dennis v. United States, 384 U.S. 855, 873—875, 86 S.Ct. 1840, 1850—1852, 16 L.Ed.2d 973 (1966). Consequently, I agree with the Court of Appeals that the reasonableness of a request for an exemplar should be tested in an adversary context.11
72
I would, therefore, affirm the Court of Appeals' decisions reversing the judgments of contempt against respondents and order the cases remanded to the District Court to allow the Government an opportunity to make the requisite showing of 'reasonableness' in each case. To do less is to invite the very sort of unreasonable governmental intrusion on individual liberty that the Fourth Amendment was intended to prevent.
*
The respondent contends that because he has seen neither the affidavit nor the writings in the grand jury's possession, the Government may actually be seeking 'testimonial' communications the content as opposed to the physical characteristics of his writing. But the Government's petition for the order to compel production stated: 'Such exemplars will be used solely as a standard of comparison in order to determine whether the witness is the author of certain writings.' If the Government should seek more than the physical characteristics of the witness' handwriting if, for example, it should seek to obtain written answers to incriminating questions or a signature on an incriminating statement—then, of course, the witness could assert his Fifth Amendment privilege against compulsory self-incrimination.
1
55 F.R.D. 229, 253 (1972).
2
As Mr. Justice Black said in In re Groban, 352 U.S. 330, 346—347, 77 S.Ct. 510, 520, 1 L.Ed.2d 376:
'The traditional English and American grand jury is composed of 12 to 23 members selected from the general citizenry of the locality where the alleged crime was committed. They bring into the grand jury room the experience, knowledge and viewpoint of all sections of the community. They have no axes to grind and are not charged personally with the administration of the law. No one of them is a prosecuting attorney or lawenforcement officer ferreting out crime. It would be very difficult for officers of the state seriously to abuse or deceive a witness in the presence of the grand jury. Similarly the presence of the jurors offers a substantial safeguard against the officers' misrepresentation, unintentional or otherwise, of the witness' statements and conduct before the grand jury. The witness can call on the grand jurors if need be for their normally unbiased testimony as to what occurred before them.'
Although that excerpt is from a dissent on the particular facts of the case, there could be no disagreement as to the accuracy of the description of the grand jury's historical function.
The tendency is for government to use shortcuts in its search for instruments more susceptible to its manipulation than is the historic grand jury. See Hannah v. Larche, 363 U.S. 420, 505, 80 S.Ct. 1502, 1551—1552, 4 L.Ed.2d 1307 (Douglas, J., dissenting); Jenkins v. McKeithen, 395 U.S. 411, 89 S.Ct. 1843, 23 L.Ed.2d 404.
1
Before this Court, respondent Mara has argued only that the Government may be seeking the handwriting exemplars to obtain not merely identification evidence, but incriminating 'testimonial' evidence. I certainly agree with the Court that if respondent's contention proves correct, he will be entitled to assert his Fifth Amendment privilege.
2
This is not to say that, apart from the Fifth Amendment privilege, there might not be serious due process problems with physical compulsion applied to an individual's person to secure identifying evidence against his will. Cf. Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952). But cf. Breithaupt v. Abram, 352 U.S. 432, 77 S.Ct. 408, 1 L.Ed.2d 448 (1957).
3
We left open the further question whether such an investigatory seizure might, under certain circumstances, be made on information insufficient to establish probable cause to arrest. See 394 U.S., at 727—728, 89 S.Ct., at 1397—1398.
4
But cf. Davis v. Mississippi, 394 U.S. 721, 727, 89 S.Ct. 1394, 1397, 22 L.Ed.2d 676 (1969).
5
When the grand jury does overstep its power and acts maliciously, courts are certainly not totally without power to control it. See n. 9, infra.
6
Indeed, the Court today acknowledges that '(t)he grand jury may not always serve its historic role as a protective bulwark.' 410 U.S., at 17, 93 S.Ct., at 773.
7
Of course, the grand jury does provide an important mechanism for investigating possible criminal activity through witnesses who may have first-hand knowledge of the activities of others. But, given the Fifth Amendment privilege, it does not follow that the grand jury is a useful mechanism for securing incriminating testimony from the suspect himself.
8
It is, of course, true that a suspect may be called for the dual purposes of testifying and obtaining physical evidence. Obviously, his liberty would be interfered with merely as a result of appearing and testifying, a situation in which the Fourth Amendment has not heretofore been applied. But it does not follow that the application of the Fourth Amendment is inappropriate when a suspect is subpoenaed for these dual purposes. The application of the Fourth Amendment is necessary to discourage unreasonable use of the grand jury process by law enforcement officials. While the Fifth Amendment privilege at least contributes to that goal in the context of a subpoena intended to secure both testimonial and physical evidence, it is essential also to apply the Fourth Amendment when the suspect is requested to give physical evidence. Otherwise, subpoenaing suspects for the purpose of testifying would provide a simple guise by which law enforcement officials might secure physical evidence without complying with the Fourth Amendment, and thus the deterrent effect on such officials sought by applying the Amendment to grand jury subpoenas seeking physical evidence would be lost.
9
It may be that my differences with the Court are not as great as may first appear, for despite the Court's rejection of the applicability of the Fourth Amendment to grand jury subpoenas directed at 'persons,' it clearly recognizes that abuse of the grand jury process is not outside a court's control. See 410 U.S., at 11—12, 93 S.Ct., at 770. Besides the Fourth Amendment, the First Amendment and both the Due Process Clause and the privilege against compulsory self-incrimination contained in the Fifth Amendment erect substantial barriers to 'the transformation of the grand jury into an instrument of oppression.' Ibid. See also Hale v. Henkel, 201 U.S., at 65, 26 S.Ct. at 375, 50 L.Ed. 652; United States v. Doe (Schwartz), 457 F.2d 895, 899.
10
As the Court of Appeals observed:
'(D)ifficulties of locating a suspect or possessor of evidence, the problems of apprehension, the destructibility of evidence, the need for promptness to protect the public against violence and to prevent repetition of criminal conduct necessitate the ex parte nature of the warrant issuance proceeding.' 454 F.2d 580, 583. But these considerations do not apply in the context of a grand jury request for exemplars. Nevertheless, the Government contends that the traditional secrecy of the grand jury process dictates that any preliminary showing required of it should be made in an ex parte, in camera proceeding. However, the interests served by the secrecy of the grand jury process can be adequately protected without such a drastic measure. Id., at 584.
11
The Court suggests that any sort of showing that might be required of the Government in cases such as these 'would saddle a grand jury with minitrials' and 'would assuredly impede its investigation and frustrate the public's interest in the fair and expeditious administration of the criminal laws.' 410 U.S., at 17, 93 S.Ct., at 773. But constitutional rights cannot be sacrificed simply for expedition and simplicity in the administration of the criminal laws. Moreover, a requirement that the Government establish the 'reasonableness' of the request for an exemplar would hardly be so burdensome as the Court suggests. As matters stand, if the suspect resists the request, the Government must seek a judicial order directing that he comply with the request. Thus, a formal judicial proceeding is already necessary. The question whether the request is 'reasonable' would simply be one further matter to consider in such a proceeding.
| 01
|
410 U.S. 73
93 S.Ct. 827
35 L.Ed.2d 119
ENVIRONMENTAL PROTECTION AGENCY et al., Petitioners,v.Patsy T. MINK et al.
No. 71—909.
Argued Nov. 9, 1972.
Decided Jan. 22, 1973.
Syllabus
Respondent Members of Congress brought suit under the Freedom of Information Act of 1966 to compel disclosure of nine documents that various officials had prepared for the President concerning a scheduled underground nuclear test. All but three were classified as Top Secret or Secret under E.O. 10501, and petitioners represented that all were inter-agency or intra-agency documents used in the Executive Branch's decisionmaking processes. The District Court granted petitioners' motion for summary judgment on the grounds that each of the documents was exempt from compelled disclosure by 5 U.S.C. § 552(b)(1) (hereafter Exemption 1), excluding matters 'specifically required by Executive order to be kept secret in the interest of the national defense or foreign policy,' and § 552(b)(5) (hereafter Exemption 5), excluding 'inter-agency or intra-agency memorandums or letters which would not be available by law to a party . . . in litigation with the agency.' The Court of Appeals reversed, concluding (a) that Exemption I permits nondisclosure of only the secret portions of classified documents but requires disclosure of the nonsecret components if separable, and (b) that Exemption 5 shields only governmental 'decisional processes' and not factual information unless 'inextricably intertwined with policy-making processes.' The District Court was ordered to examine the documents in camera to determine both aspects of separability. Held:
1. Exemption 1 does not permit compelled disclosure of the six classified documents or in camera inspection to sift out 'non-secret components,' and petitioners met their burden of demonstrating that the documents were entitled to protection under that exemption. Pp. 79—84.
2. Exemption 5 does not require that otherwise confidential documents be made available for a district court's in camera inspection regardless of how little, if any, purely factual material they contain. In implying that such inspection be automatic, the Court of Appeals order was overly rigid; and petitioners should be afforded the opportunity of demonstrating by means short of in camera inspection that the documents sought are clearly beyond the range of material that would be available to a private party in litigation with a Government agency. Pp. 85—94.
150 U.S.App.D.C. 233, 464 F.2d 742, reversed and remanded.
Roger C. Cramton, St. Johnsbury, Vt. for petitioners.
Ramsey Clark, Washington, D.C., for respondents.
Mr. Justice WHITE delivered the opinion of the Court.
1
The Freedom of Information Act of 1966, 5 U.S.C. § 552, provides that Government agencies shall make available to the public a broad spectrum of information, but exempts from its mandate certain specified categories of information, including matters that are 'specifically required by Executive order to be kept secret in the interest of the national defense or foreign policy,' § 552(b)(1), or are 'inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency,' § 552(b)(5). It is the construction and scope of these exemptions that are at issue here.
2
* Respondents' lawsuit began with an article that appeared in a Washington, D.C., newpaper in late July 1971. The article indicated that the President had received conflicting recommendations on the advisability of the underground nuclear test scheduled for that coming fall and, in particular, noted that the 'latest recommendations' were the product of 'a departmental under-secretary committee named to investigate the controversy.' Two days later, Congresswoman Patsy Mink, a respondent, sent a telegram to the President urgently requesting the 'immediate release of recommendations and report by inter-departmental committee. . . .' When the request was denied, an action under the Freedom of Information Act was commenced by Congresswoman Mink and 32 of her colleagues in the House.1
3
Petitioners immediately moved for summary judgment on the ground that the materials sought were specifically exempted from disclosure under subsections (b)(1) and (b)(5) of the Act.2 In support of the motion, petitioners filed an affidavit of John N. Irwin II, the Under Secretary of State. Briefly, the affidavit states that Mr. Irwin was appointed by President Nixon as Chairman of an 'Under Secretaries Committee,' which was a part of the National Security Council system organized by the President 'so that he could use it as an instrument for obtaining advice on important questions relating to our national security.' The Committee was directed by the President in 1969 'to review the annual underground nuclear test program and to encompass within this review requests for authorization of specific scheduled tests.' Results of the Committee's reviews were to be transmitted to the President 'in time to allow him to give them full consideration before the scheduled events.' In 5 of the affidavit, Mr. Irwin stated that pursuant to 'the foregoing directions from the President,' the Under Secretaries Committee had prepared and transmitted to the President a report on the proposed underground nuclear test known as 'Cannikin,' scheduled to take place at Amchitka Island, Alaska. The report was said to have consisted of a covering memorandum from Mr. Irwin, the report of the Under Secretaries Committee, five documents attached to that report, and three additional letters separately sent to Mr. Irwin.3 Of the total of 10 documents, one, an Environmental Impact Statement prepared by AEC, was publicly available and was not in dispute. Each of the other nine was claimed in the Irwin affidavit to have been
4
'prepared and used solely for transmittal to the President as advice and recommendations and set forth the views and opinions of the individuals and agencies preparing the documents so that the President might be fully apprised of varying viewpoints and have been used for no other purpose.'
5
In addition, at least eight (by now reduced to six) of the nine remaining documents were said to involve highly sensitive matter vital to the national defense and foreign policy and were described as having been classified Top Secret or Secret pursuant to Executive Order 10501.4
6
On the strength of this showing by petitioners, the District Court granted summary judgment in their favor on the ground that each of the nine documents sought was exempted from compelled disclosure by §§ (b)(1) and (b)(5) of the Act. The Court of Appeals reversed, concluding that subsection (b)(1) of the Act permits the withholding of only the secret portions of those documents bearing a separate classification under Executive Order 10501: 'If the nonsecret components (of such documents) are separable from the secret remainder and may be read separately without distortion of meaning, they too should be disclosed.' 150 U.S.App.D.C. 233, 237, 464 F.2d 742, 746. The court instructed the District Judge to examine the classified documents 'looking toward their possible separation for purposes of disclosure or nondisclosure.' Ibid.
7
In addition, the Court of Appeals concluded that all nine contested documents fell within subsection (b)(5) of the Act, but construed that exemption as shielding only the 'decisional processes' reflected in internal Government memoranda, not 'factual information' unless that information is 'inextricably intertwined with policymaking processes.' The court then ordered the District Judge to examine the documents in camera (including, presumably, any 'nonsecret components' of the six classified documents) to determine if 'factual data' could be separated out and disclosed 'without impinging on the policymaking decisional processes intended to be protected by this exemption.' We granted certiorari, 405 U.S. 974, 92 S.Ct. 1196, 31 L.Ed.2d 247 and now reverse the judgment of the Court of Appeals.
II
8
The Freedom of Information Act, 5 U.S.C. § 552,5 is a revision of § 3, the public disclosure section, of the Administrative Procedure Act, 5 U.S.C. § 1002 (1964 ed.). Section 3 was generally recognized as falling far short of its disclosure goals and came to be looked upon more as a withholding statute than a disclosure statute. See S.Rep.No.813, 89th Cong., 1st Sess., 5 (1965) (hereinafter S.Rep.No.813); H.R.Rep.No.1497, 89th Cong., 2d Sess., 5—6 (1966); U.S.Code Cong. & Admin.News 1966, p. 2418 (hereinafter H.Rep.No.1497). The section was plagued with vague phrases, such as that exemption from disclosure 'any function of the United States requiring secrecy in the public interest.' Moreover, even 'matters of official record' were only to be made available to 'persons properly and directly concerned' with the information. And the section provided no remedy for wrongful withholding of information. The provisions of the Freedom of Information Act stand in sharp relief against those of § 3. The Act eliminates the 'properly and directly concerned' test of access, stating repeatedly that official information shall be made available 'to the public,' 'for public inspection.' Subsection (b) of the Act creates nine exemptions from compelled disclosures. These exemptions are explicitly made exclusive, 5 U.S.C. § 552(c), and are plainly intended to set up concrete, workable standards for determining whether particular material may be withheld or must be disclosed. Aggrieved citizens are given a speedy remedy in district courts, where 'the court shall determine the matter de novo and the burden is on the agency to sustain its action.' 5 U.S.C. § 552(a)(3). Noncompliance with court orders may be punished by contempt. Ibid.
9
Without question, the Act is broadly conceived. It seeks to permit access to official information long shielded unnecessarily from public view and attempts to create a judicially enforceable public right to secure such information from possibly unwilling official hands. Subsection (b) is part of this scheme and represents the congressional determination of the types of information that the Executive Branch must have the option to keep confidential, if it so chooses. As the Senate Committee explained, it was not 'an easy task to balance the opposing interests, but it is not an impossible one either. . . . Success lies in providing a workable formula which encompasses, balances, and protects all interests, yet places emphasis on the fullest responsible disclosure.' S.Rep.No.813, p. 3.6
10
It is the context of the Act's attempt to provide a 'workable formula' that 'balances, and protects all interests,' that the conflicting claims over the documents in this case must be considered.
11
* Subsection (b)(1) of the Act (hereafter sometimes Exemption) exempts from forced disclosure matters 'specifically required by Executive order to be kept secret in the interest of the national defense or foreign policy.' According to the Irwin affidavit, the six documents for which Exemption 1 is now claimed were all duly classified Top Secret or Secret, pursuant to Executive Order 10501, 3 CFR 280 (Jan. 1, 1970). That order was promulgated under the authority of the President in 1953, 18 Fed.Reg. 7049, and, since that time, has served as the basis for the classification by the Executive Branch of information 'which requires protection in the interests of national defense.'7 We do not believe that Exemption 1 permits compelled disclosure of documents, such as the six here that were classified pursuant to this Executive Order. Nor does the Exemption permit in camera inspection of such documents to sift out so-called 'nonsecret components.' Obviously, this test was not the only alternative available. But Congress chose to follow the Executive's determination in these matters and that choice must be honored.
12
The language of Exemption 1 was chosen with care. According to the Senate Committee, '(t)he change of standard from 'in the public interest' in made both to delimit more narrowly the exception and to give it a more precise definition. The phrase 'public interest' in section 3(a) of the Administrative Procedure Act has been subject to conflicting interpretations, often colored by personal prejudices and predilections. It admits of no clear delineations.' S.Rep.No.813, p. 8. The House Committee similarly pointed out that Exemption 1 'both limits the present vague phrase, 'in the public interest,' and gives the area of necessary secrecy a more precise definition' H.R.Rep.No.1497, p. 9; U.S.Code Cong. & Admin.News 1966, p. 2426. Manifestly, Exemption 1 was intended to dispel uncertainty with respect to public access to material affecting 'national defense or foreign policy.' Rather than some vague standard, the test was to be simply whether the President has determined by Executive Order that particular documents are to be kept secret. The language of the Act itself is sufficiently clear in this respect, but the legislative history disposes of any possible argument that Congress intended the Freedom of Information Act to subject executive security classifications to judicial review at the insistence of anyone who might seek to question them. Thus, the House Report stated with respect to subsection (b)(1) that 'citizens both in and out of Government can agree to restrictions on categories of information which the President has determined must be kept secret to protect the national defense or to advance foreign policy, such as matters classified pursuant to Executive Order 10501.' H.R.Rep.No.1497, pp. 9—10; U.S.Code Cong. & Admin.News 1966, p. 2427.8 Similarly, Representative Moss, Chairman of the House Subcommittee that considered the bill, stated that the exemption 'was intended to specifically recognize that Executive order (No. 10501)' and was drafted 'in conformity with that Executive order.' Hearings on Federal Public Records Law before a Subcommittee of the House Committee on Government Operations, 89th Cong., 1st Sess., 52, 55 (1965) (hereinafter 1965 House Hearings). And a member of the Committee, Representative Gallagher, stated that the legislation and the Committee Report make it 'crystal clear that the bill in no way affects categories of information which the President . . . has determined must be classified to protect the national defense or to advance foreign policy. These areas of information most generally are classified under Executive Order No. 10501.' 112 Cong.Rec. 13659.
13
These same sources make untenable the argument that classification of material under Executive Order 10501 is somehow insuficient for Exemption 1 purposes, or that the exemption contemplates the issuance of orders, under some other authority, for each document the Executive may want protected from disclosure under the Act. Congress could certainly have provided that the Executive Branch adopt new procedures or it could have established its own procedures—subject only to whatever limitations the Executive privilege may be hled to impose upon such congressional ordering. Cf. United States v. Reynolds, 345 U.S. 1, 73 S.Ct. 528, 97 L.Ed. 727 (1953). But Exemption 1 does neither. It states with the utmost directness that note that the preamble of the new Executive by Executive order to be kept secret.' Congress was well aware of the Order and obviously accepted determinations pursuant to that Order as qualifying for exempt status under § (b)(1). In this context it is patently unrealistic to argue that the 'Order has nothing to do with the first exemption.'9
14
What has been said thus far makes wholly untenable any claim that the Act intended to subject the soundness of executive security classifications to judicial review at the insistence of any objecting citizen. It also negates the proposition that Exemption 1 authorizes or permits in camera inspection of a contested document bearing a single classification so that the court may separate the secret from the supposedly nonsecret and order disclosure of the latter. The Court of Appeals was thus in error. The Irwin affidavit stated that each of the six documents for which Exemption 1 is now claimed 'are and have been classified' Top Secret and Secret 'pursuant to Executive Order No. 10501' and as involving 'highly sensitive matter that is vital to our national defense and foreign policy.' The fact of those classifications and the documents' characterizations have never been disputed by respondents. Accordingly, upon such a showing and in such circumstances, petitioners had met their burden of demonstrating that the documents were entitled to protection under Exemption 1, and the duty of the District Court under § 552(a)(3) was therefore at an end.10
B
15
Disclosure of the three documents conceded to be 'unclassified' is resisted solely on the basis of subsection (b)(5) of the Act hereafter Exemption 5).11 That Exemption was also invoked, alternatively, to support withholding the six documents for which Exemption 1 was claimed. It is beyond question that the Irwin affidavit, standing alone, is sufficient to establish that all of the documents involved in this litigation are 'inter-agency or intra-agency' memoranda or 'letters' that were used in the decisionmaking processes of the Executive Branch. By its terms, however, Exemption 5 creates an exemption for such documents only insofar as they 'would not be available by law to a party . . . in litigation with the agency.' This language clearly contemplates that the public is entitled to all such memoranda or letters that a private party could discover in litigation with the agency. Drawing such a line between what may be withheld and what must be disclosed is not without difficulties. In many important respects, the rules governing discovery in such litigation have remained uncertain from the very beginnings of the Republic.12 Moreover, at best, the discovery rules can only be applied under Exemption 5 by way of rough analogies. For example, we do not know whether the Government is to be treated as though it were a prosecutor, a civil plaintiff, or a defendant.13 Nor does the Act, by its terms, permit inquiry into particularized needs of the individual seeking the information, although such an inquiry would ordinarily be made of a private litigant. Still, the legislative history of Exemption 5 demonstrates that Congress intended to incorporate generally the recognized rule that 'confidential intra-agency advisory opinions . . . are privileged from inspection.' Kaiser Aluminum & Chemical Corp. v. United States, 157 F.Supp. 939, 946, 141 Ct. Cl. 38, 49 (1958) (Reed, J.). As Mr. Justice Reed there stated:
16
'There is a public policy involved in this claim of privilege for this advisory opinion—the policy of open, frank discussion between subordinate and chief concerning administrative action.' Id., at 946, 141 Ct.Cl., at 48.
17
The importance of this underlying policy was echoed again and again during legislative analysis and discussions of Exemption 5:
18
'It was pointed out in the comments of many of the agencies that it would be impossible to have any frank discussion of legal or policy matters in writing if all such writings were to be subjected to public scrutiny. It was argued, and with merit, that efficiency of Government would be greatly hampered if, with respect to legal and policy matters, all Government agencies were prematurely forced to 'operate in a fishbowl.' The committee is convinced of the merits of this general proposition, but it has attempted to delimit the exception as narrowly as consistent with efficient Government operation.' S.Rep.No.813, p. 9.
19
See also H.R.Rep.No.1497, p. 10. But the privilege that has been held to attach to intragovernmental memoranda clearly has finite limits, even in civil litigation. In each case, the question was whether production of the contested document would be 'injurious to the consultative functions of government that the privilege of nondisclosure protects.' Kaiser Aluminum & Chemical Corp., supra, at 946, 141 Ct.Cl., at 49. Thus, in the absence of a claim that disclosure would jeopardize state secrets, see United States v. Reynolds, 345 U.S. 1, 73 S.Ct. 528, 97 L.Ed. 727 (1953), memoranda consisting only of compiled factual material or purely factual material contained in deliberative memoranda and severable from its context would generally be available for discovery by private parties in litigation with the Government.14 Moreover, in applying the privilege, courts often were required to examine the disputed documents in camera, in order to determine which should be turned over or withheld.15 We must assume, therefore, that Congress legislated against the backdrop of this case law, particularly since it expressly intended 'to delimit the exception (5) as narrowly as consistent with efficient Government operation.' S.Rep.No.813, p. 9. See H.R.Rep.No.1497, p. 10. Virtually all of the courts that have thus far applied Exemption 5 have recognized that it requires different treatment for materials reflecting deliberative or policy-making processes on the one hand, and purely factual, investigative matters on the other.16
20
Nothing in the legislative history of Exemption 5 is contrary to such a construction. When the bill that ultimately became the Freedom of Information Act, S. 1160, was introduced in the 89th Congress, it contained an exemption that excluded:
21
'inter-agency or intra-agency memorandums or letters dealing solely with matters of law or policy.'17
22
This formulation was designed to permit '(a)ll factual material in Government records . . . to be made available to the public.' S.Rep.No.1219, 88th Cong., 2d Sess., 7 (1964). (Emphasis in original.) The formulation was severely criticized, however, on the ground that it would permit compelled disclosure of an otherwise private document simply because the document did not deal 'solely' with legal or policy matters. Documents dealing with mixed questions of fact, law, and policy would inevitably, under the proposed exemption, become available to the public.18 As a result of this criticism, Exemption 5 was changed to substantially its present form. But plainly the change cannot be read as suggesting that all factual material was to be rendered exempt from compelled disclosure. Congress sensibly discarded a wooden exemption that could have meant disclosure of manifestly private and confidential policy recommendations simply because the document containing them also happened to contain factual data. That decision should not be taken, however, to embrace an equally wooden exemption permitting the withholding of factual material otherwise available on discovery merely because it was placed in a memorandum with matters of law, policy, or opinion. It appears to us that Exemption 5 contemplates that the public's access to internal memoranda will be governed by the same flexible, common-sense approach that has long governed private parties' discovery of such documents involved in litigation with Government agencies. And, as noted, that approach extended and continues to extend to the discovery of purely factual material appearing in those documents in a form that is severable without compromising the private remainder of the documents.
23
Petitioners further argue that, although in camera inspection and disclosure of 'low-level, routine, factual reports'19 may be contemplated by Exemption 5, that type of document is not involved in this case. Rather, it is argued, the documents here were submitted directly to the President by top-level Government officials, involve matters of major significance, and contain, by their very nature, a blending of factual presentations and policy recommendations that are necessarily 'inextricably intertwined with policymaking processes.' 150 U.S.App.D.C., at 237, 464 F.2d, at 746. For these reasons, the petitioners object both to disclosure of any portions of the documents and to in camera inspection by the District Court.
24
To some extent, this argument was answered by the Court of Appeals, for its remand expressly directed the District Judge to disclose only such factual material that is not 'intertwined with policy-making processes' and that may safely be disclosed 'without impinging on the policymaking decisional processes intended to be protected by this exemption.' We have no reason to believe that, if petitioners' characterization of the documents is accurate, the District Judge would go beyond the limits of the remand and in any way compromise the confidentiality of deliberative information that is entitled to protection under Exemption 5.
25
We believe, however, that the remand now ordered by the Court of Appeals is unnecessarily rigid. The Freedom of Information Act may be invoked by any member of 'the public'—without a showing of need—to compel disclosure of confindential Government documents. The unmistakable implication of the decision below is that any member of the public invoking the Act may require that otherwise confidential documents be brought forward and placed before the District Court for in camera inspection—no matter how little, if any, purely factual material may actually be contained therein. Exemption 5 mandates no such result. As was said in Kaiser Aluminum & Chemical Corp., 157 F.Supp., at 947, 141 Ct.Cl., at 50: 'It seems . . . obvious that the very purpose of the privilege, the encouragement of open expression of opinion as to governmental policy is somewhat impaired by a requirement to submit the evidence even (in camera).' Plainly, in some situations, in camera inspection will be necessary and appropriate. But it need not be automatic. An agency should be given the opportunity, by means of detailed affidavits or oral testimony, to establish to the satisfaction of the District Court that the documents sought fall clearly beyond the range of material that would be available to a private party in litigation with the agency. The burden is, of course, on the agency resisting disclosure, 5 U.S.C. § 552(a)(3), and if it fails to meet its burden without in camera inspection, the District Court may order such inspection. But the agency may demonstrate, by surrounding circumstances, that particular documents are purely advisory and contain no separable, factual information. A representative document of those sought may be selected for in camera inspection. And, of course, the agency may itself disclose the factual portions of the contested documents and attempt to show, again by circumstances, that the excised portions constitute the barebones of protected matter. In short, in camera inspection of all documents is not a necessary or inevitable tool in every case. Others are available. Cf. United States v. Reynolds, 345 U.S. 1, 73 S.Ct. 528, 97 L.Ed. 727 (1953). In the present case, the petitioners proceeded on the theory that all of the nine documents were exempt from disclosure in their entirety under Exemption 5 by virtue of their use in the decisionmaking process. On remand, petitioners are entitled to attempt to demonstrate the propriety of withholding any documents, or portions thereof, by means short of submitting them for in camera inspection.
26
The judgment is reversed and the case is remanded for further proceedings consistent with this opinion.
27
It is so ordered.
28
Judgment reversed and case remanded.
29
Mr. Justice REHNQUIST took no part in the consideration or decision of this case.
30
Mr. Justice STEWART, concurring.
31
This case presents no constitutional claims, and no issues regarding the nature or scope of 'Executive Privilege.' It involves no effort to invoke judicial power to require any documents to be reclassified under the mandate of the new Executive Order 11652. The case before us involves only the meaning of two exemptive provisions of the so-called Freedom of Information Act, 5 U.S.C. § 552.
32
My Brother DOUGLAS says that the Court makes a 'shambles' of the announced purpose of that Act. But it is Congress, not the Court, that in § 552(b)(1) has ordained unquestioning deference to the Executive's use of the 'secret' stamp. As the opinion of the Court demonstrates, the language of the exemption, confirmed by its legislative history, plainly withholds from disclosure matters 'specifically required by Executive order to be kept secret in the interest of the national defense or foreign policy.' In short, once a federal court has determined that the Executive has imposed that requirement, it may go no further under the Act.
33
One would suppose that a nuclear test that engendered fierce controversy within the Executive Branch of our Government would be precisely the kind of event that should be opened to the fullest possible disclosure consistent with legitimate interests of national defense. Without such disclosure, factual information available to the concerned Executive agencies cannot be considered by the people or evaluated by the Congress. And with the people and their representatives reduced to a state of ignorance, the democratic process is paralyzed.
34
But the Court's opinion demonstrates that Congress has conspicuously failed to attack the problem that my Brother DOUGLAS discusses. Instead, it has built into the Freedom of Information Act an exemption that provides no means to question an Executive decision to stamp a document 'secret,' however cynical, myopic, or even corrupt that decision might have been.
35
The opinion of my Brother BRENNAN dissenting in part makes an admirably valiant effort to deflect the impact of this rigid exemption. His dissent focuses on the statutory requirement that 'the court shall determine the matter de novo . . ..' But the only 'matter' to be determined de novo under § 552(b) (1) is whether in fact the President has required by Executive Order that the documents in question are to be kept secret. Under the Act as written, that is the end of a court's inquiry.*
36
As the Court points out, 'Congress could certainly have provided that the Executive Branch adopt new procedures or it could have established its own procedures—subject only to whatever limitations the Executive privilege may be held to impose upon such congressional ordering.' But in enacting § 552(b)(1) Congress chose, instead, to decree blind acceptance of Executive fiat.
37
Mr. Justice BRENNAN, with whom Mr. Justice MARSHALL joins, concurring in part and dissenting in part.
38
The Court holds today that the Freedom of Information Act, 5 U.S.C. § 552, authorizes the District Court to make an in camera inspection of documents claimed to be exempt from public disclosure under Exemption 5 of the Act. In addition, the Court concludes that, as an exception to this rule, the Government may, in at least some instances, attempt to avoid in camera inspection through use of detailed affidavits or oral testimony. I concur in those aspects of the Court's opinion. In my view, however, those procedures should also govern matters for which Exemption 1 is claimed, and I therefore dissent from the Court's holding to the contrary. I find nothing whatever on the face of the statute or in its legislative history that distinguishes the two Exemptions in this respect, and the Court suggests none. Rather, I agree with my Brother DOUGLAS that the mandate of § 552(a)(3)—'the court shall determine the matter de novo and the burden is on the agency to sustain its action'—is the procedure that Congress prescribed for both Exemptions.
39
The Court holds that Exemption 1 immunizes from judicial scrutiny any document classified pursuant to Executive Order 10501, 3 CFR 280 (Jan. 1, 1970).1 In reaching this result, however, the Court adopts a construction of Exemption 1 that is flatly inconsistent with the legislative history and, indeed, the unambiguous language of the Act itself.2 In plain words, Exemption 1 exempts from disclosure only material 'specifically required by Executive order to be kept secret in the interest of the national defense or foreign policy.' (Emphasis added.) Executive Order 10501, however, which was promulgated 13 years before the passage of the Act, does not require that any specific documents be classified. Rather, the Executive Order simply delegates the right to classify to agency heads, who are empowered to classify information as Confidential, Secret, or Top Secret. Thus, the classification decision is left to the sole discretion of these agency heads. Moreover, in exercising this discretion, agency heads are not required to examine each document separately to determine the need for secrecy but, instead, may adopt blanket classifications, without regard to the content of any particular document. Thus, as §§ 3(b) and 3(c) of the Order make clear, matters for which there is no need for secrecy 'in the interest of the national defense or foreign policy' may be indiscriminately classified in conjunction with those matters for which there is a genuine need for secrecy:
40
3(b) 'Physically Connected Documents. The classification of a file or group of physically connected documents shall be at least as high as that of the most highly classified document therein. Documents separated from the file or group shall be handled in accordance with their individual defense classification.'
41
3(c) 'Multiple Classification. A document, product, or substance shall bear a classification at least as high as that of its highest classified component. The document, product, or substance shall bear only one over-all classification, notwithstanding that pages, paragraphs, sections, or components thereof bear different classifications.'
42
Even the petitioners concede,3 no doubt in response to the 'specifically required' standard of § 552(b)(1) and the 'specifically stated' requirement of § 552(c),4 that documents classified pursuant to § 3(b) of Executive Order 10501 cannot qualify under Exemption 1. Indeed, petitioners apparently accept the conclusion of the Court of Appeals that as to § 3(b):
43
'This court sees no basis for withholding on security grounds a document that, although separately unclassified, is regarded secret merely because it has been incorporated into a secret file. To the extent that our position in this respect is inconsistent with the above-quoted paragraph of Section 3 of Executive Order 10501, we deem it required by the terms and purpose of the (Freedom of Information Act), enacted subsequently to the Executive Order.' 150 U.S.App.D.C., at 236, 464 F.2d, at 745.
44
Nevertheless, petitioners maintain that information classified pursuant to § 3(c) of the Order is exempt from disclosure under Exemption 1. The Court of Appeals rejected that contention, and in my view, correctly. The Court of Appeals stated:
45
'The same reasoning applies to this provision as to the one dealing with physically-connected documents. Secrecy by association is not favored. If the non-secret components are separable from the secret remainder and may be read separately without distortion of meaning, they too should be disclosed.' 150 U.S.App.D.C., at 237, 464 F.2d, at 746.
46
Petitioners' argument, adopted by the Court, is that this construction of the Act imputes to Congress an intent to authorize judges independently to review the Executive's decision to classify documents in the interest of the national defense or foreign policy. That argument simply misconceives the holding of the Court of Appeals. Information classified pursuant to § 3(c), it must be emphasized, may receive the stamp of secrecy, not because such secrecy is necessary to promote 'the national defense or foreign policy,' but simply because it constitutes a part of such other information which genuinely merits secrecy. Thus, to rectify this situation, the Court of Appeals ordered only that the District Court in camera determine '(i)f the non-secret components are separable from the secret remainder and may be read separately without distortion of meaning . . ..' The determination whether any components are in fact 'non-secret' is left exclusively to the agency head representing the Executive Branch. The District Court is not authorized to declssify or to release information that the Executive, in its sound discretion, determines must be classified to 'be kept secret in the interest of the national defense or foreign policy.'5 The District Court's authority stops with the inquiry whether there are components of the documents that would not have been independently classified as secret. If the District Court finds, on in camera inspection, that there are such components, and that they can be read separately without distortion of meaning, the District Court may order their release. The District Court's authority to make that determination is unambiguously stated in § 552(a)(3): 'the (district) court shall determine the matter de novo and the burden is on the agency to sustain its action.' The Court's contrary holding is in flat defiance of that congressional mandate.6
47
Indeed, only the Court of Appeals' construction is consistent with the congressional plan in enacting the Freedom of Information Act. We have the word of both Houses of Congress that the de novo proceeding requirement was enacted expressly 'in order that the ultimate decision as to the propriety of the agency's action is made by the court and prevent it from becoming meaningless judicial sanctioning of agency discretion.' S.Rep.No. 813, 89th Cong., 1st Sess., 8 (1965) (hereinafter cited as S.Rep.No.813); H.R.Rep.No.1497, 89th Cong., 2d Sess., 9 (1966); U.S.Code Cong. & Admin.News 1966, p. 2418 (hereinafter cited as H.R.Rep.No.1497). What was granted, and purposely so, was a broad grant to the District Court of 'authority whenever it considers such action equitable and appropriate to enjoin the agency from withholding its records and to order the production of agency records improperly withheld.' H.R.Rep.No.1497, p. 9; U.S.Code Cong. & Admin. News 1966, p. 2426. And to underscore its meaning, Congress rejected the traditional rule of deference to administrative determinations by '(p)lacing the burden of proof upon the agency' to justify the withholding. S.Rep.No.813, p. 8; H.R.Rep.No.1497, p. 9. The Court's rejection of the Court of Appeals' construction is inexplicable in the face of this overwhelming evidence of the congressional design.
48
The Court's reliance on isolated references to Executive Order 10501 in the congressional proceedings is erroneous and misleading. The Court points to a single passing reference to the Order in the House Report, which even a superficial reading reveals to be merely suggestive of the kinds of information that the Executive Branch might classify. Nothing whatever in the Report even remotely implies that the Order was to be recognized as immunizing from public disclosure the entire file of documents merely because one or even a single paragraph of one has been stamped secret. The Court also calls to its support some comments out of context of Congressmen Moss and Gallagher on the House floor. But on their face, these comments do no more than confirm that Exemption 1 was written with awareness of the existence of Executive Order 10501. Certainly, whatever significance may be attached to debating points in construing a statute,7 these comments hardly support the Court's conclusion that a classification pursuant to Executive Order 10501, without more, immunizes an entire document from disclosure under Exemption 1.
49
Executive Order 10501 was promulgated more than a decade before the Freedom of Information Act was debated in Congress. Yet, no reference to the Order can be found in either the language of the Act or the Senate Report. Under these circumstances, it would seem odd, to say the least, to attribute to Congress an intent to incorporate 'without reference' Executive Order 10501 into Exemption 1. Indeed, petitioners' concession that 'physically connected documents,' classified under § 3(b) of the Order, are not immune from judicial inspection serves only to reinforce the conclusion that the mere fact of classification under § 3(c) cannot immunize the identical documents from judicial scrutiny.
50
The Court's rejection of the Court of Appeals' construction of Exemption 1 is particularly insupportable in light of the cogent confirmation of its soundness supplied by the Executive Branch itself. In direct response to the Act, Order 10501 has been revoked and replaced by Order 11652, which expressly requires classification of documents in the manner the Court of Appeals required the District Court to attempt in camera. The Order, which was issued on March 8, 1972, and became effective on June 1, 1972, 37 Fed.Reg. 5209 (Mar. 10, 1972), explicitly attributes its form to the Executive's desire to accommodate its procedures to the objectives of the Freedom of Information Act:
51
'The interests of the United States and its citizens are best served by making information regarding the affairs of Government readily available to the public. This concept of an informed citizenry is reflected in the Freedom of Information Act and in the current public information policies of the executive branch.'
52
Moreover, in his statement accompanying the promulgation of the new Order, the President stated: 'The Executive order I have signed today is based upon . . . a reexamination of the rationale underlying the Freedom of Information Act.' 8 Presidential Documents 542 (Mar. 13, 1972).
53
The new Order recites that 'some official information and material . . . bears directly on the effectiveness of our national defense and the conduct of our foreign relations' and that '(t)his official information or material, referred to as classified information or material in this order, is expressly exempted from public disclosure by Section 552(b)(1) of (the Freedom of Information Act).' (Emphasis added.) Thus, the Executive clearly recognized that Exemption 1 applies only to matter specifically classified 'in the interest of the national defense or foreign policy.' And in an effort to comply with the Act's mandate that genuinely secret matters be carefully separated from the nonsecret components, § 4(A) of the new Order provides:
54
'Documents in General. Each classified document shall . . . to the extent practicable, be so marked as to indicate which portions are classified, at what level, and which portions are not classified in order to facilitate excerpting and other use.'
55
The President emphasized this requirement in his statement:
56
'A major source of unnecessary classification under the old Executive order was the practical impossibility of discerning which portions of a classified document actually required classification. Incorporation of any material from a classified paper into another document usually resulted in the classification of the new document, and innocuous portions of neither paper could be released.' 8 Presidential Documents 544 (Mar. 13, 1972) (emphasis added).
57
It is of course true, as the Court observes, that the Order 'provides that the separating be done by the Executive, not the Judiciary . . ..' Ante, 85, n. 10. But that fact lends no support to a construction of Exemption 1 precluding judicial inspection to enforce the congressional purpose to effect release of nonsecret components separable from the secret remainder. Rather, the requirement of judicial inspection, made explicit in § 552(a)(3), is the keystone of the congressional plan, expressly deemed 'essential in order that the ultimate decision as to the propriety of the agency's action is made by the court (to) prevent it from becoming meaningless judicial sanctioning of agency discretion.' S.Rep.No.813, p. 8; H.R.Rep.No.1497, p. 9. It could not be more clear, therefore, that Congress sought to make certain that the ordinary principle of judicial deference to agency discretion was discarded under this Act. The Executive was not to be allowed 'to file an affidavit stating (the) conclusion (that documents are exempt) and by so doing foreclose any other determination of the fact.' Cowles Communications v. Department of Justice, 325 F.Supp. 726, 727 (ND Cal. 1971). Accord, Frankel v. SEC, 336 F.Supp. 675, 677 n. 4 (SDNY 1971), rev'd on other grounds, 460 F.2d 813 (CA2 1972); Philadelphia Newspapers, Inc. v. HUD, 343 F.Supp. 1176, 1180 (ED Pa. 1972).8
58
The Court's interpretation of Exemption 1 as a complete bar to judicial inspection of matters claimed by the Executive to fall within it wholly frustrates the objective of the Freedom of Information Act. That interpretation makes a nullity of the Act's requirement of de novo judicial review. The judicial role becomes 'meaningless judicial sanctioning of agency discretion,' S.Rep.No.813, p. 8; H.R.Rep.No.1497, p. 9, the very result Congress sought to prevent by incorporating the de novo requirement.
59
Mr. Justice DOUGLAS, dissenting.
60
The starting point of a decision usually indicates the result. My starting point is what I believe to be the philosophy of Congress expressed in the Freedom of Information Act, 5 U.S.C. § 552.
61
Henry Steels Commager, our noted historian, recently wrote:
62
'The generation that made the nation thought secrecy in government one of the instruments of Old World tyranny and committed itself to the principle that a democracy cannot function unless the people are permitted to know what their government is up to. Now almost everything that the Pentagon and the CIA do is shrouded in secrecy. Not only are the American people not permitted to know what they are up to but even the Congress and, one suspects, the President (witness the 'unauthorized' bombing of the North last fall and winter) are kept in darkness.' The New York Review of Books, Oct. 5, 1972, p. 7.
63
Two days after we granted certiorari in the case on March 6, 1972, the President revoked the old Executive Order 10501 and substituted a new one, Executive Order 11652, dated March 8, 1972, and effective June 1, 1972. The new Order states in its first paragraph that: 'The interests of the United States and its citizens are best served by making information regarding the affairs of Government readily available to the public. This concept of an informed citizenry is reflected in the Freedom of Information Act and in the current public information policies of the Executive branch.'
64
While 'classified information or material' as used in the Order is exempted from public disclosure, § 4 of the Order states that each classified document shall 'to the extent practicable, be so marked as to indicate which portions are classified, at what level, and which portions are not classified in order to facilitate excerpting and other use.' § 4(A). And it goes on to say: 'Material containing references to classified materials, which references do not reveal classified information, shall not be classified. Ibid.
65
The Freedom of Information Act does not clash with the Executive Order. Indeed, the new Executive Order precisely meshes with the Act and with the construction given it by the Court of Appeals. Section 552(a)(3) of the Act gives the District Court 'jurisdiction to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant.' Section 552(a)(3) goes on to prescribe the procedure to be employed by the District Court. It says 'the court shall determine the matter de novo and the burden is on the agency to sustain its action.'
66
The Act and the Executive Order read together mean at the very minimum that the District Court has power to direct the agency in question to go through the suppressed document and make the portion-by-portion classification to facilitate the excerpting as required by the Executive Order. Section 552(a) (3) means also that the District Court may in its discretion collaborate with the agency to make certain that the congressional policy of disclosure is effectuated.
67
The Court of Appeals, in an exceedingly responsible opinion, directed the District Court to proceed as follows:
68
(1) where material is separately unclassified but nonetheless under the umbrella of a 'secret' file, the District Court should make sure that it is disclosed under the Act. This seems clear from § 552(b) which states: 'This section does not apply to matters that are—(1) specifically required by Executive Order to be kept secret in the interest of the national defense or foreign policy.' Unless the unclassified appendage to a 'secret' file falls under some other exception in § 552(b) it seems clear that it must be disclosed. The only other exception under which refuge is now sought is subsection (b)(5) which reads that the section does not apply to 'inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency.'
69
This exemption was described in the House Report as covering 'any internal memorandums which would routinely be disclosed to a private party through the discovery process in litigation with the agency.' H.R.Rep.No.1497, 89th Cong., 2d Sess., 10; U.S.Code Cong. & Admin.News 1966, p. 2428. It is clear from the legislative history that while opinions and staff advice are exempt, factual matters are not. Ibid.; S.Rep.No.813, 89th Cong., 1st Sess., 9. And the courts have uniformly agreed on that construction of the Act. See Soucie v. David, 145 U.S.App.D.C. 144, 448 F.2d 1067; Grumman Aircraft Eng. Corp. v. Renegotiation Bd., 138 U.S. App.D.C. 147, 425 F.2d 578; Long Island R. Co. v. United States, 318 F.Supp. 490; Consumers Union v. Veterans Admin., 301 F.Supp. 796.
70
Facts and opinions may, as the Court of Appeals noted, be 'inextricably intertwined with policymaking processes' in some cases. In such an event, secrecy prevails. Yet, where facts and opinions can be separated, the Act allows the full light of publicity to be placed on the facts.
71
Section 552(c) seems to seal the case against the Government when its says: 'This section does not authorize withholding of information or limit the availability of records to the public, except as specifically stated in this section.' Disclosure, rather than secrecy, is the rule, save for the specific exceptions in subsection (b).
72
The Government seeks to escape from the Act by making the Government stamp of 'Top Secret' or 'Secret' a barrier to the performance of the District Court's functions under § 552(a)(3) of the Act. The majority makes the stamp sacrosanct, thereby immunizing stamped documents from judicial scrutiny, whether or not factual information contained in the document is in fact colorably related to interests of the national defense or foreign policy. Yet, anyone who has ever been in the Executive Branch knows how convenient the 'Top Secret' or 'Secret' stamp is, how easy it is to use, and how it covers perhaps for decades the footprints of a nervous bureaucrat or a wary executive.
73
I repeat what I said in Gravel v. United States, 408 U.S. 606, 641—642, 92 S.Ct. 2614, 2633, 2634, 33 L.Ed.2d 583 (dissenting opinion):
74
'(A)s has been revealed by such expose § as the Pentagon Papers, the My Lai massacres, the Gulf of Tonkin 'incident,' and the Bay of Pigs invasion, the Government usually suppresses damaging news but highlights favorable news. In this filtering process the secrecy stamp is the officials' tool of suppression and it has been used to withhold information which in '99 1/2%' of the cases would present no danger to national security. To refuse to publish 'classified' reports would at times relegate a publisher to distributing only the press releases of Government or remaining silent; if it printed only the press releases or 'leaks' it would become an arm of officialdom, not its critic. Rather, in my view, when a publisher obtains a classified document he should be free to print it without fear of retribution, unless it contains material directly bearing on future, sensitive planning of the Government.'
75
The Government is aghast at a federal judge's even looking at the secret files and views with disdain the prospect of responsible judicial action in the area. It suggests that judges have no business declassifying 'secrets,' that judges are not familiar with the stuff with which these 'Top Secret' or 'Secret' documents deal.
76
This is to misconceive and distort the judicial function under § 552(a)(3) of the Act. The Court of Appeals never dreamed that the trial judge would declassify documents. His first task would be to determine whether nonsecret material was a mere appendage to a 'Secret' or 'Top Secret' file. His second task would be to determine whether under normal discovery procedures contained in Fed.Rule Civ.Proc. 26, factual material in these 'Secret' or 'Top Secret' materials is detached from the 'Secret' and would therefore, be available to litigants confronting the agency in ordinary lawsuits.
77
Unless the District Court can do those things, the much-advertised Freedom of Information Act is on its way to becoming a shambles.1 Unless federal courts can be trusted, the Executive will hold complete sway and by ipse dixit make even the time of day 'Top Secret.' Certainly, the decision today will upset the 'workable formula,' at the heart of the legislative scheme, 'which encompasses, balances, and protects all interests, yet places emphasis on the fullest responsible disclosure.' S.Rep.No.813, p. 3. The Executive Branch now has carte blanche to insulate information from public scrutiny whether or not that information bears any discernible relation to the interests sought to be protected by subsection (b)(1) of the Act. We should remember the words of Madison:
78
'A popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or, perhaps both. Knowledge will forever govern ignorance: And a people who mean to be their own Governors must arm themselves with the power which knowledge gives.'2 I would affirm the judgment below.
APPENDIX TO OPINION OF DOUGLAS, J., DISSENTING
79
Sections 552(b) and (c) of the Freedom of Information Act read as follows:
80
(b) This section does not apply to matters that are—
81
(1) specifically required by Executive order to be kept secret in the interest of the national defense or foreign policy;
82
(2) related solely to the internal personnel rules and practices of an agency;
83
(3) specifically exempted from disclosure by statute;
84
(4) trade secrets and commercial or financial information obtained from a person and privileged or confidential;
85
(5) inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency;
86
(6) personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy;
87
(7) investigatory files compiled for law enforcement purposes except to the extent available by law to a party other than an agency;
88
(8) contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions; or (9) geological and geophysical information and data, including maps, concerning wells.
89
(c) This section does not authorize withholding of information or limit the availability of records to the public, except as specifically stated in this section. This section is not authority to withhold information from Congress.
1
A separate action was brought to enjoin the test itself. Committee for Nuclear Responsibility v. Seaborg (D.C., Civ. Action No. 1346—71). After adverse decisions below, plaintiffs in that case applied for an injunction in this Court. On November 6, 1971, we denied the application, Committee for Nuclear Responsibility, Inc. v. Schlesinger, 404 U.S. 917, 92 S.Ct. 242, 30 L.Ed.2d 191 and the test was conducted that same day.
It should be noted that in the District Court respondents stated that they 'have exhausted their administrative remedies (and) . . . have complied with all applicable regulations.' Petitioners did not contest those assertions.
2
Petitioners also moved for dismissal of the suit insofar as respondents sought disclosure of the documents in their official capacities as Members of Congress. The District Court granted this motion, but the Court of Appeals did not reach the issue. Accordingly, the issue is not before this Court.
3
According to the Irwin affidavit, the report contained the following documents:
A. A covering memorandum from Mr. Irwin to the President, dated July 17, 1971. This memorandum is classified Top Secret pursuant to Executive Order 10501.
B. The Report of the Under Secretaries Committee. This report was also classified Top Secret. Attached to the report were additional documents:
1. A letter, classified Secret, from the Chairman of the Atomic Energy Commission (AEC) to Mr. Irwin.
2. A report, classified Top Secret, from the Defense Program Review Committee, of which Dr. Henry Kissinger was the Chairman.
3. The Environmental Impact Statement on the proposed Cannikin test, prepared by the AEC in 1971, pursuant to § 102(c) of the National Environmental Policy Act of 1969, 83 Stat. 853, 42 U.S.C. § 4332(C). This document had always been 'publicly available' and a copy was attached to the Irwin affidavit.
4. A transcript of an oral briefing given by the AEC to the Committee. This document was classified Secret.
5. A memorandum from the Council on Environment Quality to Mr. Irwin. This memorandum was separately unclassified.
C. In addition to the covering memorandum and the Committee's report (with attached documents), were three letters that had been transmitted to Mr. Irwin:
1. A letter from Mr. William Ruckelshaus, for the Environmental Protection Agency. This letter was classified Top Secret, but has now been declassified.
2. A letter from Mr. Russell Train, for the Council on Environmental Quality. Although the Irwin affidavit states that this letter was classified Top Secret, petitioners concede that it was so classified 'only because it was to be attached to the Undersecretary's Report.' Brief for Petitioners 6 n. 5.
3. A letter of Dr. Edward E. David, Jr., for the Office of Science and Technology. This letter is classified Top Secret.
4
These eight documents were also described as having been classified as 'Restricted Data . . . pursuant to the Atomic Energy Act of 1954, as amended. (42 U.S.C. (§§ 2014(y)), 2161 and 2162.)' Petitioners have not asserted that these provisions, standing alone, would justify withholding the documents in this case. But see 5 U.S.C. § 552(b)(3), relating to matters 'specifically exempted from disclosure by statute.'
5
The Act was passed in 1966, 80 Stat. 383, and codified in its present form in 1967. 81 Stat. 54.
6
The Report states (ibid.):
'It is the purpose of the present bill . . . to establish a general philosophy of full agency disclosure unless information is exempted under clearly delineated statutory language . . ..
'At the same time that a broad philosophy of 'freedom of information' is enacted into law, it is necessary to protect certain equally important rights of privacy with respect to certain information in Government files, such as medical and personnel records. It is also necessary for the very operation of our Government to allow it to keep confidential certain material, such as the investigatory files of the Federal Bureau of Investigation.
'It is not an easy task to balance the opposing interests, but it is not an impossible one either. It is not necessary to conclude that to protect one of the interests, the other must, of necessity, either be abrogated or substantially subordinated. Success lies in providing a workable formula which encompasses, balances, and protects all interests, yet places emphasis on the fullest responsible disclosure.'
See also H.R.Rep.No.1497, p. 6.
7
Executive Order 10501 has been superseded, as of June 1, 1972, by Executive Order 11652, 37 Fed.Reg. 5209, which similarly provides for the classification of material 'in the interest of the national defense or foreign relations.'
Portions of two documents for which Exemption 1 is claimed were ordered disclosed in connection with the action brought to enjoin the test (see n. 1, supra). Petitioners seek no relief with respect to any matters already disclosed.
8
The House Report, it is true, indicates that the President must determine that the exempted matter be kept secret. Clearly, however, Executive Order 10501 is based on presidential authority and specifically delegates that authority to 'the departments, agencies, and other units of the executive branch as hereinafter specified.' 3 CFR § 281. (Jan. 1, 1970) (emphasis added). One may disagree with the scope of the delegation or with how the delegated authority is exercised in particular cases, but the authority itself nevertheless remains the President's and it is his judgment that the first exemption was designed to respect.
9
Brief for Respondents 18. Respondents note that the preamble of the new Executive Order 11652 (see n. 7, supra), specifies that material classified pursuant to its provisions 'is expressly exempted from public disclosure by Section 552(b)(1) of Title 5, United States Code.' Executive Order 10501 has no comparable recital, but only the sheerest ritualism would distinguish the effect of the two orders on any such basis. Indeed, respondents' apparent acceptance of the new order as a justifiable ground for resisting disclosure under Exemption 1 points to the absurdity of maintaining that Executive Order 10501 is irrelevant to the Act.
10
This conclusion is not undermined by the new Executive Order 11652, which calls for the separation of documents into classified and unclassified portions, where practicable. 37 Fed.Reg. 5212. On the contrary, that new order provides that the separating be done by the Executive, not the Judiciary, and, like its predecessor, permits declassification of material only in accordance with its procedures. More importantly, the very existence of the new order demonstrates that the Executive exercises a continuing responsibility for determining the need for secrecy in matters that affect national defense and foreign policy. Exemption 1 recognizes that responsibility by leaving to the Executive, under such orders as shall be developed, the decision of what may be disclosed and what must be kept secret.
11
Title 5 U.S.C. § 552 reads in part as follows:
'(a) Each agency shall make available to the public information as follows:
'(b) This section does not apply to matters that are—
'(5) inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency.'
The three documents are: the CEQ memorandum to Mr. Irwin, the Train letter, and the Ruckelshaus letter, which has now been declassified.
12
See generally 4 J. Moore, Federal Practice 26.61 (1972) and authorities collected (id., at 26.61(1) n. 2) (hereinafter Moore); 8 J. Wigmore, Evidence §§ 2378, 2379 (McNaughton rev. 1961) (hereinafter Wigmore).
There were early disputes over the issue of Executive privilege. See Chief Justice Marshall's decisions in the trial of United States v. Burr, 25 Fed.Cas. 30 (No. 14,692d) and 25 Fed.Cas. 187, 191—192 (No. 14,694) (CCD Va.1807), discussed in 8 Wigmore § 2371, pp. 739—741 741 (3d ed. 1940) and 4 Moore 26.61(6. 4). See also Wigmore § 2378, p. 805 and n. 21.
13
Different rules have been held to apply in each situation. See, e.g., United States v. Andolschek, 142 F.2d 503, 506 (CA2 1944) (L. Hand, J.) (United States as prosecutor); Bank Line, Ltd. v. United States, 76 F.Supp. 801 (SDNY 1948) (United States as defendant). Moreover, in actions under the Freedom of Information Act, courts are not given the option to impose alternative sanctions—short of compelled disclosure—such as striking a particular defense or dismissing the Government's action.
14
See, e.g., Machin v. Zuckert, 114 U.S.App.D.C. 335, 316 F.2d 336, cert. denied, 375 U.S. 896, 84 S.Ct. 192, 11 L.Ed.2d 124 (1963) (Air Force Aircraft Accident Investigation Report); Boeing Airplane Co. v. Coggeshall, 108 U.S.App.D.C. 106, 112—113, 280 F.2d 654, 660—661 (1960) (Renegotiation Board documents); Olson Rug Co. v. NLRB, 291 F.2d 655, 662 (CA7 1961) (no claim that NLRB documents are 'exclusively policy recommendations'); Carl Zeiss Stiftung v. V. E. B. Carl Zeiss, Jena, 40 F.R.D. 318, 327 (DC 1966), aff'd 128 U.S.App.D.C. 10, 384 F.2d 979, cert. denied, 389 U.S. 952, 88 S.Ct. 334, 19 L.Ed.2d 361 (1967) (discovery denied because documents 'wholly of opinions, recommendations and deliberations'); McFadden v. Avco Corp., 278 F.Supp. 57, 59—60 (MD Ala.1967), and cases cited therein.
In United States v. Cotton Valley Operators Comm., 9 F.R.D. 719, 720 (WD La.1949), aff'd by equally divided court, 339 U.S. 940, 70 S.Ct. 793, 94 L.Ed. 1356 (1950), the United States offered to file 'an abstract of factual information' contained in the contested documents (FBI reports).
15
See, eg., Machin v. Zuckert, supra, 114 U.S.App.D.C., at 340, 316 F.2d, at 341 (private tort action; discovery of Air Force Aircraft Accident Investigation Report); Boeing Airplane Co. v. Coggeshall, supra, 108 U.S.App.D.C., at 114, 280 F.2d, at 662 (excess profits tax redetermination); Olson Rug Co. v. NLRB, supra, 291 F.2d, at 662 (discovery for use in defense against contempt proceedings); O'Keefe v. Boeing Co., 38 F.R.D. 329, 336 (SDNY 1965) (private tort action; Air Force Investigation Reports); Rosee v. Board of Trade, 36 F.R.D. 684, 687—688 (ND Ill.1965); United States v. Cotton Valley Operators Comm., supra (civil antitrust suit). Cf. United States v. Procter & Gamble Co., 25 F.R.D. 485, 492 (NJ 1960) (criminal antitrust prosecution). See Wigmore § 2379, id., p. 812.
In Kaiser Aluminum & Chemical Corp. v. United States, 157 F.Supp. 939, 141 Ct.Cl. 38 (1958), where in camera inspection of a document was refused because of plaintiff's failure to make a definite showing of necessity, id., at 947, 141 Ct.Cl., at 50, the 'objective facts' contained in the disputed document were 'otherwise available.' Id., at 946, 141 Ct.Cl., at 48—49.
16
See, e.g., Soucie v. David, 145 U.S.App.D.C. 144, 448 F.2d 1067 (1971); Grumman Aircraft Eng. Corp. v. Renegotiation Bd., 138 U.S.App.D.C. 147, 151, 425 F.2d 578, 582 (1970); Bristol-Myers Co. v. FTC, 138 U.S.App.D.C. 22, 424 F.2d 935 (1970); International Paper Co. v. FPC, 438 F.2d 1349, 1358—1359 (CA2), cert. denied, 404 U.S. 827, 92 S.Ct. 61, 30 L.Ed.2d 56 (1971); General Services Admin. v. Benson, 415 F.2d 878 (CA9 1969), aff'g 289 F.Supp. 590 (WD Wash.1969); Long Island R. Co. v. United States, 318 F.Supp. 490, 499 n. 9 (EDNY 1970) Consumers Union v. Veterans Admin., 301 F.Supp. 796 (SDNY 1969), appeal dismissed as moot, 436 F.2d 1363 (CA2 1971); Olsen v. Camp, 328 F.Supp. 728, 731 (ED Mich.1970); Reliable Transfer Co. v. United States, 53 F.R.D. 24 (EDNY 1971).
The proposed Federal Rules of Evidence appear to recognize this construction of Exemption 5. Proposed Rule 509(a)(2)(A) defines 'official information' to include 'intragovernmental opinions or recommendations submitted for consideration in the performance of decisional or policy-making functions.' Rule 509(c) further provides that '(i)n the case of privilege claimed for official information the court may require examination in camera of the information itself.'
17
Hearings on S. 1160, S. 1336, S. 1758, and S. 1879 before the Subcommittee on Administrative Practice and Procedure of the Senate Committee on the Judiciary, 89th Cong., 1st Sess., 7 (1965) (hereinafter 1965 Senate Hearings). This exemption itself had been broadened during its course through the Senate in the 88th Congress. The exemption originally applied only to internal memoranda 'relating to the consideration and disposition of adjudicatory and rulemaking matters.' Section 3(c) of S. 1666, 88th Cong., 2d Sess. (1964), introduced in 110 Cong.Rec. 17086. That early formulation came under attack for not sufficiently protecting material dealing with general policy matters not directly related to adjudication or rulemaking. See Hearings on S. 1666 and S. 1663 before the Subcommittee on Administrative Practice and Procedure of the Senate Committee on the Judiciary, 88th Cong., 1st Sess., 202—203, 247 (1963).
18
See 1965 Senate Hearings 36, 94—95, 112—113, 205, 236 237, 244, 366—367, 382—383, 402—403, 406—407, 417, 437, 445—446, 450, 490. See 1965 House Hearings 27—28, 49, 208, 220, 223—224, 229—230, 245—246, 255—257. Examples of these many statements are:
Federal Aviation Administration (1965 Senate Hearings 446):
'Few records would be entirely devoid of factual data, thus leaving papers on law and policy relatively unprotected. Staff working papers and reports prepared for use within the agency of the executive branch would not be protected by the proposed exemptions.' Department of Commerce (1965 Senate Hearings, p. 406):
'Under this provision, internal memorandums dealing with mixed questions of fact, law and policy could well become public information.' (Emphasis in original.)
19
Tr. of Oral Arg. 23.
*
Similarly rigid is § 552(b)(3), which forbids disclosure of materials that are 'specifically exempted from disclosure by statute.' Here, too, the only 'matter' to be determined in a district court's de novo inquiry is the factual existence of such a statute, regardless of how unwise, self-protective, or inadvertent the enactment might be.
1
Executive Order 10501 was revoked on March 8, 1972, and replaced with Executive Order 11652, 37 Fed.Reg. 5209, which became effective June 1, 1972.
2
'The policy of the Act requires that the . . . exemptions (be construed narrowly).' Soucie v. David, 145 U.S.App.D.C. 144, 157, 448 F.2d 1067, 1080 (1971). 'A broad construction of the exemptions would be contrary to the express language of the Act.' Wellford v. Hardin, 444 F.2d 21, 25 (CA4 1971).
3
Petition for Cert. 9 n. 4.
4
Section 552(c) provides:
'This section does not authorize withholding of information or limit the availability of records to the public, except as specifically stated in this section. This section is not authority to withhold information from Congress.'
The accompanying Senate Report emphasizes that § 552(c) places a heavy burden on the Government to justify non-disclosure:
'The purpose of (§ 552(c)) is to make it clear beyond doubt that all materials of the Government are to be made available to the public by publication or otherwise unless explicitly allowed to be kept secret by one of the exemptions in (§ 552(b)).' S.Rep.No.813, 89th Cong., 1st Sess., 10 (1965) (emphasis added).
A commentator cogently argues that the 'pull of the word 'specifically' (in § 552(c)) is toward emphasis on (the) statutory language' of the nine stated exemptions. The 'specifically stated' clause in § 552(c), he notes, 'is often relevant in determining the proper interpretation of particular exemptions.' K. Davis, Administrative Law § 3A.15, p. 142 (Supp. 1970). See also Davis, The Information Act: A Preliminary Analysis, 34 U.Chi.L.Rev. 761 (1967).
For a detailed study of the Freedom of Information Act and its background, see Note, Comments on Proposed Amendments to Section 3 of the Administrative Procedure Act: The Freedom of Information Bill, 40 Notre Dame Law. 417 (1965).
5
See Developments in the Law—The National Security Interest and Civil Liberties, 85 Harv.L.Rev. 1130, 1224—1225 (1972).
6
'(G)iven the requirement that a file or document is generally classified at the highest level of classification of any information enclosed, it will often be the case that a classified file will contain information that could be released separately to the public. Because it is not 'specifically required by Executive order to be kept secret,' such information is not privileged under the Information Act. To ensure that an overall classification is not being used to protect unprivileged papers, a reviewing court should inspect the documents sought by a litigant.' Developments in the Law, supra, n. 5, at 1223.
7
See Schwegmann Bros. v. Calvert Distillers Corp., 341 U.S. 384, 395, 397, 71 S.Ct. 745, 751, 752, 95 L.Ed. 1035 (1951) (Jackson, J., concurring) (Frankfurter, J., dissenting).
8
In support of their claim that Executive Order 10501 automatically and without judicial review activates the exemption of § 52(b)(1), petitioners rely upon Epstein v. Resor, 421 F.2d 930 (CA9 1970). Rather, Epstein confirms the Court of Appeals' interpretation of the Act. The Epstein court refused a request to review in camera documents classified pursuant to Executive Order 10501, but only because the Government, at the plaintiff's request, had begun a current review of the documents on 'a paper-by-paper basis.' Moreover, in response to the argument that petitioners advance here—namely, that the mere classification of a document precludes judicial review—Epstein states:
'(I)n view of the legislative purpose to make it easier for private citizens to secure Government information, it seems most unlikely that (the Act) was intended to foreclose an (a)(3) judicial review of the circumstances of exemption. Rather it would seem that (subsection) (b) was intended to specify the basis for withholding under (a)(3) and that judicial review de novo with the burden of proof on the agency should be had as to whether the conditions of exemption in truth exist.' 421 F.2d, at 932—933.
1
My Brother STEWART, with all deference, helps make a shampbles of the Act by reading § 552(b)(1) as swallowing all the other eight exceptions. While § 552(b)(1) exempts matters 'specifically required by Executive order to be kept secret in the interest of
the national defense or foreign policy,' § 4 of Executive Order 11652 as I have noted, contemplates that not all portions of a document classified as 'secret' are necessarily 'secret,' for the order contemplates 'excerpting' of some material. Refereeing what may properly be excerpted is part of the judicial task. This is made obvious by § 552(b)(5), which keeps secret 'interagency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency.' The bureaucrat who uses the 'secret' stamp obviously does not have the final say as to what 'memorandums or letters' would be available by law under Exemption 5, for § 552(a)(3) gives the District Court authority, where agency records are alleged to be 'improperly withheld,' to 'determine the matter de novo,' the 'burden' being on the agency 'to sustain its action.' Hence, § 552(b)(5), behind which the executive agency seeks refuge here, establishes a policy which is served by the fact/opinion distinction long established in federal discovery. The question is whether a private party would routinely be entitled to disclosure through discovery of some or all of the material sought to be excerpted. When the Court answers that no such inquiry can be made under § 552(b)(1), it makes a shambles of the disclosure mechanism which Congress tried to create. To make obvious the interplay of the nine exemptions listed in § 552(b), as well as § 552(c), I have attached them as an Appendix to this dissent.
2
Letter to W. T. Barry, Aug. 4, 1822, 9 The Writings of James Madison 103 (Hunt ed. 1910).
| 45
|
410 U.S. 224
93 S.Ct. 810
35 L.Ed.2d 223
UNITED STATES et al., Appellants,v.FLORIDA EAST COAST RAILWAY COMPANY et al.
No. 70—279.
Argued Dec. 7, 1972.
Decided Jan. 22, 1973.
Samuel Huntington, Washington, D.C., for appellants.
A. Alvis Layne, Washington, D.C., for appellee Florida East Coast Railway Co.
Richard A. Hollander, Richmond, Va., for appellee Seaboard Coast Line Railroad Co.
Mr. Justice REHNQUIST delivered the opinion of the Court.
1
Appellees, two railroad companies, brought this action in the District Court for the Middle District of Florida to set aside the incentive per diem rates established by appellant Interstate Commerce Commission in a rule-making proceeding. Incentive Per Diem Charges—1968, Ex parte No. 252 (Sub.-No. 1), 337 I.C.C. 217 (1970). They challenged the order of the Commission on both substantive and procedural grounds. The District Court sustained appellees' position that the Commission had failed to comply with the applicable provisions of the Administrative Procedure Act, 5 U.S.C. § 551 et seq., and therefore set aside the order without dealing with the railroads' other contentions. The District Court held that the language of § 1(14)(a)1 of the Interstate Commerce Act, 24 Stat. 379, as amended, 49 U.S.C. § 1(14)(a), required the Commission in a proceeding such as this to act in accordance with the Administrative Procedure Act, 5 U.S.C. § 556(d), and that the Commission's determination to receive submissions from the appellees only in written form was a violation of that section because the respondents were 'prejudiced' by that determination within the meaning of that section.
2
Following our decision last Term in United States v. Allegheny-Ludlum Steel Corp., 406 U.S. 742, 92 S.Ct. 1941, 32 L.Ed.2d 453 (1972), we noted probable jurisdiction, 407 U.S. 908, 92 S.Ct. 2431, 32 L.Ed.2d 682 (1972), and requested the parties to brief the question of whether the Commission's proceeding was governed by 5 U.S.C. § 553,2 or by 5563 and 557,4 of the Administrative Procedure Act. We here decide that the Commission's proceeding was governed only by § 553 of that Act, and that appellees received the 'hearing' required by § 1(14)(a) of the Interstate Commerce Act. We, therefore, reverse the judgment of the District Court and remand the case to that court for further consideration of appellees' other contentions that were raised there, but which we do not decide.
3
I. BACKGROUND OF CHRONIC FREIGHT CAR SHORTAGES
4
This case arises from the factual background of a chronic freight-car shortage on the Nation's railroads, which we described in United States v. Allegheny-Ludlum Steel Corp., supra. Judge Simpson, writing for the District Court in this case, noted that '(f)or a number of years portions of the nation have been plagued with seasonal shortages of freight cars in which to ship goods.' 322 F.Supp. 725, 726 (MD Fla.1971). Judge Friendly, writing for a three-judge District Court in the Eastern District of New York in the related case of Long Island R. Co. v. United States, 318 F.Supp. 490, 491 (EDNY 1970), described the Commission's order as 'the latest chapter in a long history of freight-car shortages in certain regions and seasons and of attempts to ease them.' Congressional concern for the problem was manifested in the enactment in 1966 of an amendment to § 1(14)(a) of the Interstate Commerce Act, enlarging the Commission's authority to prescribe per diem charges for the use by one railroad of freight cars owned by another. Pub.L. 89—430, 80 Stat. 168. The Senate Committee on Commerce stated in its report accompanying this legislation:
5
'Car shortages, which once were confined to the Midwest during harvest seasons, have become increasingly more frequent, more severe, and nationwide in scope as the national freight car supply has plummeted.' S.Rep.No.386, 89th Cong., 1st Sess., 1—2.
6
The Commission in 1966 commenced an investigation, Ex parte No. 252, Incentive Per Diem Charges, 'to determine whether information presently available warranted the establishment of an incentive element increase, on an interim basis, to apply pending further study and investigation.' 332 I.C.C. 11, 12 (1967). Statements of position were received from the Commission staff and a number of railroads. Hearings were conducted at which witnesses were examined. In October 1967, the Commission rendered a decision discontinuing the earlier proceeding, but announcing a program of further investigation into the general subject.
7
In December 1967, the Commission initiated the rulemaking procedure giving rise to the order that appellees here challenge. It directed Class I and Class II line-haul railroads to compile and report detailed information with respect to freight-car demand and supply at numerous sample stations for selected days of the week during 12 four-week periods, beginning January 29, 1968.
8
Some of the affected railroads voiced questions about the proposed study or requested modification in the study procedures outlined by the Commission in its notice of proposed rulemaking. In response to petitions setting forth these carriers' views, the Commission staff held an informal conference in April 1968, at which the objections and proposed modifications were discussed. Twenty railroads, including appellee Seaboard, were represented at this conference, at which the Commission's staff sought to answer questions about reporting methods to accommodate individual circumstances of particular railroads. The conference adjourned on a note that undoubtedly left the impression that hearings would be held at some future date. A detailed report of the conference was sent to all parties to the proceeding before the Commission.
9
The results of the information thus collected were analyzed and presented to Congress by the Commission during a hearing before the Subcommittee on Surface Transportation of the Senate Committee on Commerce in May 1969. Members of the Subcommittee expressed dissatisfaction with the Commission's slow pace in exercising the authority that had been conferred upon it by the 1966 Amendments to the Interstate Commerce Act. Judge Simpson in his opinion for the District Court said:
10
'Members of the Senate Subcommittee on Surface Transportation expressed considerable dissatisfaction with the Commission's apparent inability to take effective steps toward eliminating the national shortage of freight cars. Comments were general that the Commission was conducting too many hearings and taking too little action. Senators pressed for more action and less talk, but Commission counsel expressed doubt respecting the Commission's statutory power to act without additional hearings.' 322 F.Supp., at 727.
11
Judge Friendly, describing the same event in Long Island R. Co. v. United States, supra, said:
12
'To say that the presentation was not received with enthusiasm would be a considerable understatement. Senators voiced displeasure at the Commission's long delay at taking action under the 1966 amendment, engaged in some merriment over what was regarded as an unintelligible discussion of methodology . . . and expressed doubt about the need for a hearing . . .. But the Commission's general counsel insisted that a hearing was needed . .. and the Chairman of the Commission agreed . . ..' 318 F.Supp., at 494.
13
The Commission, now apparently imbued with a new sense of mission, issued in December 1969 an interim report announcing its tentative decision to adopt incentive per diem charges on standard boxcars based on the information compiled by the railroads. The substantive decision reached by the Commission was that so-called 'incentive' per diem charges should be paid by any railroad using on its lines a standard boxcar owned by another railroad. Before the enactment of the 1966 amendment to the Interstate Commerce Act, it was generally thought that the Commission's authority to fix per diem payments for freight car use was limited to setting an amount that reflected fair return on investment for the owning railroad, without any regard being had for the desirability of prompt return to the owning line or for the encouragement of additional purchases of freight cars by the railroads as a method of investing capital. The Commission concluded, however, that in view of the 1966 amendment it could impose additional 'incentive' per diem charges to spur prompt return of existing cars and to make acquisition of new cars financially attractive to the railroads. It did so by means of a proposed schedule that established such charges on an across-the-board basis for all common carriers by railroads subject to the Interstate Commerce Act. Embodied in the report was a proposed rule adopting the Commission's tentative conclusions and a notice to the railroads to file statements of position within 60 days, couched in the following language:
14
'That verified statements of facts, briefs, and statements of position respecting the tentative conclusions reached in the said interim report, the rules and regulations proposed in the appendix to this order, and any other pertinent matter, are hereby invited to be submitted pursuant to the filing schedule set forth below by an interested person whether or not such person is already a party to this proceeding.
15
'That any party requesting oral hearing shall set forth with specificity the need therefor and the evidence to be adduced.' 337 I.C.C. 183, 213.
16
Both appellee railroads filed statements objecting to the Commission's proposal and requesting an oral hearing, as did numerous other railroads. In April 1970, the Commission, without having held further 'hearings,' issued a supplemental report making some modifications in the tentative conclusions earlier reached, but overruling in toto the requests of appellees.
17
The District Court held that in so doing the Commission violated § 556(d) of the Administrative Procedure Act, and it was on this basis that it set aside the order of the Commission.
18
II. APPLICABILITY OF ADMINISTRATIVE PROCEDURE ACT
19
In United States v. Allegheny-Ludlum Steel Corp., supra, we held that the language of § 1(14)(a) of the Interstate Commerce Act authorizing the Commission to act 'after hearing' was not the equivalent of a requirement that a rule be made 'on the record after opportunity for an agency hearing' as the latter term is used in § 553(c) of the Administrative Procedure Act. Since the 1966 amendment to § 1(14)(a), under which the Commission was here proceding, does not by its terms add to the hearing requirement contained in the earlier language, the same result should obtain here unless that amendment contains language that is tantamount to such a requirement. Appellees contend that such language is found in the provisions of that Act requiring that:
20
'(T)he Commission shall give consideration to the national level of ownership of such type of freight car and to other factors affecting the adequacy of the national freight car supply, and shall, on the basis of such consideration, determine whether compensation should be computed . . ..'
21
While this language is undoubtedly a mandate to the Commission to consider the factors there set forth in reaching any conclusion as to imposition of per diem incentive charges, it adds to the hearing requirements of the section neither expressly nor by implication. We know of no reason to think that an administrative agency in reaching a decision cannot accord consideration to factors such as those set forth in the 1966 amendment by means other than a trial-type hearing or the presentation of oral argument by the affected parties. Congress by that amendment specified necessary components of the ultimate decision, but it did not specify the method by which the Commission should acquire information about those components.5
22
Both of the district courts that reviewed this order of the Commission concluded that its proceedings were governed by the stricter requirements of §§ 556 and 557 of the Administrative Procedure Act, rather than by the provisions of § 553 alone.6 The conclusion of the District Court for the Middle District of Florida, which we here review, was based on the assumption that the language in § 1(14)(a) of the Interstate Commerce Act requiring rulemaking under that section to be done 'after hearing' was the equivalent of a statutory requirement that the rule 'be made on the record after opportunity for an agency hearing.' Such an assumption is inconsistent with our decision in Allegheny-Ludlum, supra.
23
The District Court for the Eastern District of New York reached the same conclusion by a somewhat different line of reasoning. That court felt that because § 1(14)(a) of the Interstate Commerce Act had required a 'hearing,' and because that section was originally enacted in 1917, Congress was probably thinking in terms of a 'hearing' such as that described in the opinion of this Court in the roughly contemporaneous case of ICC v. Louisville & Nashville R. Co., 227 U.S. 88, 93, 33 S.Ct. 185, 187, 57 L.Ed. 431 (1913). The ingredients of the 'hearing' were there said to be that '(a)ll parties must be fully apprised of the evidence submitted or to be considered, and must be given opportunity to cross-examine witnesses, to inspect documents and to offer evidence in explanation or rebuttal.' Combining this view of congressional understanding of the term 'hearing' with comments by the Chairman of the Commission at the time of the adoption of the 1966 legislation regarding the necessity for 'hearings,' that court concluded that Congress had, in effect, required that these proceedings be 'on the record after opportunity for an agency hearing' within the meaning of § 553(c) of the Administrative Procedure Act.
24
Insofar as this conclusion is grounded on the belief that the language 'after hearing' of § 1(14)(a), without more, would trigger the applicability of §§ 556 and 557, it, too, is contrary to our decision in Allegheny-Ludlum, supra. The District Court observed that it was 'rather hard to believe that the last sentence of § 553(c) was directed only to the few legislative spots where the words 'on the record' or their equivalent had found their way into the statute book.' 318 F.Supp., at 496. This is, however, the language which Congress used, and since there are statutes on the books that do use these very words, see e.g., the Fulbright Amendment to the Walsh-Healey Act, 41 U.S.C. § 43a, and 21 U.S.C. § 371(e)(3), the regulations provision of the Food and Drug Act, adherence to that language cannot be said to render the provision nugatory or ineffectual. We recognized in Allegheny-Ludlum that the actual words 'on the record' and 'after .. . hearing' used in § 553 were not words of art, and that other statutory language having the same meaning could trigger the provisions of §§ 556 and 557 in rulemaking proceedings. But we adhere to our conclusion, expressed in that case, that the phrase 'after hearing' in § 1(14)(a) of the
25
Interstate Commerce Act does not have such an effect. III. 'HEARING' REQUIREMENT OF § 1(14)(a) OF THE INTERSTATE COMMERCE ACT
26
Inextricably intertwined with the hearing requirement of the Administrative Procedure Act in this case is the meaning to be given to the language 'after hearing' in § 1(14)(a) of the Interstate Commerce Act. Appellees, both here and in the court below, contend that the Commission procedure here fell short of that mandated by the 'hearing' requirement of § 1(14)(a), even though it may have satisfied § 553 of the Administrative Procedure Act. The Administrative Procedure Act states that none of its provisions 'limit or repeal additional requirements imposed by statute or otherwise recognized by law.' 5 U.S.C. § 559. Thus, even though the Commission was not required to comply with §§ 556 and 557 of that Act, it was required to accord the 'hearing' specified in § 1(14)(a) of the Interstate Commerce Act. Though the District Court did not pass on this contention, it is so closely related to the claim based on the Administrative Procedure Act that we proceed to decide it now.
27
If we were to agree with the reasoning of the District Court for the Eastern District of New York with respect to the type of hearing required by the Interstate Commerce Act, the Commission's action might well violate those requirements, even though it was consistent with the requirements of the Administrative Procedure Act.
28
The term 'hearing' in its legal context undoubtedly has a host of meanings.7 Its meaning undoubtedly will vary, depending on whether it is used in the context of a rulemaking-type proceeding or in the context of a proceeding devoted to the adjudication of particular disputed facts. It is by no means apparent what the drafters of the Esch Car Service Act of 1917, 40 Stat. 101, which became the first part of § 1(14)(a) of the Interstate Commerce Act, meant by the term. Such an intent would surely be an ephemeral one if, indeed, Congress in 1917 had in mind anything more specific than the language it actually used, for none of the parties refer to any legislative history that would shed light on the intended meaning of the words 'after hearings.' What is apparent, though, is that the term was used in granting authority to the Commission to make rules and regulations of a prospective nature.
29
Appellees refer us to testimony of the Chairman of the Commission to the effect that if the added authority ultimately contained in the 1966 amendment were enacted, the Commission would proceed with 'great caution' in imposing incentive per diem rates, and to statements of both Commission personnel and Members of Congress as to the necessity for a 'hearing' before Commission action. Certainly, the lapse of time of more than three years between the enactment of the 1966 amendment and the Commission's issuance of its tentative conclusions cannot be said to evidence may lack of caution on the part of that body. Nor do generalized references to the necessity for a hearing advance our inquiry, since the statute by its terms requires a 'hearing'; the more precise inquiry of whether the hearing requirements necessarily include submission of oral testimony, cross-examination, or oral arguments is not resolved by such comments as these.
30
Under these circumstances, confronted with a grant of substantive authority made after the Administrative Procedure Act was enacted,8 we think that reference to that Act, in which Congress devoted itself exclusively to questions such as the nature and scope of hearings, is a satisfactory basis for determining what is meant by the term 'hearing' used in another statute. Turning to that Act, we are convinced that the term 'hearing' as used therein does not necessarily embrace either the right to present evidence orally and to cross-examine opposing witnesses, or the right to present oral argument to the agency's decisionmaker.
31
Section 553 excepts from its requirements rulemaking devoted to 'interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice,' and rulemaking 'when the agency for good cause finds . . . that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.' This exception does not apply, however, 'when notice or hearing is required by statute'; in those cases, even though interpretative rulemaking be involved, the requirements of § 553 apply. But since these requirements themselves do not mandate any oral presentation, see Allegheny-Ludlum, supra, it cannot be doubted that a statute that requires a 'hearing' prior to rulemaking may in some circumstances be satisfied by procedures that meet only the standards of § 553. The Court's opinion in FPC v. Texaco Inc., 377 U.S. 33, 84 S.Ct. 1105, 12 L.Ed.2d 112 (1964), supports such a broad definition of the term 'hearing.'
32
Similarly, even where the statute requires that the rulemaking procedure take place 'on the record after opportunity for an agency hearing,' thus triggering the applicability of § 556, subsection (d) provides that the agency may proceed by the submission of all or part of the evidence in written form if a party will not be 'prejudiced thereby.' Again, the Act makes it plain that a specific statutory mandate that the proceedings take place on the record after hearing may be satisfied in some circumstances by evidentiary submission in written form only.
33
We think this treatment of the term 'hearing' in the Administrative Procedure Act affords sufficient basis for concluding that the requirement of a 'hearing' contained in § 1(14)(a); in a situation where the Commission was acting under the 1966 statutory rulemaking authority that Congress had conferred upon it, did not by its own force require the Commission either to hear oral testimony, to permit cross-examination of Commission witnesses, or to hear oral argument. Here, the Commission promulgated a tentative draft of an order, and accorded all interested parties 60 days in which to file statements of position, submissions of evidence, and other relevant observations. The parties had fair notice of exactly what the Commission proposed to do, and were given an opportunity to comment, to object, or to make some other form of written submission. The final order of the Commission indicates that it gave consideration to the statements of the two appellees here. Given the 'open-ended' nature of the proceedings, and the Commission's announced willingness to consider proposals for modification after operating experience had been acquired, we think the hearing requirement of § 1(14)(a) of the Act was met.
34
Appellee railroads cite a number of our previous decisions dealing in some manner with the right to a hearing in an administrative proceeding. Although appellees have asserted no claim of constitutional deprivation in this proceeding, some of the cases they rely upon expressly speak in constitutional terms, while others are less than clear as to whether they depend upon the Due Process Clause of the Fifth and Fourteenth Amendments to the Constitution, or upon generalized principles of administrative law formulated prior to the adoption of the Administrative Procedure Act.
35
Morgan v. United States, 304 U.S. 1, 58 S.Ct. 773, 82 L.Ed. 1129 (1938), is cited in support of appellees' contention that the Commission's proceedings were fatally deficient. That opinion describes the proceedings there involved as 'quasijudicial,' id., at 14, 58 S.Ct., at 774, and thus presumably distinct from a rulemaking proceeding such as that engaged in by the Commission here. But since the order of the Secretary of Agriculture there challenged did involve a form of ratemaking, the case bears enough resemblance to the facts of this case to warrant further examination of appellees' contention. The administrative procedure in Morgan was held to be defective primarily because the persons who were to be affected by the Secretary's order were found not to have been adequately apprised of what the Secretary proposed to do prior to the time that he actually did it. Illustrative of the Court's reasoning is the following passage from the opinion:
36
'The right to a hearing embraces not only the right to present evidence, but also a reasonable opportunity to know the claims of the opposing party and to meet them. The right to submit argument implies that opportunity; otherwise the right may be but a barren one. Those who are brought into contest with the Government in a quasi-judicial proceeding aimed at the control of their activities are entitled to be fairly advised of what the Government proposes and to be heard upon its proposals before it issues its final command.' Id., at 18—19, 58 S.Ct., at 776.9
37
The proceedings before the Secretary of Agriculture had been initiated by a notice of inquiry into the reasonableness of the rates in question, and the individuals being regulated suffered throughout the proceeding from its essential formlessness. The Court concluded that this formlessness denied the individuals subject to regulation the 'full hearing' that the statute had provided.
38
Assuming, arguendo, that the statutory term 'full hearing' does not differ significantly from the hearing requirement of § 1(14)(a), we do not believe that the proceedings of the Interstate Commerce Commission before us suffer from the defect found to be fatal in Morgan. Though the initial notice of the proceeding by no means set out in detail what the Commission proposed to do, its tentative conclusions and order of December 1969, could scarcely have been more explicit or detailed. All interested parties were given 60 days following the issuance of these tentative findings and order in which to make appropriate objections. Appellees were 'fairly advised' of exactly what the Commission proposed to do sufficiently in advance of the entry of the final order to give them adequate time to formulate and to present objections to the Commission's proposal. Morgan, therefore, does not aid appellees.
39
ICC v. Louisville & Nashville R. Co., 227 U.S. 88, 33 S.Ct. 185, 57 L.Ed. 431 (1913), involved what the Court there described as a 'quasi-judicial' proceeding of a quite different nature from the one we review here. The provisions of the Interstate Commerce Act, 24 Stat. 379, as amended, and of the Hepburn Act, 34 Stat. 584, in effect at the time that case was decided, left to the railroad carriers the 'primary right to make rates,' 227 U.S., at 92, 33 S.Ct., at 187, but granted to the Commission the authority to set them aside, if after hearing, they were shown to be unreasonable. The proceeding before the Commission in that case had been instituted by the New Orleans Board of Trade complaint that certain class and commodity rates charged by the Louisville & Nashville Railroad from New Orleans to other points were unfair, unreasonable, and discriminatory. 227 U.S., at 90, 33 S.Ct., at 186. The type of proceeding there, in which the Commission adjudicated a complaint by a shipper that specified rates set by a carrier were unreasonable, was sufficiently different from the nationwide incentive payments ordered to be made by all railroads in this proceeding so as to make the Louisville & Nashville opinion inapplicable in the case presently before us.
40
The basic distinction between rulemaking and adjudication is illustrated by this Court's treatment of two related cases under the Due Process Clause of the Fourteenth Amendment. In Londoner v. Denver, cited in oral argument by appellees, 210 U.S. 373, 28 S.Ct. 708, 52 L.Ed. 1103 (1908), the Court held that due process had not been accorded a landowner who objected to the amount assessed against his land as its share of the benefit resulting from the paving of a street. Local procedure had accorded him the right to file a written complaint and objection, but not to be heard orally. This Court held that due process of law required that he 'have the right to support his allegations by argument, however brief; and, if need be, by proof, however informal.' Id., at 386, 28 S.Ct., at 714. But in the later case of Bi-Metallic Investment Co. v. State Board of Equalization, 239 U.S. 441, 36 S.Ct. 141, 60 L.Ed. 372 (1915), the Court held that no hearing at all was constitutionally required prior to a decision by state tax officers in Colorado to increase the valuation of all taxable property in Denver by a substantial percentage. The Court distinguished Londoner by stating that there a small number of persons 'were exceptionally affected, in each case upon individual grounds.' Id., at 446, 36 S.Ct., at 142.
41
Later decisions have continued to observe the distinction adverted to in BiMetallic Investment Co., supra. In Ohio Bell Telephone Co. v. Public Utilities Comm'n, 301 U.S. 292, 304—305, 57 S.Ct. 724, 730—731, 81 L.Ed. 1093 (1937), the Court noted the fact that the administrative proceeding there involved was designed to require the utility to refund previously collected rate charges. The Court held that in such a proceeding the agency could not, consistently with due process, act on the basis of undisclosed evidence that was never made a part of the record before the agency. The case is thus more akin to Louisville & Nashville R. Co., supra, than it is to this case. FCC v. WJR, 337 U.S. 265, 69 S.Ct. 1097, 93 L.Ed. 1353 (1949), established that there was no across-the-board constitutional right to oral argument in every administrative proceeding regardless of its nature. While the line dividing them may not always be a bright one, these decisions represent a recognized distinction in administrative law between proceedings for the purpose of promulgating policy-type rules or standards, on the one hand, and proceedings designed to adjudicate disputed facts in particular cases on the other.
42
Here, the incentive payments proposed by the Commission in its tentative order, and later adopted in its final order, were applicable across the board to all of the common carriers by railroad subject to the Interstate Commerce Act. No effort was made to single out any particular railroad for special consideration based on its own peculiar circumstances. Indeed, one of the objections of appellee Florida East Coast was that it and other terminating carriers should have been treated differently from the generality of the railroads. But the fact that the order may in its effects have been thought more disadvantageous by some railroads than by others does not change its generalized nature. Though the Commission obviously relied on factual inferences as a basis for its order, the source of these factual inferences was apparent to anyone who read the order of December 1969. The factual inferences were used in the formulation of a basically legislative-type judgment, for prospective application only, rather than in adjudicating a particular set of disputed facts.
43
The Commission's procedure satisfied both the provisions of § 1(14)(a) of the Interstate Commerce Act and of the Administrative Procedure Act, and were not inconsistent with prior decisions of this Court. We, therefore, reverse the judgment of the District Court, and remand the case so that it may consider those contentions of the parties that are not disposed of by this opinion.
44
It is so ordered.
45
Reversed and remanded.
46
Mr. Justice POWELL took no part in the consideration or decision of this case.
47
Mr. Justice DOUGLAS, with whom Mr. Justice STEWART concurs, dissenting.
48
The present decision makes a sharp break with traditional concepts of procedural due process. The Commission order under attack is tantamount to a rate order. Charges are fixed that nonowning railroads must pay owning railroads for boxcars of the latter that are on the tracks of the former. These charges are effective only during the months of September through February, the period of greatest boxcar use. For example, the charge for a boxcar that costs for $15,000 to $17,000 and that is five years of age or younger amounts to $5.19 a day. Boxcars costing between $39,000 and $41,000 and that are five years of age or younger cost the nonowning railroad $12.98 a day. The fees or rates charged decrease as the ages of the boxcars lengthen. 49 CFR § 1036.2. This is the imposition on carriers by administrative fiat of a new financial liability. I do not believe it is within our traditional concepts of due process to allow an administrative agency to saddle anyone with a new rate, charge, or fee without a full hearing that includes the right to present oral testimony, cross-examine witnesses, and present oral argument. That is required by the Administrative Procedure Act, 5 U.S.C. § 556(d); § 556(a) states that § 556 applies to hearings required by § 553. Section 553(c) provides that § 556 applies '(w)hen rules are required by statute to be made on the record after opportunity for an agency hearing.' A hearing under § 1(14) (a) of the Interstate Commerce Act fixing rates, charges, or fees is certainly adjudicatory, not legislative in the customary sense.
49
The question is whether the Interstate Commerce Commission procedures used in this rate case 'for the submission of . . . evidence in written form' avoided prejudice to the appellees so as to comport with the requirements of the Administrative Procedure Act.1 The Government appeals from the District Court's order remanding this case to the Commission for further proceedings on the incentive per diem rates to be paid by the appellee railroads for the standard boxcars they use.
50
In 1966, Congress amended § 1(14)(a) of the Interstate Commerce Act to require that the Commission investigate the use of methods of incentive compensation to alleviate any shortage of freight cars 'and encourage the acquisition and maintenance of a car supply adequate to meet the needs of commerce and the national defense.' 49 U.S.C. § 1(14)(a). While the Commission was given the discretion to exempt carriers from incentive payments 'in the national interest,' it was denied the power to 'make any incentive element applicable to any type of freight car the supply of which the Commission finds to be adequate . . ..' Ibid.
51
The Commission's initial investigation under this authority (31 Fed.Reg. 9240) was terminated without action because it 'produced no reliable information respecting the quantum of interim incentive charge necessary to meet the statutory standards.' 332 I.C.C. 11, 16. A subsequent study of boxcar supply-and-demand conditions (32 Fed.Reg. 20987) yielded data that were compiled in an interim report containing tentative charges and that were submitted to the railroads for comment. 337 I.C.C. 183. Although the Commission was admittedly uncertain whether its proposed charges would accomplish the statutory objective, id., at 191, and even though 'the opportunity to present evidence and arguments' was contemplated,' Id., at 183, congressional impatience militated against further delay in implementing § 1(14)(a).2 Consequently, the Commission ejected the requests of the appellees and other railroads for further hearings and promulgated an incentive per diem rate schedule for standard boxcars. 337 I.C.C. 217.
52
Appellees then brought this action in the District Court alleging that they were 'prejudiced' within the meaning of the Administrative Procedure Act by the Commission's failure to afford them a proper hearing. 322 F.Supp. 725 (MD Fla.1971). Seaboard argued that it had been damaged by what it alleged to be the Commission's sudden change in emphasis from specialty to unequipped boxcars and that it would lose some.$1.8 million as the result of the Commission's allegedly hasty and experimental action. Florida East Coast raised significant challenges to the statistical validity of the Commission's data,3 and also contended that its status as a terminating railroad left it with a surfeit of standard boxcars which should exempt it from the requirement to pay incentive charges.
53
Appellees, in other words, argue that the inadequacy of the supply of standard boxcars was not sufficiently established by the Commission's procedures. Seaboard contends that specialty freight cars have supplanted standard boxcars and Florida East Coast challenges the accuracy of the Commission's findings.
54
In its interim report, the Commission indicated that there would be an opportunity to present evidence and arguments. See 337 I.C.C. 183, 187. The appellees could reasonably have expected that the later hearings would give them the opportunity to substantiate and elaborate the criticisms they set forth in their initial objections to the interim report. That alone would not necessarily support the claim of 'prejudice'. But I believe that 'prejudice' was shown when it was claimed that the very basis on which the Commission rested its finding was vulnerable because it lacked statistical validity or other reasoned basis. At least in that narrow group of cases, prejudice for lack of a proper hearing has been shown.
55
Both Long Island R. Co. v. United States, 318 F.Supp. 490 (EDNY 1970), and the present case involve challenges to the Commission's procedures establishing incentive per diem rates. In Long Island, however, the railroad pointed to no specific challenges to the Commission's findings (Id., at 499), and the trial was conducted on stipulated issues involving the right to an oral hearing. Id., at 491 n. 2. Since Long Island presented no information which might have caused the Commission to reach a different result,4 there was no showing of prejudice, and a fortiori no right to an oral hearing. In the present case, by contrast, there are specific factual disputes and the issue is the narrow one of whether written submission of evidence without oral argument was prejudicial.
56
The more exacting hearing provisions of the Administrative Procedure Act, 5 U.S.C. §§ 556—557, are only applicable, of course, if the 'rules are required by statute to be made on the record after opportunity for an agency hearing.' Id., § 553(c).
57
United States v. Allegheny-Ludlum Steel Corp., 406 U.S. 742, 92 S.Ct. 1941, 32 L.Ed.2d 453, was concerned strictly with a rulemaking proceeding of the Commission for the promulgation of 'car service rules' that in general required freight cars, after being unloaded, to be returned 'in the direction of the lines of the road owning the cars.' Id., at 743, 92 S.Ct., at 1944. We sustained the Commission's power with respect to these two rules on the narrow ground that they were wholly legislative. We held that § 1(14)(a) of the Interstate Commerce Act, requiring by its terms a 'hearing,' 'does not require that such rules 'be made on the record" within the meaning of § 553(c). Id., at 757, 92 S.Ct., at 1950. We recognized, however, that the precise words 'on the record' are not talismanic, but that the crucial question is whether the proceedings under review are 'an exercise of legislative rulemaking' or 'adjudicatory hearings.' Ibid. The 'hearing' requirement of § 1(14)(a) cannot be given a fixed and immutable meaning to be applied in each and every case without regard to the nature of the proceedings.
58
The rules in question here established 'incentive' per diem charges to spur the prompt return of existing cars and to make the acquisition of new cars financially attractive to the railroads.5 Unlike those we considered in Allegheny-Ludlum, these rules involve the creation of a new financial liability. Although quasi-legislative, they are also adjudicatory in the sense that they determine the measure of the financial responsibility of one road for its use of the rolling stock of another road. The Commission's power to promulgate these rules pursuant to § 1(14)(a) is conditioned on the preliminary finding that the supply of freight cars to which the rules apply is inadequate. Moreover, in fixing incentive compensation once this threshold finding has been made, the Commission 'shall give consideration to the national level of ownership of such type of freight car and to other factors affecting the adequacy of the national freight car supply . . ..'6
59
The majority finds ICC v. Louisville & Nashville R. Co., 227 U.S. 88, 33 S.Ct. 185, 57 L.Ed. 431, 'sufficiently different' as to make the opinion in that case inapplicable to the case now before us. I would read the case differently, finding a clear mandate that where, as here, ratemaking must be based on evidential facts, § 1(14)(a) requires that full hearing which due process normally entails. There we considered Commission procedures for setting aside as unreasonable, after a hearing, carriermade rates. The Government maintained that the Commission, invested with legislative ratemaking power, but required by the Commerce Act to obtain necessary information, could act on such information as the Congress might. The Government urged that we presume that the Commission's findings were supported by such information, 'even though not formally proved at the hearing.' Id., at 93, 33 S.Ct., at 187. We rejected the contention, holding that the right to a hearing included 'an opportunity to test, explain, or refute. . . . All parties must be fully apprised of the evidence submitted or to be considered, and must be given opportunity to cross-examine witnesses, to inspect documents, and to offer evidence in explanation or rebuttal.' Ibid. I would agree with the District Court in Long Island R. Co., supra, 318 F.Supp. at 497, that Congress was fully cognizant of our decision in Louisville & Nashville R. Co. when it first adopted the hearing requirement of § 1(14)(a) in 1917. And when Congress debated the 1966 amendment that empowered the Commission to adopt incentive per diem rates, it had not lost sight of the importance of hearings. Questioned about the effect that incentive compensation might have on terminating lines, Mr. Staggers, Chairman of the House Committee on Interstate and Foreign Commerce and floor manager of the bill, responded: 'I might say to the gentleman that this will not be put into practice until there have been full hearings before the Commission and all sides have had an opportunity to argue and present their facts on the question.' 112 Cong.Rec. 10443 (emphasis added). Nor should we overlook the Commission's own interpretation of the hearing requirement in § 1(14)(a) as it applies to this case. The Commission's order initiating the rulemaking proceeding notified the parties that it was acting 'under authority of Part I of the Interstate Commerce Act (49 U.S.C. § 1 et seq.); more particularly, section 1(14)(a) and the Administrative Procedure Act (5 U.S.C. §§ 553, 556, and 557).' Clearly, the Commission believed that it was required to hold a hearing on the record.7 This interpretation, not of the Administrative Procedure Act, but of § 1(14)(a) of the Commission's own Act, is 'entitled to great weight.' United States v. American Trucking Ass'ns, 310 U.S. 534, 549, 60 S.Ct. 1059, 1067, 84 L.Ed. 1345; Norwegian Nitrogen Products Co. v. United States, 288 U.S. 294, 315, 53 S.Ct. 350, 358, 77 L.Ed. 796.
60
The majority, at one point, distinguishes Morgan v. United States, 304 U.S. 1, 58 S.Ct. 773, 82 L.Ed. 1129 (Morgan II), on the ground that the proceedings there involved were 'quasi-judicial,' 'and thus presumably distinct from a rulemaking proceeding such as that engaged in by the Commission here.' It is this easy categorization and pigeonholing that leads the majority to find Allegheny-Ludlum of controlling significance in this case. Morgan II dealt with the 'full hearing' requirement of § 310 of the Packers and Stockyards Act, 42 Stat. 166, as it related to ratemaking for the purchase and sale of livestock.8 It is true that the Court characterized the proceedings as 'quasijudicial.' But, the first time the case was before the Court, Morgan v. United States, 298 U.S. 468, 56 S.Ct. 906, 80 L.Ed. 1288, Mr. Chief Justice Hughes noted that the 'distinctive character' of the proceeeding was legislative: 'It is a proceeding looking to legislative action in the fixing of rates of market agencies.' Id., at 479, 56 S.Ct. at 911. Nevertheless, the Secretary of Agriculture was required to establish rates in accordance with the standards and under the limitations prescribed by Congress. The Court concluded: 'A proceeding of this sort requiring the taking and weighing of evidence, determinations of fact based upon the consideration of the evidence, and the making of an order supported by such findings, has a quality resembling that of a judicial proceeding. Hence it is frequently described as a proceeding of quasi-judicial character. The requirement of a 'full hearing' has obvious reference to the tradition of judicial proceedings . . ..' Id., at 480, 56 S.Ct., at 911.
61
Section 1(14)(a) of the Interstate Commerce Act bestows upon the Commission broad discretionary power to determine incentive rates. These rates may have devastating effects on a particular line. According to the brief of one of the appellees, the amount of incentive compensation paid by debtor lines amounts to millions of dollars each six-month period. Nevertheless, the courts must defer to the Commission as long as its findings are supported by substantial evidence and it has not abused its discretion. 'All the more insistent is the need, when power has been bestowed so freely, that the 'inexorable safeguard' . . . of a fair and open hearing be maintained in its integrity.' Ohio Bell Telephone Co. v. Public Utilities Comm'n of Ohio, 301 U.S. 292, 304, 57 S.Ct. 724, 730, 81 L.Ed. 1093.
62
Accordingly, I would hold that appellees were not afforded the hearing guaranteed by § 1(14)(a) of the Interstate Commerce Act and 5 U.S.C. §§ 553, 556, and 557, and would affirm the decision of the District Court.
1
Section 1(14)(a) provides:
'The Commission may, after hearing, on a complaint or upon its own initiative without complaint, establish reasonable rules, regulations, and practices with respect to car service by common carriers by railroad subject to this chapter, including the compensation to be paid and other terms of any contract, agreement, or arrangement for the use of any locomotive, car, or other vehicle not owned by the carrier using it (and whether or not owned by another carrier), and the penalties or other sanctions for nonobservance of such rules, regulations, or practices. In fixing such compensation to be paid for the use of any type of freight car, the Commission shall give consideration to the national level of ownership of such type of freight car and to other factors affecting the adequacy of the national freight car supply, and shall, on the basis of such consideration, determine whether compensation should be computed solely on the basis of elements of ownership expense involved in owning and maintaining such type of freight car, including a fair return on value, or whether such compensation should be increased by such incentive element or elements of compensation as in the Commission's judgment will provide just and reasonable compensation to freight car owners, contribute to sound car service practices (including efficient utilization and distribution of cars), and encourage the acquisition and maintenance of a car supply adequate to meet the needs of commerce and the national defense. The Commission shall not make any incentive element applicable to any type of freight car the supply of which the Commission finds to be adequate and may exempt from the compensation to be paid by any group of carriers such incentive element or elements if the Commission finds it to be in the national interest.'
2
'§ 553. Rule making.
'(a) This section applies, according to the provisions thereof, except to the extent that there is involved—
'(1) a military or foreign affairs function of the United States; or
'(2) a matter relating to agency management or personnel or to public property, loans, grants, benefits, or contracts.
'(b) General notice of proposed rule making shall be published in the Federal Register, unless persons subject thereto are named and either personally served or otherwise have actual notice thereof in accordance with law. The notice shall include—
'(1) a statement of the time, place, and nature of public rule making proceedings;
'(2) reference to the legal authority under which the rule is proposed; and
'(3) either the terms or substance of the proposed rule or a description of the subjects and issues involved. Except when notice or hearing is required by statute, this subsection does not apply—
'(A) to interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice; or
'(B) when the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.
'(c) After notice required by this section, the agency shall give interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments with or without opportunity for oral presentation. After consideration of the relevant matter presented, the agency shall incorporate in the rules adopted a concise general statement of their basis and purpose. When rules are required by statute to be made on the record after opportunity for an agency hearing, sections 556 and 557 of this title apply instead of this subsection.
'(d) The required publication or service of a substantive rule shall be made not less than 30 days before its effective date, except—
'(1) a substantive rule which grants or recognizes an exemption or relieves a restriction;
'(2) interpretative rules and statements of policy; or
'(3) as otherwise provided by the agency for good cause found and published with the rule.
'(e) Each agency shall give an interested person the right to petition for the issuance, amendment, or repeal of a rule.'
3
'§ 556. Hearings; presiding employees; powers and duties; burden of proof; evidence; record as basis of decision.
'(a) This section applies, according to the provisions thereof, to hearings required by section 553 or 554 of this title to be conducted in accordance with this section.
'(b) There shall preside at the taking of evidence—
'(1) the agency;
'(2) one or more members of the body which comprises the agency; or
'(3) one or more hearing examiners appointed under section 3105 of this title. 'This subchapter does not supersede the conduct of specified classes
of proceedings, in whole or in part, by or before boards or other employees specially provided for by or designated under statute. The functions of presiding employees and of employees participating in decisions in accordance with section 557 of this title shall be conducted in an impartial manner. A presiding or participating employee may at any time disqualify himself. On the filing in good faith of a timely and sufficient affidavit of personal bias or other disqualification of a presiding or participating employee, the agency shall determine the matter as a part of the record and decision in the case.
'(c) Subject to published rules of the agency and within its powers, employees presiding at hearings may—
'(1) administer oaths and affirmations;
'(2) issue subpenas authorized by law;
'(3) rule on offers of proof and receive relevant evidence;
'(4) take depositions or have depositions taken when the ends of justice would be served;
'(5) regulate the course of the hearing;
'(6) hold conferences for the settlement or simplication of the issues by consent of the parties;
'(7) dispose of procedural requests or similar matters;
'(8) make or recommend decisions in accordance with section 557 of this title; and
'(9) take other action authorized by agency rule consistent with this subchapter.
'(d) Except as otherwise provided by statute, the proponent of a rule or order has the burden of proof. Any oral or documentary evidence may be received, but the agency as a matter of policy shall provide for the exclusion of irrelevant, immaterial, or unduly repetitious evidence. A sanction may not be imposed or rule or order issued except on consideration of the whole record or those parts thereof cited by a party and supported by and in accordance with the reliable, probative, and substantial evidence. A party is entitled to present his case or defense by oral or documentary evidence, to submit rebuttal evidence, and to conduct such cross-examination as may be required for a full and true disclosure of the facts. In rule making or determining claims for money or benefits or applications for initial licenses an agency may, when a party will not be prejudiced
thereby, adopt procedures for the submission of all or part of the evidence in written form.
'(e) The transcript of testimony and exhibits, together with all papers and requests filed in the proceeding, constitutes the exclusive record for decision in accordance with section 557 of this title and, on payment of lawfully prescribed costs, shall be made available to the parties. When an agency decision rests on official notice of a material fact not appearing in the evidence in the record, a party is entitled, on timely request, to an opportunity to show the contrary.'
4
'§ 557. Initial decisions; conclusiveness; review by agency; submissions by parties; contents of decisions; record.
'(a) This section applies, according to the provisions thereof, when a hearing is required to be conducted in accordance with section 556 of this title.
'(b) When the agency did not preside at the reception of the evidence, the presiding employee or, in cases not subject to section 554(d) of this title, an employee qualified to preside at hearings pursuant to section 556 of this title, shall initially decide the case unless the agency requires, either in specific cases or by general rule, the entire record to be certified to it for decision. When the presiding employee makes an initial decision, that decision then becomes the decision of the agency without further proceedings unless there is an appeal to, or review on motion of, the agency within time provided by rule. On appeal from or review of the initial decision, the agency has all the powers which it would have in making the initial decision except as it may limit the issues on notice or by rule. When the agency makes the decision without having presided at the reception of the evidence, the presiding employee or an employee qualified to preside at hearings pursuant to section 556 of this title shall first recommend a decision, except that in rule making or determining applications for initial licenses—
'(1) instead thereof the agency may issue a tentative decision or one of its responsible employees may recommend a decision; or
'(2) this procedure may be omitted in a case in which the agency finds on the record that due and timely execution of its functions imperatively and unavoidably so requires.
'(c) Before a recommended, initial, or tentative decision, or a decision on agency review of the decision of subordinate employees, the
parties are entitled to a reasonable opportunity to submit for the consideration of the employees participating in the decisions—
'(1) proposed findings and conclusions; or
'(2) exceptions to the decisions or recommended decisions of subordinate employees or to tentative agency decisions; and
'(3) supporting reasons for the exceptions or proposed findings or conclusions. 'The record shall show the ruling on each finding, conclusion, or exception presented. All decisions, including initial, recommended, and tentative decisions, are a part of the record and shall include a statement of—
'(A) findings and conclusions, and the reasons or basis therefor, on all the material issues of fact, law, or discretion presented on the record; and
'(B) the appropriate rule, order, sanction, relief, or denial thereof.'
5
The Court of Appeals for the Ninth Circuit reached a result similar to that which we reach, in Pacific Coast European Conference v. United States, 350 F.2d 197 (1965). Construing the authority of the Federal Maritime Commission under § 14b of the Shipping Act, 1916, as amended, 46 U.S.C. § 813a, that court observed that '(t)he authority of the Commission to permit such contracts was limited by requiring that the contracts in eight specified respects meet the congressional judgment as to what they should include.' 350 F.2d, at 201. Notwithstanding these explicit directions that particular factors be considered by the Commission in reaching its decision, the court held that the statute's requirements of 'notice and hearing' were not sufficient to bring into play the provisions of §§ 556 and 557 of the Administrative Procedure Act.
6
Both district court opinions were handed down before our decision in United States v. Allegheny-Ludlum Steel Corp., 406 U.S. 742, 92 S.Ct. 1941, 32 L.Ed.2d 453 (1972), and it appears from the record before us that the Government in those courts did not really contest the proposition that the Commission's proceedings were governed by the stricter standards of §§ 556 and 557.
The dissenting opinion of Mr. Justice DOUGLAS relies in part on indications by the Commission that it proposed to apply the more stringent standards of §§ 556 and 557 of the Administrative Procedure Act to these proceedings. This Act is not legislation that the Interstate Commerce Commission, or any other single agency, has primary responsibility for administering. An agency interpretation involving, at least in part, the provisions of that Act does not carry the weight, in ascertaining the intent of Congress, that an interpretation by an agency 'charged with the responsibility' of administering a particular statute does. See United States v. American Trucking Ass'ns, 310 U.S. 534, 60 S.Ct. 1059, 84 L.Ed. 1345 (1940); Norwegian Nitrogen Products Co. v. United States, 288 U.S. 294, 53 S.Ct. 350, 77 L.Ed. 796 (1933). Moreover, since any agency is free under the Act to accord litigants appearing before it more procedural rights than the Act requires, the fact that an agency may choose to proceed under §§ 556 and 557 does not carry the necessary implication that the agency felt it was required to do so.
7
See 1 K. Davis, Administrative Law Treatise, § 6.05 (1958).
8
The Interstate Commerce Act was amended in May 1966; the 1946 Administrative Procedure Act was repealed by Act of Sept. 6, 1966, 80 Stat. 378, which revised, codified, and enacted Title 5 of the United States Code, but the section detailing the procedures to be used in rulemaking is substantially similar to the original provision in the 1946 Administrative Procedure Act. See § 4(b), 60 Stat. 238.
9
This same language was cited with approval by the Court in Willner v. Committee on Character, 373 U.S. 96, 105, 83 S.Ct. 1175, 1181, 10 L.Ed.2d 224 (1963), in which it was held that an applicant for admission to the bar could not be denied such admission on the basis of ex parte statements of others whom he had not been afforded an opportunity to crossexamine.
1
5 U.S.C. § 556(d) provides that a 'sanction may not be imposed' without a full hearing, including cross-examination. But § 556(d) makes an exception, which I submit is not relevant here. It provides: 'In rule making . . . an agency may, when a party will not be prejudiced thereby, adopt procedures for the submission of all or part of the evidence in written form.' (Emphasis added.)
2
See Hearing before the Subcommittee on Surface Transportation of the Senate Committee on Commerce, 91st Cong., 1st Sess. (1969).
3
Florida East Coast argues, for example, that the Commission's finding of a boxcar shortage may be attributable to a variety of sampling or definitional errors, asserting that it is unrealistic to define boxcar deficiencies in such a manner as 'to show as a 'deficiency' the failure to supply a car on the day requested by the shipper no matter when the request was received.' The Government's contention that a 24-hour standard was not used seems unresponsive to this argument. See 337 I.C.C. 217, 221.
4
In the Long Island case the court, speaking through Judge Friendly, said:
'Whether there was to be an oral hearing or not, the Long Island's first job was to examine the basic data and find this out. Nothing stood in its way. . . . If, on examining the data, the Long Island had pointed to specifics on which it needed to cross-examine or present live rebuttal testimony and the Commission had declined to grant an oral hearing, we would have a different case. Instead the Long Island's request for an oral hearing was silent as to any respect in which the Commission's disclosure of greater detail or cross-examination of the Commission's staff was needed to enable it to mount a more effective argument against the Commission's proposal. The last sentence of § 556(d) would be deprived of all meaning if this were held sufficient to put the agency on notice that 'prejudice' would result from the denial of an oral hearing. Even taking into account the further representations that have been made to us, we fail to see that prejudice has been established.' 318 F.Supp. 490, 499.
5
Title 49 CFR § 1036.1 provides:
'Application.—Each common carrier by railroad subject to the Interstate Commerce Act shall pay to the owning railroads, including
the owning railroads of Canada, the additional per diem charges set forth in § 1036.2 on all boxcars shown below, . . . while in the possession of nonowning railroads and subject to per diem rules. These charges are in addition to all other per diem charges currently in effect or prescribed. Mexican-owned cars are exempt from the operation of these rules. The rules of this part shall apply regardless of whether the foregoing boxcars are in intrastate, interstate, or foreign commerce.'
As I have noted, § 1036.2 contains a schedule of per diem rates or fees for the use of another's boxcars which have been shunted onto its tracks, the rates or fees being definite or precise and controlled by two variables: the cost of the boxcars and the ages of the boxcars. These rates or fees, according to the record, amount to millions of dollars a year.
6
The Commission discusses the critical factual issues to be resolved in fixing incentive compensation rates under § 1(14)(a) in Incentive Per Diem Charges, 332 I.C.C. 11, 14—15:
'Before an incentive element, either interim or long-term, can be added to the per diem charge for the use of any particular type of freight car, we are required to give consideration to the national level of ownership of that type of car and to other factors affecting the adequacy of the national freight car supply. We have observed that the adequacy of the national freight car fleet depends upon the interplay of a number of factors, none of which can be said to be of superior importance. Further, since the effect of an incentive
charge must be produced over a future period, consideration must be given to possible changes in these factors. In recent years many innovations and improvements have taken place in car design and operation. In the transportation of many commodities the standard boxcar has been replaced by cars capable of transporting greater loads with substantially less damage. In the transportation of grains, railroads are converting more and more to the use of large covered hopper cars. Shippers or lumber and plywood have found modern cars designed to facilitate transportation of their products increasingly desirable. At the same time, many of these cars are adaptable to the transportation of other commodities when not needed in the particular trade for which they were designed. In large part, the special service boxcars, covered hoppers and flatcars of various types handle traffic which formerly moved in general service boxcars. The same is true to some extent with respect to refrigerator cars. Their larger size and, with respect to the flatcars in trailer-on-flatcar (TOFC) service, their more rapid turnaround, enables them to provide service which would require many more of the general service boxcars which they replaced.
'Valid conclusions as to the types of cars, the construction of which for future use is to be encouraged by application of either an interim or long-range incentive charge, and which must be found to be in inadequate supply pursuant to the statutory requirement, necessarily require consideration of the extent to which the transportation service they perform is or can also be provided by cars of other types. Such consideration requires a thorough analysis of the services currently desired by the shipping public and those reasonably to be anticipated in the future. An overall, nationwide review of traffic and service demands and trends must precede any valid determination of the existing or prospective national requirements for freight cars of particular types. It is quite obvious that application of an incentive charge which served to encourage the acquisition of cars not adaptable to efficient provision of needed service over their normal lifetime would not be in the national interest. Shipper need, demand and acceptance with respect to future equipment is a significant factor.'
7
In its final report, the Commission apparently still believed that its proceedings had to comply with the provisions of § 556 of the Administrative Procedure Act. The report stated that the parties had been granted a hearing in accordance with those provisions. 337 I.C.C., at 219.
8
Morgan II considered in some depth the parameters of a 'full hearing.' The majority takes the position that the case is inapposite because the hearings provided in this case do not 'suffer from the defect found to be fatal in Morgan'—i.e., the parties were 'fairly advised' of the scope and substance of the Commission proceedings. In Morgan II, however, there was no question that a 'full hearing' included the right to present oral testimony and argument. 304 U.S. 1, 18—20, 58 S.Ct. 773, 776—777.
| 89
|
410 U.S. 179
93 S.Ct. 739
35 L.Ed.2d 201
Mary DOE et al., Appellants,v.Arthur K. BOLTON, as Attorney General of the State of Georgia, et al.
No. 70—40.
Argued Dec. 13, 1971.
Reargued Oct. 11, 1972.
Decided Jan. 22, 1973.
Rehearing Denied Feb. 26, 1973.
See 410 U.S. 959, 93 S.Ct. 1410.
Syllabus
Georgia law proscribes an abortion except as performed by a duly licensed Georgia physician when necessary in 'his best clinical judgment' because continued pregnancy would endanger a pregnant woman's life or injure her health; the fetus would likely be born with a serious defect; or the pregnancy resulted from rape. § 26—1202(a) of Ga. Criminal Code. In addition to a requirement that the patient be a Georgia resident and certain other requirements, the statutory scheme poses three procedural conditions in § 26—1202(b): (1) that the abortion be performed in a hospital accredited by the Joint Commission on Accreditation of Hospitals (JCAH); (2) that the procedure be approved by the hospital staff abortion committee; and (3) that the performing physician's judgment be confirmed by independent examinations of the patient by two other licensed physicians. Appellant Doe, an indigent married Georgia citizen, who was denied an abortion after eight weeks of pregnancy for failure to meet any of the § 26 1202(a) conditions, sought declaratory and injunctive relief, contending that the Georgia laws were unconstitutional. Others joining in the complaint included Georgia-licensed physicians (who claimed that the Georgia statutes 'chilled and deterred' their practices), registered nurses, clergymen, and social workers. Though holding that all the plaintiffs had standing, the District Court ruled that only Doe presented a justiciable controversy. In Doe's case the court gave declaratory, but not injunctive, relief, invalidating as an infringement of privacy and personal liberty the limitation to the three situations specified in § 26—1202(a) and certain other provisions but holding that the State's interest in health protection and the existence of a 'potential of independent human existence' justified regulation through § 26 1202(b) of the 'manner of performance as well as the quality of the final decision to abort.' The appellants, claiming entitlement to broader relief, directly appealed to this Court. Held:
1. Doe's case presents a live, justiciable controversy and she has standing to sue, Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147, as do the physician-appellants (who, unlike the physician in Wade, were not charged with abortion violations), and it is therefore unnecessary to resolve the issue of the other appellants' standing. Pp. 187—189.
2. A woman's constitutional right to an abortion is not absolute. Roe v. Wade, supra. P. 189.
3. The requirement that a physician's decision to perform an abortion must rest upon 'his best clinical judgment' of its necessity is not unconstitutionally vague, since that judgment may be made in the light of all the attendant circumstances. United States v. Vuitch, 402 U.S. 62, 71—72, 91 S.Ct. 1294, 1298—1299, 28 L.Ed.2d 601. Pp. 191—192.
4. The three procedural conditions in § 26—1202(b) violate the Fourteenth Amendment. Pp. 192—200.
(a) The JCAH-accreditation requirement is invalid, since the State has not shown that only hospitals (let alone those with JCAH accreditation) meet its interest in fully protecting the patient; and a hospital requirement failing to exclude the first trimester of pregnancy would be invalid on that ground alone, see Roe v. Wade, supra. Pp. 193—195.
(b) The interposition of a hospital committee on abortion, a procedure not applicable as a matter of state criminal law to other surgical situations, is unduly restrictive of the patient's rights, which are already safeguarded by her personal physician. Pp. 195—198.
(c) Required acquiescence by two copractitioners also has no rational connection with a patient's needs and unduly infringes on her physician's right to practice. Pp. 198—200.
5. The Georgia residence requirement violates the Privileges and Immunities Clause by denying protection to persons who enter Georgia for medical services there. Pp. 200.
6. Appellants' equal protection argument centering on the three procedural conditions in § 26—1202(b), invalidated on other grounds, is without merit. Pp. 200—201.
7. No ruling is made on the question of injunctive relief. Cf. Roe v. Wade, supra. P. 201.
D.C., 319 F.Supp. 1048, modified and affirmed.
Margie Pitts Hames, Atlanta, Ga., for appellants.
Dorothy T. Beasley, Atlanta, Ga., for appellees.
Mr. Justice BLACKMUN delivered the opinion of the Court.
1
In this appeal, the criminal abortion statutes recently enacted in Georgia are challenged on constitutional grounds. The statutes are §§ 26—1201 through 26—1203 of the State's Criminal Code, formulated by Georgia Laws, 1968 Session, pp. 1249, 1277 1280. In Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147, we today have struck down, as constitutionally defective, the Texas criminal abortion statutes that are representative of provisions long in effect in a majority of our States. The Georgia legislation, however, is different and merits separate consideration.
2
* The statutes in question are reproduced as Appendix A, post, p. 202.1 As the appellants acknowledge,2 the 1968 statutes are patterned upon the American Law Institute's Model Penal Code, § 230.3 (Proposed Official Draft, 1962), reproduced as Appendix B, post, p. 205. The ALI proposal has served as the model for recent legislation in approximately one-fourth of our States.3 The new Georgia provisions replaced statutory law that had been in effect for more than 90 years. Georgia Laws 1876, No. 130, § 2, at 113.4 The predecessor statute paralleled the Texas legislation considered in Roe v. Wade, supra, and made all abortions criminal except those necessary 'to preserve the life' of the pregnant woman. The new statutes have not been tested on constitutional grounds in the Georgia state courts.
3
Section 26—1201, with a referenced exception, makes abortion a crime, and § 26—1203 provides that a person convicted of that crime shall be punished by imprisonment for not less than one nor more than 10 years. Section 26—1202(a) states the exception and removes from § 1201's definition of criminal abortion, and thus makes noncriminal, an abortion 'performed by a physician duly licensed' in Georgia when, 'based upon his best clinical judgment . . . an abortion is necessary because:
4
'(1) A continuation of the pregnancy would endanger the life of the pregnant woman or would seriously and permanently injure her health; or
5
'(2) The fetus would very likely be born with a grave, permanent, and irremediable mental or physical defect; or
6
'(3) The pregnancy resulted from forcible or statutory rape.'5
7
Section 26—1202 also requires, by numbered subdivisions of its subsection (b), that, for an abortion to be authorized or performed as a noncriminal procedure, additional conditions must be fulfilled. These are (1) and (2) residence of the woman in Georgia; (3) reduction to writing of the performing physician's medical judgment that an abortion is justified for one or more of the reasons specified by § 26—1202(a), with written concurrence in that judgment by at least two other Georgia-licensed physicians, based upon their separate personal medical examinations of the woman; (4) performance of the abortion in a hospital licensed by the State Board of Health and also accredited by the Joint Commission on Accreditation of Hospitals; (5) advance approval by an abortion committee of not less than three members of the hospital's staff; (6) certifications in a rape situation; and (7), (8), and (9) maintenance and confidentiality of records. There is a provision (subsection (c)) for judicial determination of the legality of a proposed abortion on petition of the judicial circuit law officer or of a close relative, as therein defined, of the unborn child, and for expeditious hearing of that petition. There is also a provision (subsection (e)) giving a hospital the right not to admit an abortion patient and giving any physician and any hospital employee or staff member the right, on moral or religious grounds, not to participate in the procedure.
II
8
On April 16, 1970, Mary Doe,6 23 other individuals (nine described as Georgia-licensed physicians, seven as nurses registered in the State, five as clergymen, and two as social workers), and two nonprofit Georgia corporations that advocate abortion reform instituted this federal action in the Northern District of Georgia against the State's attorney general, the district attorney of Fulton County, and the chief of police of the city of Atlanta. The plaintiffs sought a declaratory judgment that the Georgia abortion statutes were unconstitutional in their entirety. They also sought injunctive relief restraining the defendants and their successors from enforcing the statutes.
Mary Doe alleged:
9
(1) She was a 22-year-old Georgia citizen, married, and nine weeks pregnant. She had three living children. The two older ones had been placed in a foster home because of Doe's poverty and inability to care for them. The youngest, born July 19, 1969, had been placed for adoption. Her husband had recently abandoned her and she was forced to live with her indigent parents and their eight children. She and her husband, however, had become reconciled. He was a construction worker employed only sporadically. She had been a mental patient at the State Hospital. She had been advised that an abortion could be performed on her with less danger to her health than if she gave birth to the child she was carrying. She would be unable to care for or support the new child.
10
(2) On March 25, 1970, she applied to the Abortion Committee of Grady Memorial Hospital, Atlanta, for a therapeutic abortion under § 26—1202. Her application was denied 16 days later, on April 10, when she was eight weeks pregnant, on the ground that her situation was not one described in § 26—1202(a).7
11
(3) Because her application was denied, she was forced either to relinquish 'her right to decide when and how many children she will bear' or to seek an abortion that was illegal under the Georgia statutes. This invaded her rights of privacy and liberty in matters related to family, marriage, and sex, and deprived her of the right to choose whether to bear children. This was a violation of rights guaranteed her by the First, Fourth, Fifth, Ninth, and Fourteenth Amendments. The statutes also denied her equal protection and procedural due process and, because they were unconstitutionally vague, deterred hospitals and doctors from performing abortions. She sued 'on her own behalf and on behalf of all others similarly situated.'
12
The other plaintiffs alleged that the Georgia statutes 'chilled and deterred' them from practicing their respective professions and deprived them of rights guaranteed by the First, Fourth, and Fourteenth Amendments. These plaintiffs also purported to sue on their own behalf and on behalf of others similarly situated.
13
A three-judge district court was convened. An offer of proof as to Doe's identity was made, but the court deemed it unnecessary to receive that proof. The case was then tried on the pleadings and interrogatories.
14
The District Court, per curiam, 319 F.Supp. 1048 (N.D.Ga.1970), held that all the plaintiffs had standing but that only Doe presented a justiciable controversy. On the merits, the court concluded that the limitation in the Georgia statute of the 'number of reasons for which an abortion may be sought,' id., at 1056, improperly restricted Doe's rights of privacy articulated in Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965), and of 'personal liberty,' both of which it thought 'broad enough to include the decision to abort a pregnancy,' 319 F.Supp., at 1055. As a consequence, the court held invalid those portions of §§ 26—1202(a) and (b)(3) limiting legal abortions to the three situations specified; § 26—1202(b)(6) relating to certifications in a rape situation; and § 26—1202(c) authorizing a court test. Declaratory relief was granted accordingly. The court, however, held that Georgia's interest in protection of health, and the existence of a potential of independent human existence' (emphasis in original), id., at 1055, justified state regulation of 'the manner of performance as well as the quality of the final decision to abort,' id., at 1056, and it refused to strike down the other provisions of the statutes. It denied the request for an injunction, id., at 1057.
15
Claiming that they were entitled to an injunction and to broader relief, the plaintiffs took a direct appeal pursuant to 28 U.S.C. § 1253. We postponed decision on jurisdiction to the hearing on the merits. 402 U.S. 941, 91 S.Ct. 1614, 29 L.Ed.2d 109 (1971). The defendants also purported to appeal, pursuant to § 1253, but their appeal was dismissed for want of jurisdiction. 402 U.S. 936, 91 S.Ct. 1614, 1633, 29 L.Ed.2d 104 (1971). We are advised by the appellees, Brief 42, that an alternative appeal on their part is pending in the United States Court of Appeals for the Fifth Circuit. The extent, therefore, to which the District Court decision was adverse to the defendants, that is, the extent to which portions of the Georgia statutes were held to be unconstitutional, technically is not now before us.8 Swarb v. Lennox, 405 U.S. 191, 201, 92 S.Ct. 767, 772, 31 L.Ed.2d 138 (1972).
III
16
Our decision in Roe v. Wade, ante, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147, establishes (1) that, despite her pseudonym, we may accept as true, for this case, Mary Doe's existence and her pregnant state on April 16, 1970; (2) that the constitutional issue is substantial; (3) that the interim termination of Doe's and all other Georgia pregnancies in existence in 1970 has not rendered the case moot; and (4) that Doe presents a justiciable controversy and has standing to maintain the action.
17
Inasmuch as Doe and her class are recognized, the question whether the other appellants—physicians, nurses, clergymen, social workers, and corporations—present a justiciable controversy and have standing is perhaps a matter of no great consequence. We conclude, however, that the physician-appellants, who are Georgia-licensed doctors consulted by pregnant women, also present a justiciable controversy and do have standing despite the fact that the record does not disclose that any one of them has been prosecuted, or threatened with prosecution, for violation of the State's abortion statutes. The physician is the one against whom these criminal statutes directly operate in the event he procures an abortion that does not meet the statutory exceptions and conditions. The physician-appellants, therefore, assert a sufficiently direct threat of personal detriment. They should not be required to await and undergo a criminal prosecution as the sole means of seeking relief. Crossen v. Breckenridge, 446 F.2d 833, 839—840 (CA6 1971); Poe v. Menghini, 339 F.Supp. 986, 990—991 (Kan.1972).
18
In holding that the physicians, while theoretically possessed of standing, did not present a justiciable controversy, the District Court seems to have relied primarily on Poe v. Ullman, 367 U.S. 497, 81 S.Ct. 1752, 6 L.Ed.2d 989 (1961). There, a sharply divided Court dismissed an appeal from a state court on the ground that it presented no real controversy justifying the adjudication of a constitutional issue. But the challenged Connecticut statute, deemed to prohibit the giving of medical advice on the use of contraceptives, had been enacted in 1879, and, apparently with a single exception, no one had ever been prosecuted under it. Georgia's statute, in contrast, is recent and not moribund. Furthermore, it is the successor to another Georgia abortion statute under which, we are told,9 physicians were prosecuted. The present case, therefore, is closer to Epperson v. Arkansas, 393 U.S. 97, 89 S.Ct. 266, 21 L.Ed.2d 228 (1968), where the Court recognized the right of a school teacher, though not yet charged criminally, to challenge her State's anti-evolution statute. See also Griswold v. Connecticut, 381 U.S., at 481, 85 S.Ct. 1678.
19
The parallel claims of the nurse, clergy, social worker, and corporation-appellants are another step removed and as to them, the Georgia statutes operate less directly. Not being licensed physicians, the nurses and the others are in no position to render medical advice. They would be reached by the abortion statutes only in their capacity as accessories or as counselor-conspirators. We conclude that we need not pass upon the status of these additional appellants in this suit, for the issues are sufficiently and adequately presented by Doe and the physician-appellants, and nothing is gained or lost by the presence or absence of the nurses, the clergymen, the social workers, and the corporations. See Roe v. Wade, supra, 410 U.S., at 127, 93 S.Ct., at 714.
IV
20
The appellants attack on several grounds those portions of the Georgia abortion statutes that remain after the District Court decision: undue restriction of a right to personal and marital privacy; vagueness; deprivation of substantive and procedural due process; improper restriction to Georgia residents; and denial of equal protection.
21
A. Roe v. Wade, supra, sets forth our conclusion that a pregnant woman does not have an absolute constitutional right to an abortion on her demand. What is said there is applicable here and need not be repeated.
22
B. The appellants go on to argue, however, that the present Georgia statutes must be viewed historically, that is, from the fact that prior to the 1968 Act an abortion in Georgia was not criminal if performed to 'preserve the life' of the mother. It is suggested that the present statute, as well, has this emphasis on the mother's rights, not on those of the fetus. Appellants contend that it is thus clear that Georgia has given little, and certainly not first, consideration to the unborn child. Yet, it is the unborn child's rights that Georgia asserts in justification of the statute. Appellants assert that this justification cannot be advanced at this late date.
23
Appellants then argue that the statutes do not adequately protect the woman's right. This is so because it would be physically and emotionally damaging to Doe to bring a child into her poor, 'fatherless'10 family, and because advances in medicine and medical techniques have made it safer for a woman to have a medically induced abortion than for her to bear a child. Thus, 'a statute that requires a woman to carry an unwanted pregnancy to term infringes not only on a fundamental right of privacy but on the right to life itself.' Brief 27.
24
The appellants recognize that a century ago medical knowledge was not so advanced as it is today, that the techniques of antisepsis were not known, and that any abortion procedure was dangerous for the woman. To restrict the legality of the abortion to the situation where it was deemed necessary, in medical judgment, for the preservation of the woman's life was only a natural conclusion in the exercise of the legislative judgment of that time. A State is not to be reproached, however, for a past judgmental determination made in the light of then-existing medical knowledge. It is perhaps unfair to argue, as the appellants do, that because the early focus was on the preservation of the woman's life the State's present professed interest in the protection of embryonic and fetal life is to be downgraded. That argument denies the State the right to readjust its views and emphases in the light of the advanced knowledge and techniques of the day.
25
C. Appellants argue that § 26—1202(a) of the Georgia statutes, as it has been left by the District Court's decision, is unconstitutionally vague. This argument centers on the proposition that, with the District Court's having struck down the statutorily specified reasons, it still remains a crime for a physician to perform an abortion except when, as § 26—1202(a) reads, it is vbased upon his best clinical judgment that an abortion is necessary.' The appellants contend that the word 'necessary' does not warn the physician of what conduct is proscribed; that the statute is wholly without objective standards and is subject to diverse interpretation; and that doctors will choose to err on the side of caution and will be arbitrary.
26
The net result of the District Court's decision is that the abortion determination, so far as the physician is concerned, is made in the exercise of his professional, that is, his 'best clinical,' judgment in the light of all the attendant circumstances. He is not now restricted to the three situations originally specified. Instead, he may range farther afield wherever his medical judgment, properly and professionally exercised, so dictates and directs him.
27
The vagueness argument is set at rest by the decision in United States v. Vuitch, 402 U.S. 62, 71—72, 91 S.Ct. 1294, 1298 1299, 28 L.Ed.2d 601 (1971), where the issue was raised with respect to a District of Columbia statute making abortions criminal 'unless the same were done as necessary for the preservation of the mother's life or health and under the direction of a competent licensed practitioner of medicine.' That statute has been construed to bear upon psychological as well as physical wellbeing. This being so, the Court concluded that the term 'health' presented no problem of vagueness. 'Indeed, where a particular operation is necessary for a patient's physical or mental health is a judgment that physicians are obviously called upon to make routinely whenever surgery is considered.' Id., at 72, 91 S.Ct., at 1299. This conclusion is equally applicable here. Whether, in the words of the Georgia statute, 'an abortion is necessary' is a professional judgment that the Georgia physician will be called upon to make routinely.
28
We agree with the District Court, 319 F.Supp., at 1058, that the medical judgment may be exercised in the light of all factors physical, emotional, psychological, familial, and the woman's age relevant to the well-being of the patient. All these factors may relate to health. This allows the attending physician the room he needs to make his best medical judgment. And it is room that operates for the benefit, not the disadvantage, of the pregnant woman.
29
D. The appellants next argue that the District Court should have declared unconstitutional three procedural demands of the Georgia statute: (1) that the abortion be performed in a hospital accredited by the Joint Commission on Accreditation of Hospitals:11 (2) that the procedure be approved by the hospital staff abortion committee; and (3) that the performing physician's judgment be confirmed by the independent examinations of the patient by two other licensed physicians. The appellants attack these provisions not only on the ground that they unduly restrict the woman's right of privacy, but also on procedural due process and equal protection grounds. The physician-appellants also argue that, by subjecting a doctor's individual medical judgment to committee approval and to confirming consultations, the statute impermissibly restricts the physician's right to practice his profession and deprives him of due process.
30
1. JCAH accreditation. The Joint Commission on Accreditation of Hospitals is an organization without governmental sponsorship or overtones. No question whatever is raised concerning the integrity of the organization or the high purpose of the accreditation process.12 That process, however, has to do with hospital standards generally and has no present particularized concern with abortion as a medical or surgical procedure.13 In Georgia, there is no restriction on the performance of nonabortion surgery in a hospital not yet accredited by the JCAH so long as other requirements imposed by the State, such as licensing of the hospital and of the operating surgeon, are met. See Georgia Code §§ 88—1901(a) and 88—1905 (1971) and 84—907 (Supp.1971). Furthermore, accreditation by the Commission is not granted until a hospital has been in operation at least one year. The Model Penal Code, § 230.3, Appendix B hereto, contains no requirement for JCAH accreditation. And the Uniform Abortion Act (Final Draft, Aug. 1971),14 approved by the American Bar Association in February 1972, contains no JCAH-accredited hospital specification.15 Some courts have held that a JCAH-accreditation requirement is an overbroad infringement of fundamental righs because it does not relate to the particular medical problems and dangers of the abortion operation. E.g., Poe v. Menghini, 339 F.Supp., at 993 994.
31
We hold that the JCAH-accreditation requirement does not withstand constitutional scrutiny in the present context. It is a requirement that simply is not 'based on differences that are reasonably related to the purposes of the Act in which it is found.' Morey v. Doud, 354 U.S. 457, 465, 77 S.Ct. 1344, 1350, 1 L.Ed.2d 1485 (1957).
32
This is not say that Georgia many not or should not, from and after the end of the first trimester, adopt standards for licensing all facilities where abortions may be performed so long as those standards are legitimately related to the objective the State seeks to accomplish. The appellants contend that such a relationship would be lacking even in a lesser requirement that an abortion be performed in a licensed hospital, as opposed to a facility, such as a clinic, that may be required by the State to possess all the staffing and services necessary to perform an abortion safely (including those adequate to handle serious complications or other emergency, or arrangements with a nearby hospital to provide such services). Appellants and various amici have presented us with a mass of data purporting to demonstrate that some facilities other than hospitals are entirely adequate to perform abortions if they possess these qualifications. The State, on the other hand, has not presented persuasive data to show that only hospitals meet its acknowledged interest in insuring the quality of the operation and the full protection of the patient. We feel compelled to agree with appellants that the State must show more than it has in order to prove that only the full resources of a licensed hospital, rather than those of some other appropriately licensed institution, satisfy these health interests. We hold that the hospital requirement of the Georgia law, because it fails to exclude the first trimester of pregnancy, see Roe v. Wade, 410 U.S., at 163, 93 S.Ct., at 732, is also invalid. In so holding we naturally express no opinion on the medical judgment involved in any particular case, that is, whether the patient's situation is such that an abortion should be performed in a hospital, rather than in some other facility.
33
2. Committee approval. The second aspect of the appellants' procedural attack relates to the hospital abortion committee and to the pregnant woman's asserted lack of access to that committee. Relying primarily on Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970), concerning the termination of welfare benefits, and Wisconsin v. Constantineau, 400 U.S. 433, 91 S.Ct. 507, 27 L.Ed.2d 515 (1971), concerning the posting of an alcoholic's name, Doe first argues that she was denied due process because she could not make a presentation to the committee. It is not clear from the record, however, whether Doe's own consulting physician was or was not a member of the committee or did or did not present her case, or, indeed, whether she herself was or was not there. We see nothing in the Georgia statute that explicitly denies access to the committee by or on behalf of the woman. If the access point alone were involved, we would not be persuaded to strike down the committee provision on the unsupported assumption that access is not provided.
34
Appellants attack the discretion the statute leaves to the committee. The most concrete argument they advance is their suggestion that it is still a badge of infamy 'in many minds' to bear an illegitimate child, and that the Georgia system enables the committee members' personal views as to extramarital sex relations, and punishment therefor, to govern their decisions. This approach obviously is one founded on suspicion and one that discloses a lack of confidence in the integrity of physicians. To say that physicians will be guided in their hospital committee decisions by their predilections on extramarital sex unduly narrows the issue to pregnancy outside marriage. (Doe's own situation did not involve extramarital sex and its product.) The appellants' suggestion is necessarily somewhat degrading to the conscientious physician, particularly the obstetrician, whose professional activity is concerned with the physical and mental welfare, the woes, the emotions, and the concern of his female patients. He, perhaps more than anyone else, is knowledgeable in this area of patient care, and he is aware of human fraitly, so-called 'error,' and needs. The good physician—despite the presence of rascals in the medical profession, as in all others, we trust that most physicians are 'good'—will have sympathy and understanding for the pregnant patient that probably are not exceeded by those who participate in other areas of professional counseling.
35
It is perhaps worth noting that the abortion committee has a function of its own. It is a committee of the hospital and it is composed of members of the institution's medical staff. The membership usually is a changing one. In this way, its work burden is shared and is more readily accepted. The committee's function is protective. It enables the hospital appropriately to be advised that its posture and activities are in accord with legal requirements. It is to be remembered that the hospital is an entity and that it, too, has legal rights and legal obligations.
36
Saying all this, however, does not settle the issue of the constitutional propriety of the committee requirement. Viewing the Georgia statute as a whole, we see no constitutionally justifiable pertinence in the structure for the advance approval by the abortion committee. With regard to the protection of potential life, the medical judgment is already completed prior to the committee stage, and review by a committee once removed from diagnosis is basically redundant. We are not cited to any other surgical procedure made subject to committee approval as a matter of state criminal law. The woman's right to receive medical care in accordance with her licensed physician's best judgment and the physician's right to administer it are substantially limited by this statutorily imposed overview. And the hospital itself is otherwise fully protected. Under § 26—1202(e), the hospital is free not to admit a patient for an abortion. It is even free not to have an abortion committee. Further a physician or any other employee has the right to refrain, for moral or religious reasons, from participating in the abortion procedure. These provisions obviously are in the statute in order to afford appropriate protection to the individual and to the denominational hospital. Section 26—1202(e) affords adequate protection to the hospital, and little more is provided by the committee prescribed by § 26—1202(b)(5).
37
We conclude that the interposition of the hospital abortion committee is unduly restrictive of the patient's rights and needs that, at this point, have already been medically delineated and substantiated by her personal physician. To ask more serves neither the hospital nor the State.
38
3. Two-doctor concurrence. The third aspect of the appellants' attack centers on the 'time and availability of adequate medical facilities and personnel.' It is said that the system imposes substantial and irrational roadblocks and 'is patently unsuited' to prompt determination of the abortion decision. Time, of course, is critical in abortion. Risks during the first trimester of pregnancy are admittedly lower than during later months.
39
The appellants purport to show by a local study16 of Grady Memorial Hospital (serving indigent residents in Fulton and DeKalb Counties) that the 'mechanics of the system itself forced . . . discontinuance of the abortion process' because the median time for the workup was 15 days. The same study shows, however, that 27% of the candidates for abortion were already 13 or more weeks pregnant at the time of application, that is, they were at the end of or beyond the first trimester when they made their applications. It is too much to say, as appellants do, that these particular persons 'were victims of a system over which they (had) no control.' If higher risk was incurred because of abortions in the second rather than the first trimester, much of that risk was due to delay in application, and not to the alleged cumbersomeness of the system. We note, in passing, that appellant Doe had no delay problem herself; the decision in her case was made well within the first trimester.
40
It should be manifest that our rejection of the accredited-hospital requirement and, more important, of the abortion committee's advance approval eliminates the major grounds of the attack based on the system's delay and the lack of facilities. There remains, however, the required confirmation by two Georgia-licensed physicians in addition to the recommendation of the pregnant woman's own consultant (making under the statute, a total of six physicians involved, including the three on the hospital's abortion committee). We conclude that this provision, too, must fall.
41
The statute's emphasis, as has been repetitively noted, is on the attending physician's 'best clinical judgment that an abortion is necessary.' That should be sufficient. The reasons for the presence of the confirmation step in the statute are perhaps apparent, but they are insufficient to withstand constitutional challenge. Again, no other voluntary medical or surgical procedure for which Georgia requires confirmation by two other physicians has been cited to us. If a physician is licensed by the State, he is recognized by the State as capable of exercising acceptable clinical judgment. If he fails in this, professional censure and deprivation of his license are available remedies. Required acquiescence by co-practitioners has no rational connection with a patient's needs and unduly infringes on the physician's right to practice. The attending physician will know when a consultation is advisable—the doubtful situation, the need for assurance when the medical decision is a delicate one, and the like. Physicians have followed this routine historically and know its usefulness and benefit for all concerned. It is still true today that '(r)eliance must be placed upon the assurance given by his license, issued by an authority competent to judge in that respect, that he (the physician) possesses the requisite qualifications.' Dent v. West Virginia, 129 U.S. 114, 122—123, 9 S.Ct. 231, 233, 32 L.Ed. 623 (1889). See United States v. Vuitch, 402 U.S., at 71, 91 S.Ct. at 1298.
42
E. The appellants attack the residency requirement of the Georgia law, §§ 26—1202(b)(1) and (b)(2), as violative of the right to travel stressed in Shapiro v. Thompson, 394 U.S. 618, 629 631, 89 S.Ct. 1322, 1328—1330, 22 L.Ed.2d 600 (1969), and other cases. A requirement of this kind, of course, could be deemed to have some relationship to the availability of post-procedure medical care for the aborted patient.
43
Nevertheless, we do not uphold the constitutionality of the residence requirement. It is not based on any policy of preserving state-supported facilities for Georgia residents, for the bar also applies to private hospitals and to privately retained physicians. There is no intimation, either, that Georgia facilities are utilized to capacity in caring for Georgia residents. Just as the Privileges and Immunities Clause, Const. Art. IV, § 2, protects persons who enter other States to ply their trade, Ward v. Maryland, 12 Wall. 418, 430, 20 L.Ed. 449 (1871); Blake v. McClung, 172 U.S. 239, 248—256, 19 S.Ct. 165, 168—172, 43 L.Ed. 432 (1898), so must it protect persons who enter Georgia seeking the medical services that are available there. See Toomer v. Witsell, 334 U.S. 385, 396—397, 68 S.Ct. 1156, 1162—1163, 92 L.Ed. 1460 (1948). A contrary holding would mean that a State could limit to its own residents the general medical care available within its borders. This we could not approve.
44
F. The last argument on this phase of the case is one that often is made, namely, that the Georgia system is violative of equal protection because it discriminates against the poor. The appellants do not urge that abortions should be performed by persons other than licensed physicians, so we have no argument that because the wealthy can better afford physicians, the poor should have non-physicians made available to them. The appellants acknowledged that the procedures are 'nondiscriminatory in . . . express terms' but they suggest that they have produced invidious discriminations. The District Court rejected this approach out of hand. 319 F.Supp., at 1056. It rests primarily on the accreditation and approval and confirmation requirements, discussed above, and on the assertion that most of Georgia's counties have no accredited hospital. We have set aside the accreditation, approval, and confirmation requirements, however, and with that, the discrimination argument collapses in all significant aspects.
V
45
The appellants complain, finally, of the District Court's denial of injunctive relief. A like claim was made in Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147. We declined decision there insofar as injunctive relief was concerned, and we decline it here. We assume that Georgia's prosecutorial authorities will give full recognition to the judgment of this Court.
46
In summary, we hold that the JCAH-accredited hospital provision and the requirements as to approval by the hospital abortion committee, as to confirmation by two independent physicians, and as to residence in Georgia are all violative of the Fourteenth Amendment. Specifically, the following portions of § 26—1202(b), remaining after the District Court's judgment, are invalid:
47
(1) Subsections (1) and (2).
48
(2) That portion of Subsection (3) following the words '(s)uch physician's judgment is reduced to writing.'
49
(3) Subsections (4) and (5).
50
The judgment of the District Court is modified accordingly and, as so modified, is affirmed. Costs are allowed to the appellants.
APPENDIX A TO OPINION OF THE COURT
Criminal Code of Georgia
51
(The italicized portions are those held unconstitutional by the District Court)
52
CHAPTER 26—12. ABORTION.
53
26—1201. Criminal Abortion. Except as otherwise provided in section 26—1202, a person commits criminal abortion when he administers any medicine, drug or other substance whatever to any woman or when he uses any instrument or other means whatever upon any woman with intent to produce a miscarriage or abortion.
54
26—1202. Exception. (a) Section 26—1201 shall not apply to an abortion performed by a physician duly licensed to practice medicine and surgery pursuant to Chapter 84—9 or 84—12 of the Code of Georgia of 1933, as amended, based upon his best clinical judgment that an abortion is necessary because:
55
(1) A continuation of the pregnancy would endanger the life of the pregnant woman or would seriously and permanently injure her health; or
56
(2) The fetus would very likely be born with a grave, permanent, and irremediable mental or physical defect; or
57
(3) The pregnancy resulted from forcible or statutory rape.
58
(b) No abortion is authorized or shall be performed under this section unless each of the following conditions is met:
59
(1) The pregnant woman requesting the abortion certifies in writing under oath and subject to the penalties of false swearing to the physician who proposes to perform the abortion that she is a bona fide legal resident of the State of Georgia.
60
(2) The physician certifies that he believes the woman is a bona fide resident of this State and that he has no information which should lead him to believe otherwise.
61
(3) Such physician's judgment is reduced to writing and concurred in by at least two other physicians duly licensed to practice medicine and surgery pursuant to Chapter 84—9 of the Code of Georgia of 1933, as amended, who certify in writing that based upon their separate personal medical examinations of the pregnant woman, the abortion is, in their judgment, necessary because of one or more of the reasons enumerated above.
62
(4) Such abortion is performed in a hospital licensed by the State Board of Health and accredited by the Joint Commission on Accreditation of Hospitals.
63
(5) The performance of the abortion has been approved in advance by a committee of the medical staff of the hospital in which the operation is to be performed. This committee must be one established and maintained in accordance with the standards promulgated by the Joint Commission on the Accreditation of Hospitals, and its approval must be by a majority vote of a membership of not less than three members of the hospital's staff; the physician proposing to perform the operation may not be counted as a member of the committee for this purpose.
64
(6) If the proposed abortion is considered necessary because the woman has been raped, the woman makes a written statement under oath, and subject to the penalties of false swearing, of the date, time and place of the rape and the name of the rapist, if known. There must be attached to this statement a certified copy of any report of the rape made by any law enforcement officer or agency and a statement by the solicitor general of the judicial circuit where the rape occurred or allegedly occurred that, according to his best information, there is probable cause to believe that the rape did occur.
65
(7) Such written opinions, statements, certificates, and concurrences are maintained in the permanent files of such hospital and are available at all reasonable times to the solicitor general of the judicial circuit in which the hospital is located.
66
(8) A copy of such written opinions, statements, certificates, and concurrences is filed with the Director of the State Department of Public Health within 10 days after such operation is performed.
67
(9) All written opinions, statements, certificates, and concurrences filed and maintained pursuant to paragraphs (7) and (8) of this subsection shall be confidential records and shall not be made available for public inspection at any time.
68
(c) Any solicitor general of the judicial circuit in which an abortion is to be performed under this section, or any person who would be a relative of the child within the second degree of consanguinity, may petition the superior court of the county in which the abortion is to be performed for a declaratory judgment whether the performance of such abortion would violate any constitutional or other legal rights of the fetus. Such solicitor general may also petition such court for the purpose of taking issue with compliance with the requirements of this section. The physician who proposes to perform the abortion and the pregnant woman shall be respondents. The petition shall be heard expeditiously and if the court adjudges that such abortion would violate the constitutional or other legal rights of the fetus, the court shall so declare and shall restrain the physician from performing the abortion.
69
(d) If an abortion is performed in compliance with this section, the death of the fetus shall not give rise to any claim for wrongful death.
70
(e) Nothing in this section shall require a hospital to admit any patient under the provisions hereof for the purpose of performing an abortion, nor shall any hospital be required to appoint a committee such as contemplated under subsection (b)(5). A physician, or any other person who is a member of or associated with the staff of a hospital, or any employee of a hospital in which an abortion has been authorized, who shall state in writing an objection to such abortion on moral or religious grounds shall not be required to participate in the medical procedures which will result in the abortion, and the refusal of any such person to participate therein shall not form the basis of any claim for damages on account of such refusal or for any disciplinary or recriminatory action against such person.
71
26—1203. Punishment. A person convicted of criminal abortion shall be punished by imprisonment for not less than one nor more than 10 years.
APPENDIX B TO OPINION OF THE COURT
American Law Institute
MODEL PENAL CODE
72
Section 230.3. Abortion.
73
(1) Unjustified Abortion. A person who purposely and unjustifiably terminates the pregnancy of another otherwise than by a live birth commits a felony of the third degree or, where the pregnancy has continued beyond the twenty-sixth week, a felony of the second degree.
74
(2) Justifiable Abortion. A licensed physician is justified in terminating a pregnancy if he believes there is substantial risk that continuance of the pregnancy would gravely impair the physical or mental health of the mother or that the child would be born with grave physical or mental defect, or that the pregnancy resulted from rape, incest, or other felonious intercourse. All illicit intercourse with a girl below the age of 16 shall be deemed felonious for purposes of this subsection. Justifiable abortions shall be performed only in a licensed hospital except in case of emergency when hospital facilities are unavailable. (Additional exceptions from the requirement of hospitalization may be incorporated here to take account of situations in sparsely settled areas where hospitals are not generally accessible.)
75
(3) Physicians' Certificates; Presumption from Non-Compliance. No abortion shall be performed unless two physicians, one of whom may be the person performing the abortion, shall have certified in writing the circumstances which they believe to justify the abortion. Such certificate shall be submitted before the abortion to the hospital where it is to be performed and, in the case of abortion following felonious intercourse, to the prosecuting attorney or the police. Failure to comply with any of the requirements of this Subsection gives rise to a presumption that the abortion was unjustified.
76
(4) Self-Abortion. A woman whose pregnancy has continued beyond the twenty-sixth week commits a felony of the third degree if she purposely terminates her own pregnancy otherwise than by a live birth, or if she uses instruments, drugs or violence upon herself for that purpose. Except as justified under Subsection (2), a person who induces or knowingly aids a woman to use instruments, drugs or violence upon herself for the purpose of terminating her pregnancy otherwise than by a live birth commits a felony of the third degree whether or not the pregnancy has continued beyond the twenty-sixth week.
77
(5) Pretended Abortion. A person commits a felony of the third degree if, representing that it is his purpose to perform an abortion, he does an act adapted to cause abortion in a pregnant woman although the woman is in fact not pregnant, or the actor does not believe she is. A person charged with unjustified abortion under Subsection (1) or an attempt to commit that offense may be convicted thereof upon proof of conduct prohibited by this Subsection.
78
(6) Distribution of Abortifacients. A person who sells, offers to sell, possesses with intent to sell, advertises, or displays for sale anything specially designed to terminate a pregnancy, or held out by the actor as useful for that purpose, commits a misdemeanor, unless:
79
(a) the sale, offer or display is to a physician or druggist or to an intermediary in a chain of distribution to physicians or druggists; or
80
(b) the sale is made upon prescription or order of a physician; or
81
(c) the possession is with intent to sell as authorized in paragraphs (a) and (b); or
82
(d) the advertising is addressed to persons named in paragraph (a) and confined to trade or professional channels not likely to reach the general public.
83
(7) Section Inapplicable to Prevention of Pregnancy. Nothing in this Section shall be deemed applicable to the prescription, administration or distribution of drugs or other substances for avoiding pregnancy, whether by preventing implantation of a fertilized ovum or by any other method that operates before, at or immediately after fertilization.
84
Mr. Chief Justice BURGER, concurring.
85
I agree that, under the Fourteenth Amendment to the Constitution, the abortion statutes of Georgia and Texas impermissibly limit the performance of abortions necessary to protect the health of pregnant women, using the term health in its broadest medical context. See United States v. Vuitch, 402 U.S. 62, 71—72, 91 S.Ct. 1294, 1298—1299, 28 L.Ed.2d 601 (1971). I am somewhat troubled that the Court has taken notice of various scientific and medical data in reaching its conclusion; however, I do not believe that the Court has exceeded the scope of judicial notice accepted in other contexts.
86
In oral argument, counsel for the State of Texas informed the Court that early abortion procedures were routinely permitted in certain exceptional cases, such as nonconsensual pregnancies resulting from rape and incest. In the face of a rigid and narrow statute, such as that of Texas, no one in these circumstances should be placed in a posture of dependence on a prosecutorial policy or prosecutorial discretion. Of course, States must have broad power, within the limits indicated in the opinions, to regulate the subject of abortions, but where the consequences of state intervention are so severe, uncertainty must be avoided as much as possible. For my part, I would be inclined to allow a State to require the certification of two physicians to support an abortion, but the Court holds otherwise. I do not believe that such a procedure is unduly burdensome, as are the complex steps of the Georgia statute, which require as many as six doctors and the use of a hospital certified by the JCAH.
87
I do not read the Court's holdings today as having the sweeping consequences attributed to them by the dissenting Justices; the dissenting views discount the reality that the vast majority of physicians observe the standards of their profession, and act only on the basis of carefully deliberated medical judgments relating to life and health. Plainly, the Court today rejects any claim that the Constitution requires abortions on demand.
88
Mr. Justice DOUGLAS, concurring.
89
While I join the opinion of the Court,1 I add a few words.
90
* The questions presented in the present cases go far beyond the issues of vagueness, which we considered in United States v. Vuitch, 402 U.S. 62, 91 S.Ct. 1294, 28 L.Ed.2d 601. They involve the right of privacy, one aspect of which we considered in Griswold v. Connecticut, 381 U.S. 479, 484, 85 S.Ct. 1678, 1681, 14 L.Ed.2d 510, when we held that various guarantees in the Bill of Rights create zones of privacy.2
91
The Griswold case involved a law forbidding the use of contraceptives. We held that law as applied to married people unconstitutional:
92
'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 for better or for worse, hopefully enduring, and intimate to the degree of being sacred.' Id., at 486, 85 S.Ct. at 1682.
93
The District Court in Doe held that Griswold and related cases 'establish a Constitutional right to privacy broad enough to encompass the right of a woman to terminate an unwanted pregnancy in its early stages, by obtaining an abortion.' 319 F.Supp. 1048, 1054.
94
The Supreme Court of California expressed the same view in People v. Belous,3 71 Cal.2d 954, 963, 80 Cal.Rptr. 354, 359, 458 P.2d 194, 199.
95
The Ninth Amendment obviously does not create federally enforceable rights. It merely says, 'The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.' But a catalogue of these rights includes customary, traditional, and time-honored rights, amenities, privileges, and immunities that come within the sweep of 'the Blessings of Liberty' mentioned in the preamble to the Constitution. Many of them, in my view, come within the meaning of the term 'liberty' as used in the Fourteenth Amendment.
96
First is the autonomous control over the development and expression of one's intellect, interests, tastes, and personality.
97
These are rights protected by the First Amendment and, in my view, they are absolute, permitting of no exceptions. See Terminiello v. Chicago, 337 U.S. 1, 69 S.Ct. 894, 93 L.Ed. 1131; Roth v. United States, 354 U.S. 476, 508, 77 S.Ct. 1304, 1321, 1 L.Ed.2d 1498 (dissent); Kingsley Pictures Corp. v. Regents, 360 U.S. 684, 697, 79 S.Ct. 1362, 1369, 3 L.Ed.2d 1512 (concurring); New York Times Co. v. Sullivan, 376 U.S. 254, 293, 84 S.Ct. 710, 733, 11 L.Ed.2d 686 (Black, J., concurring, in which I joined). The Free Exercise Clause of the First Amendment is one facet of this constitutional right. The right to remain silent as respects one's own beliefs, Watkins v. United States, 354 U.S. 178, 196 199, 77 S.Ct. 1173, 1183—1185, 1 L.Ed.2d 1273, is protected by the First and the Fifth. The First Amendment grants the privacy of first-class mail, United States v. Van Leeuwen, 397 U.S. 249, 253, 90 S.Ct. 1029, 1032, 25 L.Ed.2d 282. All of these aspects of the right of privacy are rights 'retained by the people' in the meaning of the Ninth Amendment.
98
Second is freedom of choice in the basic decisions of one's life respecting marriage, divorce, procreation, contraception, and the education and upbringing of children.
99
These rights, unlike those protected by the First Amendment, are subject to some control by the police power. Thus, the Fourth Amendment speaks only of 'unreasonable searches and seizures' and of 'probable cause.' These rights are 'fundamental,' and we have held that in order to support legislative action the statute must be narrowly and precisely drawn and that a 'compelling state interest' must be shown in support of the limitation. E.g., Kramer v. Union Free School District, 395 U.S. 621, 89 S.Ct. 1886, 23 L.Ed.2d 583; Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600; Carrington v. Rash, 380 U.S. 89, 85 S.Ct. 775, 13 L.Ed.2d 675; Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965; NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488.
100
The liberty to marry a person of one's own choosing, Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010; the right of procreation, Skinner v. Oklahoma, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655; the liberty to direct the education of one's children, Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070, and the privacy of the marital relation, Griswold v. Connecticut, supra, are in this category.4 Only last Term in Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349, another contraceptive case, we expanded the concept of Griswold by saying:
101
'It is true that in Griswold the right of privacy in question inhered in the marital relationship. Yet the marital couple is not an independent entity with a mind and heart of its own, but an association of two individuals each with a separate intellectual and emotional make up. If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.' Id., at 453.
102
This right of privacy was called by Mr. Justice Brandeis the right 'to be let alone.' Olmstead v. United States, 277 U.S. 438, 478, 48 S.Ct. 564, 572, 72 L.Ed. 944 (dissenting opinion). That right includes the privilege of an individual to plan his own affairs, for, "outside areas of plainly harmful conduct, every American is left to shape his own life as he thinks best, do what he pleases, go where he pleases." Kent v. Dulles, 357 U.S. 116, 126, 78 S.Ct. 1113, 1118, 2 L.Ed.2d 1204.
103
Third is the freedom to care for one's health and person, freedom from bodily restraint or compulsion, freedom to walk, stroll, or loaf.
104
These rights, though fundamental, are likewise subject to regulation on a showing of 'compelling state interest.' We stated in Papachristou v. City of Jacksonville, 405 U.S. 156, 164, 92 S.Ct. 839, 844, 31 L.Ed.2d 110, that walking, strolling, and wandering 'are historically part of the amenities of life as we have known (them).' As stated in Jacobson v. Massachusetts, 197 U.S. 11, 29, 25 S.Ct. 358, 362, 49 L.Ed. 643:
105
'There is, of course, a sphere within which the individual may assert the supremacy of his own will and rightfully dispute the authority of any human government, especially of any free government existing under a written constitution, to interfere with the exercise of that will.'
106
In Union Pacific R. Co. v. Botsford, 141 U.S. 250, 252, 11 S.Ct. 1000, 1001, 35 L.Ed. 734, the Court said, 'The inviolability of the person is as much invaded by a compulsory stripping and exposure as by a blow.'
107
In Terry v. Ohio, 392 U.S. 1, 8—9, 88 S.Ct. 1868, 1873, 20 L.Ed.2d 889, the Court, in speaking of the Fourth Amendment, stated, 'This inestimable right of personal security belongs as much to the citizen on the streets of our cities as to the homeowner closeted in his study to dispose of his secret affairs.'
108
Katz v. United States, 389 U.S. 347, 350, 88 S.Ct. 507, 510, 19 L.Ed.2d 576, emphasizes that the Fourth Amendment 'protects individual privacy against certain kinds of governmental intrusion.'
109
In Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 626, 67 L.Ed. 1042, the Court said:
110
'Without doubt, (liberty) denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.'
111
The Georgia statute is at war with the clear message of these cases—that a woman is free to make the basic decision whether to bear an unwanted child. Elaborate argument is hardly necessary to demonstrate that childbirth may deprive a woman of her preferred lifestyle and force upon her a radically different and undesired future. For example, rejected applicants under the Georgia statute are required to endure the discomforts of pregnancy; to incur the pain, higher mortality rate, and aftereffects of childbirth; to abandon educational plans; to sustain loss of income; to forgo the satisfactions of careers; to tax further mental and physical health in providing child care; and, in some cases, to bear the lifelong stigma of unwed motherhood, a badge which may haunt, if not deter, later legitimate family relationships.
II
112
Such a reasoning is, however, only the beginning of the problem. The State has interests to protect. Vaccinations to prevent epidemics are one example, as Jacobson, supra, holds. The Court held that compulsory sterilization of imbeciles afflicted with hereditary forms of insanity or imbecility is another. Buck v. Bell, 274 U.S. 200, 47 S.Ct. 584, 71 L.Ed. 1000. Abortion affects another. While childbirth endangers the lives of some women, voluntary abortion at any time and place regardless of medical standards would impinge on a rightful concern of society. The woman's health is part of that concern; as is the life of the fetus after quickening. These concerns justify the State in treating the procedure as a medical one.
113
One difficulty is that this statute as construed and applied apparently does not give full sweep to the 'psychological as well as physical well-being' of women patients which saved the concept 'health' from being void for vagueness in United States v. Vuitch, 402 U.S., at 72, 91 S.Ct., at 1299. But, apart from that, Georgia's enactment has a constitutional infirmity because, as stated by the District Court, it 'limits the number of reasons for which an abortion may be sought.' I agree with the holding of the District Court, 'This the State may not do, because such action unduly restricts a decision sheltered by the Constitutional right to privacy.' 319 F.Supp., at 1056.
114
The vicissitudes of life produce pregnancies which may be unwanted, or which may impair 'health' in the broad Vuitch sense of the term, or which may imperil the life of the mother, or which in the full setting of the case may create such suffering, dislocations, misery, or tragedy as to make an early abortion the only civilized step to take. These hardships may be properly embraced in the 'health' factor of the mother as appraised by a person of insight. Or they may be part of a broader medical judgment based on what is 'appropriate' in a given case, though perhaps not 'necessary' in a strict sense.
115
The 'liberty' of the mother, though rooted as it is in the Constitution, may be qualified by the State for the reasons we have stated. But where fundamental personal rights and liberties are involved, the corrective legislation must be 'narrowly drawn to prevent the supposed evil,' Cantwell v. Connecticut, 310 U.S. 296, 307, 60 S.Ct. 900, 905, 84 L.Ed. 1213, and not be dealt with in an 'unlimited and indiscriminate' manner. Shelton v. Tucker, 364 U.S. 479, 490, 81 S.Ct. 247, 253, 5 L.Ed.2d 231. And see Talley v. California, 362 U.S. 60, 80 S.Ct. 536, 4 L.Ed.2d 559. Unless regulatory measures are so confined and are addressed to the specific areas of compelling legislative concern, the police power would become the great leveler of constitutional rights and liberties.
116
There is no doubt that the State may require abortions to be performed by qualified medical personnel. The legitimate objective of preserving the mother's health clearly supports such laws. Their impact upon the woman's privacy is minimal. But the Georgia statute outlaws laws virtually all such operations—even in the earliest stages of pregnancy. In light of modern medical evidence suggesting that an early abortion is safer healthwise than childbirth itself,5 it cannot be seriously urged that so comprehensive a ban is aimed at protecting the woman's health. Rather, this expansive proscription of all abortions along the temporal spectrum can rest only on a public goal of preserving both embryonic and fetal life.
117
The present statute has struck the balance between the woman's and the State's interests wholly in favor of the latter. I am not prepared to hold that a State may equate, as Georgia has done, all phases of maturation preceding birth. We held in Griswold that the States may not preclude spouses from attempting to avoid the joinder of sperm and egg. If this is true, it is difficult to perceive any overriding public necessity which might attach precisely at the moment of conception. As Mr. Justice Clark has said:6
118
'To say that life is present at conception is to give recognition to the potential, rather than the actual. The unfertilized egg has life, and if fertilized, it takes on human proportions. But the law deals in reality, not obscurity—the known rather than the unknown. When sperm meets egg life may eventually form, but quite often it does not. The law does not deal in speculation. The phenomenon of life takes time to develop, and until it is actually present, it cannot be destroyed. Its interruption prior to formation would hardly be homicide, and as we have seen, society does not regard it as such. The rites of Baptism are not performed and death certificates are not required when a miscarriage occurs. No prosecutor has ever returned a murder indictment charging the taking of the life of a fetus.7
119
This would not be the case if the fetus constituted human life.'
120
In summary, the enactment is overbroad. It is not closely correlated to the aim of preserving prenatal life. In fact, it permits its destruction in several cases, including pregnancies resulting from sex acts in which unmarried females are below the statutory age of consent. At the same time, however, the measure broadly proscribes aborting other pregnancies which may cause severe mental disorders. Additionally, the statute is overbroad because it equates the value of embryonic life immediately after conception with the worth of life immediately before birth.
III
121
Under the Georgia Act, the mother's physician is not the sole judge as to whether the abortion should be performed. Two other licensed physicians must concur in his judgment.8 Moreover, the abortion must be performed in a licensed hospital;9 and the abortion must be approved in advance by a committee of the medical staff of that hospital.10
122
Physicians, who speak to us in Doe through an amicus brief, complain of the Georgia Act's interference with their practice of their profession.
123
The right of privacy has no more conspicuous place than in the physician-patient relationship, unless it be in the priest-penitent relationship.
124
It is one thing for a patient to agree that her physician may consult with another physician about her case. It is quite a different matter for the State compulsorily to impose on that physician-patient relationship another layer or, as in this case, still a third layer of physicians. The right of privacy—the right to care for one's health and person and to seek out a physician of one's own choice protected by the Fourteenth Amendment—becomes only a matter of theory, not a reality, when a multiple-physician-approval system is mandated by the State.
125
The State licenses a physician. If he is derelict or faithless, the procedures available to punish him or to deprive him of his license are well known. He is entitled to procedural due process before professional disciplinary sanctions may be imposed. See In re Ruffalo, 390 U.S. 544, 88 S.Ct. 1222, 20 L.Ed.2d 117. Crucial here, however, is state-imposed control over the medical decision whether pregnancy should be interrupted. The good-faith decision of the patient's chosen physician is overriden and the final decision passed on to others in whose selection the patient has no part. This is a total destruction of the right of privacy between physician and patient and the intimacy of relation which that entails.
126
The right to seek advice on one's health and the right to place reliance on the physician of one's choice are basic to Fourteenth Amendment values. We deal with fundamental rights and liberties, which, as already noted, can be contained or controlled only by discretely drawn legislation that preserves the 'liberty' and regulates only those phases of the problem of compelling legislative concern. The imposition by the State of group controls over the physician-patient relationship is not made on any medical procedure apart from abortion, no matter how dangerous the medical step may be. The oversight imposed on the physician and patient in abortion cases denies them their 'liberty,' viz., their right of privacy, without any compelling, discernible state interest.
127
Georgia has constitutional warrant in treating abortion as a medical problem. To protect the woman's right of privacy, however, the control must be through the physician of her choice and the standards set for his performance.
128
The protection of the fetus when it has acquired life is a legitimate concern of the State. Georgia's law makes no rational, discernible decision on that score.11 For under the Code, the developmental stage of the fetus is irrelevant when pregnancy is the result of rape, when the fetus will very likely be born with a permanent defect, or when a continuation of the pregnancy will endanger the life of the mother or permanently injure her health. When life is present is a question we do not try to resolve. While basically a question for medical experts, as stated by Mr. Justice Clark,12 it is, of course, caught up in matters of religion and morality.
129
In short, I agree with the Court that endangering the life of the woman or seriously and permanently injuring her health are standards too narrow for the right of privacy that is at stake.
130
I also agree that the superstructure of medical supervision which Georgia has erected violates the patient's right of privacy inherent in her choice of her own physician.
131
Mr. Justice WHITE, with whom Mr. Justice REHNQUIST joins, dissenting.
132
At the heart of the controversy in these cases are those recurring pregnancies that pose no danger whatsoever to the life or health of the mother but are, nevertheless, unwanted for any one or more of a variety of reasons—convenience, family planning, economics, dislike of children, the embarrassment of illegitimacy, etc., The common claim before us is that for any one of such reasons, or for no reason at all, and without asserting or claiming any threat to life or health, any woman is entitled to an abortion at her request if she is able to find a medical advisor willing to undertake the procedure.
133
The Court for the most part sustains this position: During the period prior to the time the fetus becomes viable, the Constitution of the United States values the convenience, whim, or caprice of the pregnant woman more than the life or potential life of the fetus; the Constitution, therefore, guarantees the right to an abortion as against any state law or policy seeking to protect the fetus from an abortion not prompted by more compelling reasons of the mother.
134
With all due respect, I dissent. I find nothing in the language or history of the Constitution to support the Court's judgments. The Court simply fashions and announces a new constitutional right for pregnant women and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state abortion statutes. The upshot is that the people and the legislatures of the 50 States are constitutionally disentitled to weigh the relative importance of the continued existence and development of the fetus, on the one hand, against a spectrum of possible impacts on the mother, on the other hand. As an exercise of raw judicial power, the Court perhaps has authority to do what it does today; but in my view its judgment is an improvident and extravagant exercise of the power of judicial review that the Constitution extends to this Court.
135
The Court apparently values the convenience of the pregnant woman more than the continued existence and development of the life or potential life that she carries. Whether or not I might agree with that marshaling of values, I can in no event join the Court's judgment because I find no constitutional warrant for imposing such an order of priorities on the people and legislatures of the States. In a sensitive area such as this, involving as it does issues over which reasonable men may easily and heatedly differ, I cannot accept the Court's exercise of its clear power of choice by interposing a constitutional barrier to state efforts to protect human life and by investing women and doctors with the constitutionally protected right to exterminate it. This issue, for the most part, should be left with the people and to the political processes the people have devised to govern their affairs.
136
It is my view, therefore, that the Texas statute is not constitutionally infirm because it denies abortions to those who seek to serve only their convenience rather than to protect their life or health. Nor is this plaintiff, who claims no threat to her mental or physical health, entitled to assert the possible rights of those women whose pregnancy assertedly implicates their health. This, together with United States v. Vuitch, 402 U.S. 62, 91 S.Ct. 1294, 28 L.Ed.2d 601 (1971), dictates reversal of the judgment of the District Court.
137
Likewise, because Georgia may constitutionally forbid abortions to pregnant women who, like the plaintiff in this case, do not fall within the reach of § 26—1202(a) of its criminal code, I have no occasion, and the District Court had none, to consider the constitutionality of the procedural requirements of the Georgia statute as applied to those pregnancies posing substantial hazards to either life or health. I would reverse the judgment of the District Court in the Georgia case.
138
Mr. Justice REHNQUIST, dissenting.
139
The holding in Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147, that state abortion laws can withstand constitutional scrutiny only if the State can demonstrate a compelling state interest, apparently compels the Court's close scrutiny of the various provisions in Georgia's abortion statute. Since, as indicated by my dissent in Wade, I view the compelling-state-interest standard as an inappropriate measure of the constitutionality of state abortion laws, I respectfully dissent from the majority's holding.
1
The portions italicized in Appendix A are those held unconstitutional by the District Court.
2
Brief for Appellants 25 n. 5; Tr. of Oral Arg. 9.
3
See Roe v. Wade, 410 U.S. 113, at 140 n. 37, 93 S.Ct. 705, at 720 n. 37.
4
The pertinent provisions of the 1876 statute were:
'Section I. Be it enacted, etc., That from and after the passage of this Act, the wilful killing of an unborn child, so far developed as to be ordinarily called 'quick,' by any injury to the mother of such child, which would be murder if it resulted in the death of such mother, shall be guilty of a felony, and punishable by death or imprisonment for life, as the jury trying the case may recommend.
'Sec. II. Be it further enacted, That every person who shall administer to any woman pregnant with a child, any medicine, drug, or substance whatever, or shall use or employ any instrument or other means, with intent thereby to destroy such child, unless the same shall have been necessary to preserve the life of such mother, or shall have been advised by two physicians to be necessary for such purpose, shall, in case the death of such child or mother be thereby produced, be declared guilty of an assault with intent to murder.
'Sec. III. Be it further enacted, That any person who shall wilfully administer to any pregnant woman any medicine, drug or substance, or anything whatever, or shall employ any instrument or means whatever, with intent thereby to procure the miscarriage or abortion of any such woman, unless the same shall have been necessary to preserve the life of such woman, or shall have been advised by two physicians to be necessary for that purpose, shall, upon conviction, be punished as prescribed in section 4310 of the Revised Code of Georgia.'
It should be noted that the second section, in contrast to the first, made no specific reference to quickening. The section was construed, however, to possess this line of demarcation. Taylor v. State, 105 Ga. 846, 33 S.E. 190 (1899).
5
In contrast with the ALI model, the Georgia statute makes no specific reference to pregnancy resulting from incest. We were assured by the State at reargument that this was because the statute's reference to 'rape' was intended to include incest. Tr. of Oral Rearg. 32.
6
Appellants by their complaint, App. 7, allege that the name is a pseudonym.
7
In answers to interrogatories, Doe stated that her application for an abortion was approved at Georgia Baptist Hospital on May 5, 1970, but that she was not approved as a charity patient there and had no money to pay for an abortion. App. 64.
8
What we decide today obviously has implications for the issues raised in the defendants' appeal pending in the Fifth Circuit.
9
Tr. of Oral Arg. 21—22.
10
Brief for Appellants 25.
11
We were advised at reargument, Tr. of Oral Aearg. 19, that only 54 of Georgia's 119 counties have a JCAH-accredited hospital.
12
Since its founding, JCAH has pursued the 'elusive goal' of defining the 'optimal setting' for 'quality of service in hospitals.' JCAH, Accreditation Manual for Hospitals, Foreword (Ded. 1970). The Manual's Introduction states the organization's purpose to establish standards and conduct accreditation programs that will afford quality medical care 'to give patients the optimal benefits that medical science has to offer.' This ambitious and admirable goal is illustrated by JCAH's decision in 1966 '(t)o raise and strengthen the standards from their present level of minimum essential to the level of optimum achievable . . ..' Some of these 'optimum achievable' standards required are: disclosure of hospital ownership and control; a dietetic service and written dietetic policies; a written disaster plan for mass emergencies; a nuclear medical services program; facilities for hematology, chemistry, microbiology, clinical microsocopy, and scro-immunology; a professional library and document delivery service; a radiology program; a social services plan administered by a qualified social worker; and a special care unit.
13
'The Joint Commission neither advocates nor opposes any particular position with respect to elective abortions.' Letter dated July 9, 1971, from John I. Brewer, M.D., Commissioner, JCAH, to the Rockefeller Foundation. Brief for amici curiae, American College of Obstetricians and Gynecolgists et al., p. A—3.
14
See Roe v. Wade, ante, 410 U.S., at 146—147, n. 40, 93 S.Ct., at 723—724, n. 40.
15
Some state statutes do not have the JCAH-accreditation requirement. Alaska Stat. § 11.15.060 (1970); Hawaii Rev.Stat. § 453—16 (Supp.1971); N.Y. Penal Code § 125.05, subd. 3 (McKinney's Consol.Laws, c. 40, Supp.1972—1973). Washington has the requirement but couples it with the alternative of 'a medical facility approved. . . by the state board of health.' Wash.Rev.Code § 9.02.070 (Supp.1972). Florida's new statute has a similar provision. Law of Apr. 13, 1972, c. 72—196, § 1(2). Others contain the specification. Ark.Stat.Ann. §§ 41—303 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); Kan.Stat.Ann. § 21—3407 (Supp.1971); Md.Ann.Code, Art. 43, §§ 137—139 (1971). Cf. 24 Del.Code Ann., Tit. 24, §§ 1790 1793 (Supp.1972) specifying 'a nationally recognized medical or hospital accreditation authority,' § 1790(a).
16
L. Baker & M. Freeman, Abortion Surveillance at Grady Memorial Hospital Center for Disease Control (June and July 1971) (U.S.Dept. of HEW, Public Health Service).
1
I disagree with the dismissal of Dr. Hallford's complaint in intervention in Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147, because my disagreement with Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669, revealed in my dissent in that case, still persists and extends to the progeny of that case.
2
There is no mention of privacy in our Bill of Rights but our decisions have recognized it as one of the fundamental values those amendments were designed to protect. The fountainhead case is Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746, holding that a federal statute which authorized a court in tax cases to require a taxpayer to produce his records or to concede the Government's allegations offended the Fourth and Fifth Amendments. Mr. Justice Bradley, for the Court, found that the measure unduly intruded into the 'sanctity of a man's home and the privacies of life.' Id., at 630, 6 S.Ct., at 532. Prior to Boyd, in Kilbourn v. Thompson, 103 U.S. 168, 190, 26 L.Ed. 377, Mr. Justice Miller held for the Court that neither House of Congress 'possesses the general power of making inquiry into the private affairs of the citizen.' Of Kilbourn, Mr. Justice Field later said, 'This case will stand for all time as a bulwark against the invasion of the right of the citizen to protection in his private affairs against the unlimited scrutiny of investigation by a congressional committee.' In re Pacific Railway way Comm'n, C.C., 32 F. 241, 253 (cited with approval in Sinclair v. United States, 279 U.S. 263, 293, 49 S.Ct. 268, 271, 73 L.Ed. 692). Mr. Justice Harlan, also speaking for the Court, in ICC v. Brimson, 154 U.S. 447, 478, 14 S.Ct. 1125, 1134, 38 L.Ed. 1047, thought the same was true of administrative inquiries, saying that the Constitution did not permit a 'general power of making inquiry into the private affairs of the citizen.' In a similar vein were Harriman v. ICC, 211 U.S. 407, 29 S.Ct. 115, 53 L.Ed. 253; United States v. Louisville & Nashville R. Co., 236 U.S. 318, 335, 35 S.Ct. 363, 368, 59 L.Ed. 598; and FTC v. American Tobacco Co., 264 U.S. 298, 44 S.Ct. 336, 68 L.Ed. 696.
3
The California abortion statute, held unconstitutional in the Belous case, made it a crime to perform or help perform an abortion 'unless the same is necessary to preserve (the mother's) life.' 71 Cal.2d, at 959, 80 Cal.Rptr., at 358, 458 P.2d, at 197.
4
My Brother STEWART, writing in Roe v. Wade, supra, says that our decision in Griswold reintroduced substantive due process that had been rejected in Ferguson v. Skrupa, 372 U.S. 726, 83 S.Ct. 1028, 10 L.Ed.2d 93. Skrupa involved legislation governing a business enterprise; and the Court in that case, as had Mr. Justice Holmes on earlier occasions, rejected the idea that 'liberty' within the meaning of the Due Process Clause of the Fourteenth Amendment was a vessel to be filled with one's personal choices of values, whether drawn from the laissez faire school, from the socialistic school, or from the technocrats. Griswold involved legislation touching on the marital relation and involving the conviction of a licensed physician for giving married people information concerning contraception. There is nothing specific in the Bill of Rights that covers that item. Nor is there anything in the Bill of Rights that in terms protects the right of association or the privacy in one's association. Yet we found those rights in the periphery of the First Amendment. NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 462, 78 S.Ct. 1163, 1171, 2 L.Ed.2d 1488. Other peripheral rights are the right to educate one's children as one chooses, Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070, and the right to study the German language, Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042. These decisions, with all respect, have nothing to do with substantive due process. One may think they are not peripheral to other rights that are expressed in the Bill of Rights. But that is not enough to bring into play the protection of substantive due process.
There are, of course, those who have believed that the reach of due process in the Fourteenth Amendment included all of the Bill of Rights but went further. Such was the view of Mr. Justice Murphy and Mr. Justice Rutledge. See Adamson v. California, 332 U.S. 46, 123, 124, 67 S.Ct. 1672, 1711, 1683, 91 L.Ed. 1903 (dissenting opinion). Perhaps they were right; but it is a bridge that neither I nor those who joined the Court's opinion in Griswold crossed.
5
Many studies show that it is safer for a woman to have a medically induced abortion than to bear a child. In the first 11 months of operation of the New York abortion law, the mortality rate associated with such operations was six per 100,000 operations. Abortion Mortality, 20 Morbidity and Mortality 208, 209 (June 1971) (U.S. Dept. of HEW, Public Health Service). On the other hand, the maternal mortality rate associated with childbirths other than abortions was 18 per 100,000 live births. Tietze, Mortality with Contraception and Induced Abortion, 45 Studies in Family Planning 6 (1969). See also Tietze & Lehfeldt, Legal Abortion in Eastern Europe, 175 J.A.M.A. 1149, 1152 (Apr. 1961); Kolblova, Legal Abortion in Czechoslovakia, 196 J.A.M.A. 371 (Apr. 1966); Mehland, Combating Illegal Abortion in the Socialist Countries of Europe, 13 World Med.J. 84 (1966).
6
Religion, Morality, and Abortion: A Constitutional Appraisal, 2 Loyola U. (L.A.) L.Rev. 1, 9—10 (1969).
7
In Keeler v. Superior Court of Amador County, 2 Cal.3d 619, 87 Cal.Rptr. 481, 470 P.2d 617, the California Supreme Court held in 1970 that the California murder statute did not cover the killing of an unborn fetus, even though the fetus be 'viable,' and that it was beyond judicial power to extend the statute to the killing of an unborn. It held that the child must be 'born alive before a charge of homicide can be sustained.' Id., at 639, 87 Cal.Rptr., at 494, 470 P.2d, at 630.
8
See Ga.Code Ann. § 26—1202(b)(3).
9
See id., 26—1202(b)(4).
10
Id., § 26—1202(b)(5).
11
See Rochat, Tyler & Schoenbucher, An Epidemiological Analysis of Abortion in Georgia, 61 Am.J. of Public Health 543 (1971).
12
Supra, n. 6, at 10.
| 45
|
410 U.S. 52
93 S.Ct. 861
35 L.Ed.2d 104
UNITED STATES, Appellant,v.GLAXO GROUP LIMITED et al.
No. 71—666.
Argued Nov. 9, 1972.
Decided Jan. 22, 1973.
Syllabus
Appellees, Imperial Chemical Industries Ltd. and Glaxo Group Ltd., British drug companies engaged in the manufacture and sale of the fungicide griseofulvin, pooled their bulk- and dosage-form patents and sublicensed certain firms in the United States to practice the patents. The pooling agreement contained a covenant to restrict bulk sales and resales, and sublicensing agreements prohibited bulk resales to third parties without the licensors' prior consent. The United States filed a civil antitrust suit against appellees to restrain alleged violations of § 1 of the Sherman Act, and the Government also attacked the validity of the dosage-form patents, and sought the relief of mandatory, nondiscriminatory bulk-form sales and reasonable-royalty licensing of the patents. The District Court held that the bulk-sales restrictions were per se violations of § 1 and enjoined their future use, but refused the Government's request to order mandatory, nondiscriminatory sales of the bulk form of the drug and reasonable-royalty licensing of appellees' patents as part of the relief. The court also refused to entertain the Government's claim of patent invalidity, since appellees did not rely on their patents in defense of the antitrust claims. Held:
1. Where patents are directly involved in antitrust violations and the Government presents a substantial case for relief in the form of restrictions on the patents, the Government may challenge the validity of the patents regardless of whether the owner relies on the patents in defending the antitrust action. Pp. 57—60.
2. In order to 'pry open to competition' the market closed by the antitrust violations, an order for mandatory, nondiscriminatory sales to all bona fide applicants is appropriate relief, and where, as in this case, the manufacturer may choose not to make bulk-form sales, and the licensees are not bound by the court's order for mandatory sales, further relief in the form of reasonable-royalty licensing of the patents is also proper. Pp. 60—64.
328 F.Supp. 709, reversed; see also 302 F.Supp. 1.
Daniel M. Friedman, Washington, D.C., for appellant.
Henry P. Sailer, Washington, D.C., for appellee Glaxo Group, Limited.
Sigmund Timberg, Washington, D.C., for appellee Imperial Chemical Industries, Limited.
Mr. Justice WHITE delivered the opinion of the Court.
1
The United States appeals pursuant to § 2 of the Expediting Act, as amended, 62 Stat. 989, 15 U.S.C. § 29, from portions of a decision by the United States District Court for the District of Columbia in a civil antitrust suit. We are asked to decide whether the Government may challenge the validity of patents involved in illegal restraints of trade, when the defendants do not rely upon the patents in defense of their conduct, and whether the District Court erred in refusing certain relief requested by the Government.
2
* Appellees, Imperial Chemical Industries Ltd. (ICI) and Glaxo Group Ltd. (Glaxo), are British drug companies engaged in the manufacture and sale of griseofulvin. Griseofulvin is an antibiotic compound that may be cut with inert ingredients and administered orally in the form of capsules or tablets to humans or animals for the treatment of external fungus infections. There is no substitute for dosage-form griseofulvin in combating certain infections. Griseofulvin itself is unpatented and unpatentable. ICI owns various patents on the dosage form of the drug.1 Glaxo owns various patents on a method for manufacturing the drug in bulk form, as well as a patent on the finely ground, 'microsize' dosage form of the drug.2
3
On April 26, 1960, ICI and Glaxo entered into a formal agreement pooling their griseofulvin patents. At the time of the execution of the agreement, ICI held patents on the dosage form of the drug, and Glaxo held bulk-form manufacturing patents. Pursuant to the agreement, ICI acquired the right to manufacture bulk-form griseofulvin under Glaxo's patents, to sell bulk-form griseofulvin, and to sublicense under Glaxo's patents. Glaxo was authorized to manufacture dosage-form griseofulvin and to sublicense under ICI's patents. As part of the agreement, ICI undertook 'not to sell and to use its best endeavors to prevent its subsidiaries and associates from selling any griseofulvin in bulk to any independent third party without Glaxo's express consent in writing.'
4
Subsequent to the pooling of the griseofulvin patents, ICI granted a sublicense to American Home Products Corp. (AMHO), ICI's exclusive distributor in the United States. ICI agreed to sell bulk-form griseofulvin to AMHO. AMHO was authorized to process the bulk form into dosage form and to sell the drug in that form. With respect to bulk sales the agreement stated: 'You (AMHO) will not, without first obtaining our (ICI') consent, resell, or redeliver in bulk supplies of griseofulvin.' Glaxo had previously entered into similar sublicensing agreements with two United States companies—Schering Corp. (Schering) and Johnson & Johnson (J & J). The agreements contained a covenant on the part of the licensees 'not to sell or to permit its Affiliates to sell any griseofulvin in bulk to any independent third party without Glaxo's express consent in writing.'3
5
On March 4, 1968, the United States filed a civil antitrust suit against ICI and Glaxo, pursuant to § 4 of the Sherman Act, 15 U.S.C. § 4, to restrain alleged violations of § 1 of the Act, 26 Stat. 209, as amended, 15 U.S.C. § 1. The Government charged that the restrictions on the sale and resale of bulk-form griseofulvin, contained in the 1960 ICI—Glaxo agreement and the various sublicensing agreements, were unreasonable restraints of trade. The Government also challenged the validity of ICI's dosage-form patent.4
6
The District Court, citing this Court's decision in United States v. Arnold, Schwinn & Co., 388 U.S., 365, 87 S.Ct. 1856, 18 L.Ed.2d 1249 (1967), held that the bulk-sales restrictions contained in the ICI-AMHO agreement were per se violations of § 1 of the Sherman Act.5 302 F.Supp. 1 (D.C.1969). Because ICI had filed an affidavit disclaiming any desire to rely on its patent in defense of the antitrust claims, the District Court struck the claims of patent invalidity from the Government's complaint, ruling that the Government could not challenge ICI's patent when it was not relied upon as a defense to the antitrust claims. The District Court also denied the Government's motion to amend its complaint to allege the invalidity of Glaxo's patent on 'microsize' griseofulvin.6
7
Subsequently, in separate, unreported orders, the bulk-sales restrictions in the Glaxo-J & J, the Glaxo-Schering, and the Glaxo-ICI agreements were found to be per se violations of § 1. The court enjoined future use of the bulk-sales restrictions, but refused the Government's request to order mandatory, nondiscriminatory sales of the bulk form of the drug and reasonable-royalty licensing of the ICI and Glaxo patents as part of the relief. 328 F.Supp. 709 (D.C.1971). The United States took a direct appeal under the Expediting Act and we noted probable jurisdiction. 405 U.S. 914, 92 S.Ct. 940, 30 L.Ed.2d 784.
II
8
The major issue before us is whether the District Court erred in ruling that the United States could challenge the validity of a patent in the course of prosecuting an antitrust action only when the patent is relied on as a defense, which was not the case here. We agree with the United States that this was an unduly narrow view of the controlling cases.
9
United States v. American Bell Telephone Co., 167 U.S. 224, 17 S.Ct. 809, 42 L.Ed. 144 (1897), acknowledged prior decisions permitting the United States to sue to set aside a patent for fraud or deceit associated with its issuance, but held that the federal courts should not entertain suits by the Government 'to set aside a patent for an invention on the mere ground of error of judgment on the part of the patent officials,' at least where the United States 'has no proprietary or pecuniary (interest) in the setting aside of the patent (and) is not seeking to discharge its obligations to the public . . ..' 167 U.S., at 265, 269, 17 S.Ct., at 820, 822. Subsequently, United States v. United States Gypsum Co., 333 U.S. 364, 68 S.Ct. 525, 92 L.Ed. 746 (1948), referred to American Bell Telephone as holding that the United States was 'without standing to bring a suit in equity to cancel a patent on the ground of invalidity,' id., at 387, 68 S.Ct., at 538, but went on to declare that, to vindicate the public interest in enjoining violations of the Sherman Act, the United States is entitled to attack the validity of patents relied upon to justify anticompetitive conduct otherwise violative of the law. The Court noted that because of the public interest in free competition, it had repeatedly held that the private licensee-plaintiff in an antitrust suit may attack the validity of the patent under which he is licensed even though he has agreed not to do so in his license. The authorities for this proposition were Sola Electric Co. v. Jefferson Electric Co., 317 U.S. 173, 63 S.Ct. 172, 87 L.Ed. 165 (1942); Edward Katzinger Co. v. Chicago Metallic Mfg Co., 329 U.S. 394, 67 S.Ct. 416, 91 L.Ed. 374 (1947); and MacGregor v. Westinghouse Electric & Mfg. Co., 329 U.S. 402, 67 S.Ct. 421, 91 L.Ed. 380 (1947). The essence of those cases is best revealed in Katzinger where the Court held that, although a patent licensee (under the then-controlling law) was normally foreclosed from questioning the validity of a patent he is privileged to use, the bar is removed when he alleges conduct by the patentee that would be illegal under the antitrust laws, absent the patent. The licensee lwas free to challenge the patent in these circumstances because the 'federal courts must, in the public interest, keep the way open for the challenge of patents which are utilized for price-fixing . . .' 329 U.S., at 399, 67 S.Ct., at 419. Katzinger and Gypsum were much in the tradition of Pope Mfg. Co. v. Gormully, 144 U.S. 224, 234, 12 S.Ct. 632, 636, 36 L.Ed. 414 (1892): 'It is as important to the public that competition should not be repressed by worthless patents, as that the patentee of a really valuable invention should be protected in his monopoly . . .,' a view most recently echoed in Lear, Inc. v. Adkins, 395 U.S. 653, 663, 89 S.Ct. 1902, 1908, 23 L.Ed.2d 610 (1969).
10
We think that the principle of these cases is sufficient authority for permitting the Government to raise and litigate the validity of the ICI-Glaxo patents in this antitrust case. According to the record, appellees had issued licenses under their patents that unreasonably restrained trade by prohibiting the licensees from selling or reselling bulk-form griseofulvin and had included in the pooling agreement a covenant to impose such restrictions on licensees. These charges were sustained, the court concluding that the covenant and the patent license provisions were per se restraints of trade in the griseofulvin product market.
11
The District Court was then faced with the Government's attack on the pertinent patents as well as its demand for mandatory sales and reasonable-royalty licensing, the latter being well-established forms of relief when necessary to an effective remedy, particularly where patents have provided the leverage for or have contributed to the antitrust violation adjudicated. See for example, Besser Mfg. Co. v. United States, 343 U.S. 444, 72 S.Ct. 838, 96 L.Ed. 1063 (1952); United States v. United States Gypsum Co., 340 U.S. 76, 71 S.Ct. 160, 95 L.Ed. 89 (1950); International Salt Co. v. United States, 332 U.S. 392, 68 S.Ct. 12, 92 L.Ed. 20 (1947); Hartford-Empire Co. v. United States, 323 U.S. 386, 65 S.Ct. 373, 89 L.Ed. 322 (1945). Appellees opposed mandatory sales and compulsory licensing, asserting that the Government would 'deny defendants an essential ingredient of their rights under the patent system,' and that there was no warrant for 'such a drastic forfeiture of their rights.' In this context, where the court would necessarily be dealing with the future enforceability of the patents, we think it would have been appropriate, if it appeared that the Government's claims for further relief were substantial, for the court to have also entertained the Government's challenge to the validity of those patents.
12
In arriving at this conclusion, we do not recognize unlimited authority in the Government to attack a patent by basing an antitrust claim on the simple assertion that the patent is invalid. Cf. Walker Process Equipment v. Food Machinery & Chemical Corp., 382 U.S. 172, 86 S.Ct. 347, 15 L.Ed.2d 247 (1965). Nor do we invest the Attorney General with a roving commission to question the validity of any patent lurking in the background of an antitrust case. But the district courts have jurisdiction to entertain and decide antitrust suits brought by the Government and, where a violation is found, to fashion effective relief. This often involves a substantial question as to whether it is necessary to limit the rights normally vested in the owners of patents, which in itself can be a complex and difficult issue. The litigation would usually proceed on the assumption that valid patents are involved, but if this basic assumption is itself challenged, we perceive no good reason, either in terms of the patent system or of judicial administration, for refusing to hear and decide it.
13
The District Court, therefore, erred in striking the allegations of the Government's complaint dealing with the patent validity issue and in refusing to permit the Government to amend its complaint with respect to this issue. On remand, the District Court should consider the validity of the ICI dosage-form patent and the Glaxo microsize patent.
III
14
The question remains whether the Government's case for additional relief was sufficient to provide the appropriate predicate for a consideration of its challenge to the validity of these patents. For this purpose, as we have said, its case need not be conclusive, but only substantial enough to warrant the court's undertaking what could be a large inquiry, one which could easily obviate other questions of remedy if the patent is found invalid and which, if the patent is not invalidated, would lend substance to a defendant's claim that a valid patent should not be limited, absent the necessity to provide effective relief for an antitrust violation to which the patent has contributed. Here, we think not only that the United States presented a substantial case for additional relief, but that it was sufficiently convincing that the District Court, wholly aside from the question of patent validity, should have ruled favorably on the demand for mandatory sales and compulsory licensing.
15
In the first place, it is clear from the evidence that the ICI dosage-form patent, along with other ICI and Glaxo patents, gave the appellees the economic leverage with which to insist upon and enforce the bulk-sales restrictions imposed on the licensees.7 Glaxo apparently considered the bulk-sales restriction to be a prerequisite to the granting of a sublicense, for it rejected a draft of the ICI-AMHO agreement because, among other things, it would have permitted AMHO to sell griseofulvin in bulk form. There are indications, also, that Glaxo refused a sublicense to others than Schering and J & J because of fears that the companies would sell in bulk form or pressure Glaxo to allow such sales. The source of the patent-pooling agreement pursuant to which such licenses were permitted and which contained the bulk-sales restriction was simple: Glaxo needed the ICI dosage-form patent to assure its licensees the right to use the patent and sell in dosage form. Pooling permitted ICI to engage in bulk manufacture, and, in exchange, ICI imposed the bulk-sales restrictions upon its licensees. There can be little question that the patents involved here were intimately associated with and contributed to effectuating the conduct that the District Court held to be a per se restraint of trade in griseofulvin.
16
Secondly, we think that ICI and Glaxo should have been required to sell bulk-form griseofulvin on reasonable and nondiscriminatory terms and to grant patent licenses at reasonable-royalty rates to all bona fide applicants in order to 'pry open to competition' the griseofulvin market that 'has been closed by defendants' illegal restraints.' International Salt Co., 332 U.S., at 401, 68 S.Ct., at 17.
17
The United States griseofulvin market consists of three wholesalers, all licensees of appellees, that account for nearly 100% of United States sales totaling approximately eight million dollars. Glaxo and ICI have never sold in bulk to others than the licensees and have prohibited bulk sales and resales by the licensees. In practice, the licensees have not manufactured griseofulvin under the bulk-form patents, preferring instead to purchase in bulk form from ICI and Glaxo. The licensees sell the drug in dosage and microsize form to retail outlets at virtually identical prices. The effect of appellees' refusal to sell in bulk and prohibition of such sales by the licensees has been that bulk griseofulvin has not been available to any but appellees' three licensees and that these three are the only sources of dosage-form griseofulvin in the United States.
18
There is little reason to think that the appellees or their licensees, now that the bulk-sales restrictions have been declared illegal, will begin selling in bulk. It is in their economic self-interest to maintain control of the bulk form of the drug in order to keep the dosage-form, wholesale market competition-free. Bulk sales would create new competition among wholesalers, by enabling other companies to convert the bulk drug into dosage and microsize forms and sell to retail outlets, and would presumably lead to price reductions as the result of normal competitive forces. There is, in fact, substantial evidence in the record to the effect that other drug companies would not only have entered the market, had they been able to make bulk purchases, but also would have charged substantially lower wholesale prices for the dosage and microsize forms of the drug. Only by requiring the appellees to sell bulk-form griseofulvin on nondiscriminatory terms to all bona fide applicants will the dosage-form, whole-sale market become competitive.
19
Relief in the form of compulsory sales may not, however, alone insure a competitive market. Glaxo and ICI could choose to discontinue bulk-form manufacturing or the sale of griseofulvin in bulk form. The patent licensees might then begin to practice the bulk-form manufacturing patents pursuant to the patent licenses to fill their needs for the bulk drug. The licensees, of course, are not parties to this action, and a mandatory-sales order would not affect them. They would not be required to make the economically less advantageous bulk sales. The bulk form of the drug would be controlled by the licensees, and the appellees, because they would be required under the Government's proposed relief to sell to all applicants only so long as they sell to any United States purchasers, could easily avoid the mandatory-sales requirement. Unless other American firms are licensed to manufacture griseofulvin, competition in the United States market will depend entirely upon appellees' willingness to continue to supply their present licensees with the bulk form of the drug.
20
This Court has repeatedly recognized that '(t)he framing of decrees should take place in the District rather than in Appellate Courts' and has generally followed the principle that district courts 'are invested with large discretion to model their judgments to fit the exigencies of the particular case.' International Salt Co. v. United States, supra, 332 U.S., at 400 401, 68 S.Ct., at 17; accord, Ford Motor Co. v. United States, 405 U.S. 562, 573, 92 S.Ct. 1142, 1149, 31 L.Ed.2d 492 (1972). The Court has not, however, treated that power as one of discretion, subject only to reversal for gross abuse, but has recognized 'an obligation to intervene in this most significant phase of the case' when necessary to assure that the relief will be effective. United States v. United States Gypsum Co., 340 U.S., at 89, 71 S.Ct., at 169. Accordingly, we have ordered the affirmative relief that the District Court refused to implement. See e.g., United States v. United States Gypsum Co. The purpose of relief in an antitrust case is 'so far as practicable, (to) cure the ill effects of the illegal conduct, and assure the public freedom from its continuance.' Id., at 88, 71 S.Ct., at 169. Mandatory selling on specified terms and compulsory patent licensing at reasonable charges are recognized antitrust remedies. See, e.g., Besser Mfg. Co. v. United States, 343 U.S. 444, 72 S.Ct. 838, 96 L.Ed. 1063 (1952); International Salt Co. v. United States, 332 U.S. 392, 68 S.Ct. 12, 92 L.Ed. 20 (1947); Hartford-Empire Co. v. United States, 323 U.S. 386, 65 S.Ct. 373, 89 L.Ed. 322 (1945). The District Court should have ordered those remedies in this case.
21
To the extent indicated in this opinion, the judgment of the District Court is reversed.
22
So ordered.
23
Judgment reversed.
24
Mr. Justice REHNQUIST, with whom Mr. Justice STEWART and Mr. Justice BLACKMUN concur, dissenting.
25
The Court has undertaken to substitute its judgment for that of Congress in the initiation of novel procedures for the determination of patent validity, and in so doing has blandly disregarded the procedural history of this case.
26
* There is neither statutory nor case authority for the existence of a general right of either private individuals or the Government to collaterally challenge the validity of issued patents. In the Patent Act of 1970, Congress provided that private citizens could, upon motion alleging fraudulent procurement, prompt a district court to issue to a patentee an order to show cause why his letters patent should not be repealed.1 A substantially identical provision was carried over in the Patent Act of 1793.2 But the Patent Act of 1836 contained no provision for such individual actions although it increased the number of statutory defenses in infringement actions.3 The effect of this omission was determined by Mowry v. Whitney, 14 Wall. 434, 20 L.Ed. 858 (1872), to be the preclusion of private actions to cancel patents, even when fraudulently procured.
27
As part of the rationale in Mowry, the Court reasoned that the equitable suit for cancellation of a patent because it was fraudulently procured was a substitute for the writ of scire facias and, accordingly, it should have the same limitations. In dictum, the Court stated: 'The fraud, if one exists, has been practiced on the government, and as the party injured, it is the appropriate party to assert the remedy or seek relief.' Id., at 441. When the United States later sued to set aside two patents issued to Alexander Graham Bell subsequent to several purported acts of fraud by him on the Patent Office, this Court relied heavily on the dictum in Mowry, supra, in recognizing the right of the Federal Government to sue for the cancellation of letters patent obtained by fraud:
28
'That the government, authorized both by the Constitution and the statutes to bring suits at law and in equity, should find it to be its duty to correct this evil, to recall these patents, to get a remedy for this fraud, is so clear that it needs no argument . . ..' United States v. American Bell Telephone Co., 128 U.S. 315, 370, 9 S.Ct. 90, 98, 32 L.Ed. 450 (1888) (Bell I).
29
The Government asserts that the breadth of this holding was established in the dictum in United States v. American Bell Telephone Co., 159 U.S. 548, 16 S.Ct. 69, 40 L.Ed. 255 (1895) (Bell II), wherein the Court upheld its appellate jurisdiction in such patent cancellation cases. There, it was stated:
30
In U.S. v. American Bell Tel. Co. (128 U.S. 315, 9 S.Ct. 90, 32 L.Ed. 450), it was decided that where a patent for a grant of any kind issued by the United States has been obtained by fraud, by mistake or by accident, a suit by the United States against the patentee is the proper remedy for relief, and that in this country, where there is no kingly prerogative, but where patents for land and inventions are issued by the authority of the government, and by officers appointed for that purpose who may have been imposed upon by fraud or deceit, or may have erred as to their power, or made mistakes in the instrument itself, the appropriate remedy is by proceedings by the United States against the patentee.' Id., at 555, 16 S.Ct., 72.
31
But in United States v. American Bell Telephone Co., 167 U.S. 224, 17 S.Ct. 809, 42 L.Ed. 144 (1897) (Bell III), the Court characterized the above-quoted language as a 'general statement' of the power of the Government to maintain a suit and, again in dictum, limited its effect, saying:
32
'But, while there was thus rightfully affirmed the power of the government to proceed by suit in equity against one who had wrongfully obtained a patent for land or for an invention, there was no attempt to define the character of the fraud, or deceit, or mistake, or the extent of the error as to power which must be established before a decree could be entered cancelling the patent. It was not affirmed that proof of any fraud, or deceit, or the existence of any error on the part of the officers as to the extent of their power, or that any mistake in the instrument, was sufficient to justify a decree of cancellation. Least of all was it intended to be affirmed that the courts of the United States, sitting as courts of equity, could entertain jurisdiction of a suit by the United States to set aside a patent for an invention on the mere ground of error of judgment on the part of the patent officials. That would be an attempt on the part of the courts in collateral attack to exercise an appellate jurisdiction over the decisions of the patent office, although no appellate jurisdiction has been by the statutes conferred. . . .' Id., at 269, 17 S.Ct., at 821.
33
The plain import of the Bell cases is that the authority of the Government to bring an independent action to cancel a patent is confined to the traditional equitable grounds of fraud, mistake, and deceit. The Government makes two arguments to support its position that it should not be as limited here. It contends that since this is an antitrust action, its right to attack the validity of the patent is established by the rationale of United States v. United States Gypsum Co., 333 U.S. 364, 68 S.Ct. 525, 92 L.Ed. 746 (1948), and is therefore not subject to the limitations of Bell III. Alternatively, it argues that Bell III has been so undercut by subsequent decisions, including Gypsum, that it should no longer be followed.
34
In United States Gypsum Co., supra, the Court stated in 'deliberate dicta' that the Government may challenge the validity of a patent which has been asserted by an antitrust defendant to be a defense to the Government's claim of antitrust violations. It reasoned that '(i)n a suit to vindicate the public interest by enjoining violations of the Sherman Act, the United States should have the opportunity, similar to that afforded licensees in an action for royalties, to show that an asserted shield of patentability does not exist.' Id., at 386—388, 68 S.Ct., at 538.
35
The Bell cases enunciate the range of the Government's authority, quite independent of any other litigation it may have with a patentee, to attack a governmental grant from the Patent Office obtained by the sort of fraud or mistake there described. The Gypsum doctrine, on the other hand, sprang from the right of the Government as a civil plaintiff under the antitrust laws to assert the invalidity of a patent grant set up as a defense to its civil complaint. Since a private licensee may attack the validity of a patent that is made the basis of an action against him for royalties, the Government should, equally, have the right to attack a patent that is set up as a defense by the patentee in the Government's action.
36
The Government's claim here essentially falls between these two limited grants of authority. A claim of lack of patentability, without more, is not within the Government's authority qua government to set aside a patent for fraud or mistake. And since the decision of the merits of the Government's claim of antitrust violation against these appellees in no way required the court to determine the validity of their patents, the reasoning of Gypsum is not applicable. The Government may, therefore, prevail only if we are to blur the distinction between these separate grants of authority, and extend such authority to circumstances that are within the rationale of neither.
37
Certainly, it is true, as the Court states, that there is a public interest favoring the judicial testing of patent validity and the invalidation of specious patents. See, e.g., Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313, 343—344, 91 S.Ct. 1434, 1450, 28 L.Ed.2d 788 (1971); Lear, Inc. v. Adkins, 395 U.S. 653, 657, 664, 89 S.Ct. 1902, 1904, 1908, 23 L.Ed.2d 610 (1969). For when a patent is invalid, 'the public parts with the monopoly grant for no return, the public has been imposed upon and the patent clause subverted.' United States v. Singer Mfg. Co., 374 U.S. 174, 197, 199—200, 83 S.Ct. 1773, 1786, 10 L.Ed.2d 823 (1963) (White, J., concurring).
38
Significant recognition is given to this interest by both the Bell and Gypsum doctrines. Additional authority resides in the Government to obtain judicially decreed restrictions on patent monopoly in appropriate cases where the defendant's antitrust violations have consisted, at least in part, of patent misuse. International Salt Co. v. United States, 332 U.S. 392, 68 S.Ct. 12, 92 L.Ed. 20 (1947); Hartford-Empire Co. v. United States, 323 U.S. 386, 65 S.Ct. 373, 89 L.Ed. 322 (1945); Morton Salt Co. v. G. S. Suppiger Co., 314 U.S. 488, 62 S.Ct. 402, 86 L.Ed. 363 (1942). But the sort of roving commission that the majority now authorizes whereby the Government may request a court to invalidate any patent owned by an antitrust defendant that in any way related to the factual background of the claimed antitrust violation cannot be regarded as a reasonably necessary extension of any of these principles. It is, therefore, more properly the creature of statute than of judicial innovation.
II
39
Although the Court purports to limit its holding to avoid giving the Government such a roving commission, the range of the new authority is pointed up by the facts in this case.
40
The Government submitted its case to the District Court in three motions for partial summary judgment on the very narrow issue that the vertical restrictions on the resale of bulk-form griseofulvin constituted per se violations of the antitrust laws under the Schwinn doctrine.4 United States v. Arnold, Schwinn & Co., 388 U.S. 365, 87 S.Ct. 1856, 18 L.Ed.2d 1249 (1967). Although common bulk-form griseofulvin is the subject of a British manufacturing patent owned by Glaxo, it is neither patented nor patentable in the United States.
41
The two patents that this Court is now authorizing the Government to challenge bear no relationship whatsoever to the illegal restraint found. The ICI patent relates only to the dosage form of the drug. The majority states that 'it is clear from the evidence that the ICI dosage-form patent . . . gave the appellees the economic leverage with which to insist upon and enforce the bulk-sales restrictions imposed on the licensees.' Ante, at 60—61. But no such evidence was submitted in the Government's statement of undisputed facts that accompanied its motions for partial summary judgment on the restraint-of-alienation issue. And no such fact was included in the District Court's findings of undisputed or ultimate facts. The District Court found precisely the opposite:
42
'Plaintiff has not shown on this record that defendants' current licensing practices are related to the adjudged antitrust violation nor are they methods to circumvent the prohibition of restraints on resale. . . .' 328 F.Supp. 709, 713.
43
Since the Court's factual assumption as to economic leverage is completely contrary to the finding of the District Court, presumably the Court without saying so is holding that finding to be clearly erroneous. Yet the only support for such a holding, to which the Court refers, is an unverified statement contained in the Government's argument to the District Court on this issue. While the Government has an impressive batting average in this Court as an antitrust litigant, it has not heretofore had the benefit of having unverified assertions of its counsel treated as being of sufficient evidentiary weight to upset a considered factual finding of the District Court in which that argument was made. Nothing in the antitrust laws or in the Federal Rules of Civil Procedure exempts the Government from having to make its case in the trial court in the same manner as any other litigant. The Court's conclusion that there 'can be little question that the patents involved here were intimately associated with and contributed to effectuating the conduct that the District Court held to be a per se restraint of trade in griseofulvin,' ante, at 62, is thus reached only by a substantial departure from the settled usages of appellate review.
44
Similarly, the other patent which the Government may now have declared invalid was not even granted until 1967, and it, too, relates to the dosage form of the drug. Since the restraints on alienation were imposed in the early 1960's, there cannot be a plausible contention that it in any way provided 'economic leverage' for the antitrust violations. And there was no other proof of its relationship to the bulk-form market and the antitrust violations.5 Thus, the scope of the new authority extends to any patent that happens to be present in a patent-licensing agreement that contains a restraint on alienation in a different market, regardless of its relationship to such restraint.
45
Since there is no congressional authorization for the challenge by the Government to the validity vel non of patents without regard to the relationship to antitrust violations, and since there was no proved relationship between these violations and the patents in question, I would affirm the judgment and orders of the District Court. I therefore dissent.
1
Specifically at issue in the present litigation is U.S. Patent No. 2,900,204, issued August 18, 1959. The patent embodies two types of claims—(1) a method of curing humans or animals of external fungus diseases by administering 'an effective amount of griseofulvin' to them internally and (2) a capsule, tablet, or pill containing an effective amount of griseofulvin.
2
Specifically at issue in the present litigation is U.S. Patent No. 3,330,727, issued July 11, 1967. This patent covers the improved (finely ground or 'microsize') dosage form of griseofulvin. This form has proved more effective and more marketable than other dosage forms of the drug.
3
Although AMHO, Schering, and J & J could have manufactured bulk-form griseofulvin under Glaxo's patents, in practice they purchased the bulk form of the drug from ICI and Glaxo and themselves performed the processes to convert the drug to dosage form.
4
See, supra, n. 1. The Government contended that the 'method' portion of the patent did not disclose how to practice the invention in that it failed to specify what is an 'effective amount' of the drug. See 35 U.S.C. § 112. The Government also argued that ICI's product claims were invalid because the dosage form that they covered did not specify an 'effective amount' of the drug, did not specify the diseases that could be cured, and claimed a patent monopoly over a substance long in the public domain. See 35 U.S.C. §§ 100 and 101.
5
The case was decided on the basis of various motions concerning the merits and the relief. Testimony was not received; the facts were developed in affidavits, exhibits, and interrogatories accompanying the motions.
6
See n. 2. The Government had sought to challenge the patent on the basis that the patent purported to monopolize a product long in the public domain, on the basis of prior disclosure, and on the basis of prior public use. See 35 U.S.C. §§ 100, 101, 102(a), 102(b).
7
The Government argued in the District Court:
'We submit that (United States v.) Gypsum (333 U.S. 364, 68 S.Ct. 525, 92 L.Ed. 746 (1948)) should be understood more broadly to support challenge to any patent used by antitrust defendants in furtherance of their illegal program. The importance of the Imperial patent to the defendants' scheme to violate the antitrust laws is plain. It was, according to ICI's contentions, the reason for the patent pool agreement in the first place; Glaxo's grant of rights to ICI was paid for with the Imperial patent. Without the Imperial patent the defendants could not maintain their monopoly in the United States over the drug, for then anyone who could secure bulk form griseofulvin could make it up into pills and sell them without a patent to stop him; bulk form griseofulvin is, as ICI points out, unpatented. The Imperial patent thus bolsters the effectiveness of the illegal restraint on alienation ICI imposes on the resale of bulk form griseofulvin: if a small drug company somehow manages to get the unpatented bulk form drug despite ICI's restraint on alienation designed to prevent it or any one else from doing so, the defendants may still suppress the manufacture of the drug by threat of patent infringement suit. In this context, vindication of the public interest in competition in unpatentable goods is doubly important—for there is a double impediment to commerce—the patent and the conspiracy.'
The Government, throughout its brief in this Court, emphasizes the importance of the patents to the antitrust violation.
'In cases like this, the patents involved generally are of major importance in furthering the allegedly unlawful patent licensing practices; they give the defendants the power which enables them to impose the restraints of trade. That is the situation here. The patents were essential to the appellees' scheme to violate the antitrust laws.'
1
1 Stat. 109. For an excellent review of the history briefly summarized here, see Cullen & Vickers, Fraud in the Procurement of a Patent, 29 Geo.Wash.L.Rev. 110 (1960).
2
1 Stat. 318.
3
5 Stat. 117.
4
The majority inaccurately states that the lower court sustained the allegations in the complaint that appellees had unreasonably restrained trade by prohibiting the licensee from selling or reselling bulk-form griseofulvin. In fact, the District Court only found that the restraint on reselling bulk-form griseofulvin constituted the per se antitrust violations found.
5
This total lack of proof of any relationship also defeats for me the granting of compulsory licensing of the United States patents. Compulsory licensing is a recognized remedy in patent misuse cases, see, e.g., International Salt Co. v. United States, 332 U.S. 392, 68 S.Ct. 12, 92 L.Ed. 20 (1947), Hartford-Empire Co. v. United States, 323 U.S. 386, 65 S.Ct. 373, 89 L.Ed. 322 (1945), but here the District Court specifically found there was no patent misuse or other abuse of patent rights.
| 78
|
410 U.S. 284
93 S.Ct. 1038
35 L.Ed.2d 297
Leon CHAMBERS, Petitioner,v.State of MISSISSIPPI.
No. 71—5908.
Argued Nov. 15, 1972.
Decided Feb. 21, 1973.
Syllabus
After petitioner was arrested for murder, another person (McDonald) made, but later repudiated, a written confession. On three separate occasions, each time to a different friend, McDonald orally admitted the killing. Petitioner was convicted of the murder in a trial that he claimed was lacking in due process because petitioner was not allowed to (1) cross-examine McDonald (whom petitioner had called as a witness when the State failed to do so), since under Mississippi's common-law 'voucher' rule a party may not impeach his own witness, or (2) introduce the testimony of the three persons to whom McDonald had confessed, the trial court having ruled their testimony inadmissible as hearsay. The Mississippi Supreme Court affirmed. Held: Under the facts and circumstances of this case, petitioner was denied a fair trial, in violation of the Due Process Clause of the Fourteenth Amendment. Pp. 294—303.
(a) The application of the 'voucher' rule prevented petitioner, through cross-examination of McDonald, from exploring the circumstances of McDonald's three prior oral confessions and challenging his renunciation of the written confession, and thus deprived petitioner of the right to contradict testimony that was clearly 'adverse.' Pp. 295—298.
(b) The trial court erred in excluding McDonald's hearsay statements, which were critical to petitioner's defense and which bore substantial assurances of trustworthiness, including that each was made spontaneously to a close acquaintance, that each was corroborated by other evidence in the case, that each was in a real sense against McDonald's interest, and that McDonald was present and available for cross-examination by the State. Pp. 298 303.
Miss., 252 So.2d 217, reversed and remanded.
Peter Westen for petitioner, pro hac vice, by special leave of Court.
Timmie Hancock, Meadville, Miss., for respondent.
Mr. Justice POWELL delivered the opinion of the Court.
1
Petitioner, Leon Chambers, was tried by a jury in a Mississippi trial court and convicted of murdering a policeman. The jury assessed punishment at life imprisonment, and the Mississippi Supreme Court affirmed, one justice dissenting. 252 So.2d 217 (1971). Pending disposition of his application for certiorari to this Court, petitioner was granted bail by order of the Circuit Justice, dated February 1, 1972. Two weeks later, on the State's request for reconsideration, that order was reaffirmed. 405 U.S. 1205, 92 S.Ct. 751, 30 L.Ed.2d 773 (1972). Subsequently, the petition for certiorari was granted, 405 U.S. 987, 92 S.Ct. 1272, 31 L.Ed.2d 453 (1972), to consider whether petitioner's trial was conducted in accord with principles of due process under the Fourteenth Amendment. We conclude that it was not.
2
* The events that led to petitioner's prosecution for murder occurred in the small town of Woodville in southern Mississippi. On Saturday evening, June 14, 1969, two Woodville policemen, James Forman and Aaron 'Sonny' Liberty, entered a local bar and pool hall to execute a warrant for the arrest of a youth named C. C. Jackson. Jackson resisted and a hostile crowd of some 50 or 60 persons gathered. The officers' first attempt to handcuff Jackson was frustrated when 20 or 25 men in the crowd intervened and wrestled him free. Forman then radioed for assistance and Liberty removed his riot gun, a 12-gauge sawed-off shotgun, from the car. Three deputy sheriffs arrived shortly thereafter and the officers again attempted to make their arrest. Once more, the officers were attacked by the onlookers and during the commotion five or six pistol shots were fired. Forman was looking in a different direction when the shooting began, but immediately saw that Liberty had been shot several times in the back. Before Liberty died, he turned around and fired both barrels of his riot gun into an alley in the area from which the shots appeared to have come. The first shot was wild and high and scattered the crowd standing at the face of the alley. Liberty appeared, however, to take more deliberate aim before the second shot and hit one of the men in the crowd in the back of the head and neck as he ran down the alley. That man was Leon Chambers.
3
Officer Forman could not see from his vantage point who shot Liberty or whether Liberty's shots hit anyone. One of the deputy sheriffs testified at trial that he was standing several feet from Liberty and that he saw Chambers shoot him. Another deputy sheriff stated that, although he could not see whether Chambers had a gun in his hand, he did see Chambers 'break his arm down' shortly before the shots were fired. The officers who saw Chambers fall testified that they thought he was dead but they made no effort at that time either to examine him or to search for the murder weapon. Instead, they attended to Liberty, who was placed in the police car and taken to a hospital where he was declared dead on arrival. A subsequent autopsy showed that he had been hit with four bullets from a .22-caliber revolver.
4
Shortly after the shooting, three of Chambers' friends discovered that he was not yet dead. James Williams,1 Berkley Turner, and Gable McDonald loaded him into a car and transported him to the same hospital. Later that night, when the county sheriff discovered that Chambers was still alive, a guard was placed outside his room. Chambers was subsequently charged with Liberty's murder. He pleaded not guilty and has asserted his innocence throughout.
5
The story of Leon Chambers is intertwined with the story of another man, Gable McDonald. McDonald, a lifelong resident of Woodville, was in the crowd on the evening of Liberty's death. Sometime shortly after that day, he left his wife in Woodville and moved to Louisiana and found a job at a sugar mill. In November of that same year, he returned to Woodville when his wife informed him that an acquaintance of his, known as Reverend Stokes, wanted to see him. Stokes owned a gas station in Natchez, Mississippi, several miles north of Woodville, and upon his return McDonald went to see him. After talking to Stokes, McDonald agreed to make a statement to Chambers' attorneys, who maintained offices in Natchez. Two days later, he appeared at the attorneys' offices and gave a sworn confession that he shot Officer Liberty. He also stated that he had already told a friend of his, James Williams, that he shot Liberty. He said that he used his own pistol, a nine-shot .22-caliber revolver, which he had discarded shortly after the shooting. In response to questions from Chambers' attorneys, McDonald affirmed that his confession was voluntary and that no one had compelled him to come to them. Once the confession had been transcribed, signed, and witnessed, McDonald was turned over to the local police authorities and was placed in jail.
6
One month later, at a preliminary hearing, McDonald repudiated his prior sworn confession. He testified that Stokes had persuaded him to confess that he shot Liberty. He claimed that Stokes had promised that he would not go to jail and that he would share in the proceeds of a lawsuit that Chambers would bring against the town of Woodville. On examination by his own attorney and on cross-examination by the State, McDonald swore that he had not been at the scene when Liberty was shot but had been down the street drinking beer in a cafe with a friend, Berkley Turner. When he and Turner heard the shooting, he testified, they walked up the street and found Chambers lying in the alley. He, Turner, and Williams took Chambers to the hospital. McDonald further testified at the preliminary hearing that he did not know what had happened, that there was no discussion about the shooting either going to or coming back from the hospital, and that it was not until the next day that he learned the Chambers had been felled by a blast from Liberty's riot gun. In addition, McDonald stated that while he once owned a .22-caliber pistol he had lost it many months before the shooting and did not own or possess a weapon at that time. The local justice of the peace accepted McDonald's repudiation and released him from custody. The local authorities undertook no further investigation of his possible involvement.
7
Chambers' case came on for trial in October of the next year.2 At trial, he endeavored to develop two grounds of defense. He first attempted to show that he did not shoot Liberty. Only one officer testified that he actually saw Chambers fire the shots. Although three officers saw Liberty shoot Chambers and testified that they assumed he was shooting his attacker, none of them examined Chambers to see whether he was still alive or whether he possessed a gun. Indeed, no weapon was ever recovered from the scene and there was no proof that Chambers had ever owned a .22-caliber pistol. One witness testified that he was standing in the street near where Liberty was shot, that he was looking at Chambers when the shooting began, and that he was sure that Chambers did not fire the shots.
8
Petitioner's second defense was that Gable McDonald had shot Officer Liberty. He was only partially successful, however, in his efforts to bring before the jury the testimony supporting this defense. Sam Hardin, a lifelong friend of McDonald's, testified that he saw McDonald shoot Liberty. A second witness, one of Liberty's cousins, testified that he saw McDonald immediately after the shooting with a pistol in his hand. In addition to the testimony of these two witnesses, Chambers endeavored to show the jury that McDonald had repeatedly confessed to the crime. Chambers attempted to prove that McDonald had admitted responsibility for the murder on four separate occasions, once when he gave the sworn statement to Chambers' counsel and three other times prior to that occasion in private conversations with friends.
9
In large measure, he was thwarted in his attempt to present this portion of his defense by the strict application of certain Mississippi rules of evidence. Chambers asserts in this Court, as he did unsuccessfully in his motion for new trial and on appeal to the State Supreme Court, that the application of these evidentiary rules rendered his trial fundamentally unfair and deprived him of due process of law.3 It is necessary, therefore, to examine carefully the rulings made during the trial.
II
10
Chambers filed a pretrial motion requesting the court to order McDonald to appear. Chambers also sought a ruling at that time that, if the State itself chose not to call McDonald, he be allowed to call him as an adverse witness. Attached to the motion were copies of McDonald's sworn confession and of the transcript of his preliminary hearing at which he repudiated that confession. The trial court granted the motion requiring McDonald to appear but reserved ruling on the adverse-witness motion. At trial, after the State failed to put McDonald on the stand, Chambers called McDonald, laid a predicate for the introduction of his sworn out-of-court confession, had it admitted into evidence, and read it to the jury. The State, upon cross-examination, elicited from McDonald the fact that he had repudiated his prior confession. McDonald further testified, as he had at the preliminary hearing, that he did not shoot Liberty, and that he confessed to the crime only on the promise of Reverend Stokes that he would not go to jail and would share in a sizable tort recovery from the town. He also retold his own story of his actions on the evening of the shooting, including his visit to the cafe down the street, his absence from the scene during the critical period, and his subsequent trip to the hospital with Chambers.
11
At the conclusion of the State's cross-examination, Chambers renewed his motion to examine McDonald as an adverse witness. The trial court denied the motion, stating: 'He may be hostile, but he is not adverse in the sense of the word, so your request will be overruled.' On appeal, the State Supreme Court upheld the trial court's ruling, finding that 'McDonald's testimony was not adverse to appellant' because '(n)owhere did he point the finger at Chambers.' 252 So.2d, at 220.
12
Defeated in his attempt to challenge directly McDonald's renunciation of his prior confession, Chambers sought to introduce the testimony of the three witnesses to whom McDonald had admitted that he shot the officer. The first of these, Sam Hardin, would have testified that, on the night of the shooting, he spent the late evening hours with McDonald at a friend's house after their return from the hospital and that, while driving McDonald home later that night, McDonald stated that he shot Liberty. The State objected to the admission of this testimony on the ground that it was hearsay. The trial court sustained the objection.4
13
Berkley Turner, the friend with whom McDonald said he was drinking beer when the shooting occurred, was then called to testify. In the jury's presence, and without objection, he testified that he had not been in the vafe that Saturday and had not had any beers with McDonald. The jury was then excused. In the absence of the jury, Turner recounted his conversations with McDonald while they were riding with James Williams to take Chambers to the he had not been in the cafe that Saturday said anything regarding the shooting of Liberty, Turner testified that McDonald told him that he 'shot him.' Turner further stated that one week later, when he met McDonald at a friend's house, McDonald reminded him of their prior conversation and urged Turner not to 'mess him up.' Petitioner argued to the court that, especially where there was other proof in the case that was corroborative of these out-of-court statements, Turner's testimony as to McDonald's self-incriminating remarks should have been admitted as an exception to the hearsay rule. Again, the trial court sustained the State's objection.
14
The third witness, Albert Carter, was McDonald's neighbor. They had been friends for about 25 years. Although Carter had not been in Woodville on the evening of the shooting, he stated that he learned about it the next morning from McDonald. That same day, he and McDonald walked out to a well near McDonald's house and there McDonald told him that he was the one who shot Officer Liberty. Carter testified that McDonald also told him that he had disposed of the .22-caliber revolver later that night. He further testified that several weeks after the shooting, he accompanied McDonald to Natchez where McDonald purchased another .22 pistol to replace the one he had discarded.5 The jury wsa not allowed to hear Carter's testimony. Chambers urged that these statements were admissible, the State objected, and the court sustained the objection.6 On appeal, the State Supreme Court approved the lower court's exclusion of these witnesses' testimony on hearsay grounds. 252 So.2d, at 220.
15
In sum, then, this was Chambers' predicament. As a consequence of the combination of Mississippi's 'party witness' or 'voucher' rule and its hearsay rule, he was unable either to cross-examine McDonald or to present witnesses in his own behalf who would have discredited McDonald's repudiation and demonstrated his complicity. Chambers had, however, chipped away at the fringes of McDonald's story by introducing admissible testimony from other sources indicating that he had not been seen in the cafe where he said he was when the shooting started, that he had not been having beer with Turner, and that he possessed a .22 pistol at the time of the crime. But all that remained from McDonald's own testimony was a single written confession countered by an arguably acceptable renunciation. Chambers' defense was far less persuasive than it might have been had he been given an opportunity to subject McDonald's statements to cross-examination or had the other confessions been admitted.
III
16
The right of an accused in a criminal trial to due process is, in essence, the right to a fair opportunity to defend against the State's accusations. The rights to confront and cross-examine witnesses and to call witnesses in one's own behalf have long been recognized as essential to due process. Mr. Justice Black, writing for the Court in In re Oliver, 333 U.S. 257, 273, 68 S.Ct. 499, 507, 92 L.Ed. 682 (1948), identified these rights as among the minimum essentials of a fair trial:
17
'A person's right to reasonable notice of a charge against him, and an opportunity to be heard in his defense—a right to his day in court—are basic in our system of jurisprudence; and these rights include, as a minimum, a right to examine the witnesses against him, to offer testimony, and to be represented by counsel.' See also Morrissey v. Brewer, 408 U.S. 471, 488—489, 92 S.Ct. 2593, 2603—2604, 33 L.Ed.2d 484 (1972); Jenkins v. McKeithen, 395 U.S. 411, 428—429, 89 S.Ct. 1843, 1852—1853, 23 L.Ed.2d 404 (1969); Specht v. Patterson, 386 U.S. 605, 610, 87 S.Ct. 1209, 1212, 18 L.Ed.2d 326 (1967). Both of these elements of a fair trial are implicated in the present case.
A.
18
Chambers was denied an opportunity to subject McDonald's damning repudiation and alibi to cross-examination. He was not allowed to test the witness' recollection, to probe into the details of his alibi, or to 'sift' his conscience so that the jury might judge for itself whether McDonald's testimony was worthy of belief. Mattox v. United States, 156 U.S. 237, 242—243, 15 S.Ct. 337, 339—340, 39 L.Ed. 409 (1895). The right of cross-examination is more than a desirable rule of trial procedure. It is implicit in the constitutional right of confrontation, and helps assure the 'accuracy of the truth-determining process.' Dutton v. Evans, 400 U.S. 74, 89, 91 S.Ct. 210, 220, 27 L.Ed.2d 213 (1970); Bruton v. United States, 391 U.S. 123, 135—137, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). It is, indeed, 'an essential and fundamental requirement for the kind of fair trial which is this country's constitutional goal.' Pointer v. Texas, 380 U.S. 400, 405, 85 S.Ct. 1065, 1068, 13 L.Ed.2d 923 (1965). Of course, the right to confront and to cross-examine is not absolute and may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process. E.g., Mancusi v. Stubbs, 408 U.S. 204, 92 S.Ct. 2308, 33 L.Ed.2d 293 (1972). But its denial or significant diminution calls into question the ultimate "integrity of the fact-finding process" and requires that the competing interest be closely examined. Berger v. California, 393 U.S. 314, 315, 89 S.Ct. 540, 541, 21 L.Ed.2d 508 (1969).
19
In this case, petitioner's request to cross-examine McDonald was denied on the basis of a Mississippi common-law rule that a party may not impeach his own witness. The rule rests on the presumption—without regard to the circumstances of the particular case—that a party who calls a witness 'vouches for his credibility.' Clark v. Lansford, 191 So.2d 123, 125 (Miss.1966). Although the historical origins of the 'voucher' rule are uncertain, it appears to be a remnant of primative English trial practice in which 'oath-takers' or 'compurgators' were called to stand behind a particular party's position in any controversy. Their assertions were strictly partisan and, quite unlike witnesses in criminal trials today, their role bore little relation to the impartial ascertainment of the facts.7
20
Whatever validity the 'voucher' rule may have once enjoyed, and apart from whatever usefulness it retains today in the civil trial process, it bears little present relationship to the realities of the criminal process.8 It might have been logical for the early common law to require a party to vouch for the credibility of witnesses he brought before the jury to affirm his veracity. Having selected them especially for that purpose, the party might reasonably be expected to stand firmly behind their testimony. But in modern criminal trials, defendants are rarely able to select their witnesses: they must take them where they find them. Moreover, as applied in this case, the 'voucher' rule's9 impact was doubly harmful to Chambers' efforts to develop his defense. Not only was he precluded from cross-examining McDonald, but, as the State conceded at oral argument,10 he was also restricted in the scope of his direct examination by the rule's corollary requirement that the party calling the witness is bound by anything he might say. He was, therefore, effectively prevented from exploring the circumstances of McDonald's three prior oral confessions and from challenging the renunciation of the written confession.
21
In this Court, Mississippi has not sought to defend the rule or explain its underlying rationale. Nor has it contended that its rule should override the accused's right of confrontation. Instead, it argues that there is no incompatability between the rule and Chambers' rights because no right of confrontation exists unless the testifying witness is 'adverse' to the accused. The State's brief asserts that the 'right of confrontation applies to witnesses 'against' an accused.'11 Relying on the trial court's determination that McDonald was not 'adverse,' and on the State Supreme Court's holding that McDonald did not 'point the finger at Chambers,'12 the State contends that Chambers' constitutional right was not involved.
22
The argument that McDonald's testimony was not 'adverse' to, or 'against,' Chambers is not convincing. The State's proof at trial excluded the theory that more than one person participated in the shooting of Liberty. To the extent that McDonald's sworn confession tended to incriminate him, it tended also to exculpate Chambers.13 And, in the circumstances of this case, McDonald's retraction inculpated Chambers to the same Extent that it exculpated to the same extent that it exculpated that McDonald's testimony was in fact seriously adverse to Chambers. The availability of the right to confront and to cross-examine those who give damaging testimony against the accused has never been held to depend on whether the witness was initially put on the stand by the accused or by the State. We reject the notion that a right of such substance in the criminal process may be governed by that technicality or by any narrow and unrealistic definition of the word 'against.' The 'voucher' rule, as applied in this case, plainly interfered with Chambers' right to defend against the State's charges.
B
23
We need not decide, however, whether this error alone would occasion reversal since Chambers' claimed denial of due process rests on the ultimate impact of that error when viewed in conjunction with the trial court's refusal to permit him to call other witnesses. The trial court refused to allow him to introduce the testimony of Hardin, Turner, and Carter. Each would have testified to the statements purportedly made by McDonald, on three separate occasions shortly after the crime, naming himself as the murderer. The State Supreme Court approved the exclusion of this evidence on the ground that it was hearsay.
24
The hearsay rule, which has long been recognized and respected by virtually every State, is based on experience and grounded in the notion that untrustworthy evidence should not be presented to the triers of fact. Out-of-court statements are traditionally excluded because they lack the conventional indicia of reliability: they are usually not made under oath or other circumstances that impress the speaker with the solemnity of his statements; the declarant's word is not subject to cross-examination; and he is not available in order that his demeanor and credibility may be assessed by the jury. California v. Green, 399 U.S. 149, 158, 90 S.Ct. 1930, 1935, 26 L.Ed.2d 489 (1970). A number of exceptions have developed over the years to allow admission of hearsay statements made under circumstances that tend to assure reliability and thereby compensate for the absence of the oath and opportunity for cross-examination. Among the most prevalent of these exceptions is the one applicable to declarations against interest14—an exception founded on the assumption that a person is unlikely to fabricate a statement against his own interest at the time it is made. Mississippi recognizes this exception but applies it only to declarations against pecuniary interest.15 It recognizes no such exception for declarations, like McDonald's in this case, that are against the penal interest of the declarant. Brown v. State, 99 Miss. 719, 55 So. 961 (1911).
25
This materialistic limitation on the declaration-against-interest hearsay exception appears to be accepted by most States in their criminal trial processes,16 although a number of States have discarded it.17 Declarations against penal interest have also been excluded in federal courts under the authority of Donnelly v. United States, 228 U.S. 243, 272—273, 33 S.Ct. 449, 459, 57 L.Ed. 820 (1913), although exclusion would not be required under the newly proposed Federal Rules of Evidence.18 Exclusion, where the limitation prevails, is usually premised on the view that admission would lead to the frequent presentation of perjured testimony to the jury. It is by any compulsion of guilt. The Court are often motivated by extraneous considerations and, therefore, are not as might well have known at the time he pecuniary or proprietary interest. While that rationale has been the subject of considerable scholarly criticism,19 case, no such basis for doubting McDonald's statements. See Note, 43 Miss.L.J. serve some valid state purpose by excluding untrustworthy testimony.
26
The hearsay statements involved in this case were originally made and subsequently offered at trial under circumstances that provided considerable assurance of their reliability. First, each of McDonald's confessions was made spontaneously to a close acquaintance shortly after the murder had occurred. Second, each one was corroborated by some other evidence in the case—McDonald's sworn confession, the testimony of an eyewitness to the shooting, the testimony that McDonald was seen with a gun immediately after the shooting, and proof of his prior ownership of a .22-caliber revolver and subsequent purchase of a new weapon. The sheer number of independent confessions provided additional corroboration for each. Third, whatever may be the parameters of the penal-interest rationale,20 each confession here was in a very real sense self-incriminatory and unquestionably against interest. See United States v. Harris, 403 U.S. 573, 584, 91 S.Ct. 2075, 2082, 29 L.Ed.2d 723 (1971); Dutton v. Evans, 400 U.S., at 89, 91 S.Ct., at 219. McDonald stood to benefit nothing by disclosing his role in the shooting to any of his three friends and he must have been aware of the possibility that disclosure would lead to criminal prosecution. Indeed, after telling Turner of his involvement, he subsequently urged Turner not to 'mess him up.' Finally, if there was any question about the truthfulness of the extrajudicial statements, McDonald was present in the courtroom and was under oath. He could have been cross-examined by the State, and his demeanor and responses weighed by the jury. See California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970). The availability of McDonald significantly distinguishes this case from the prior Mississippi precedent, Brown v. State, supra, and from the Donnelly-type situation, since in both cases the declarant was unavailable at the time of trial.21
27
Few rights are more fundamental than that of an accused to present witnesses in his own defense. E.g., Webb v. Texas, 409 U.S. 95, 93 S.Ct. 351, 34 L.Ed.2d 330 (1972); Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967); In re Oliver, 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682 (1948). In the exercise of this right, the accused, as is required of the State, must comply with established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence. Although perhaps no rule of evidence has been more respected or more frequently applied in jury trials than that applicable to the exclusion of hearsay, exceptions tailored to allow the introduction of evidence which in fact is likely to be trustworthy have long existed. The testimony rejected by the trial court here bore persuasive assurances of trustworthiness and thus was well within the basic rationale of the exception for declarations against interest. That testimony also was critical to Chambers' defense. In these circumstances, where constitutional rights directly affecting. the ascertainment of guilt are implicated, the hearsay rule may not be applied mechanistically to defeat the ends of justice.
28
We conclude that the exclusion of this critical evidence, coupled with the State's refusal to permit Chambers to cross-examine McDonald, denied him a trial in accord with traditional and fundamental standards of due process. In reaching this judgment, we establish no new principles of constitutional law. Nor does our holding signal any diminution in the respect traditionally accorded to the States in the establishment and implementation of their own criminal trial rules and procedures. Rather, we hold quite simply that under the facts and circumstances of his case the rulings and circumstances of this case the rulings of a fair trial.
29
The judgment is reversed and the case is remanded to the Supreme Court of Mississippi for further proceedings not inconsistent with this opinion.
30
It is so ordered.
31
Reversed and remanded.
32
Mr. Justice WHITE, concurring.
33
We would not ordinarily expect an appellate court in the state or federal system to remain silent on a constitutional issue requiring decision in the case before it. Normally, a court's silence on an important question would simply indicate that it was unnecessary to decide the issue because it was not properly before the court or for some other reason. As my Brother REHNQUIST points out, the Court stated in Street v. New York, 394 U.S. 576, 582, 89 S.Ct. 1354, 1360, 22 L.Ed.2d 572 (1969), that 'when . . . the highest state court has failed to pass upon a federal question, it will be assumed that the omission was due to want of proper presentation in the state courts, unless the aggrieved party in this Court can affirmatively show the contrary.'
34
Under this rule it becomes the petitioner's burden to demonstrate that under the applicable state law his claim was properly before the state court and was therefore necessarily rejected, although silently, by affirmance of the judgment. If he fails to do so, we need not entertain and decide the federal question that he presses.
35
It is not our invariable practice, however, that we will not ourselves canvass state law to determine whether the federal question, presented to but not discussed by the state supreme court, was properly raised in accordance with state procedures. The Court surveyed state law in Street, itself, with little if any help from the appellant; and I think it is appropriate here where the State does not contest our jurisdiction and seemingly concedes that the question was properly raised below and necessarily decided by the Mississippi Supreme Court.
36
There is little doubt that Mississippi ordinarily enforces a rule of contemporaneous objection with respect to evidence; the three opinions in Henry v. State, 253 Miss. 263, 154 So.2d 289 (1963); 253 Miss., at 266, 174 So.2d 348 (1965); Miss., 198 So.2d 213 (1967), make this sufficiently clear. Also, that case came here, and we not only noted the existence of the rule but recognized that it served a legitimate state interest. Henry v. Mississippi, 379 U.S. 443, 85 S.Ct. 564, 13 L.Ed.2d 408 (1965). The same rule obtains where the proponent of evidence claims error in its exclusion:
37
'The rejection of evidence not apparently admissible is not error, in the absence of an offer or sufficient statement of the purpose of its introduction, by which the court may determine its relevancy or admissibility. . . . This Court has consistently followed this rule requiring definiteness and sufficiency of an offer of proof. . . .' Freeman v. State, 204 So.2d 842, 847—848 (Miss. 1967) dissenting opinion).
38
There are Mississippi cases stating that in proper circumstances the contemporaneous-objection rule will not be enforced and that the State Supreme Court in some circumstances will consider an issue raised there for the first time. In Carter v. State, 198 Miss. 523, 21 So.2d 404 (1945), the only issue in the appellate court concerned appellant's mental condition at the time of the crime, an issue not raised at trial. The court said '(t)he rule that questions not raised in the trial court cannot be raised for the first time on appeal, is not without exceptions, among which are errors 'affecting fundamental rights of the parties . . . or affecting public policy,' . . . if to act on which will work no injustice to any party to the appeal.' Id., at 528, 21 So.2d, at 404. The court proceeded to consider the issue. In Brooks v. State, 209 Miss. 150, 155, 46 So.2d 94, 97 (1950), a convicted defendant asserted in the State Supreme Court for the first time the inadmissibility of certain evidence on the grounds of an illegal search and seizure, violation of the rule against self-incrimination, and improper cross-examination. The court considered these questions and reversed the conviction, saying that '(e)rrors affecting fundamental rights are exceptions to the rule that questions not raised in the trial court cannot be raised for the first time on appeal. . . . (W)here fundamental and constitutional rights are ignored, due process does not exist, and a fair trial in contemplation of law cannot be had.'
39
The reach of these cases was left in doubt when, in affirming the judgment in Henry v. State, 253 Miss. 263, 154 So.2d 289 (1963), the Mississippi Supreme Court refused to consider a claim of illegally obtained evidence because the matter had not been presented to the trial court. The case did not come within Brooks v. State, supra, the court ruled, because Henry's counsel were experienced and adequate, and Henry was bound by their mistakes. This Court vacated that judgment and remanded for determination whether there had been a deliberate bypass, reading Mississippi law as extending no discretion to give relief from the contemporaneous-objection rule where 'petitioner was represented by competent local counsel familiar with local procedure.' Henry v. Mississippi, 379 U.S., at 449 n. 5, 85 S.Ct., at 568. In its initial opinion on remand, the Supreme Court of Mississippi reasserted the necessity to object at the time testimony is offered in the trial court, but it said '(n) evertheless if it appears to the trial judge that the foregoing rule of procedure would defeat justice and bring about results not justified or intended by substantive law, the rule may be relaxed and subordinated to the primary purpose of the law to enforce constitutional rights in the interest of justice.' Henry v. State, 253 Miss., at 287, 174 So.2d, at 351.*
40
In King v. State, 230 So.2d 209, 211 (Miss.1970), this statement from the 1965 Henry opinion was interpreted as giving the Supreme Court of the State, as well as the trial court, sufficient latitude to treat the request for a peremptory instruction to the jury after failure to object to the introduction of allegedly illegally obtained evidence as if the appellant had made timely objection.
41
Moreover, in Wood v. State, 257 So.2d 193, 200 (Miss.1972), where a convicted defendant complained of a wide-ranging and allegedly unfair cross-examination of defense witnesses, and where there had been a failure to object to part of the prejudicial inquiry, the State Supreme Court nevertheless considered the question, stating: '(W)e note also that no objection was made to the testimony of Donald Ray Boyd when he was asked whether he had ever been in jail. However, it was stated in Brooks, supra, that in extreme cases a failure to object to questions which were violative of a constitutional right did not in all events have to be objected to before they would receive consideration by this Court. The appellant in this case was being tried for murder. The evidence of defendant's guilt was extremely close. A shred of evidence one way or the other could have been persuasive to the jury. In our opinion, this warrants our consideration of the questions and responses to which repeated objections were made and sustained by the court, as well as the consideration of the testimony of Donal Ray Boyd wherein he was asked whether he had been in jail or not though no formal objection was made thereto.'
42
These cases seemingly preserve some aspects of the Brooks rule, and hence anticipate some situations where the contemporaneous-objection requirement will not be enforced, despite Henry. There will be occasions where the Supreme Court of Mississippi will consider constitutional claims made in that court for the first time.
43
Where this leaves the matter of our jurisdiction in the light of decisions such as Williams v. Georgia, 349 U.S. 375, 75 S.Ct. 814, 99 L.Ed. 1161 (1955), is not clear. There, while acknowledging that motions for a new trial after final judgment were not favored in Georgia, the Court recognized that such motions had been granted in 'exceptional' or 'extraordinary' cases, their availability being within the well-informed discretion of the courts. It was claimed that denying Williams' motion was an adequate state ground precluding review here, but 'since his motion was based upon a constitutional objection, and one the validity of which has in principle been sustained here, the discretionary decision to deny the motion does not deprive this Court of jurisdiction to find that the substantive issue is properly before us.' Id., at 389, 75 S.Ct., at 822.
44
In the circumstances before us, where there were repeated offers of evidence and objections to its exclusion, although not on constitutional grounds, where the matter was presented in federal due process terms to the State Supreme Court and where the State does not now deny that the issue was properly before the state court and could have been considered by it, I am inclined, although dubitante, to conclude with the Court that we have jurisdiction.
45
As to the merits, I would join in the Court's opinion and judgment.
46
Mr. Justice REHNQUIST, dissenting.
47
Were I to reach the merits in this case, I would have considerable difficulty in subscribing to the Court's further constitutionalization of the intricacies of the common law of evidence. I do not reach the merits, since I conclude that petitioner failed to properly raise in the Mississippi courts the constitutional issue that he seeks to have this Court decide.
48
Title 28 U.S.C. § 1257 provides in pertinent part as follows:
49
'Final judgments or decrees rendered by the highest court of a State in which a decision could be had, may be reviewed by the Supreme Court as follows:
50
'(3) By writ of certiorari, . . . where any title, right, privilege or immunity is specially set up or claimed under the Constitution, treaties or statutes of, or commission held or authority exercised under, the United States.'
51
We deal here with a limitation imposed by Congress upon this Court's authority to review judgments of state courts. It is a jurisdictional limitation, Cardinale v. Louisiana, 394 U.S. 437, 438, 89 S.Ct. 1161, 1162, 22 L.Ed.2d 398 (1969), that has always been interpreted with careful regard for the delicate nature of the authority conferred upon this Court to review the judgments of state courts of last resort:
52
'Upon like grounds the jurisdiction of this court to re-examine the final judgment of a state court cannot arise from mere inference, but only from averments so distinct and positive as to place it beyond question that the party bringing a case here from such court intended to assert a Federal right.' Oxley Stave Co. v. Butler County, 166 U.S. 648, 655, 17 S.Ct. 709, 711, 41 L.Ed. 1149 (1897).
53
In Street v. New York, 394 U.S. 576, 89 S.Ct. 1354, 22 L.Ed.2d 572 (1969), cited by the Court in its n. 3, the following language from the earlier case of New York ex rel. Bryant v. Zimmerman, 278 U.S. 63, 67, 49 S.Ct. 61, 63, 73 L.Ed. 184 (1928), was quoted:
54
'No particular form of words or phrases is essential, but only that the claim of invalidity and the ground therefor be brought to the attention of the state court with fair precision and in due time.' 394 U.S., at 584, 89 S.Ct. at 1362 (emphasis added).
55
The question of whether a constitutional issue has been raised in 'due time' in the state courts is one generally left to state procedure, subject to the important condition that the state procedure give no indication 'that there was an attempt on the part of the state court to evade the decision of Federal questions, duly set up, by unwarranted resort to alleged rules under local practice.' Louisville & Nashville R. Co. v. Woodford, 234 U.S. 46, 51, 34 S.Ct. 739, 741, 58 L.Ed. 1202 (1914). More recently, the Court has stated in Henry v. Mississippi, 379 U.S. 443, 447, 85 S.Ct. 564, 567, 13 L.Ed.2d 408 (1965) that:
56
'These cases settle the proposition that a litigant's procedural defaults in state proceedings do not prevent vindication of his federal rights unless the State's insistence on compliance with its procedural rule serves a legitimate state interest.'
57
Since the Court in Henry was dealing with a rule of trial procedure from the State of Mississippi, its analysis in that case is particularly helpful in deciding this one. It was conceded by all parties there that the Mississippi rules required contemporaneous objection to evidentiary rulings, and this Court commented:
58
'The Mississippi rule . . . clearly does serve a legitimate state interest. By immediately apprising the trial judge of the objection, counsel gives the court the opportunity to conduct the trial without using the tainted evidence. If the objection is well taken the fruits of the illegal search may be excluded from jury consideration, and a reversal and new trial avoided.' Id., at 448, 85 S.Ct. at 568.
59
In that case, the petitioner had made his motion to exclude the evidence at the close of the State's case, and this Court observed that a ruling on the motion at that point would very likely have prevented the possibility of reversal and new trial just as surely as a ruling on a motion made contemporaneously with the offer of the evidence.
60
Here, however, the record of the state proceedings shows that the first occasion on which petitioner's counsel even hinted that his previous evidentiary objection had a constitutional basis was at the time he filed a motion for new trial. By delaying his constitutional contention until after the evidence was in and the jury had retired and returned a verdict of guilty against him, petitioner denied the trial court an opportunity to reconsider its evidentiary ruling in the light of the constitutional objection. While this Court in Henry expressed doubt as to the adequacy for federal purposes of Mississippi's differing treatment of a motion to exclude at the close of the State's case and an objection made contemporaneously with the offer of the evidence, there can be no doubt that the policy supporting Mississippi's requirement of contemporaneous objection cannot be served equally well by a motion for new trial following the rendition of the jury's verdict.
61
It is perfectly true, as the Court states in n. 3 of its opinion, that petitioner 'objected during trial to each of the court's rulings.' But this is only half the test; the litigant seeking to have a decision here on a constitutional claim must not only object or otherwise advise the lower court of his claim that a ruling is error, but he must make it clear that his claim of error is constitutionally grounded. In Bailey v. Anderson, 326 U.S. 203, 66 S.Ct. 66, 90 L.Ed. 3 (1945), the petitioner argued in this Court that a state court condemnation award that failed to include interest from the date of possession denied him just compensation in violation of the Due Process Clause of the Fourteenth Amendment. This Court noted that in the state circuit court petitioner had requested that the award include interest from the date of taking, and that the circuit court without explanation had rejected this claim. But this Court went on to say:
62
'But throughout the proceedings in the circuit court appellant made no claim to interest on constitutional grounds, and made no attack on the constitutionality of the award or the court's decree because of the asserted denial of interest.' Id., at 206, 66 S.Ct., at 68.
63
Concluding from an examination of the opinion of the Supreme Court of Appeals of Virginia that although appellant had raised his constitutional claim there, it had not been passed upon by that court, this Court held that the 'appeal must be dismissed for want of any properly presented substantial federal question.' Id., at 207, 66 S.Ct., at 68.
64
Neither the majority nor the dissenting opinions of the Supreme Court of Mississippi contain one syllable that refers expressly or by implication to any claim based on the Constitution of the United States. Those opinions did, of course, treat the evidentiary objections and proffers that this Court now holds to be of constitutional dimension, but it passed on them in terms of nonconstitutional evidentiary questions that are one of the staples of the business of appellate courts that regularly review claims of error in the conduct of trial. Since Mississippi requires contemporaneous objection to evidentiary rulings during the trial, it would have been entirely proper for the Supreme Court of Mississippi to conclude that even though petitioner might have asserted constitutional claims in his brief there, they had been raised too late to require consideration by it.
This Court said in Street v. New York:
65
'Moreover, this Court has stated that when, as here, the highest state court has failed to pass upon a federal question, it will be assumed that the omission was due to want of proper presentation in the state courts, unless the aggrieved party in this Court can affirmatively show the contrary.' 394 U.S., at 582, 89 S.Ct., at 1360.
66
If, by some extraordinarily lenient construction of the decisional requirement that the constitutional claim be made 'in due time' in the state proceedings, the making of such a claim for the first time in a motion for a new trial were deemed timely, it is still extraordinarily doubtful that this petitioner adequately raised any constitutional claims in his motion for new trial. That motion consisted of the following pertinent points:
67
'3rd, the Court erred in refusing to declare Gable McDonald a hostile and adverse witness and permitting the Defendant to propound leading questions as on cross-examination.
68
'4th, the Court erred in refusing to permit the Defendant to introduce evidence corroborating the admission of Gable McDonald admitting the killing of Aaron Liberty.
69
'6th, the trial of the Defendant was not in accord with fundamental fairness guaranteed by the Fourteenth Amendment of the Constitution of the United States and Article Three, Sections Fourteen and Twenty-Six of the Constitution of the State of Mississippi.'
70
It would have to be an extraordinarily perceptive trial judge who could glean from this motion that the separately stated third and fourth points, dealing as they do in customary terms of claims of trial error in the exclusion or admission of evidence, were intended to be bolstered by the generalized assertion of the violation of due process contained in a separately stated point. The contention of the sixth point, standing by itself, that 'the trial of the Defendant was not in accord with fundamental fairness guaranteed by the Fourteenth Amendment of the Constitution of the United States,' directs the trial court to no particular ruling or decision that he may have made during the trial; it is a bald assertion that the trial from beginning to end was somehow fundamentally unfair. Even the most lenient construction of that part of 28 U.S.C. § 1257 that requires that the 'title, right, privilege or immunity' be 'specially set up or claimed' could not aid petitioner in his claim that this point properly raised a federal constitutional issue.
71
This Court under the Constitution has the extraordinarily delicate but equally necessary authority to review judgments of state courts of last resort on issues that turn on construction of the United States Constitution or federal law. But before we undertake to tell a state court of last resort that its judgment is inconsistent with the mandate of the Constitution, it behooves us to make certain that in doing so we adhere to the congressional mandate that limits our jurisdiction. Believing as I do that petitioner has not complied with 28 U.S.C. § 1257(3), I would dismiss the writ of certiorari.
1
James Williams was indicted along with Chambers. The State, however, failed to introduce any evidence at trial implicating Williams in the shooting. At the conclusion of the State's case-in-chief, the trial court granted a directed verdict in his favor.
2
Upon Chambers' motion, a change of venue was granted and the trial was held in Amite County, to the east of Woodville. The change of trial setting was in response to petitioner's claim that, because of adverse publicity and the hostile attitude of the police and sheriff's staffs in Woodville, he could not obtain a fair and impartial trial there.
3
On the record in this case, despite the State Supreme Court's failure to address the constitutional issue, it is clear that Chambers' asserted denial of due process is properly before us. He objected during trial to each of the court's rulings. As to the confrontation claim, petitioner asserted, both before and during trial, his right to treat McDonald as an adverse witness. His motion for new trial, filed after the jury's verdict, listed as error the trial court's refusal to permit cross-examination of McDonald and the exclusion of evidence corroborative of McDonald's guilt. The motion concluded that the trial 'was not in accord with fundamental fairness guaranteed by the Fourteenth Amendment of the Constitution.' Chambers reasserted those claims on appeal to the State Supreme Court. After the affirmance of his conviction by that court, Chambers filed a petition for rehearing addressed almost entirely to the claim that his trial had not been conducted in a manner consistent with traditional notions of due process. The State Supreme Court raised no question that Chambers' claims were not properly asserted, and no claim has been made by the State—in its response to the petition for certiorari, in its brief on the merits, or at oral argument—that the questions are not properly reviewable by this Court. See Street v. New York, 394 U.S. 576, 581—585, 89 S.Ct. 1354, 1360—1362, 22 L.Ed.2d 572 (1969); New York ex rel. Bryant v. Zimmerman, 278 U.S. 63, 67—68, 49 S.Ct. 61, 63, 73 L.Ed. 184 (1928).
Unlike Henry v. Mississippi, 379 U.S. 443, 85 S.Ct. 564, 13 L.Ed.2d 408 (1965), this case does not involve the state procedural requirement of contemporaneous objection to the admission of evidence. Petitioner's contention, asserted before the trial court on motion for new trial and subsequently before the Mississippi Supreme Court, is that he was denied 'fundamental fairness guaranteed by the Fourteenth Amendment' as a result of several evidentiary rulings. His claim, the substance of which we accept in this opinion, rests on the cumulative effect of those rulings in frustrating his efforts to develop an exculpatory defense. Although he objected to each ruling individually, petitioner's constitutional claim—based as it is on the cumulative impact of the rulings—could not have been raised and ruled upon prior to the conclusion of Chambers' evidentiary presentation. Since the State has not asserted any independent state procedural ground as a basis for not reaching the merits of petitioner's constitutional claim, we have no occasion to decide whether—if such a ground exists—its imposition in this case would serve any 'legitimate state interest.' Id., at 447, 85 S.Ct., at 567. Under these circumstances, we cannot doubt the propriety of our exercise of jurisdiction.
4
Hardin's testimony, unlike the testimony of the other two men who stated that McDonald had confessed to them, was actually given in the jury's presence. After the State's objection to Hardin's account of McDonald's statement was sustained, the trial court ordered the jury to disregard it.
5
A gun dealer from Natchez testified that McDonald had made two purchases. The witness' business records indicated that McDonald purchased a nine-shot .22-caliber revolver about a year prior to the murder. He purchased a different style .22 three weeks after Liberty's death.
6
It is not entirely clear whether the trial court's ruling was premised on the same hearsay rationale underlying the exclusion of the other testimony. In this instance, the State argued that Carter's testimony was an impermissible attempt by petitioner to impeach a witness (McDonald) who was not adverse to him. The trial court did not state why it was excluding the evidence but the State Supreme Court indicated that it was excluded as hearsay. 252 So.2d, at 220.
7
3A J. Wigmore, Evidence § 896, pp. 658—660 (J. Chadbourn ed. 1970); C. McCormick, Evidence § 38, pp. 75—78 (2d ed. 1972).
8
The 'voucher' rule has been condemned as archaic, irrational, and potentially destructive of the truth-gathering process, C. McCormick, supra, n. 7; E. Morgan, Basic Problems of Evidence 70—71 (1962); 3A J. Wigmore, supra, n. 7, § 898, p. 661.
9
The 'voucher' rule has been rejected altogether by the newly proposed Federal Rules of Evidence, Rule 607, Rules of Evidence for United States Courts and Magistrates (approved Nov. 20, 1972, and transmitted to Congress to become effective July 1, 1973, unless the Congress otherwise determines). (56 F.R.D. 183, 266.)
10
Tr. of Oral Arg. 35—37.
11
Brief for Respondent 9 (emphasis supplied).
12
252 So.2d, at 220.
13
See Donnelly v. United States, 228 U.S. 243, 272, 33 S.Ct. 449, 459, 57 L.Ed.2d 820 (1913).
14
Jefferson, Declarations Against Interest: An Exception to the Hearsay Rule, 58 Harv.L.Rev. 1 (1944).
15
H. McElroy, Mississippi Evidence § 46 (1955); Forrest County Coop. Assn. v. McCaffrey, 253 Miss. 486, 493, 176 So.2d 287, 289—290 (1965).
16
C. McCormick, supra, n. 7, § 278, p. 673; 5 J. Wigmore, Evidence § 1476, pp. 283—287 n. 9 (1940).
17
See, e.g., People v. Spriggs, 60 Cal.2d 868, 36 Cal.Rptr. 841, 389 P.2d 377 (1964); People v. Lettrich, 413 Ill. 172, 108 N.E.2d 488 (1952); People v. Brown, 26 N.Y.2d 88, 308 N.Y.S.2d 825, 257 N.E.2d 16 (1970); Hines v. Commonwealth, 136 Va. 728, 117 S.E. 843 (1923).
18
Rule 804, supra, n. 9.
19
See, e.g., Committee on Rules of Practice & Procedure, Rules of Evidence for United States Courts and Magistrates 129—131 (rev. draft, Mar. 1971); 5 J. Wigmore, supra, n. 16, § 1476, p. 284; Wright, Uniform Rules and Hearsay, 26 U.Cin.L.Rev. 575 (1957); United States v. Annunziato, 293 F.2d 373, 378 (CA2), cert. denied, 368 U.S. 919, 82 S.Ct. 240, 7 L.Ed.2d 134 (1961) (Friendly, J.); Scolari v. United States, 406 F.2d 563, 564 (CA9), cert. denied, 395 U.S. 981, 89 S.Ct. 2140, 23 L.Ed.2d 769 (1969).
20
The Mississippi case which refused to adopt a hearsay exception for declarations against penal interest concerned an out-of-court declarant who purportedly stated that he had committed the murder with which his brother had been charged. The Mississippi Supreme Court believed that the declarant might have been motivated by a desire to free his brother rather than by any compulsion ofguilt. The Court also noted that the declarant had fled, was unavailable for cross-examination, and might well have known at the time the made the statement that he would not suffer for it. Brown v. State, 99 Miss. 719, 55 So. 961 (1911). There is, in the present case, no such basis for doubting Mr. Donald's statements. See Note, 43 Miss.L.J. 122, 127—129 (1972).
21
McDonald's presence also deprives the State's argument for retention of the penal-interest rule of much of its force. In claiming that '(t)o change the rule would work a travesty on justice,' the State posited the following hypothetical:
'If the rule were changed, A could be charged with the crime; B could tell C and D that he committed the crime; B could go into hiding and at A's trial C and D would testify as to B's admission of guilt; A could be acquitted and B would return to stand trial; B could then provide several witnesses to testify as to his whereabouts at the time of the crime. The testimony of those witnesses along with A's statement that he really committed the crime could result in B's acquittal. A would be barred from further prosecution because of the protection against double jeopardy. No one could be convicted of perjury as A did not testify at his first trial, B did not lie under oath, and C and D were truthful in their testimony.' Brief for Respondent 7 n. 3 (emphasis supplied).
Obviously, B's absence at trial is critical to the success of the justice-subverting ploy.
*
The trial court on remand from the 1965 Henry decision, 253 Miss., at 266, 174 So.2d, at 348, found there had been deliberate bypass, and, affirming on appeal, 198 So.2d 213 (1967), the Mississippi Supreme Court did not mention Brooks v. State, 209 Miss. 150, 46 So.2d 94 (1950), or the rule for like cases.
| 01
|
410 U.S. 351
93 S.Ct. 998
35 L.Ed.2d 346
Anthony Louis TACON, Petitioner,v.State of ARIZONA.
No. 71—6060.
Argued Jan. 9, 1973.
Decided Feb. 21, 1973.
Robert J. Hirsh, Tucson, Ariz., for petitioner.
William P. Dixon, Phoenix, Ariz., for respondent.
PER CURIAM.
1
Petitioner, while a soldier in the United States Army stationed at Fort Huachuca, Arizona, was arrested and charged by state authorities with the sale of marihuana in violation of applicable state law. Prior to his trial on this charge, the petitioner was discharged from the Army and voluntarily left Arizona for New York. When the trial date was set, the petitioner's court-appointed attorney so advised the petitioner and requested him to return to Arizona. Assertedly because he lacked travel funds, the petitioner did not appear in Arizona on the date set for trial. Under these circumstances, the trial proceeded without the petitioner's presence, as authorized by state procedure. The jury returned a guilty verdict. After the verdict was rendered, the petitioner obtained the necessary travel funds and returned to Arizona in time for his sentencing. He was sentenced to not less than five nor more than five and one-half years in prison. The Arizona Supreme Court affirmed his conviction. 107 Ariz. 353, 488 P.2d 973 (1971).
2
The petition for certiorari in this case presented questions as to constitutional limits on the States' authority to try in absentia a person who has voluntarily left the State and is unable, for financial reasons, to return to that State. Upon reviewing the record, however, it appears that these broad questions were not raised by the petitioner below nor passed upon by the Arizona Supreme Court. We cannot decide issues raised for the first time here. Cardinale v. Louisiana, 394 U.S. 437, 89 S.Ct. 1161, 22 L.Ed.2d 398 (1969). The only related issue actually raised below was whether petitioner's conduct amounted to a knowing and intelligent waiver of his right to be present at trial. Since this is primarily a factual issue which does not, by itself, justify the exercise of our certiorari jurisdiction, the writ of certiorari is dismissed as improvidently granted.
3
It is so ordered.
4
Writ dismissed.
5
Mr. Justice DOUGLAS, with whom Mr. Justice BRENNAN and Mr. Justice MARSHALL concur, dissenting.
6
Petitioner, while in the Armed Services, was stationed in Arizona and while there was arrested and charged with the unlawful sale of marihuana. That was on February 24, 1969. His counsel asked for a continuance of the trial until April 22, 1969, which was granted. But no trial date was set at that time, one being subsequently set for March 31, 1970. In the meantime, petitioner had been discharged from the Army and left Arizona for New York and gave his attorney his New York address. The attorney sent word by letter on March 3, 1970, that the trial would start March 31 and asked that he return a week early for preparation. Petitioner received that letter March 6 or 7, but had no funds to return. He apparently in good faith tried to raise the money but was not successful. He eventually did succeed and arrived in Arizona April 2. But the trial was over. Petitioner was convicted in absentia and sentenced to not less than five years nor more than five and one-half years. On appeal, the Arizona Supreme Court affirmed. 107 Ariz. 353, 488 P.2d 973.
7
Under Rule 231 of Arizona's Rules of Criminal Procedure, 17 A.R.S., a trial may be conducted in the defendant's absence 'if his absence is voluntary.' Id., at 355, 488 P.2d, at 975. The Arizona Supreme Court held that there had been 'a knowing and intelligent waiver of his right to be present at the trial.' Id., at 357, 488 P.2d, at 977. The federal rule of a knowing and intelligent waiver of his right to confrontation and to be present at the trial of his case, cf. ibid., was the test applied by the Arizona Supreme Court.
8
The Sixth Amendment is applicable to the States by reason of the Fourteenth. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799; Pointer v. Texas, 380 U.S. 400, 406, 85 S.Ct. 1065, 1069, 13 L.Ed.2d 923; Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019. The right 'to be confronted with the witnesses against' him—the right of confrontation in the popular sense—means a 'face-to-face' meeting. As stated in Illinois v. Allen, 397 U.S. 337, 338, 90 S.Ct. 1057, 1058, 25 L.Ed.2d 353: 'One of the most basic of the rights guaranteed by the Confrontation Clause is the accused's right to be present in the courtroom at every stage of his trial.'
9
It is said by the Court that the broad issue of whether a defendant charged with a felony can ever waive his right to be present at trial is not properly before us, since petitioner neglected to plead the issue in this manner before the state courts. The issue which petitioner did raise in the state courts was whether the evidence in the record was sufficient to show that his absence from trial was voluntary, i.e., that he made a knowing and intelligent waiver of his right to be present. The Court disposes of this 'related issue' by holding that it is a factual issue that does not justify the exercise of our jurisdiction. But the question whether a constitutional right has been waived always involves factual matters. 'When constitutional rights turn on the resolution of a factual dispute we are duty bound to make an independent examination of the evidence in the record.' Brookhart v. Janis, 384 U.S. 1, 4 n. 4, 86 S.Ct. 1245, 1247, 16 L.Ed.2d 314 (emphasis added).
10
The question of a knowing and intelligent waiver of this man's federal constitutional right to be present at his trial is far from frivolous. Petitioner was not fleeing the jurisdiction or going into hiding. He knew of the trial date and was trying to raise the necessary funds to travel west. A second letter dated March 18, sent by his attorney, suggested that a guilty plea to a reduced charge might be acceptable. But due to a mail strike petitioner did not receive that letter until April 1, when his trial was over. On March 24 petitioner's counsel sent him a telegram stating that trial would proceed March 31 whether petitioner was present or not. But that telegram was never received even by Western Union in New York. On March 30, petitioner called his lawyer, who told him the court would proceed with the trial even though the accused was absent. Petitioner replied that he would attempt to make it. But, as noted, he did not arrive until April 2.
11
On this record, one cannot say that petitioner had knowingly and intelligently waived his Sixth Amendment right of confrontation. Heretofore, we have never treated the question of waiver cavalierly. We indulge every presumption against the waiver of a constitutional right. We said in a rate case that we 'do not presume acquiescence in the loss of fundamental rights.' Ohio Bell Tel. Co. v. Commission, 301 U.S. 292, 307, 57 S.Ct. 724, 731, 81 L.Ed. 1093. I would treat a hapless victim of a criminal marihuana charge equally as I would a corporate victim of an incompetent regulatory commission.
12
When we decide to dismiss this case, we multiply the burdens of the federal court system. The issue of waiver vel non of the Sixth Amendment right is now ready for decision. When we dismiss, we in effect tell petitioner first to try state habeas corpus and then federal habeas corpus. When indigents had no counsel, these trials were often pregnant with error, and habeas corpus was the normal remedy. But where the issue is exposed on appeal, it should be resolved then and there. When we fail to take that step here, we ask petitioner and his counsel to exhaust themselves during the next five years while they seek a federal determination of their federal right.
13
The law of waiver that governs here was stated by Mr. Justice Black in an earlier case many years ago. He ruled on waiver of counsel; but there is no difference when it comes to waiver of the right of confrontation. 'A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege. The determination of whether there has been an intelligent waiver of (the) right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.' Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461. This Court later held that '(w)aivers of constitutional rights not only must be voluntary but must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences.' Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 1469, 25 L.Ed.2d 747 (emphasis added); see also Adams v. United States ex rel. McCann, 317 U.S. 269, 275, 63 S.Ct. 236, 240, 87 L.Ed. 268; Patton v. United States, 281 U.S. 276, 312, 50 S.Ct. 253, 263, 74 L.Ed. 854.
14
No such showing has been made in the present case. I would reverse the judgment below.
| 01
|
410 U.S. 263
93 S.Ct. 1055
35 L.Ed.2d 282
Paul D. McGINNIS, Commissioner of Correction, et al., Appellants.v.James ROYSTER et al.
No. 71—718.
Argued Dec. 11, 1972.
Decided Feb. 21, 1973.
Syllabus
Appellees challenge as violative of equal protection § 230(3) of the New York Correction Law, which denies certain state prisoners good-time credit toward parole eligibility for the period of their presentence county jail incarceration, whereas those released on bail prior to sentence received under the statute full allowance of good-time credit for the entire period of their prison confinement. A three-judge District Court, viewing the good-time statutory scheme as primarily aimed at fostering prison discipline, upheld appellees' claim on the ground that there is no rational basis for the statutory distinction between jail and non-jail defendants in awarding good-time credit. Held: Under the New York scheme good-time credit takes into account a prisoner's performance under the program of rehabilitation that is fostered under the state prison system, but not in the county jails, which serve primarily as detention centers. Since the jails have no significant rehabilitation program, a rational basis exists for declining to give good-time credit for the pretrial jail-detention period; and the statute will be sustained even if fostering rehabilitation was not necessarily the primary legislative objective, cf. South Carolina v. Katzenbach, 383 U.S. 301, 331, 86 S.Ct. 803, 820, 15 L.Ed.2d 769; Dandridge v. Williams, 397 U.S. 471, 486, 90 S.Ct. 1153, 1162, 25 L.Ed.2d 491. Pp. 268—277.
332 F.Supp. 973, reversed.
Michael Colodner, New York City, for appellants.
G. Jeffery Sorge, Long Beach, N.Y., for appellees, pro hac vice, by special leave of Court.
Mr. Justice POWELL delivered the opinion of the Court.
1
The question before us concerns the constitutionality of § 230(3) of the New York Correction Law, McKinney's Consol.Laws, c. 43, which denied appellee state prisoners 'good time' credit for their presentence incarceration in county jails.1 Appellees claim that disallowing such credit to them while permitting credit up to the full period of ultimate incarceration for state prisoners who were released on bail prior to sentencing deprived them of equal protection of the laws. The three-judge District Court, one judge dissenting, upheld their claim, 332 F.Supp. 973 (1971). The Commissioner of Correction and other officials (hereafter Commissioner) have appealed and we noted probable jurisdiction, 405 U.S. 986, 92 S.Ct. 1247, 31 L.Ed.2d 452 (1972).2
2
The challenged New York sentencing system is a complex one, and some basic definitions are required at the outset. Jail time denotes that time an individual passes in a county jail prior to trial and sentencing. Good time is awarded for good behavior and efficient performance of duties during incarceration. Both good time and jail time figure variously in the calculations of a series of release dates that each prisoner receives upon his arrival at state prison. Each inmate has both a minimum parole date, which is the earliest date on which he may be paroled at the discretion of the Parole Board, and a statutory release date which is the earliest date he must be paroled by the Parole Board.3 The minimum parole date is calculated under §§ 230(2) and 230(3) by subtracting the greatest amount of good time that can be earned (10 days per month) from the minimum sentence of an indeterminate term.4 The statutory release date is calculated under § 230(4) by subtracting the greatest amount of good time that can be earned (5 days per month) from the maximum sentence of an indeterminate term.
3
Although appellees did receive jail-time credit for the period of their presentence incarceration in county jail, § 230(3) explicitly forbids, in calculating the minimum parole date, any good-time credit for the period of county jail detention served prior to transfer to state prison.5 Appellee Royster, being unable to post bail, served 404 days' jail time in the Nassau County Jail prior to his transfer to state prison to serve consecutive 5-to-10-year terms for burglary in the third degree and grand larceny in the first degree. Appellee Rutherford also failed to make bail and spent 242 days' jail time in Nassau County Jail prior to his trial, sentencing, and transfer to state prison for concurrent terms of 10 to 20 years for robbery in the first degree and two and one-half to five years for grand larceny in the second degree. It is undisputed that, were appellees Royster and Rutherford to receive good-time credit for their presentence confinement in county jail, they would be entitled to appear before the Parole Board approximately four and three months earlier, respectively, than under the computation required by § 230(3).
4
Two additional points merit mention. While New York does deny good-time credit for jail time in computing the minimum parole date under §§ 230(2) and (3), it allows such credit in calculating the statutory release date under § 230(4).6 Finally, § 230(3) itself provides that good-time credit for jail time shall be awarded to those prisoners confined after sentence in county penitentiaries, as opposed to those convicted of felonies, such as appellees, who are transferred after sentence to state prison.7
5
* Section 230(3) of the New York Correction Law does, as appellees note, draw a distinction 'between the treatment of state prisoners incarcerated prior to sentencing and those who were not similarly incarcerated.'8 Appellees contend that 'denying state prisoners good-time credit for the period of their pre-sentence incarceration in a County Jail whereas those fortunate enough to obtain bail prior to sentence (receive) a full allowance of good time credit for the entire period which they ultimately spend in custody'9 violates equal protection of the laws and discriminates against those state prisoners unable to afford or otherwise qualify for bail prior to trial.
6
We first note that any relative disadvantage the distinction works on appellees is lessened by the fact that New York on September 1, 1967, replaced § 230 of its Correction Law with §§ 803 and 805, which apply to all convictions for offenses after that date.10 Under the new scheme, 'good time earned on the minimum sentence is abolished. A prisoner meets with the Parole Board at the expiration of his minimum term, regardless of how much good time he has earned or of how much time he spent in jail prior to arriving at state prison.'11 New York has given appellees—and all those sentenced for offenses committed prior to September 1, 1967—a chance to elect the new procedure, but appellees declined to do so. Appellees thus enjoy at least as favorable a position as all state prisoners convicted for offenses committed subsequent to September 1, 1967, including those released on bail prior to sentence. Appellees thus are disadvantaged in the computation of time only in comparison with those who were convicted of offenses committed prior to September 1, 1967, and made bail prior to trial. Even the adverse impact of this difference is lessened, though not eliminated, by the fact that New York did not deprive appellees of credit for the full amount of actual time spent in jail prior to trial and sentencing but only of the potential additional 10 days per month of good time ordinarily available under § 230(2) to inmates for good conduct and efficient performance of duty.12
7
We note, further, that the distinction of which appellees complain arose in the course of the State's sensitive and difficult effort to encourage for its prisoners constructive future citizenship while avoiding the danger of releasing them prematurely upon society. The determination of an optimal time for parole eligibility elicited multiple legislative classifications and groupings, which the court below rightly concluded require only some rational basis to sustain them. James v. Strange, 407 U.S. 128, 140, 92 S.Ct. 2027, 2034, 32 L.Ed.2d 600 (1972); Lindsey v. Normet, 405 U.S. 56, 73—74, 92 S.Ct. 862, 874—875, 31 L.Ed.2d 36 (1972); Schilb v. Kuebel, 404 U.S. 357, 92 S.Ct. 479, 30 L.Ed.2d 502 (1971); Dandridge v. Williams, 397 U.S. 471, 487, 90 S.Ct. 1153, 1162, 25 L.Ed.2d 491 (1970). Appellees themselves recognize this to be the appropriate standard.13 For this Court has observed that '(t)he problems of government are practical ones and may justify, if they do not require, rough accommodations, illogical, it may be, and unscientific.' Metropolis Theatre Co. v. City of Chicago, 228 U.S. 61, 69—70, 33 S.Ct. 441, 443, 57 L.Ed. 730 (1913). We do not wish to inhibit state experimental classifications in a practical and troublesome area, but inquire only whether the challenged distinction rationally furthers some legitimate, articulated state purpose. We conclude that it does.
II
8
The Commissioner defends the distinction by noting that 'state prisons differ from county jails with respect to purpose, usage and availability of facilities.' State prisons are 'intended to have rehabilitation as a prime purpose and the facilities at these institutions are built and equipped to serve this purpose.' The Commissioner cites the presence at state prisons of 'educational and vocational services such as schools, factories, jobtraining programs and related activities.'14 At argument, the Commissioner noted: 'We have barber shops. We teach trades. We manufacture a lot of goods. . . . Greenhaven State Prison has a textile factory.'15
9
We pass no judgment on the success or merits of the State's efforts, but note only that at state prisons a serious rehabilitative program exists. County jails, on the other hand, serve primarily as detention centers. The State asserts they are 'neither equipped nor intended to do anything more than detain people awaiting trial and maintain no schools, run no factories and require no work from these inmates.'16 While appellees do point to the existence of some rehabilitative or recreational facilities within some county jails,17 it is clear that nothing comparable to the State's rehabilitative effort exists.
10
These significant differences afford the basis for a different treatment within a constitutional framework. We note that the granting of good-time credit toward parole eligibility takes into account a prisoner's rehabilitative performance. Section 230(2) of the New York Correction Law authorizes such credit toward the minimum parole date 'for good conduct and efficient and willing performance of duties assigned (emphasis added).'18 The regulations of the New York Department of Correction, 7 N.Y.C.R.R. § 260.1(a), state that: '(T)he opportunity to earn good behavior allowances offers inmates a tangible reward for positive efforts made during incarcertation (emphasis added).'19 As the statute and regulations contemplate state evaluation of an inmate's progress toward rehabilitation, in awarding good time,20 it is reasonable not to award such time for pretrial detention in a county jail where no systematic rehabilitative programs exist and where the prisoner's conduct and performance are not even observed and evaluated by the responsible state prison officials. Further, it would hardly be appropriate for the State to undertake in the pretrial detention period programs to rehabilitate a man still clothed with a presumption of innocence. In short, an inmate in county jail is neither under the supervision of the State Correction Department nor participating in the State's rehabilitative programs. Where there is no evaluation by state officials and little or no rehabilitative participation for anyone to evaluate, there is a rational justification for declining to give good-time credit.21
III
11
We do not agree with the court below that the integrity of appellants' assertions as to rehabilitation is undermined by the fact that the State does grant under § 230(3) good-time credit for presentence jail time to county penitentiary inmates and under § 230(4) to state prisoners for the purpose of calculating their statutory release dates.22 The legislature could have concluded rationally that county penitentiary inmates, who are nonfelons with less than one-year sentences, required quantitatively and qualitatively less rehabilitation—with fewer risks of misevaluation—than inmates confined to state prison for more serious crimes. And the legislature could rationally have distinguished between the minimum parole date and the statutory release date on the ground that an acceleration of the minimum parole date posed a greater danger that an inmate would be released without adequate exposure to rehabilitative programs and without adequate evaluation by prison officials. Thus, New York's decision to deny good-time credit for presentence jail time solely with respect to a state prisoner's minimum parole date is rationally justified on the ground that the risk of prematurely releasing unrehabilitated or dangerous criminals may well be greatest when the parole decision is made prior to expiration of the minimum sentence.
IV
12
Neither appellees nor the court below contended that increased opportunity for state evaluation of an inmate's behavior and rehabilitative progress was not a purpose of the challenged provision of § 230(3). Appellees state only that the rehabilitative purpose was not the 'overriding' one,23 and the District Court noted that 'the legislature's primary aim in enacting the good the statute was to foster and insure the maintenance of prison discipline.' 332 F.Supp. at 978 (emphasis added).24 We do not dispute these statements: the disciplinary purpose is certainly an important and possibly the 'primary' aim of the legislation.25 Yet, out decisions do not authorize courts to pick and choose among legitimate legislative aims to determine which is primary and which subordinate. Rather, legislative solutions must be respected if the 'distinctions drawn have some basis in practical experience,' South Carolina v. Katzenbach, 383 U.S. 301, 331, 86 S.Ct. 803, 820, 15 L.Ed.2d 769 (1966), or if some legitimate state interest is advanced, Dandridge v. Williams, 397 U.S., at 486, 90 S.Ct., at 1162. So long as the state purpose upholding a statutory class is legitimate and nonillusory, its lack of primacy is not disqualifying.
13
When classifications do not call for strict judicial scrutiny, this is the only approach consistent with proper judicial regard for the judgments of the Legislative Branch. The search for legislative purpose is often elusive enough, Palmer v. Thompson, 403 U.S. 217, 91 S.Ct. 1940, 29 L.Ed.2d 438 (1971), without a requirement that primacy be ascertained. Legislation is frequently multipurposed: the removal of even a 'subordinate' purpose may shift altogether the consensus of legislative judgment supporting the statute. Permitting nullification of statutory classifications based rationally on a nonprimary legislative purpose would allow courts to peruse legislative proceedings for subtle emphases supporting subjective impressions and preferences. The Equal Protection Clause does not countenance such speculative probing into the purposes of a coordinate branch. We have supplied no imaginary basis or purpose for this statutory scheme, but we likewise refuse to discard a clear and legitimate purpose because the court below perceived another to be primary.
V
14
As the challenged classification here rationally promotes the legitimate desire of the state legislature to afford state prison officials an adequate opportunity to evaluate both an inmate's conduct and his rehabilitative progress before he is eligible for parole, the decision of the District Court is reversed.
15
Reversed.
16
Mr. Justice DOUGLAS, with whom Mr. Justice MARSHALL concurs, dissenting.
17
Under § 230(3) of the New York Correction Law, a prisoner loses 'good time' as punishment for offenses against the discipline of the prison. The statutory appearance of inmates before a parole board is computed by allowance of up to 10 days for 'good conduct' each month under the law governing appellees.1 No 'good time' credit is allowed, however, for the period of their presentence incarceration in a county jail. Thus, two prisoners—one out on bail or personal recognizance pending trial and the other confined in jail while awaiting trial—are treated differently when it comes to parole, through each is convicted of the same crime and receives the identical sentence. The result, as the opinion of the Court makes plain, is that appellees are required to wait some months longer before they may appear before the Parole Board than do those who were out on bail or on personal recognizance pending trial but sentenced to the same term for the same crime.
18
The 'good time' deduction is not based on progress toward rehabilitation but is an inducement to inhibit bad conduct. That is what the three-judge court held in 332 F.Supp. 973. That construction accurately reflects New York's interpretation of § 230(3). The court in Parez v. Follette, 58 Misc.2d 319, 295 N.Y.S.2d 231, said:
19
'The policy underlying the discretionary grant of good time reductions is clear. The attitude and conduct of prisoners should improve if they are offered an incentive for good and productive behavior while at the same time the fact that reductions can be withheld will inhibit bad conduct.' Id., at 321, 295 N.Y.S.2d, at 233.
20
That discipline—not rehabilitative progress—is the key to 'good time' credit is evidenced in another way. Once a prisoner arrives at prison, his future 'good time' is immediately computed and credited to his sentence. 'In effect, then, a prisoner does not 'earn' good time credit as time goes on for exemplary performance in assorted prison programs but rather simply avoids being penalized for bad behavior.' 332 F.Supp., at 978. That is confirmed by § 235 of the New York Correction Law:
21
'(a) punishment for offenses against the discipline of the prison or penitentiary (is) in accordance with the rules hereinbefore mentioned. Reduction credited to a prisoner in the first instance, in his account, by the warden, as provided in section two hundred and thirty, shall stand as the reduction allowed, unless withheld wholly or partly by the board as punishment, as above provided.'
22
Moreover, under § 230(4) of the Act, jail time is not excluded from the computation of a prisoner's maximum good-time allowance from the maximum term of an indeterminate sentence. This is the earliest date on which an inmate must be paroled, unlike the one we have here which involves the earliest date on which a prisoner may be paroled. But no rational grounds have been advanced for allowing 'good time' credit for jail time in one case but not in the other.
23
The claim that 'good time' is correlated to rehabilitative programs that only prisons have is the red herring in this litigation. The District Court exposed the fallacy in that rationale. Since the 'good time' credit is to induce good behavior by prisoners while they are confined, the place of their confinement becomes irrelevant. Jail-time allowance is allowed those confined in county penitentiaries. § 203(3). And, as I have said, jail time is credited in computing a prisoner's statutory release date.
24
It would seem that the 'good time' provision in § 230(3) is used capriciously, since it is allowed in cases not dissimilar to the present one.
25
After all is said and done, the discrimination in the present case is a statutory one leveled against those too poor to raise bail and unable to obtain release on personal recognizance.2 See People v. Deegan, 56 Misc.2d 567, 289 N.Y.S.2d 285. That is the real rub in the present case.
26
In Paul v. Warden, N.Y.L.J., May 21, 1969, p. 18, col. 6, the Court said:
27
'In computing the allowance of 'time off' for good behavior respondent considered only that time served subsequent to sentence as eligible for the allowance. Time served prior to sentence was excluded from the computation. The respondent's computation follows the method suggested by the Department of Correction.
28
'This court is not in agreement with (the) method employed. It is inequitable in that it discriminates against those persons charged with crime that are able to furnish bail upon arraignment and those remanded as a result of inability to furnish bail.3
29
'The inequity is blatantly apparent in the following cases. Two persons are charged with crimes identical in nature. On arraignment defendant A furnishes bail. A is subsequently sentenced, after a trial resulting in a verdict finding him guilty as charged, to one year in the county jail. Predicated upon his good behavior during the period of his incarceration A would be allowed a reduction of sixty days from the sentence of one year and would serve a total of 305 days. The defendant B, if confined for a period of 350 days prior to trial and sentence, and upon sentence was sentenced to confinement for one year would only be entitled to 'time off' for the period served following sentence or one-sixth of fifteen days for a total allowance of two days reduction in sentence despite good behavior during his entire period of imprisonment. B because of inability to furnish bail would thus serve 363 days as compared to the 305 days served by A.
30
'This court refuses to countenance such disparity and discrimination.'
31
If 'good time' were related to rehabilitative progress, I would agree that the law passes muster under the Equal Protection Clause of the Fourteenth Amendment. But since 'good time' is disallowed only to those who cannot raise bail or obtain release on personal recognizance, the discrimination is plainly invidious.
32
We deal here with a deepseated inequity. In New York City as of 1964, 49% of those accused were imprisoned before trial, while only 40% were imprisoned after conviction.4 See Wald, Pretrial Detention and Ultimate Freedom: A Statistical Study, 39 N.Y.U.L.Rev. 631, 634 (1964). It is poverty that is 'generally accepted as the main reason for pretrial detention.' Id., at 636. The inequality apparently appears in the end product since 'the longer the period of detention before disposition of the case, the greater the likelihood of a prison sentence. . . . The key seems to be the defendant's at-large status at the time of sentencing. The glow of freedom apparently shines through.' Id., at 635.
33
Another sample of 385 defendants showed that 64% of those continuously in jail from arraignment to adjudication were sentenced to prison, while only 17% of the 374 who made bail received prison sentences. Rankin, The Effect of Pretrial Detention, 39 N.Y.U.L.Rev. 641, 643 (1964). Detained persons are more likely to be sentenced to prison than bailed persons regardless of whether high or low bail amounts have been set. Id., at 641.
34
These studies were made by the Vera Foundation founded by Louis Schweitzer. See Programs in Criminal Justice Reform, Vera Institute of Justice, Ten-Year Report 1961—1971 (1972). That Report states that 'people who were too poor to afford bail or private counsel ended up in prison more often than those who could pay.' Id., at 96. And see Ares, Rankin, and Sturz, The Manhattan Bail Project: An Interim Report on the Use of Pre-Trial Parole, 38 N.Y.U.L.Rev. 67 (1963).
35
The present case is on the periphery of one of the most critical problems in criminal law enforcement.
36
The important issue involved in this case is not when and whether a prisoner is released. It concerns only the time when the Parole Board may give a hearing. To speed up the time of that hearing for those rich or influential enough to get bail or release on personal recognizance and to delay the time of the hearing for those without the means to buy a bail bond or the influence or prestige that will give release on personal recognizance emphasizes the invidious discrimination at work in § 230(3).
1
Section 230(3):
'In the case of a definite sentence prisoner, said reduction shall be computed upon the term of the sentence as imposed by the court, less jail time allowance, and in the case of an indeterminate sentence prisoner said reduction shall be computed upon the minimum term of such sentence, less jail time allowance. No prisoner, however, shall be released under the provisions hereof from a state prison until he shall have served at least one year. In the case of a prisoner confined in a penitentiary, said reduction shall be computed upon the term of the sentence as imposed by the court, including jail time allowance. Subject to the rules of the commissioner of correction, the maximum reduction of ten days in each month may, in the discretion of the board hereinafter provided for, be in whole or in part withheld, forfeited or cancelled, in accordance with the rules of the commissioner of correction for bad conduct, violation of prison rules or failure to perform properly duties assigned.'
Other relevant sections read as set forth below.
Section 230(2):
'Every prisoner confined in a state prison or penitentiary, except a prisoner sentenced for an indeterminate term having a minimum of one day and a maximum of his natural life, may receive, for good conduct and efficient and willing performance of duties assigned, a reduction of his sentence not to exceed ten days for each month of the minimum term in the case of an indeterminate sentence, or of the term as imposed by the court in the case of a definite sentence. The maximum reduction allowable under this provision shall be four months per year, but nothing herein contained shall be construed to confer any right whatsoever upon any prisoner to demand or require the whole or any part of such reduction.' Section 230(4):
'Every prisoner confined in an institution under the jurisdiction of the state department of correction for an indeterminate term, except a prisoner sentenced for a term having a maximum of natural life, may receive, for good conduct and efficient and willing performance of duties assigned, a reduction of his sentence not to exceed two days for each month of the maximum term. For meritorious progress and achievement in a treatment program to which he has been assigned, following appropriate testing and classification, such prisoner may also receive a reduction of his sentence not to exceed three additional days for each month of the maximum term. In no event, however, shall the maximum reduction allowable under this subdivision exceed two months for each year of the maximum sentence, nor shall any such reduction be calculated under this subdivision to reduce the time actually served to a term less than the minimum sentence imposed by the court. . . .'
2
The Commissioner claims in this brief that the court below should have treated the instant case, not as a class action, Fed.Rule Civ.Proc. 23, but as a petition for habeas corpus with the attendant requirement that appellees exhaust their state remedies. Brief for Appellants 2. Appellants did not, however, raise this question in their jurisdictional statement, and did not argue it before the Court. In light of this, it becomes unnecessary to comment further on any possible exhaustion question.
3
He also has a maximum expiration date which is the date of the maximum sentence to which an inmate can be held if he receives no good-time credit at all. This date, unlike the other two, bears no direct relevance to the instant case.
4
Both prisoners here were sentenced to indeterminate terms. See § 230(1):
'. . . A sentence to imprisonment in a state prison having minimum and maximum limits fixed by the court or the governor is an indeterminate sentence.'
5
As the court below noted:
'There is no doubt that by its express wording Section 230 mandates the denial of good time credit for the time plaintiffs served in county jail awaiting trial and sentencing. Subsection 2 thereof provides that a state prisoner may receive, 'for good conduct and efficient and willing performance of duties assigned, a reduction of his sentence not to exceed ten days for each month of the minimum term in the case of an indeterminate sentence . . .,' and subsection 3 states that 'in the case of an indeterminate sentence prisoner said reduction shall be computed upon the mimimum term of such sentence, less jail time allowance. (Emphasis added.)' 332 F.Supp. 973, 974—975.
6
See People v. Deegan, 56 Misc.2d 567, 289 N.Y.S.2d 285 (1968); Paul v. Warden, N.Y.L.J., May 21, 1969, p. 18, col. 6.
7
'In the case of a prisoner confined in a penitentiary, said reduction shall be computed upon the term of the sentence as imposed by the court, including jail time allowance.' (Emphasis added.)
8
Brief for Appellees 5.
9
Id., at 5—6.
10
The court below correctly noted:
'(The) statutory scheme of § 230, which is the subject of this lawsuit, is no longer the law in New York. On September 1, 1967, § 230 was replaced by §§ 803 and 805 of the Correction Law and §§ 70.30 and 70.40 of the new Penal Law, which sections apply to all convictions for offenses committed on or after that date (but not to convictions—as of plaintiffs herein—for offenses committed prior to the effective date). Thus, the scope of this case (and of the proposed class) is necessarily limited, for the challenged statute, § 230(3) of the Correction Law, now applies only to those prisoners who were convicted for offenses committed before September 1, 1967, whose minimum terms have not yet expired, who have not yet met with the Parole Board, and who have not yet elected the 'conditional release' program offered by the new law and made available to old law prisoners by § 230—a of the Correction Law. Of these prisoners, a smaller class yet—comprised of those inmates who served time in county jail prior to sentence to state prison—actually feel the effect of § 230(3)'s proscription against good time credit for jail time. Nevertheless, the briefs in this case attest to the continuing effect of that mandate on a substantial number of individuals.' 332 F.Supp., at 975 n. 4.
11
Brief for Appellants 12.
12
As noted above, this would make a difference of three and four months, respectively, in the time appellees Rutherford and Royster were eligible to appear before the Parole Board.
13
Tr. of Oral Arg. 30.
14
Brief for Appellants 14.
15
Tr. of Oral Arg. 13.
16
Brief for Appellants 15.
17
Brief for Appellees 17. But the State notes that 'some counties have absolutely nothing. Some have a little something.' Tr. of Oral Arg. 6.
18
See n. 1, supra.
19
The Appellants further note that:
'Section 260.3 sets forth the criteria for awarding allowances and states:
"(b) In evaluating the amount of allowance to be granted, the statutory criteria (i.e. good behavior, efficient and willing performance of duties assigned, progress and achievement in an assigned treatment program) shall be viewed in the light of the following factors:
"(1) The attitude of the inmate;
"(2) The capacity of the inmate; and
"(3) The efforts made by the inmate within the limits of his capacity.'
'These factors are evaluated by a time allowance committee, whose purpose is to make recommendations to the superintendent as to the amount of good behavior allowance to be granted to inmates who are eligible to be considered for such allowance. 7 N.Y.C.R.R. 261.2. The time allowance committee awards good time on the following criteria (7 N.Y.C.R.R. 261.3):
"(d) The committee shall consider the entire file of the inmate and shall interview the inmate and then shall decide upon a recommendation as to the amount of good behavior allowance to be granted, applying the principles set forth in sections 260.3 and 260.4 of this Part.
"(e) The committee shall not recommend the granting of the total allowance authorized by law or the withholding of any part of the allowance in accordance with any automatic rule, but shall appraise the entire institutional experience of the inmate and make its own determination.' (Emphasis added).' Reply Brief for Appellants 2—3.
20
See also the affidavit of the Deputy Commissioner of the Department of Correction, John R. Cain, who stated that:
'The actual allowance of 'good time' is discretionary and is awarded as an incentive for good conduct. It is a means for encouraging participation in programs, efficient work and discipline.
'The state correctional system seeks to encourage rehabilitation by work participation by inmates, job training programs and education programs. An inmate can be evaluated in his work and participation in the facility's programs and 'good time' granted as an incentive. Prior to being received in the facility, however, an inmate who is in jail is not under the supervision of the State Correction Department and is not involved in the facility program. Since the inmate is not participating in the state programs while in jail there is no opportunity to evaluate him nor need to encourage his participation.' App. 19a.
21
Appellants further correctly note:
'In fact, until recently changed by federal policy, the federal prison system itself did not require the awarding of good time for pre-trial incarceration under 18 U.S.C. § 4161, which awards good time solely for good behavior. Section 4161 states that good time begins to run 'with the day on which the sentence commences to run', and the sentence does not start to run until the prisoner is received in a federal penitentiary. See Blackshear v. United States, 434 F.2d 58 (5th Cir. 1970). The federal courts have uniformly upheld the denial of the opportunity to earn good time on this jail time. Bandy v. Willingham, 398 F.2d 333 (10th Cir. 1968), cert. den. 393 U.S. 1006, 89 S.Ct. 497, 21 L.Ed.2d 470, Aderhold v. Ellis, 84 F.2d 543 (5th Cir. 1936), cert. den. 299 U.S. 587, 57 S.Ct. 123, 81 L.Ed. 433, Swope v. Lawton, 83 F.2d 814 (9th Cir. 1936).' Brief for Appellants 20—21.
22
See supra, at 268, and nn. 7 and 8. The court below stated:
'Whatever the merit in defendants' attempted distinction, the fact remains that state prisoners can be, and, under certain circumstances, are, granted good time credit for jail time for reasons other than as a reward for participation in the variout rehabilitative programs of the state prison system. The awarding of good time for jail time to these two classes of prisoners only reinforces the belief that the legislature's primary aim in enacting the good time statute was to foster and insure the maintenance of prison discipline.' 332 F.Supp., at 978.
23
At oral argument the following instructive colloquy occurred:
'Q. Then it is your position that the only purpose at all, sir, by the statute, exclusively, the only single purpose, is the disciplinary one?
'MR. SORGE: Your Honor, it is extremely difficult to say whether the only purpose is just for the discipline. I believe that the court has—
'Q. If a purpose is the rehabilitation one, then are you not in some trouble?
'MR. SORGE: If the main purpose is?
'Q. If a purpose, not the main purpose, a purpose.
'MR. SORGE: I do not believe so, Your Honor, because, as the district court stated, the overriding consideration in this case is disciplinary.
'Q. You go further then than the district court, I take it, because I read the district court's opinion the same way Mr. Justice Brennan does, as saying that rehabilitation is a subordinate function and that its opinion is based on that. You say that it really is no function at all?
'MR. SORGE: I believe that if you take the state prisoners themselves, Mr. Justice, there might be a subordinate position. However, I would repeat that the overriding consideration is the disciplinary aspect of it.' Tr. of Oral Arg. 28—30.
24
See also the court's statement that:
'Defendants contend that good time is granted as an incentive to the inmates to participate in these prison rehabilitation programs and that, since county jails are not equipped to provide such services, there is no basis for granting good time for time served therein. If it were clear that the awarding of good time was based solely and exclusively on an evaluation of an inmate's performance in such programs so endemic to the state prison system, the denial of good time for jail time might be understandable; however, this does not appear to be the case. Rather, it seems that the overriding consideration in the granting of good time reductions is the maintenance of prison discipline.' 332 F.Supp., at 977.
25
The court below noted that the disciplinary purpose of the statute is demonstrated by the fact that 'a prisoner is immediately and automatically credited with a maximum allowance of good time credit for future good behavior at the time his minimum parole date is initially fixed upon his arrival in state prison. In effect, then, a prisoner does not 'earn' good time credit as time goes on for exemplary performance in assorted prison programs but rather simply avoids being penalized for bad behavior.' The court then cited § 235 of New York Correction Law providing that good time may be withheld as "punishment for offenses against the discipline of the prison or penitentiary' (emphasis added) . . ..' 332 F.Supp., at 977—978.
The statements above do demonstrate a disciplinary purpose for the statute, but do not negate the rehabilitative one. There is nothing to show that good-time credit may not be revoked for failure of the inmate to participate acceptably in the State's rehabilitative program as well as for disciplinary violations. Indeed, § 230(3) requires loss of good time for 'bad conduct, violation of prison rules or failure to perform properly duties assigned.' (Emphasis added.)
1
The statutory scheme of § 230 was replaced on September 1, 1967, by §§ 803 and 805 of the Correction Law and §§ 70.30 and 70.40 of the new Penal Law, McKinney's Consol.Laws, c. 40, which sections apply to all convictions for offenses committed on or after that date (but not to convictions—as of appellees—for offenses committed prior to the effective date). The challenged statute, § 230(3) of the Correction Law, now applies only to those prisoners who were convicted for offenses committed before September 1, 1967, whose minimum terms have not yet expired, who have not yet met with the Parole Board, and who have not yet elected the 'conditional release' program offered by the new law and made available to old law prisoners by § 230—a of the Correction Law. Of these prisoners, a smaller class yet—composed of those inmates who served time in county jail prior to sentence to state prison—actually feel the effect of the § 230(3) proscription against good-time credit for jail time. Nevertheless, the mandate of § 230(3) affects a substantial number of individuals. See 332 F.Supp. 973, 975 n. 4.
2
The court in People v. Deegan, 56 Misc.2d 567, 289 N.Y.S.2d 285, in refusing to infer that § 230(4) must exclude jail time since § 230(3) does so, explicitly said: 'Adoption of the respondent's interpretation would have the effect of prejudicing a defendant who was unable to raise funds in order to be released on bail, and would deprive him of 'equal protection of the laws' in violation of the 14th Amendment of the U.S. Constitution. For example, a defendant who was at liberty on bail prior to judgment, and received a similar sentence would be subject to a maximum of 16-months, as opposed to 18-months for petitioner who could not afford bail and who languished in jail awaiting sentence. If there is logic or justice in this anomaly it escapes the court.' Id., at 568, 289 N.Y.S.2d, at 287.
3
This loss is real, for '(w)hat he is losing . . . is the possibility that if he appeared before the board he might persuade it to decide in his favor. Of course this loss, in practical, human terms is serious and involves a chance for at least qualified liberty.' United States ex rel. Campbell v. Pate, 7 Cir., 401 F.2d 55, 57.
4
The Vera Foundation in its Report, The Manhattan Bail Project, observed that 'bail is generally a door to pre-trial liberty for the rich, to pre-trial detention for the poor.' For the latter, it notes, 'poverty is, in fact, a punishable offense.' Even those with money may not be able to purchase a bail bond (id., at 3). 'The bondsman is responsible to no one and is subject to no review. He can refuse to write a bail bond whenever he chooses—because he 'mistrusts' a defendant, because he dislikes members of a given minority group, or because he got up on the wrong side of the bed. A bail bondsman is not obliged to have valid or sensible reasons.' Id., at 4.
The Vera Foundation has a staff that works with the magistrate to see which of those arrested may properly be released on their personal recognizance.
'During the Project's first 30 months in the Manhattan courts, 2300 defendants were released on their own recognizance upon the recommendation of Vera staff members.
'Ninety-nine per cent of these defendants returned to court when required; only one per cent failed to appear.
'During this same period, about three per cent of those freed on bail failed to appear in court. Thus, it appears that verified information about a defendant's background is a more reliable criterion on which to release a defendant than is his ability to purchase a bail bond.' Id., at 7.
| 34
|
410 U.S. 315
93 S.Ct. 979
35 L.Ed.2d 320
John S. MAHAN, Secretary, State Board of Elections, et al., Appellants,v.Henry E. HOWELL, Jr., et al. CITY OF VIRGINIA BEACH, Appellant, v. Henry E. HOWELL, Jr., et al. Robert L. WEINBERG, Appellant, v. Edgar A. PRICHARD et al.
Nos. 71—364, 71—373, and 71—444.
Argued Dec. 12, 1972.
Decided Feb. 21, 1973.
As Modified on Rehearing April 2, 1973.
See 93 S.Ct. 1475.
Syllabus
The Virginia General Assembly in 1971 reapportioned the State for the election of state delegates and senators. The apportionment statutes, on challenge by appellees, were invalidated by a three-judge District Court, which ruled the reapportionments impermissible violations of the 'one person, one vote' principle. The court substituted its own electoral districts, reducing to about 10% the percentage variation from the ideal district from the approximately 16% variation permitted by the legislature's plan but, contrary to that plan, in many instances not following political subdivision lines. Held:
1. Reapportionment of electroal districts for Virginia's House of Delegates complied with the Equal Protection Clause of the Fourteenth Amendment, since the legislature's maximum population percentage variation, which was not excessive, resulted from the State's rational objective of preserving the integrity of political subdivision lines. Pp. 320—330.
(a) In the implementation of the basic constitutional principle that both houses of a bicameral state legislature be apportioned substantially on a population basis (Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506), more flexibility is permissible with respect to state legislative reapportionment than with respect to congressional redistricting. Pp. 325—330.
(b) The State's objective of preserving the integrity of political subdivision lines is rational since it furthers the legislative purpose of facilitating enactment of statutes of purely local concern and preserves for the voters in the political subdivisions a voice in the state legislature on local matters. Pp. 325—328.
(c) Given the wider constitutional latitude in state legislative reapportionment, the population disparities reflected in the legislature's maximum percentage deviation are within tolerable constitutional limits. Pp. 328—330.
2. The establishment by the legislature of three numerically ideal senatorial electoral districts by assigning to one of them about 36,700 persons who were 'home-ported' at the U.S. Naval Station, Norfolk, regardless of where they actually resided, because that is where they were counted on official census tracts, was constitutionally impermissible discrimination against military personnel, cf. Davis v. Mann, 377 U.S. 678, 84 S.Ct. 1441, 12 L.Ed.2d 609, and the District Court, which was under severe time pressures, did not abuse its discretion in prescribing an interim plan of combining the three districts into one multimember district. Pp. 330—333.
330 F.Supp. 1138, affirmed in part, reversed in part.
Andrew P. Miller, Richmond, Va., for appellants John S. Mahan and others.
Harry Frazier, III, Richmond, Va., for appellant City of Virginia Beach.
Henry E. Howell, Jr., Norfolk, Va., pro. se and others.
Clive L. DuVal, 2d, pro. se.
Mr. Justice REHNQUIST delivered the opinion of the Court.
1
Acting pursuant to the mandate of its newly revised state constitution,1 the Virginia General Assembly enacted statutes apportioning the State for the election of members of its House of Delegates2 and Senate.3 Two suits were brought challenging the constitutionality of the House redistricting statute on the grounds that there were impermissible population variances in the districts, that the multimember districts diluted representation,4 and that the use of multimember jdistricts constituted racial gerrymandering.5 The Senate redistricting statute was attacked in a separate suit, which alleged that the city of Norfolk was unconstitutionally aplit into three districts, allocating Navy personnel 'home-ported' in Norfolk to one district and isolating Negro voters in one district. Three three-judge district courts were convened to hear the suits pursuant to 28 U.S.C. §§ 2281 and 2284. The suits were consolidated and heard by the four judges who variously made up the three three-judge panels.
2
The consolidated District Court entered an interlocutory order that, inter alia, declared the legislative reapportionment statutes unconstitutional and enjoined the holding of elections in electoral districts other than those established by the court's opinion. Howell v. Mahan, 330 F.Supp. 1138, 1150 (ED Va.1971). Appellants, the Secretary of the State Board of Elections and its members and the city of Virginia Beach, have appealed directly to this Court from those portions of the court's order, invoking our jurisdiction under 28 U.S.C. § 1253.
3
* The statute apportioning the House provided for a combination of 52 singlemember, multimember, and floater delegate districts from which 100 delegates would be elected. As found by the lower court, the ideal district in Virginia consisted of 46,485 persons per delegate, and the maximum percentage variation from that ideal under the Act was 16.4%—the 12th district being overrepresented by 6.8% and the 16th district being underrepresented by 9.6%.6 The population ratio between these two districts was 1.18 to 1. The average percentage variance under the plan was 3.89%, and the minimum population percentage necessary to elect a majority of the House was 49.29%. Of the 52 districts, 35 were within 4% of perfection and nine exceeded a 6% variance from the ideal. With one exception, the delegate districts followed political jurisdictional lines of the counties and cities. That exception, Fairfax County, was allotted 10 delegates but was divided into two five-member districts.
4
Relying on Kirkpatrick v. Preisler, 394 U.S. 526, 89 S.Ct. 1225, 22 L.Ed.2d 519 (1969); Wells v. Rockefeller, 394 U.S. 542, 89 S.Ct. 1234, 22 L.Ed.2d 535 (1969), and Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964), the District Court concluded that the 16.4% variation was sufficient to condemn the House statute under the 'one person, one vote' doctrine. While it noted that the variances were traceable to the desire of the General Assembly to maintain the integrity of traditional county and city boundaries, and that it was impossible to draft district lines to overcome unconstitutional disparties and still maintain such integrity, it held that the State proved no governmental necessity for strictly adhering to political subdivision lines. Accordingly, it undertook its own redistricting and devised a plan having a percentage variation of slightly over 10% from the ideal district, a percentage it believed came 'within passable constitutional limits as 'a good-faith effort to achieve absolute equality.' Kirkpatrick v. Preisler . . ..' Howell v. Mahan, 330 F.Supp., at 1147—1148.
5
Appellants contend that the District Court's reliance on Kirkpatrick v. Preisler, supra, and Wells v. Rockefeller, supra, in striking down the General Assembly's reapportionment plan was arroneous, and that proper application of the standards enunciated in Reynolds v. Sims, supra, would have resulted in a finding that the statute was constitutional.
6
In Kirkpatrick v. Preisler and Wells v. Rockefeller, this Court invalidated state reapportionment statutes for federal congressional districts having maximum percentage deviations of 5.97% and 13.1% respectively. The express purpose of these cases was to elucidate the standard first announced in the holding of Wesberry v. Sanders, 376 U.S. 1, 84 S.Ct. 526, 11 L.Ed.2d 481 (1964), that 'the command of Art. I, § 2, that Representatives be chosen 'by the People of the several States' means that as nearly as is practicable one man's vote in a congressional election is to be worth as much as another's.' Id., at 7—8, 84 S.Ct., at 530 (footnotes omitted). And it was concluded that that command 'permits only the limited population variances which are unavoidable despite a good-faith effort to achieve absolute equality, or for which justification is shown.' Kirkpatrick v. Preisler, supra, 394 U.S. at 531, 89 S.Ct., at 1229. The principal question thus presented for review is whether or not the Equal Protection Clause of the Fourteenth Amendment likewise permits only 'the limited population variances which are unavoidable despite a good-faith effort to achieve absolute equality' in the context of state legislative reapportionment.7
7
This Court first recognized that the Equal Protection Clause requires both houses of a bicameral state legislature to be apportioned substantially on a population basis in Reynolds v. Sims, supra. In so doing, it suggested that in the implementation of the basic constitutional principle—equality of population among the districts—more flexibility was constitutionally permissible with respect to state legislative reapportionment than in congressional redistricting. Id., 377 U.S., at 578, 84 S.Ct., at 1390. Consideration was given to the fact that, almost invariably, there is a significantly larger number of seats in state legislative bodies to be distributed within a State than congressional seats, and that therefore it may be feasible for a State to use political subdivision lines to a greater extent in establishing state legislative districts than congressional districts while still affording adequate statewide representation. Ibid. Another possible justification for deviation from population-based representation in state legislatures was stated to be:
8
'(T)hat of insuring some voice to political subdivisions, as political subdivisions. Several factors make more than insubstantial claims that a State can rationally consider according political subdivisions some independent representation in at least one body of the state legislature, as long as the basic standard of equality of population among districts is maintained. Local governmental entities are frequently charged with various responsibilities incident to the operation of state government. In many States much of the legislature's activity involves the enactment of so-called local legislation, directed only to the concerns of particular political subdivisions. And a State may legitimately desire to construct districts along political subdivision lines to deter the possibilities of gerrymandering. . . .' Id., at 580—581, 84 S.Ct., at 1391.
9
The Court reiterated that the overriding objective in reapportionment must be 'substantial equality of population among the various districts, so that the vote of any citizen is approximately equal in weight to that of any other citizen in the state.' Id., at 579, 84 S.Ct., at 1390.
10
By contrast, the Court in Wesberry v. Sanders, supra, recognized no excuse for the failure to meet the objective of equal representation for equal numbers of people in congressional districting other than the practical impossibility of drawing equal districts with mathematical precision. Thus, whereas population alone has been the sole criterion of constitutionality in congressional redistricting under Art. I, § 2, broader latitude has been afforded the States under the Equal Protection Clause in state legislative redistricting because of the considerations enumerated in Reynolds v. Sims, supra. The dichotomy between the two lines of cases has consistently been maintained. In Kirkpatrick v. Preisler, for example, one asserted justification for population variances was that they were necessarily a result of the State's attempt to avoid fragmenting political subdivisions by drawing congressional district lines along existing political subdivision boundaries. This argument was rejected in the congressional context. But in Abate v. Mundt, 403 U.S. 182, 91 S.Ct. 1904, 29 L.Ed.2d 399 (1971), an apportionment for a county legislature having a maximum deviation from equality of 11.9% was upheld in the face of an equal protection challenge, in part because New York had a long history of maintaining the integrity of existing local government units within the county.
11
Application of the 'absolute equality' test of Kirkpatrick and Wells to state legislative redistricting may impair the normal functioning of state and local governments. Such an effect is readily apparent from an analysis of the District Court's plan in this case. Under Art. VII, §§ 2 and 3 of Virginia's Constitution, the General Assembly is given extensive power to enact special legislation regarding the organization of, and the exercise of governmental powers by, counties, cities, towns, and other political subdivisions. The statute redistricting the House of Delegates consistently sought to avoid the fragmentation of such subdivisions, assertedly to afford them a voice in Richmond to seek such local legislation.
12
The court's reapportionment, based on its application of Kirkpatrick and Wells, resulted in a maximum deviation of slightly over 10%,8 as compared with the roughly 16% maximum variation found in the plan adopted by the legislature. But to achieve even this limit of variation, the court's plan extended single and multimember districts across subdivision lines in 12 instances, substituting population equality for subdivision representation. Scott County, for example, under the Assembly's plan was placed in the first district and its population of 24,376 voted with the 76,346 persons in Dickinson, Lee, and Wise Counties for two delegates. The district thus established deviated by 8.3% from the ideal. The court transferred five of Scott County's enumeration districts, containing 6,063 persons, to the contiguous second district composed of the city of Bristol, and Smyth and Washington Counties, population 87,041. Scott County's representation was thereby substantially reduced in the first district, and all but nonexistent in the second district. The opportunity of its voters to champion local legislation relating to Scott County is virtually nil. The countervailing benefit resulting from the court's readjustment is the fact that the first district's deviation from the ideal is now reduced to 1.8%.
13
The city of Virginia Beach saw its position deteriorate in a similar manner under the court-imposed plan. Under the legislative plan, Virginia Beach constituted the 40th district and was allocated three delegates for its population of 172,106. The resulting underrepresentation was cured by providing a floterial district, the 42d, which also included portions of the cities of Chesapeake and Portsmouth. Under the court's plan, the 42d district was dissolved. Of its 32,651 persons that constituted the deviation from the ideal for the 40th district, 3,515 were placed in the 40th, and 29,136 were transferred to Norfolk's 39th district. The 39th district is a multimember district that includes the 307,951 persons who make up the population of the city of Norfolk. Thus, those Virginia Beach residents who cast their vote in the 39th district amount to only 8.6% of that district's population. In terms of practical politics, Virginia Beach complains that such representation is no representation at all so far as local legislation is concerned, and that those 29,136 people transferred to the 39th district have in that respect been effectively disenfranchised.
14
We conclude, therefore, that the constitutionality of Virginia's legislative redistricting plan was not to be judged by the more stringent standards that Kirkpatrick and Wells make applicable to congressional reapportionment, but instead by the equal protection test enunciated in Reynolds v. Sims, supra. We reaffirm its holding that 'the Equal Protection Clause requires that a State make an honest and good faith effort to construct districts, in both houses of its legislature, as nearly of equal population as is practicable.' 377 U.S., at 577, 84 S.Ct., at 1390. We likewise reaffirm its conclusion that '(s)o long as the divergences from a strict population standard are based on legitimate considerations incident to the effectuation of a rational state policy, some deviations from the equal-population principle are constitutionally permissible with respect to the apportionment of seats in either or both of the two houses of a bicameral state legislature.' Id., at 579, 84 S.Ct., at 1391.
15
The asserted justification for the divergences in this case the State's policy of maintaining the integrity of political subdivision lines—is not a new one to this Court. In Davis v. Mann, 377 U.S. 678, 686, 84 S.Ct. 1441, 1445, 12 L.Ed.2d 609 (1964), it was noted:
16
'Because cities and counties have consistently not been split or divided for purposes of legislative representation, multimember districts have been utilized for cities and counties whose populations entitle them to more than a single representative . . .. And, because of a tradition of respecting the integrity of the boundaries of cities and counties in drawing district lines, districts have been constructed only of combinations of counties and cities and not by pieces of them. . . .'
17
The then-existing substantial deviation in the apportionment of both Houses defeated the constitutionality of Virginia's districting statutes in that case, but the possibility of maintaining the integrity of political subdivision lines in districting was not precluded so long as there existed 'such minor deviations only as may occur in recognizing certain factors that are free from any taint of arbitrariness or discrimination.' Roman v. Sincock, 377 U.S. 695, 710, 84 S.Ct. 1449, 1458, 12 L.Ed.2d 620 (1964).
18
We are not prepared to say that the decision of the people of Virginia to grant the General Assembly the power to enact local legislation dealing with the political subdivisions is irrational. And if that be so, the decision of the General Assembly to provide representation to subdivisions qua subdivisions in order to implement that constitutional power is likewise valid when measured against the Equal Protection Clause of the Fourteenth Amendment. The inquiry then becomes whether it can reasonably be said that the state policy urged by Virginia to justify the divergences in the legislative reapportionment plan of the House is, indeed, furthered by the plan adopted by the legislature, and whether, if so justified, the divergences are also within tolerable limits. For a State's policy urged in justification of disparity in district population, however rational, cannot constitutionally be permitted to emasculate the goal of substantial equality.
19
There was uncontradicted evidence offered in the District Court to the effect that the legislature's plan, subject to minor qualifications, 'produces the minimum deviation above and below the norm, keeping intact political boundaries. . . .' (Defendants' Exhibit 8.) That court itself recognized that equality was impossible if political boundaries were to be kept intact in the process of districting. But it went on to hold that since the State 'proved no governmental necessity for strictly adhering to political subdivision lines,' the legislative plan was constitutionally invalid. Howell v. Mahan, supra, 330 F.Supp., at 1140. As we noted above, however, the proper equal protection test is not framed in terms of 'governmental necessity,' but instead in terms of a claim that a State may 'rationally consider.' Reynolds v. Sims, supra, 377 U.S., at 580—581, 84 S.Ct., at 1391.
20
The District Court intimated that one reason for rejecting the justification for divergences offered by the State was its conclusion that the legislature had not in fact implemented its asserted policy, 'as witness the division of Fairfax County.' Howell v. Mahan, supra, 330 F.Supp. at 1140. But while Fairfax County was divided, it was not fragmented. And had it not been divided, there would have been one ten-member district in Fairfax County, a result that this Court might well have been thought to disfavor as a result of its opinion in Connor v. Johnson, 402 U.S. 690, 692, 91 S.Ct. 1760 1762, 29 L.Ed.2d 268 (1971). The State can scarcely be condemned for simultaneously attempting to move toward smaller districts and to maintain the integrity of its political subdivision lines.
21
Appellees argue that the traditional adherence to such lines is no longer a justification since the Virginia constitutional provision regarding reapportionment, Art. II, § 6, supra, n. 1, neither specifically provides for apportionment along political subdivision lines nor draws a distinction between the standards for congressional and legislative districting. The standard in each case is described in the 'as nearly as is practicable' language used in Wesberry v. Sanders, supra, and Reynolds v. Sims, supra. But, as we have previously indicated, the latitude afforded to States in legislative redistricting is somewhat broader than that afforded to them in congressional redistricting. Virginia was free as a matter of federal constitutional law to construe the mandate of its Constitution more liberally in the case of legislative redistricting than in the case of congressional redistricting, and the plan adopted by the legislature indicates that it has done so.
22
We also reject the argument that, because the State is not adhering to its tradition of respecting the boundaries of political subdivisions in congressional and State Senate redistricting, it may not do so in the case of redistricting for the House of Delegates. Nothing in the fact that Virginia has followed the constitutional mandate of this Court in the case of congressional redistricting, or that it has chosen in some instances to ignore political subdivision lines in the case of the State Senate, detracts from the validity of its consistently applied policy to have at least one house of its bicameral legislature responsive to voters of political subdivisions as such.9
23
We hold that the legislature's plan for apportionment of the House of Delegates may reasonably be said to advance the rational state policy of respecting the boundaries of political subdivisions. The remaining inquiry is whether the population disparities among the districts that have resulted from the pursuit of this plan exceed constitutional limits. We conclude that they do not.
24
The most stringent mathematical standard that has heretofore been imposed upon an apportionment plan for a state legislature by this Court was enunciated in Swann v. Adams, 385 U.S. 440, 87 S.Ct. 569, 17 L.Ed.2d 501 (1967), where a scheme having a maximum deviation of 26% was disapproved. In that case, the State of Florida offered no evidence at the trial level to support the challenged variations with respect to either the House or Senate. Id., at 446, 87 S.Ct., at 573. The Court emphasized there that 'the fact that a 10% or 15% variation from the norm is approved in one State has little bearing on the validity of a similar variation in another State.' Id., at 445, 87 S.Ct., at 572. We, therefore, find the citations to numerous cases decided by state and lower federal courts to be of limited use in determining the constitutionality of Virginia's statute. The relatively minor variations present in the Virginia plan contrast sharply with the larger variations in state legislative reapportionment plans that have been struck down by previous decisions of this Court. See, e.g., Reynolds v. Sims, supra; Swann v. Adams, supra; and Kilgarlin v. Hill, 386 U.S. 120, 87 S.Ct. 820, 17 L.Ed.2d 771 (1967).
25
Neither courts nor legislatures are furnished any specialized calipers that enable them to extract from the general language of the Equal Protection Clause of the Fourteenth Amendment the mathematical formula that establishes what range of percentage deviations is permissible, and what is not. The 16-odd percent maximum deviation that the District Court found to exist in the legislative plan for the reapportionment of the House is substantially less than the percentage deviations that have been found invalid in the previous decisions of this Court. While this percentage may well approach tolerable limits, we do not believe it exceeds them. Virginia has not sacrificed substantial equality to justifiable deviations.
26
The policy of maintaining the integrity of political subdivision lines in the process of reapportioning a state legislature, the policy consistently advanced by Virginia as a justification for disparities in population among districts that elect members to the House of Delegates, is a rational one. It can reasonably be said, upon examination of the legislative plan, that it does in fact advance that policy. The population disparities that are permitted thereunder result in a maximum percentage deviation that we hold to be within tolerable constitutional limits. We, therefore, hold the General Assembly's plan for the reapportionment of the House of Delegates constitutional and reverse the District Court's conclusion to the contrary. We also affirm Weinberg v. Prichard et al., No. 71—444, held pending this disposition.10
II
27
The General Assembly divided the State into 40 single-member senatorial districts. Under the plan, a portion of the city of Virginia Beach was added to the city of Norfolk and the entire area was divided into three single-member districts, which the court below found conformed almost ideally, numerically, to the 'one person, one vote' principle. But all naval personnel 'home-ported' at the U.S. Naval Station, Norfolk, about 36,700 persons, were assigned to the Fifth Senatorial District because that is where they were counted on official census tracts.11 It was undisputed that only about 8,100 of such personnel lived aboard vessels assigned to the census tract within the Fifth District. The court had before it evidence that about 18,000 lived outside the Fifth District but within the Norfolk and Virginia Beach areas, that if true, indicated a malapportionment with respect to such personnel.12 Lacking survey data sufficiently precise to permit the creation of three single-member districts more closely representing the actual population, the court corrected the disparities by establishing one multimember district composed of the Fifth, Sixth, and Seventh Districts, encompassing the city of Norfolk and a portion of Virginia Beach. Howell v. Mahan, supra.
28
Appellants charge that the District Court was not justified in overturning the districts established by the General Assembly since the Assembly validly used census tracts in apportioning the area and that the imposition by the court of a multimember district contravened the valid legislative policy in favor of single-member district. We conclude that under the unusual, if not unique, circumstances in this case the District Court did not err in declining to accord conclusive weight to the legislative reliance on census figures. That court justifiably found that with respect to the three single-member districts in question, the legislative plan resulted in both significant population disparities and the assignment of military personnel to vote in districts in which they admittedly did not reside. Since discriminatory treatment of military personnel in legislative reapportionment is constitutionally impermissible, Davis v. Mann, supra, 377 U.S., at 691, 84 S.Ct., at 1448, we hold that the interim relief granted by the District Court as to the State Senate was within the bounds of the discretion confided to it.
29
Application of interim remedial techniques in voting rights cases has largely been left to the district courts. Reynolds v. Sims, supra, 377 U.S., at 585, 84 S.Ct., at 1393, 1394. The courts are bound to apply equitable considerations and in Reynolds it was stated that '(i)n awarding or withholding immediate relief, a court is entitled to and should consider the proximity of a forthcoming election and the mechanics and complexities of state election laws . . ..' Ibid.
30
The court below was faced with severe time pressures. The reapportionment plans were first forwarded to the Attorney General on March 1, 1971. By April 7, these three cases had been filed and consolidated. The first hearing was scheduled for May 24, but on May 7, the Attorney General interposed his objections pursuant to the Voting Rights Act. As a result, the May 24 hearing was largely devoted to arguing about the effect of such objections and after that hearing, the court directed the cases to be continued until June 15. It also postponed the primary elections, which had been set for June 8, until September 14. The cases were finally heard on June 16, and the court's interlocutory order was entered on July 2, just two weeks prior to the revised July 16 filing deadline for primary candidates.
31
Prior to the time the court acted, this Court had handed down Whitcomb v. Chavis, 403 U.S. 124, 91 S.Ct. 1858, 29 L.Ed.2d 363 (1971), recognizing that multimember districts were not per se violative of the Equal Protection Clause. The court conscientiously considered both the legislative policy and this Court's admonition in Connor v. Johnson, supra, that in fashioning apportionment remedies, the use of single-member districts is preferred. But it was confronted with plausible evidence of substantial malapportionment with respect to military personnel, the mandate of this Court that voting discrimination against military personnel is constitutionally impermissible, Davis v. Mann, supra, 377 U.S., at 691—692, 84 S.Ct., at 1448, and the fear that too much delay would have seriously disrupted the fall 1971 elections. Facing as it did this singular combination of unique factors, we cannot say that the District Court abused its discretion in fashioning the interim remedy of combining the three districts into one multimember district.13 We, therefore, affirm the order of that Court insofar as it dealt with the State Senate.
32
Affirmed in part, reversed in part.
33
Mr. Justice POWELL took no part in the consideration or decision of these cases.
34
Mr. Justice BRENNAN, with whom Mr. Justice DOUGLAS and Mr. Justice MARSHALL join, concurring in part and dissenting in part.
35
I agree with the Court in No. 71—373, City of Virginia Beach v. Howell, that the joinder by the District Court of three senatorial districts in the Norfolk-Virginia Beach area to create one multimember senatorial district for the 1971 election was permissible under the special circumstances of this case. Cf. Whitcomb v. Chavis, 403 U.S. 124, 176 179, 91 S.Ct. 1858, 1886—1888, 29 L.Ed.2d 363 (1973) (Douglas, J., concurring and dissenting); see Fortson v. Dorsey, 379 U.S. 433, 439, 85 S.Ct. 498, 501, 13 L.Ed.2d 401 (1965); Burns v. Richardson, 384 U.S. 73, 88, 86 S.Ct. 1286, 1294, 16 L.Ed.2d 376 (1966). I dissent, however, in No. 71—364, Mahan v. Howell, from the Court's action in setting aside the District Court's finding that the apportionment of the State House of Delegates violated the Equal Protection Clause of the Fourteenth Amendment.
36
The Court approves a legislative apportionment plan that is conceded to produce a total deviation of at least 16.4% from the constitutional ideal.1 Of course, 'the fact that a 10% or 15% variation from the norm is approved in one State has little bearing on the validity of a similar variation in another State.' Swann v. Adams, 385 U.S. 440, 445, 87 S.Ct. 569, 572, 17 L.Ed.2d 501 (1967). 'What is marginally permissible in one State may be unsatisfactory in another, depending on the particular circumstances of the case.' Reynolds v. Sims, 377 U.S. 533, 578, 84 S.Ct. 1362, 1390, 12 L.Ed.2d 506 (1964). Since every reapportionment case presents as its factual predicate a unique combination of circumstances, decisions upholding or invalidating a legislative plan cannot normally have great precedential significance. Abate v. Mundt, 403 U.S. 182, 189, 91 S.Ct. 1904, 1909, 29 L.Ed.2d 399 (1971) (Brennan, J., dissenting). But language in the Court's opinion today suggests that more may be at stake than the application of well-established principles to a novel set of facts. In my view, the problem in the case before us is in no sense one of first impression, but is squarely controlled by our prior decisions. See Kirkpatrick v. Preisler, 394 U.S. 526, 89 S.Ct. 1225, 22 L.Ed.2d 519 (1969); Swann v. Adams, supra; Reynolds v. Sims, supra; Davis v. Mann, 377 U.S. 678, 84 S.Ct. 1441, 12 L.Ed.2d 609 (1964); Roman v. Sincock, 377 U.S. 695, 84 S.Ct. 1449, 12 L.Ed.2d 620 (1964). It is appropriate, therefore, to call to mind again the controlling principles and to show that, properly applied to the facts of the case before us, they preclude a reversal of the District Court's decision.
37
* Virginia's recently amended Constitution provides that 'members of the Senate and of the House of Delegates of the General Assembly shall be elected from electoral districts established by the General Assembly,' and '(e)very electoral district shall be composed of contiguous and compact territory and shall be so constituted as to give, as nearly as is practicable, representation in proportion to the population of the district.' Art. II, § 6. Pursuant to that requirement, the General Assembly in 1971 divided the Commonwealth into 52 legislative districts from which the 100 members of the House of Delegates were to be elected.
38
On the basis of 1970 census figures, which set the population of the Commonwealth at 4,648,494, each delegate should ideally represent 46,485 persons. While the legislature's plan does not disregard constitutional requirements to the flagrant extent of many earlier cases,2 it does, nevertheless, demonstrate a systematic pattern of substantial deviation from the constitutional ideal. Under the 1971 plan, more than 25% of the delegates would be elected from districts in which the population deviates from the ideal by more than 5%. Almost 60% of the delegates would represent districts that deviate by more than 3%. Four legislators would be elected from districts that are overrepresented or underrepresented by more than 8%. And the maximum deviation—the spread between the most overrepresented and most underrepresented districts—would be at least 16.4%, and might be as high as 23.6%, depending on the method of calculation.
39
Assuming a maximum deviation of 16.4%, the legislature's plan is still significantly less representative than many plans previously struck down by state and lower federal courts.3 Appellees maintain, however, that the total deviation, properly computed, is in fact 23.6%—a figure closely approximating the 25.65% deviation that led us to invalidate the Senate plan in Swann v. Adams, supra, the 26.48% deviation that led us to invalidate the House plan in Kilgarlin v. Hill, 386 U.S. 120, 87 S.Ct. 820, 17 L.Ed.2d 771 (1967), and the 24.78% deviation that led us to invalidate the House plan in Whitcomb v. Chavis, 403 U.S. 124, 161—163, 91 S.Ct. 1858, 1878, 1879, 29 L.Ed.2d 363 (1971). Appellees arrive at the figure of 23.6% by taking into account the deviations in floterial districts, see App. 81—83, and appellants seem to concede that 23.6% is an accurate indicator of the total deviation. See Brief for Appellant Commonwealth of Virginia 7.4
40
The District Court pointed out that the 'range of deviation may exceed 16.4%,' 330 F.Supp. 1138, 1139 n. 1 (E.D.Va.1971), but it had no occasion to consider whether 23.6% was the more accurate figure because of its finding that '(u)nder either mode of calculation . . . the statewide range of deviation will not pass constitutional muster.' Ibid. Although conceding that the District Court did not reject or disparage appellees' assertion of a 23.6% deviation, the Court nevertheless reaches the perplexing conclusion that we 'confine our consideration to the figures actually found by the court and used to support its holding of unconstitutionality'—16.4%. Ante, at 319, n. 6. But if the legislature's plan does, in fact, 'pass constitutional muster' on the assumption of a 16.4% deviation, then it is surely fair to ask whether the plan would still be valid assuming a total deviation of 23.6%. The Court refuses either to confront the question directly or to render it moot by determining that the figure of 23.6% is irrelevant because improperly derived. Instead, it attempts to obscure the issue by contending that the Commonwealth and the city of Virginia Beach disputed appellees' assertion of a 23.6% total deviation. That contention is wholly incorrect. Neither in the answers filed in the District Court, nor in the briefs, nor at oral argument did the Commonwealth or the city of Virginia Beach quarrel with appellees' method of calculating the deviation in floterial districts. See n. 4, supra. The Court's refusal to consider the question can only mean that appellees have the option of reopening this litigation in the District Court in an attempt to persuade that court that the true measure of the deviation is 23.6% and that a deviation of this order is fatal to the Commonwealth's plan.
41
In my view, there is no need to prolong this litigation by resolution in the court below of an issue that this Court should, but inexplicably does not, decide. The District Court correctly held that deviations of the magnitude of even 16.4% are sufficient to invalidate the legislature's plan. And that court added—again correctly—that '(i)n reapportionment cases the burden is on the State to justify deviations from parity by 'legitimate considerations incident to the effectuation of a rational state policy.' Reynolds v. Sims, 377 U.S. 533, 579, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964); see Swann v. Adams, 385 U.S. 440, 444, 87 S.Ct. 569, 17 L.Ed.2d 501 (1967). The State has proved no governmental necessity for strictly adhering to political subdivision lines.' 330 F.Supp., at 1140. Accordingly, the District Court promulgated its own apportionment plan, which significantly reduced the extent of deviation.
42
Under the District Court's plan, the maximum deviation would be 7.2%,5 excluding one district which is geographically isolated from the mainland of the Commonwealth.6 And, even including that isolated district, the maximum total deviation would not exceed 10.2%. But the substantial reduction in the maximum deviation does not in itself make clear the full measure of the improvement achieved by the District Court's plan. The number of delegates whose districts deviate from the norm by 3% or more would be almost cut in half, from 58 to 32. And of the 32 districts still exceeding the 3% mark, only one—the geographically isolated district—would exceed the mean by more than 3.7%. In short, while the District Court did not achieve its stated goal of 'perfect mathematical division' because of the 'multiplicity of delegates, the geography of the State and the diversity of population concentrations,' 330 F.Supp., at 1147, its plan would still produce measurably greater equality of representation.
43
Appellants necessarily concede that the District Court's plan would reduce the inequality in population per district, but they defend the legislature's plan on the ground that 'tolerance of political jurisdictional lines is justification for some deviation,' Brief for Appellant Commonwealth of Virginia 24. They maintain that the legislature's plan achieved the highest degree of equality possible without fragmenting political subdivisions. The principal question presented for our decision is whether on the facts of this case an asserted state interest in preserving the integrity of county lines can justify the resulting substantial deviations from population equality.
II
44
The holdings of our prior decisions can be restated in two unequivocal propositions. First, the paramount goal of reapportionment must be the drawing of district lines so as to achieve precise equality in the population of each district.7 '(T)he Equal Protection Clause requires that a State make an honest and good faith effort to construct districts, in both houses of its legislature, as nearly of equal population as is practicable.' Reynolds v. Sims, 377 U.S., at 577, 84 S.Ct., at 1390; see also Kirkpatrick v. Preisler, 394 U.S., at 531, 89 S.Ct., at 1229. The Constitution does not permit a State to relegate considerations of equality to secondary status and reserve as the primary goal of apportionment the service of some other state interest.
45
Second, it is open to the State, in the event that it should fail to achieve the goal of population equality, to attempt to justify its failure by demonstrating that precise equality could not be achieved without jeopardizing some critical governmental interest. The Equal Protection Clause does not exalt the principle of equal representation to the point of nullifying every competing interest of the State. But we have held firmly to the view that variations in weight accorded each vote can be approved only where the State meets its burden of presenting cogent reasons in explanation of the variations, and even then only where the variations are small. See, e.g., Abate v. Mundt, 403 U.S. 182, 91 S.Ct. 1904, 29 L.Ed.2d 399 (1971); Kirkpatrick v. Preisler, supra; Swann v. Adams, supra.
46
The validity of these propositions and their applicability to the case before us are not at all diminished by the fact that Kirkpatrick v. Preisler and Wells v. Rockefeller, 394 U.S. 542, 89 S.Ct. 1234, 22 L.Ed.2d 535 (1969)—two of the many cases in which the propositions were refined and applied—concerned the division of States into federal congressional districts rather than legislative reapportionment. Prior to today's decision, we have never held that different constitutional standards are applicable to the two situations. True, there are significant differences between congressional districting and legislative apportionment, and we have repeatedly recognized those differences. In Reynolds v. Sims, for example, we termed 'more than insubstantial' the argument that 'a State can rationally consider according political subdivisions some independent representation in at least one body of the state legislature, as long as the basic standard of equality of population among districts is maintained.' 377 U.S., at 580, 84 S.Ct., at 1391. See also id., at 578, 84 S.Ct., at 1390; Abate v. Mundt, supra. But the recognition of these differences is hardly tantamount to the establishment of two distinct controlling standards. What our decisions have made clear is that certain state interests that are pertinent to legislative reapportionment can have no possible relevance to congressional districting. Thus, the need to preserve the integrity of political subdivisions as political subdivisions may, in some instances, justify small variations in the population of districts from which state legislators are elected. But that interest can hardly be asserted in justification of malapportioned congressional districts. Kirkpatrick v. Preisler, supra. While the State may have a broader range of interests to which it can point in attempting to justify a failure to achieve precise equality in the context of legislative apportionment, it by no means follows that the State is subject to a lighter burden of proof or that the controlling constitutional standard is in any sense distinguishable.
47
Our concern in Kirkpatrick v. Preisler was with the constitutional requirement that 'as nearly as is practicable one man's vote in a congressional election is to be worth as much as another's.' Wesberry v. Sanders, 376 U.S. 1, 7—8, 84 S.Ct. 526, 530, 11 L.Ed.2d 481 (1964). We rejected the State's argument that 'there is a fixed numerical or percentage population variance small enough to be considered de minimis and to satisfy without question the 'as nearly as practicable' standard. . . . Since 'equal representation for equal numbers of people (is) the fundamental goal for the House of Representatives,' Wesberry v. Sanders, supra, at 18, 84 S.Ct. 526, 11 L.Ed.2d 481, the 'as nearly as practicable' standard requires that the State make a good-faith effort to achieve precise mathematical equality. See Reynolds v. Sims, 377 U.S. 533, 577, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964).' Kirkpatrick v. Preisler, supra, 394 U.S., at 530—531, 89 S.Ct., at 1228. Moreover, we held, id., at 532, 89 S.Ct., at 1230, that '(i)t was the burden of the State 'to present . . . acceptable reasons for the variations among the populations of the various . . . districts . . ..' Swann v. Adams, supra, (385 U.S.) at 443—444, 87 S.Ct. (569) at 572 (17 L.Ed.2d 501).'
48
The principles that undergirded our decision in Kirkpatrick v. Preisler are the very principles that supported our decision in Swann v. Adams, a case involving the apportionment of a state legislature. The opinion in Kirkpatrick does not suggest that a different standard might be applicable to congressional districting. On the contrary, the 'as nearly as practicable' standard with which we were concerned is identical to the standard that Reynolds v. Sims specifically made applicable to controversies over state legislative apportionment. See Reynolds v. Sims, supra, at 577, 84 S.Ct., at 1389—1390. See also Hadley v. Junior College District, 397 U.S. 50, 56, 90 S.Ct. 791, 795, 25 L.Ed.2d 45 (1970). And the holding in Kirkpatrick that the State must bear the burden of justifying deviations from population equality not only rested squarely and exclusively on our holding in Swann v. Adams, but even defined the test by quotation from Swann. See Kirkpatrick v. Preisler, supra, at 532, 89 S.Ct., at 1229.
49
In Swann v. Adams we held that variations in the population of legislative districts must be justified by the State by presentation of 'acceptable reasons for the variations.' 385 U.S., at 443, 87 S.Ct., at 571—572. And a comparison of the opinion for the Court in Swann with the views expressed by two Justices in dissent, see Swann v. Adams, supra, at 447—448, 87 S.Ct., at 573 574 (Harlan, J., dissenting), decisively refutes any suggestion that unequal representation will be upheld so long as some rational basis for the discrimination can be found. A showing of necessity, not rationality, is what our decision in Swann requires.
50
If Swann does not establish the point with sufficient clarity, then surely our decision in Kilgarlin v. Hill, 386 U.S. 120, 87 S.Ct. 820, 17 L.Ed.2d 771 (1967), where we elucidated and applied the principles of Swann, removes all doubt. There, the District Court had sustained the state apportionment plan on two grounds, one of which we termed a 'burden of proof' ruling. The lower court held that appellants 'had the burden not only of remonstrating the degree of variance from the equality principle but also of 'negat(ing) the existence of any state of facts which would sustain the constitutionality of the legislation.' 252 F.Supp. 404, 414.' Id., at 122, 87 S.Ct., at 822. We squarely rejected that statement of the controlling legal standard, and held that under Swann v. Adams, 'it is quite clear that unless satisfactorily justified by the court or by the evidence of record, population variances of the size and significance evident here (a total deviation of 26.48%) are sufficient to invalidate an apportionment plan.' Ibid. We also rejected the District Court's second ground of decision: namely, that the deviations were amply justified by the State's attempt, wherever possible, to respect county boundaries. Significantly, the opinion stated that '(w)e are doubtful . . . that the deviations evident here are the kind of 'minor' variations which Reynolds v. Sims indicated might be justified by local policies counseling the maintenance of established political subdivisions in apportionment plans. 377 U.S. 533, 578—579, 84 S.Ct. 1362, 12 L.Ed.2d 506. But we need not reach that constitutional question, for we are not convinced that the announced policy of the State of Texas necessitated the range of deviations between legislative districts which is evident here.' Id., at 123, 87 S.Ct., at 822. (emphasis supplied).
III
51
I would affirm the District Court's decision because, on this record, the Commonwealth of Virginia failed—just as the State of Florida failed in Swann v. Adams and the State of Texas failed in Kilgarlin v. Hill—to justify substantial variations in the population of the districts from which members of the House of Delegates are elected. The panel that heard the case below consisted of four judges, all from Virginia, and I share their unanimous view that the Commonwealth failed to prove that the variations were justified by a need to insure representation of political subdivisions or a need to respect county boundaries in the drawing of district lines.
52
If variations in the population of legislative districts are to be upheld, the Court must determine, before turning to the justifications that are asserted in defense of the variations, that they are 'free from any taint of arbitrariness or discrimination.' Ante, at 325, quoting from Roman v. Sincock, 377 U.S., at 710, 84 S.Ct., at 1458. Appellees alleged before the District Court that the legislature's reapportionment plan did indeed discriminate against one region of the State—the Northern Virginia suburbs of Washington, D.C. Each House seat in Northern Virginia would be underrepresented by an average of 4.3% under the 1971 plan, and several would be underrepresented by as much as 6.3%. In view of what it termed the 'pervasive under-representation in districts in Northern Virginia,' 330 F.Supp., at 1146, the District Court ordered the transfer of one delegate out of the systematically overrepresented Tidewater region and into Northern Virginia.
53
In Abate v. Mundt, supra, 403 U.S., at 185—186, 91 S.Ct., at 1907, we pointed out that we have
54
'never suggested that certain geographic areas or political interests are entitled to disproportionate representation. . . .
55
'Accordingly, we have underscored the danger of apportionment structures that contain a built-in bias tending to favor particular geographic areas or political interests or which necessarily will tend to favor, for example, less populous districts over their more highly populated neighbors, see Hadley v. Junior College District, 397 U.S. 50, 57—58, 90 S.Ct. 791, 25 L.Ed.2d 45 (1970).'
56
The District Court found as a fact that the 1971 plan did include a 'built-in bias tending to favor (a) particular geographic areas.' Conveniently, the Court discerns no need even to acknowledge this critical finding of fact, and sets it aside without explanation. We have no basis for concluding that the finding is clearly erroneous, and that finding requires an affirmance of the District Court's decision without regard to the Commonwealth's asserted justifications for the inequalities in district population.
57
But even assuming that the Commonwealth's plan can be considered free of any 'taint of arbitrariness or discrimination,' appellants have failed to meet their burden of justifying the inequalities. They insist that the legislature has followed a consistent practice of drawing district lines in conformity with county boundaries. But a showing that a State has followed such a practice is still a long step from the necessary showing that the State must follow that practice. Neither in the Virginia Constitution nor in any Act of the Assembly has Virginia explicitly indicated any interest in preserving the integrity of county lines or in providing representation of political subdivisions as political subdivisions. Cf. Reynolds v. Sims, supra, 377 U.S., at 580—581, 84 S.Ct., at 1391. On the contrary, the Constitution establishes a single standard for both legislative apportionment and congressional districting, and that standard requires only that lines be drawn so as to insure, 'as nearly as is practicable,' representation in proportion to population.8 And the origins of the constitutional provision make clear that equality in district population, not the representation of political subdivisions, is the Commonwealth's pre-eminent goal.9
58
Moreover, in asserting its interest in preserving the integrity of county boundaries, the Commonwealth offers nothing more than vague references to 'local legislation,' without describing such legislation with precision, without indicating whether such legislation amounts to a significant proportion of the legislature's business, and without demonstrating that the District Court's plan would materially affect the treatment of such legislation.10
59
The Court assumes that county representation is an important goal of Virginia's reapportionment plan, ante, at 326—328, and appellants suggest that the plan can be justified, at least in part, by the effort 'to give an independent voice to the cities and counties (the legislature) daily governs.' Brief for Appellant Commonwealth of Virginia 33. If county representation is indeed the Commonwealth's goal, then the apportionment plan adopted in 1971 itself falls far short of that objective. Appellants describe the problem in the following terms:
60
'Under the Court's plan, a situation could arise where the 1602 citizens of Wythe County, Virginia, who were placed in the Sixth Legislative District are opposed to local legislation pending in the General Assembly for their county. They must voice such opposition to the delegates representing 91,620 other persons in the Sixth Legislative District composed of the Counties of Carroll, Floyd and Montgomery and the City of Radford, rather than oppose only their 20,537 fellow citizens of Wythe County.' Brief for Appellant Commonwealth of Virginia 27.
61
That argument assumes that some significant number of issues will have an impact squarely on Wythe County, while having no impact, or a differing impact, on the surrounding areas. For on issues affecting the entire region or the Commonwealth as a whole presumably the vast majority of issues—the critical concern is not that each vote in Wythe County be cast in a single district, but that each vote cast be precisely equal in weight to votes in every other part of the Commonwealth. And the argument also assumes that the issues affecting only one county are of predominant concern to the voters. Under a representative form of government, the voters participate indirectly through the election of delegates. It should be obvious that as a voter's concern with regional or state-wide issues increases relative to his interest in county issues, the significance of voting outside the county will correspondingly diminish.
62
But even if a substantial number of issues do have an impact primarily on a single county, and even if those issues are of deep concern to the voters, it still does not follow that the legislature's apportionment plan is a rational attempt to serve an important state interest. The plan would by no means provide, even in the legislature's own terms, effective representation for each county. Thus, the fourth legislative district, which would elect one delegate under the 1971 plan, consists of Wythe, Grayson, and Bland Counties along with the city of Galax. Yet Wythe County alone, according to appellants' figures, comprises 22,139 of the 49,279 persons resident in the district. Since Wythe County makes up almost one-half of the population of the fourth district, the district's delegate is likely to champion Wythe County's cause should an issue arise that pits its interest against the interests of Grayson or Bland County or the city of Galax.
63
In short, the best that can be said of appellants' efforts to secure county representation is that the plan can be effective only with respect to some unspecified but in all likelihood small number of issues that affect a single county and that are overwhelmingly important to the voters of that county; and even then it provides effective representation only where the affected county represents a large enough percentage of the voters in the district to have a significant impact on the election of the delegate.11 But even if county representation were, in fact, a strong and legitimate goal of the Commonwealth, and even if the 1971 plan did represent a rational effort to serve that goal, it is still not clear that the legislature's plan should be upheld. The plan prepared by the District Court would achieve a much higher degree of equality in district population, and it would accomplish that salutary goal with minimal disruption of the legislature's effort to avoid fragmenting counties. Of the 134 political subdivisions in the Commonwealth, only 12 would be divided by the District Court's plan. More significant, the number of persons resident in voting districts that would be cut out of one county or city and shifted to another is 64,738, out of the total state population of 4,648,494. Thus, even making each of the logical and empirical assumptions implicit in the view that violating county lines would effectively disenfranchise certain persons on certain local issues, the number of persons affected would still be less than 1 1/2% of the total state population.
IV
64
On this record—without any showing of the specific need for county representation or a showing of how such representation can be meaningfully provided to small counties whose votes would be submerged in a multicounty district—I see no basis whatsoever for upholding the Assembly's 1971 plan and the resulting substantial variations in district population. Accordingly, I would affirm the judgment of the District Court holding the plan invalid under the Equal Protection Clause of the Fourteenth Amendment.
1
Article II, § 6, of the Revised Virginia Constitution provides:
'Members of the House of Representatives of the United States and members of the Senate and of the House of Delegates of the General Assembly shall be elected from electoral districts established by the General Assembly. Every electoral district shall be composed of contiguous and compact territory and shall be so constituted as to give, as nearly as is practicable, representation in proportion to the population of the district. The General Assembly shall reapportion the Commonwealth into electoral districts in accordance with this section in the year 1971 and every ten years thereafter.
'Any such reapportionment law shall take effect immediately and not be subject to the limitations contained in Article IV, Section 13, of this Constitution.'
2
Va.Code Ann. § 24.1—12.1 (Supp.1972).
3
Va.Code Ann. § 24.1—14.1 as amended by c. 246, Acts of Assembly, June 14, 1971.
4
The reapportionment statutes were originally passed on March 1, 1971. On May 7, 1971, the Attorney General of the United States, acting pursuant to § 5 of the Voting Rights Act of 1965, 79 Stat. 439, 42 U.S.C. § 1973c, interposed objections to both the House and the Senate plans. Objections to the House plan were based on the use of five multimember districts in certain metropolitan areas. Between his interposition and the trial of these cases, this Court decided Whitcomb v. Chavis, 403 U.S. 124, 91 S.Ct. 1858, 29 L.Ed.2d 363 (1971), and the Attorney General's objections to the House plan were subsequently withdrawn. The objection to the Senate plan was cured by the amendment contained in c. 246, supra, n. 3.
5
The Court initially noted probable jurisdiction in the related case of Thornton v. Prichard, 405 U.S. 1063, 92 S.Ct. 1490, 31 L.Ed.2d 793. This appeal primarily involved the question of whether or not the multimember districts had a discriminatory effect on the rights of Negro voters under § 5 of the Voting Rights Act, supra, n. 4, as well as under the Fourteenth and Fifteenth Amendments. On appellant's own motion, this appeal was dismissed, 409 U.S. 802, 93 S.Ct. 25, 34 L.Ed.2d 62.
6
These are the figures found by the District Court. Appellee DuVal argues that another method of computation involving Virginia's floterial districts results in a maximum deviation of 23.6%. The State and the city of Virginia Beach disputed that the deviation for the district relied on by DuVal for his figure was as much as claimed. The lower court made no finding on that dispute, concluding that the 16.4% variation was 'sufficient to condemn the plan.' 330 F.Supp. 1138, 1139—1140. We decline to enter this imbroglio of mathematical manipulation and confine our consideration to the figures actually found by the court and used to support its holding of unconstitutionality.
7
In Connor v. Williams, 404 U.S. 549, 92 S.Ct. 656, 30 L.Ed.2d 704 (1972), we expressly reserved decision on this issue.
8
The lower court concluded that its spread was only slightly over 7%, but in its arithmetic it did not consider two counties because of their asserted isolation from the remainder of the State. Howell v. Mahan, 330 F.Supp. 1138, 1147 n. 8.
9
Appellees also contend that it is clear the State has abandoned its traditional adherence to political subdivision boundaries since it provided in the reapportionment statute that districts shall not change even though boundaries do as a result of annexation, for example. The short answer is that the General Assembly had the dual goal of maintaining such lines and providing for population equality. Reapportionment was only constitutionally required every 10 years between redistricting, and it was the Assembly's decision that if during the 10 years between redistricting one of its goals should conflict with the other, the one based on known population variances should prevail. Such a determination does not render constitutionally defective an otherwise valid plan.
10
In this companion case, appellant Weinberg challenges the order of the District Court insofar as it sustains the validity of the 22d and 23d districts established in the House of Delegates apportionment statute. He argues that in court-ordered reapportionment, this Court ought to exercise its supervisory power to require more equality than would be required from legislative reapportionment. He also contends that the method of computation of floterial district deviations utilized by the District Court was erroneous. Since the House of Delegates apportionment statute is constitutional, and since the deviation for the 23d district under appellant's method of computation is only 3.9%, substantially lower than the approximately 16% deviation today upheld, we affirm those portions of the judgment appealed from in No. 71—444.
11
Such personnel were attached to ships 'home-ported' at Norfolk and they were enumerated in Census Tract 000999, a location encompassing a series of ship piers. They were counted that way in accordance with instructions from the Director of the Bureau of the Census, George H. Brown. All ship commanders were directed to obtain an enumeration of all personnel assigned to their ships. Specifically his instructions provided that ship commanders were to:
'Include all married personnel in the enumeration even though they may be home with their families on 1 April. Wives of personnel assigned to vessels will be instructed not to include their husbands when they complete their census forms.'
Thus, even though Navy personnel assigned to ships 'home-ported' at Norfolk might have lived outside the Fifth Senatorial District with their wives and families, for census purposes they were assigned to that District.
The legislative use of this census enumeration to support a conclusion that all of the Navy personnel on a ship actually resided within the state senatorial district in which the ship was docked placed upon the census figures a weight that they were not intended to bear. The Navy itself used as a 'rule of thumb' an estimate that 50% of such personnel occupied housing units on shore.
12
The District Court found that the remaining 10,000 lived off the base but within the Fifth Senatorial District.
13
We note that the order appealed from is interlocutory and the lower court has retained jurisdiction. There is nothing in its order to prevent the Virginia General Assembly from enacting an apportionment plan for the Fifth, Sixth and Seventh Districts which differs from that order by the court but is nonetheless consistent with constitutional requirements.
1
The full extent of the deviation may, in fact, be substantially in excess of 16.4%, as appellees maintain and appellants seemingly concede. See infra, at 335—338.
2
See, e.g., Avery v. Midland County, 390 U.S. 474, 88 S.Ct. 1114, 20 L.Ed.2d 45 (1968); Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964); Roman v. Sincock, 377 U.S. 695, 84 S.Ct. 1449, 12 L.Ed.2d 620-(1964).
3
See, e.g., Cummings v. Meskill, 341 F.Supp. 139 (D.Conn.1972) (maximum deviation for House, 7.83%, and for Senate, 1.81%); In re Legislative Districting of General Assembly, Iowa, 193 N.W.2d 784 (1972) (house, 3.8%, and senate, 3.2%); Graves v. Barnes, 343 F.Supp. 704 (WD Tex.1972) (9.9%); Troxler v. St. John the Baptist Parish Police Jury, 331 F.Supp. 222 (E.D.La.1971) (6.2%); In re Legislative Districting of General Assembly, Iowa, 175 N.W.2d 20 (1970) (House, 13%, and Senate, 12.1%); Driggers v. Gallion, 308 F.Supp. 632 (M.D.Ala.1969) (at least 10%); Skolnick v. Illinois State Electoral Bd., 307 F.Supp. 691 (N.D.Ill.1969) (House, 16.9%, and Senate, 14.7%); Long v. Docking, 282 F.Supp. 256, 283 F.Supp. 539 (D.Kan.1968) (16.6%).
4
'The deviations from absolute equality of population arrived at by the redistricting of the House ranged from an under-representation of plus 9.6% to an over-representation of minus 6.8%, or a total variance of 16.4%. As noted by the Court, however, the 42nd District, a floater shared by the cities of Chesapeake, Portsmouth and Virginia Beach would have as to that one instance increased the total variation to 23.6%.' (Emphasis supplied.) See also Reply Brief for Appellant City of Virginia Beach 3—4.
5
The deviation would be slightly in excess of 8% if floterial districts were weighted according to appellees' method of calculation. 330 F.Supp. 1138, 1147 n. 9.
6
The isolated district comprises Accomack and Northampton Counties. These counties, known as the Eastern Shore, are separated from the mainland of Virginia by Chesapeake Bay and the Atlantic Ocean. They are contiguous only to the State of Maryland. The district, the 46th, is overrepresented by 6.5%.
7
Reynolds v. Sims, supra, 377 U.S., at 567, 84 S.Ct., at 1384, '(T)he basic principle of representative government remains, and must remain, unchanged—the weight of a citizen's vote cannot be made to depend on where he lives. Population is, of necessity, the starting point for consideration and the controlling criterion for judgment in legislative apportionment controversies.' See also id., at 579, 84 S.Ct., at 1390, 1391.
8
Cf., e.g., the apportionment provision in the Indiana Constitution. Whitcomb v. Chavis, 403 U.S. 124, 136 n. 14, 91 S.Ct. 1858, 1865 (1971):
'A Senatorial or Representative district, where more than one county shall constitute a district, shall be composed of contiguous counties; and no county, for Senatorial apportionment, shall ever be divided.' Art. 4, § 6 (emphasis supplied).
9
Prior to its amendment in 1971, the Constitution provided that '(t)he General Assembly shall by law apportion the State into districts, corresponding with the number of respresentatives to which it may be entitled to the House of Representatives of the Congress of the United States; which districts shall be composed of contiguous and compact territory containing as nearly as practicable, an equal number of inhabitants.' § 55. At the same time, the Constitution provided, with respect to legislative apportionment, only that '(t)he present apportionment of the Commonwealth into senatorial and house districts shall continue; but a reapportionment shall be made in the year nineteen hundred and thirty-two and every ten years thereafter.' § 43. Plainly, the adoption in 1971 of a provision, Art. II, § 6, which sets a single standard to govern legislative districting and congressional apportionment, indicates that in the minds of the draftsmen the same considerations should apply in the two situations. See Commission on Constitutional Revision, Report on the Constitution of Virginia 117 (1969): 'There is no reason to make any distinction between General Assembly and congressional apportionment. For this reason, the proposed section (Art. II, § 6) combines the provisions of sections 43 and 55 so that a common set of principles applies to apportionment of legislative seats and congressional seats.'
10
Appellants maintain that:
'(L)ocal governments carry out much of the various responsibilities of State government as well as having direct concern in the enactment of numerous local legislative enactments. This alone justifies Virginia's tradition of adherence to political jurisdictions. Moreover, the revised Virginia Constitution now allows for the first time special or local legislation for counties as well as for cities. Revised Constitution of Virginia, Article VII, Section 2. Those provisions now permit counties the constitutional flexibility formerly afforded only to cities in providing services for their citizens.' Brief for Appellant Commonwealth of Virginia 27.
The constitutional provision to which appellants refer declares that '(t)he General Assembly may also provide by special act for the organization, government, and powers of any county, city, town, or regional government, including such powers of legislation, taxation, and assessment as the General Assembly may determine . . ..' It should be noted, however, that this provision permits the delegation of broad powers to local governments. It does not speak to the issue—obviously of great concern to the residents of each political subdivision—of the manner in which that delegated power will be exercised by the local government.
11
To realize the goal of county representation it would, of course, be necessary to accord each county at least one representative. In the case of Virginia such a plan could not be implemented without generating vast and unconstitutional disparities in the population of the districts. And such a plan clearly could not be justified by invoking the so-called 'federal analogy.' See Reynolds v. Sims, supra, 377 U.S., at 571—577, 84 S.Ct., at 1386—1390.
| 12
|
410 U.S. 356
93 S.Ct. 1001
35 L.Ed.2d 351
Robert J. LEHNHAUSEN, Petitioner,v.LAKE SHORE AUTO PARTS CO., et al. Edward J. BARRETT, County Clerk of Cook County, Illinois, et al., Petitioners, v. Clemens K. SHAPIRO et al.
Nos. 71—685, 71—691.
Argued Jan. 15, 1973.
Decided Feb. 22, 1973.
Rehearing Denied Mar. 26, 1973.
See 411 U.S. 910, 93 S.Ct. 1523.
Syllabus
An Illinois constitutional provision subjecting corporations and similar entities, but not individuals, to ad valorem taxes on personalty comports with equal protection requirements, the States being accorded wide latitude in making classifications and drawing lines that in their judgment produce reasonable taxation systems. Quaker City Cab Co. v. Pennsylvania, 277 U.S. 389, 48 S.Ct. 553, 72 L.Ed. 927, disapproved. Pp. 359—365.
49 Ill.2d 137, 273 N.E.2d 592, reversed.
William J. Scott, Atty. Gen., for Robert J. Lehnhausen.
Aubrey F. Kaplan, Chicago, Ill., for Edward J. Barrett and others.
Arnold M. Flamm, Chicago, Ill., for Lake Shore Auto Parts Co. and others.
Louis L. Biro, Chicago, Ill., for Clemens K. Shapiro, and others.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
In 1970 the people of Illinois amended its constitution1 adding Art. IX—A to become effective January 1, 1971, S.H.A., and reading:
2
'Notwithstanding any other provision of this Constitution, the taxation of personal property by valuation is prohibited as to individuals.'
3
There apparently appeared on the ballot when Art. IX—A was approved the following:
4
'The amendment would abolish the personal property tax by valuation levied against individuals. It would not affect the same tax levied against corporations and other entities not considered in law to be individuals. The amendment would achieve this result by adding a new article to the Constitution of 1870, Article IX—A, thus setting aside existing provisions of Article IX, Section 1, that require the taxation by valuation of all forms of property, real and personal or other, owned by individuals and corporations.'
5
Respondent Lake Shore Auto Parts Co., a corporation, brought an action against Illinois officials on its behalf and on behalf of all other corporations and 'non-individuals' subject to the personal property tax, claiming that the tax violated the Equal Protection Clause of the Fourteenth Amendment since it exempts from personal property taxes all personal property owned by individuals but retains such taxes as to personal property owned by corporations and other 'non-individuals.' The Circuit Court held the Revenue Act of Illinois, as amended by Art. IX—A, unconstitutional as respects corporations by reason of the Equal Protection Clause of the Fourteenth Amendment.
6
Shapiro and other individuals also brought suit alleging they are natural persons who own personal property, one for himself and his family, one as a sole proprietor of a business, and one as a partnership. A different trial judge entered an order in these cases dismissing the complaints except as to Shapiro and members of his class. The trial judge held that all other provisions of Illinois law imposing personal property taxes on property owned by corporations and other 'non-individuals' were unaffected by Art. IX—A, in line with the statement on the ballot, quoted above.
7
All respondents in both cases appealed to the Illinois Supreme Court, which held that Art. IX—A did not affect all forms of real and personal property taxes but only personal property taxes on individuals, which it construed to mean 'ad valorem taxation of personal property owned by a natural person or by two or more natural persons as joint tenants or tenants in common.' 49 Ill.2d 137, 148, 273 N.E.2d 592, 597. As so construed, the Illinois Supreme Court held that the tax violated the Equal Protection Clause of the Fourteenth Amendment. Id., at 151, 273 N.E.2d, at 599, one Justice dissenting.2 The cases are here on writs of certiorari which we granted. 405 U.S. 1039, 92 S.Ct. 1307, 31 L.Ed.2d 579.
8
The Equal Protection Clause does not mean that a State may not draw lines that treat one class of individuals or entities differently from the others. The test is whether the difference in treatment is an invidious discrimination. Harper v. Virginia Board of Elections, 383 U.S. 663, 666, 86 S.Ct. 1079, 1081, 16 L.Ed.2d 169. Where taxation is concerned and no specific federal right, apart from equal protection, is imperiled,3 the States have large leeway in making classifications and drawing lines which in their judgment produce reasonable systems of taxation. As stated in Allied Stores of Ohio v. Bowers, 358 U.S. 522, 526—527, 79 S.Ct. 437, 440—441, 3 L.Ed.2d 480:
9
'The States have a very wide discretion in the laying of their taxes. When dealing with their proper domestic concerns, and not trenching upon the prerogatives of the National Government or violating the guaranties of the Federal Constitution, the States have the attribute of sovereign powers in devising their fiscal systems to ensure revenue and foster their local interests. Of course, the States, in the exercise of their taxing power, are subject to the requirements of the Equal Protection Clause of the Fourteenth Amendment. But that clause imposes no iron rule of equality, prohibiting the flexibility and variety that are appropriate to reasonable schemes of state taxation. The State may impose different specific taxes upon different trades and professions and may vary the rate of excise upon various products. It is not required to resort to close distinctions or to maintain a precise, scientific uniformity with reference to composition, use or value.'
10
In that case we used the phrase 'palpable arbitrary' or 'invidious' as defining the limits placed by the Equal Protection Clause on state power. Id., at 530, 79 S.Ct., at 442. State taxes which have the collateral effect of restricting or even destroying an occupation or a business have been sustained, so long as the regulatory power asserted is properly within the limits of the federal-state regime created by the Constitution. Magnano Co. v. Hamilton, 292 U.S. 40, 44—47, 54 S.Ct. 599, 601—602, 78 L.Ed. 1109. When it comes to taxes on corporations and taxes on individuals, great leeway is permissible so far as equal protection is concerned. They may be classified differently with respect to their right to receive or earn income. In Lawrence v. State Tax Comm'n, 286 U.S. 276, 283, 52 S.Ct. 556, 558, 76 L.Ed. 1102, a state statute relieved domestic corporations of an income tax derived from activities carried on outside the State, but imposed the tax on individuals obtaining such income. We upheld the tax against the claim that it violated the Equal Protection Clause, saying:
11
'We cannot say that investigation in these fields would not disclose a basis for the legislation which would lead reasonable men to conclude that there is just ground for the difference here made. The existence, unchallenged, of differences between the taxation of incomes of individuals and of corporations in every federal revenue act since the adoption of the Sixteenth Amendment, demonstrates that there may be.' Id., at 283—284, 52 S.Ct., at 558.
12
It is true that in Quaker City Cab Co. v. Pennsylvania, 277 U.S. 389, 48 S.Ct. 553, 72 L.Ed. 927, the Court held that a gross receipts tax levied on corporations doing a taxi business violated the Equal Protection Clause of the Fourteenth Amendment, when no such tax was levied on individuals and partnerships operating taxicabs in competition with the corporate taxpayers. Justices Holmes, Brandeis, and Stone dissented. Id., at 403—412, 48 S.Ct., at 555 558. Mr. Justice Holmes stated:
13
'If usually there is an important difference of degree between the business done by corporations and that done by individuals, I see no reason why the larger businesses may not be taxed and the small ones disregarded, and I think it would be immaterial if here and there exceptions were found to the general rule. . . . Furthermore if the State desired to discourage this form of activity in corporate form and expressed its desire by a special tax I think that there is nothing in the Fourteenth Amendment to prevent it.' Id., at 403, 48 S.Ct., at 555.
14
Each of these dissenters thought Flint v. Stone Tracy Co., 220 U.S. 107, 31 S.Ct. 342, 55 L.Ed. 389, should govern Quaker City Cab. The Flint case involved a federal tax upon the privilege of doing business in a corporate capacity, but it was not laid on businesses carried on by a partnership or private individual. It was, therefore, contended that the tax was 'so unequal and arbitrary' as to be beyond the power of Congress. Id., at 158, 31 S.Ct., at 351. We had not yet held that the Fifth Amendment in its use of due process carries a mandate of equal protection.4 But the Court in dictum stated:
15
'(I)t could not be said, even if the principles of the 14th Amendment were applicable to the present case, that there is no substantial difference between the carrying on of business by the corporations taxed, and the same business when conducted by a private firm or individual. The thing taxed is not the mere dealing in merchandise, in which the actual transactions may be the same, whether conducted by individuals or corporations, but the tax is laid upon the privileges which exist in conducting business with the advantages which inhere in the corporate capacity of those taxed, and which are not enjoyed by private firms or individuals. These advantages are obvious, and have led to the formation of such companies in nearly all branches of trade. The continuity of the business, without interruption by death or dissolution, the transfer of property interests by the disposition of shares of stock, the advantages of business controlled and managed by corporate directors, the general absence of individual liability, these and other things inhere in the advantages of business thus conducted, which do not exist when the same business is conducted by private individuals or partnerships. It is this distinctive privilege which is the subject of taxation, not the mere buying or selling or handling of goods, which may be the same, whether done by corporations or individuals.' Id., at 161—162, 31 S.Ct., at 353.
16
While Quaker City Cab came after Flint, cases following Quaker City Cab have somewhat undermined it. White River Co. v. Arkansas, 279 U.S. 692, 49 S.Ct. 457, 73 L.Ed. 903, involved a state statute for collection of back taxes on lands owned by corporations but not individuals. The Court sustained the statute. Mr. Justice Butler, Mr. Chief Justice Taft, and Mr. Justice Van Devanter dissented, asserting that Quaker City Cab was not distinguishable. The majority made no effort to distinguish Quaker City Cab beyond saying that it did not involve, as did White River, back taxes. Id., at 696, 49 S.Ct., at 459.
17
In Rapid Transit Co. v. New York, 303 U.S. 573, 58 S.Ct. 721, 82 L.Ed. 1024, an excise tax was levied on every utility but not on other business units. In sustaining the tax against the claim of lack of equal protection, the Court said:
18
'Since carriers or other utilities with the right of eminent domain, the use of public property, special franchises, or public contracts, have many points of distinction from other businesses, including relative freedom from competition, especially significant with increasing density of population and municipal expansion, these public service organizations have no valid ground by virtue of the equal protection clause to object to separate treatment related to such distinctions.' Id., at 579, 58 S.Ct., at 724.
19
We reached the same result in Nashville, C. & St. L.R. Co. v. Browning, 310 U.S. 362, 60 S.Ct. 968, 84 L.Ed. 1254, where Tennessee had used one system for making assessments under its ad valorem tax law as respects most taxpayers and a totally different one for public service corporations. So far as equal protection was concerned, we said that the grievance of the particular complainant was 'common to the whole class' and not 'invidious to a particular taxpayer.'5 Id., at 368, 60 S.Ct., at 971.
20
Approval of the treatment 'with that separateness' which distinguishes public service corporations from others, ibid., leads us to conclude in the present cases that making corporations and like entities, but not individuals, liable for ad valorem taxes on personal property does not transcend the requirements of equal protection.
21
In Madden v. Kentucky, 309 U.S. 83, 60 S.Ct. 406, 84 L.Ed. 590, a State laid an ad valorem tax of 50¢ per $100 on deposits in banks outside the State and only 10¢ per $1,000 on deposits within the State. The classification was sustained against the charge of invidious discrimination, the Court noting that 'in taxation, even more than in other fields, legislatures possess the greatest freedom in classification.' Id., at 88, 60 S.Ct., at 408. There is a presumption of constitutionality which can be overcome 'only by the most explicit demonstration that a classification is a hostile and oppressive discrimination against particular persons and classes.' Ibid. And the Court added, 'The burden is on the one attacking the legislative arrangement to negative every conceivable basis which might support it.' Ibid. That idea has been elaborated. Thus, in Carmichael v. Southern Coal Co., 301 U.S. 495, 57 S.Ct. 868, 81 L.Ed. 1245, the Court, in sustaining an unemployment tax on employers,6 said:
22
'A state legislature, in the enactment of laws, has the widest possible latitude within the limits of the Constitution. In the nature of the case it cannot record a complete catalogue of the considerations which move its members to enact laws. In the absence of such a record courts cannot assume that its action is capricious, or that, with its informed acquaintance with local conditions to which the legislation is to be applied, it was not aware of facts which afford reasonable basis for its action. Only by faithful adherence to this guiding principle of judicial review of legislation is it possible to preserve to the legislative branch its rightful independence and its ability to function.' Id., at 510, 57 S.Ct., at 872.
23
Illinois tells us that the individual personal property tax was discriminatory, unfair, almost impossible to administer, and economically unsound. Assessment practices varied from district to district. About a third of the individuals paid no personal property taxes at all, while the rest paid on their bank accounts, automobiles, household furniture, and other resources, and in rural areas they paid on their livestock, grain, and farm implements as well. As respects corporations, the State says, the tax is uniformly enforceable. Illinois says, moreover that Art. IX A is only the first step in totally eliminating the ad valorem personal property tax by 1979 but for fiscal reasons it was impossible to abolish the tax all at once.
24
We could strike down this tax as discriminatory only if we substituted our judgment on facts of which we can be only dimly aware for a legislative judgment that reflects a vivid reaction to pressing fiscal problems. Quaker City Cab Co. v. Pennsylvania is only a relic of a bygone era. We cannot follow it and stay within the narrow confines of judicial review, which is an important part of our constitutional tradition.
25
Reversed.
1
In 1969, the Illinois Legislature had provided for the submission of the proposed amendment to a referendum vote.
2
The result was either to reverse with directions to dismiss the complaints or to affirm the judgment that dismissed the complaints. Those two cases were heard by the Illinois Supreme Court along with a petition to file original suit with that court by one Maynard, who owned non-business personal property, and by three school districts. That petition was dismissed.
3
Classic examples are the taxes that discriminated against newspapers, struck down under the First Amendment (Grosjean v. American Press Co., 297 U.S. 233, 56 S.Ct. 444, 80 L.Ed. 660) or that discriminated against interstate commerce (see Michigan-Wisconsin Pipe Line Co. v. Calvert, 347 U.S. 157, 74 S.Ct. 396, 98 L.Ed. 583) or required licenses to engage in interstate commerce.
4
See Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884, decided May 17, 1954, which held that federal discrimination (in that case racial in nature) may be so arbitrary as to be violative of due process as the term is used in the Fifth Amendment.
5
In Atlantic & Pacific Tea Co. v. Grosjean, 301 U.S. 412, 57 S.Ct. 772, 81 L.Ed. 1193, a State classified chain stores for purposes of a chain store tax according to the numer of stores inside and outside the State. The Court sustained the tax, saying: 'The statute bears equally upon all who fall into the same class, and this satisfies the guaranty of equal protection.' Id., at 424, 57 S.Ct., at 776. In Carmichael v. Southern Coal Co., 301 U.S. 495, 57 S.Ct. 868, 81 L.Ed. 1245, a State laid an unemployment tax on employers, excluding, inter alia, agriculture, domestic service, crews of vessels on navigable waters, and eleemosynary institutions. The Court sustained the tax, saying: 'This Court has repeatedly held that inequalities which result from a singling out of one particular class for taxation or exemption, infringe no constitutional limitation.' Id., at 509, 57 S.Ct., at 872. And it added: 'A legislature is not bound to tax every member of a class or none. It may make distinctions of degree having a rational basis, and when subjected to judicial scrutiny they must be presumed to rest on that basis if there is any conceivable state of facts which would support it.' Ibid.
6
Note 5, supar.
| 78
|
35 L.Ed.2d 359
93 S.Ct. 1022
410 U.S. 366
OTTER TAIL POWER COMPANY, Appellant,v.UNITED STATES.
No. 71—991.
Argued Dec. 5, 1972.
Decided Feb. 22, 1973.
Rehearing Denied Mar. 26, 1973.
See 411 U.S. 910, 93 S.Ct. 1523.
Syllabus
In this Sherman Act suit, brought byb the Government, the District Court enjoined as violative of § 2 the following practices in which appellant, Otter Tail Power Co. (Otter Tail), engaged to prevent towns from establishing their own power systems when Otter Tail's retail franchises expired: refusals to wholesale power to the municipal systems or transfer ('wheel') it over Otter Tail's facilities from other sources, litigation intended to delay establishment of municipal systems, and invocation of transmission contract provisions to forestall supplying by other power companies. Held:
1. Otter Tail is not insulated from antitrust regulation by reason of the Federal Power Act, whose legislative history manifests no purpose to make the antitrust laws inapplicable to power companies. The essential thrust of the authority of the Federal Power Commission (FPC) is to encourage voluntary interconnections. Though the FPC may order interconnections if 'necessary or appropriate in the public interest' antitrust considerations, though relevant under that standard, are not determinative. Pp. 372—375.
2. The District Court's decree does not conflict with the regulatory responsibilities of the FPC. Pp. 375—377.
(a) The court's order for wheeling to correct Otter Tail's anticompetitive and monopolistic practices is not counter to the authority of the FPC, which lacks the power to impose such a requirement. Pp. 375—376.
(b) Appellant's argument that the decree overrides FPC's power over interconnections is premature, there being no present conflict between the court's decree and any contrary ruling by the FPC. Pp. 376—377.
3. The record supports the District Court's findings that Otter Tail—Solely to prevent the municipal systems from eroding its monopolistic position—refused to sell at wholesale or to wheel, and that Otter Tail to the same end invoked restrictive provisions in its contracts with the Bureau of Reclamation and other suppliers, the court correctly concluding that such provisions, per se, violated the Sherman Act. Pp. 377—379.
4. The District Court should determine on remand whether the litigation that Otter Tail was found to have instituted for the purpose of maintaining its monopolistic position was 'a mere sham' within the meaning of Eastern Railroad Conference v. Noerr Motor Freight, 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464, so that the litigation would lose its constitutional protection in line with the Court's decision in California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 92 S.Ct. 609, 30 L.Ed.2d 642, which was decided after the District Court had entered its decree. Pp. 379 380.
5. The District Court's retention of jurisdiction to afford the parties 'necessary and appropriate relief' provides an adequate safeguard against the possibility that compulsory interconnections or wheeling might threaten Otter Tail's ability adequately to serve the public. Pp. 380—382.
331 F.Supp. 54, affirmed in part and vacated and remanded in part.
Milton Handler, New York City, for appellant.
Lawrence G. Wallace, Washington, D.C., for appellee.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
In this civil antitrust suit brought by appellee against Otter Tail Power Co. (Otter Tail), an electric utility company, the District Court found that Otter Tail had attempted to monopolize and had monopolized the retail distribution of electric power in its service area in violation of § 2 of the Sherman Act. 26 Stat. 209, as amended 15 U.S.C. § 2. The District Court found that Otter Tail had attempted to prevent communities in which its retail distribution franchise had expired from replacing it with a municipal distribution system. The principal means employed were (1) refusals to sell power at wholesale to proposed municipal systems in the communities where it had been retailing power; (2) refusals to 'wheel' power to such systems, that is to say, to transfer by direct transmission or displacement electric power from one utility to another over the facilities of an intermediate utility; (3) the institution and support of litigation designed to prevent or delay establishment of those systems; and (4) the invocation of provisions in its transmission contracts with several other power suppliers for the purpose of denying the municipal systems access to other suppliers by means of Otter Tail's transmission systems.
2
Otter Tail sells electric power at retail in 465 towns in Minnesota, North Dakta, and South Dakota. The District Court's decree enjoins it from refusing to sell electric power at wholesale to existing or proposed municipal electric power systems in the areas serviced by Otter Tail, from refusing to wheel electric power over the lines from the electric power supplier to existing or proposed municipal systems in the area, from entering into or enforcing any contract which prohibits use of Otter Tail's lines to wheel electric power to municipal electric power systems, or from entering into or enforcing any contract which limits the customers to whom and areas in which Otter Tail or any other electric power company may sell electric power.
3
The decree also enjoins Otter Tail from instituting, supporting, or engaging in litigation, directly or indirectly, against municipalities and their officials who have voted to establish municipal electric power systems for the purpose of delaying, preventing, or interfering with the establishment of a municipal electric power system. D.C., 331 F.Supp. 54. Otter Tail took a direct appeal to this Court under § 2 of the Expediting Act, as amended, 62 Stat. 989, 15 U.S.C. § 29; and we noted probable jurisdiction, 406 U.S. 944, 92 S.Ct. 2039, 32 L.Ed.2d 330.
4
In towns where Otter Tail distributes at retail, to operates under municipally granted granchises which are limited from 10 to 20 years. Each town in Otter Tail's service area generally can accommodate only one distribution system, making each town a natural monopoly market for the distribution and sale of electric power at retail. The aggregate of towns in Otter Tail's service area is the geographic market in which Otter Tail competes for the right to serve the towns at retail.1 That competition is generally for the right to serve the entire retail market within the composite limits of a town, and that competition is generally between Otter Tail and a prospective or existing municipal system. These towns number 510 and of those Otter Tail serves 91%, or 465.
5
Otter Tail's policy is to acquire, when it can, existing municipal systems within its service areas. It has acquired six since 1947. Between 1945 and 1970, there were contests in 12 towns served by Otter Tail over proposals to replace it with municipal systems. In only three—Elbow Lake, Minnesota, Colman, South Dakota, and Aurora, South Dakota—were municipal systems actually established. Proposed municipal systems have great obstacles; they must purchase the electric power at wholesale. To do so they must have access to existing transmission lines. The only ones available2 belong to Otter Tail. While the Bureau of Reclamation has high-voltage bulk-power supply lines in the area, it does not operate a subtransmission network, but relies on wheeling contracts with Otter Tail and other utilities to deliver power for its bulk supply lines to its wholesale customers.3
6
The antitrust charge against Otter Tail does not involve the lawfulness of its retail outlets, but only its methods of preventing the towns it served from establishing their own municipal systems when Otter Tail's franchises expired. The critical events centered largely in four towns—Elbow Lake, Minnesota, Hankinson, North Dakota, Colman, South Dakota, and Aurora, South Dakota. When Otter Tail's franchise in each of these towns terminated, the citizens voted to establish a municipal distribution system. Otter Tail refused to sell the new systems energy at wholesale and refused to agree to wheel power from other suppliers of wholesale energy.
7
Colman and Aurora had access to other transmission. Against them, Otter Tail used the weapon of litigation.
8
As respects Elbow Lake and Hankinson, Otter Tail simply refused to deal, although according to the findings it had the ability to do so. Elbow Lake, cut off from all sources of wholesale power, constructed its own generating plant. Both Elbow Lake and Hankinson requested the Bureau of Reclamation and various cooperatives to furnish them with wholesale power; they were willing to supply it if Otter Tail would wheel it. But Otter Tail refused, relying on provisions in its contracts which barred the use of its lines for wheeling power to towns which it had served at retail. Elbow Lake after completing its plant asked the Federal Power Commission, under § 202(b) of the Federal Power Act, 49 Stat. 848, 16 U.S.C. § 824a(b), to require Otter Tail to interconnect with the town and sell it power at wholesale. The Federal Power Commission ordered first a temporary4 and then a permanent connection.5 Hankinson tried unsuccessfully to get relief from the North Dakota Commission and then filed a complaint with the federal commission seeking an order to compel Otter Tail to wheel. While the application was pending, the town council voted to withdraw it and subsequently renewed Otter Tail's franchise.
9
It was found that Otter Tail instituted or sponsored litigation involving four towns in its service area which had the effect of halting or delaying efforts to establish municipal systems. Municipal power systems are financed by the sale of electric revenue bonds. Before such bonds can be sold, the town's attorney must submit an opinion which includes a statement that there is no pending or threatened litigation which might impair the value or legality of the bonds. The record amply bears out the District Court's holding that Otter Tail's use of litigation halted or appreciably slowed the efforts for municipal ownership. 'The delay thus occasioned and the large financial burden imposed on the towns' limited treasury dampened local enthusiasm for public ownership.' 331 F.Supp. 54, 62.
10
* Otter Tail contends that by reason of the Federal Power Act it is not subject to antitrust regulation with respect to its refusal to deal. We disagree with that position.
11
'Repeals of the antitrust laws by implication from a regulatory statute are strongly disfavored, and have only been found in cases of plain repugnancy between the antitrust and regulatory provisions.' United States v. Philadelphia National Bank, 374 U.S. 321, 350—351, 83 S.Ct. 1715, 1734—1735, 10 L.Ed.2d 915. See also Silver v. New York Stock Exchange, 373 U.S. 341, 357 361, 83 S.Ct. 1246, 1257—1259, 10 L.Ed.2d 389. Activities which come under the jurisdiction of a regulatory agency nevertheless may be subject to scrutiny under the antitrust laws.
12
In California v. FPC, 369 U.S. 482, 489, 82 S.Ct. 901, 906, 8 L.Ed.2d 54, the Court held that approval of an acquisition of the assets of a natural gas company by the Federal Power Commission pursuant to § 7 of the Natural Gas Act 'would be no bar to (an) antitrust suit.' Under § 7, the standard for approving such acquisitions is 'public convenience and necessity.' Although the impact on competition is relevant to the Commission's determination, the Court noted that there was 'no 'pervasive regulatory scheme' including the antitrust laws that ha(d) been entrusted to the Commission.' Id., at 485, 82 S.Ct., at 904. Similarly, in United States v. Radio Corporation of America, 358 U.S. 334, 79 S.Ct. 457, 3 L.Ed.2d 354, the Court held that an exchange of radio stations that had been approved by the Federal Communications Commission as in the 'public interest' was subject to attack in an antitrust proceeding.
13
The District Court determined that Otter Tail's consistent refusals to wholesale or wheel power to its municipal customers constituted illegal monopolization. Otter Tail maintains here that its refusals to deal should be immune from antitrust prosecution because the Federal Power Commission has the authority to compel involuntary interconnections of power pursuant to § 202(b) of the Federal Power Act. The essential thrust of § 202, however, is to encourage voluntary interconnections of power. See S.Rep.No.621, 74th Cong., 1st Sess., 19—20, 48—49; H.R.Rep.No.1318, 74th Cong., 1st Sess., 8. Only if a power company refuses to interconnect voluntarily may the Federal Power Commission, subject to limitations unrelated to antitrust considerations, order the interconnection. The standard which governs its decision is whether such action is 'necessary or appropriate in the public interest.' Although antitrust considerations may be relevant, they are not determinative.
14
There is nothing in the legislative history which reveals a purpose to insulate electric power companies from the operation of the antitrust laws. To the contrary, the history of Part II of the Federal Power Act indicates an overriding policy of maintaining competition to the maximum extent possible consistent with the public interest. As originally conceived, Part II would have included a 'common carrier' provision making it 'the duty of every public utility to . . . transmit energy for any person upon reasonable request . . .' In addition, it would have empowered the Federal Power Commission to order wheeling if it found such action to be 'necessary or desirable in the public interest.' H.R. 5423, 74th Cong., 1st Sess.; S. 1725, 74th Cong., 1st Sess. These provisions were eliminated to preserve 'the voluntary action of the utilities.' S.Rep.No.621, 74th Cong., 1st Sess., 19.
15
It is clear, then, that Congress rejected a pervasive regulatory scheme for controlling the interstate distribution of power in favor of voluntary commercial relationships. When these relationships are governed in the first instance by business judgment and not regulatory coercion, courts must be hesitant to conclude that Congress intended to override the fundamental national policies embodied in the antitrust laws. See United States v. Radio Corporation of America, supra, at 351, 79 S.Ct. 457, 467. This is particularly true in this instance because Congress, in passing the Public Utility Holding Company Act, which included Part II of the Federal Power Act, was concerned with 'restraint of free and independent competition' among public utility holding companies. See 15 U.S.C. § 79a(b)(2).
16
Thus, there is no basis for concluding that the limited authority of the Federal Power Commission to order interconnections was intended to be a substitute for, or to immunize Otter Tail from, antitrust regulation for refusing to deal with municipal corporations.
II
17
The decree of the District Court enjoins Otter Tail from '(r)efusing to sell electric power at wholesale to existing or proposed municipal electric power systems in cities and towns located in (its service area)' and from refusing to wheel electric power over its transmission lines from other electric power lines to such cities and towns. But the decree goes on to provide:
18
'The defendant shall not be compelled by the Judgment in this case to furnish wholesale electric service or wheeling service to a municipality except at rates which are compensatory and under terms and conditions which are filed with and subject to approval by the Federal Power Commission.'
19
So far as wheeling is concerned, there is no authority granted the Commission under Part II of the Federal Power Act to order it, for the bills originally introduced contained common carrier provisions which were deleted.6 The Act as passed contained only the interconnection provision set forth in § 202(b).7 The common carrier provision in the original bill and the power to direct wheeling were left to the 'voluntary coordination of electric facilities.'8 Insofar as the District Court ordered wheeling to correct anticompetitive and monopolistic practices of Otter Tail, there is no conflict with the authority of the Federal Power Commission.
20
As respects the ordering of interconnections, there is no conflict on the present record. Elbow Lake applied to the Federal Power Commission for an interconnection with Otter Tail and, as we have said, obtained it. Hankinson renewed Otter Tail's franchise. So the decree of the District Court, as far as the present record is concerned, presents no actual conflict between the federal judicial decree and an order of the Federal Power Commission. The argument concerning the pre-emption of the area by the Federal Power Commission concerns only instances which may arise in the future, if Otter Tail continues its hostile attitude and conduct against 'existing or proposed municipal electric power systems.' The decree of the District Court has an open end by which that court retains jurisdiction 'necessary or appropriate' to carry out the decree or 'for the modification of any of the provisions.' It also contemplates that future disputes over interconnections and the terms and conditions governing those interconnections will be subject to Federal Power Commission perusal. It will be time enough to consider whether the antitrust remedy may override the power of the Commission under § 202(b) as, if, and when the Commission denies the interconnection and the District Court nevertheless undertakes to direct it. At present, there is only a potential conflict, not a present concrete case or controversy concerning it.
III
21
The record makes abundantly clear that Otter Tail used its monopoly power in the towns in its service area to foreclose competition or gain a competitive advantage, or to destory a competitor, all in violation of the antitrust laws. See United States v. Griffith, 334 U.S. 100, 107, 68 S.Ct. 941, 945—946, 92 L.Ed. 1236. The District Court determined that Otter Tail has 'a strategic dominance in the transmission of power in most of its service area' and that it used this dominance to foreclose potential entrants into the retail area from obtaining electric power from outside sources of supply. 331 F.Supp., at 60. Use of monopoly power 'to destroy threatened competition' is a violation of the 'attempt to monopolize' clause of § 2 of the Sherman Act. Lorain Journal v. United States, 342 U.S. 143, 154, 72 S.Ct. 181, 186—187, 96 L.Ed. 162; Eastman Kodak Co. v. Southern Photo Materials Co., 273 U.S. 359, 375, 47 S.Ct. 400, 404, 71 L.Ed. 684. So are agreements not to compete, with the aim of preserving or extending a monopoly. Schine Chain Theatres v. United States, 334 U.S. 110, 119, 68 S.Ct. 947, 952—953, 92 L.Ed. 1245. In Associated Press v. United States, 326 U.S. 1, 65 S.Ct. 1416, 89 L.Ed. 2013, a cooperative news association had bylaws that permitted member newspapers to bar competitors from joining the association. We held that that practice violated the Sherman Act, even though the transgressor 'had not yet achieved a complete monopoly.' Id., at 13, 65 S.Ct., at 1421.
22
When a community serviced by Otter Tail decides not to renew Otter Tail's retail franchise when it expires, it may generate, transmit, and distribute its own electric power. We recently described the difficulties and problems of those isolated electric power systems. See Gainesville Utilities v. Florida Power Corp., 402 U.S. 515, 517—520, 91 S.Ct. 1592, 1594—1595, 29 L.Ed.2d 74. Interconnection with other utilities is frequently the only solution. Id., at 519 n. 3, 91 S.Ct., at 1594—1595. That is what Elbow Lake in the present case did. There were no engineering factors that prevented Otter Tail from selling power at wholesale to those towns that wanted municipal plants or wheeling the power. The District Court found—and its findings are supported—that Otter Tail's refusals to sell at wholesale or to wheel were solely to prevent municipal power systems from eroding its monopolistic position.
23
Otter Tail relies on its wheeling contracts with the Bureau of Reclamation and with cooperatives which it says relieve it of any duty to wheel power to municipalities served at retail by Otter Tail at the time the contracts were made. The District Court held that these restrictive provisions were 'in reality, territorial allocation schemes,' 331 F.Supp., at 63, and were per se violations of the Sherman Act, citing Northern Pacific R. Co. v. United States, 356 U.S. 1, 78 S.Ct. 514, 2 L.Ed.2d 545. Like covenants were there held to 'deny defendant's competitors access to the fenced-off market on the same terms as the defendant.' Id., at 12, 78 S.Ct., at 521. We recently re-emphasized the vice under the Sherman Act of territorial restrictions among potential competitors. United States v. Topco Associates, 405 U.S. 596, 608, 92 S.Ct. 1126, 1133, 31 L.Ed.2d 515. The fact that some of the restrictive provisions were contained in a contract with the Bureau of Reclamation is not material to our problem for, as the Solicitor General says, 'government contracting officers do not have the power to grant immunity from the Sherman Act.' Such contracts stand on their own footing and are valid or not, depending on the statutory framework within which the federal agency operates. The Solicitor General tells us that these restrictive provisions operate as a 'hindrance' to the Bureau and were 'agreed to by the Bureau only at Otter Tail's insistence,' as the District Court found. The evidence supports that finding.
IV
24
The District Court found that the litigation sponsored by Otter Tail had the purpose of delaying and preventing the establishment of municipal electric systems 'with the expectation that this would preserve its predominant position in the sale and transmission of electric power in the area.'9 331 F.Supp., at 62. The District Court in discussing Eastern Railroad Presidents Conference v. Noerr Motor Freight, 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464, explained that it was applicable 'only to efforts aimed at influencing the legislative and executive branches of the government.' Ibid. That was written before we decided California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 513, 92 S.Ct. 609, 613, 30 L.Ed.2d 642, where we held that the principle of Noerr may also apply to the use of administrative or judicial processes where the purpose to suppress competition is evidenced by repetitive lawsuits carrying the hallmark of insubstantial claims and thus is within the 'mere sham' exception announced in Noerr. 365 U.S., at 144, 81 S.Ct. 523, at 533. On that phase of the order, we vacate and remand for consideration in light of our intervening decision in California Motor Transport Co.
V
25
Otter Tail argues that, without the weapons which it used, more and more municipalities will turn to public power and Otter Tail will go downhill. The argument is a familiar one. It was made in United States v. Arnold, Schwinn & Co., 388 U.S. 365, 87 S.Ct. 1856, 18 L.Ed.2d 1249, a civil suit under § 1 of the Sherman Act dealing with a restrictive distribution program and practices of a bicycle manufacturer. We said: 'The promotion of self-interest alone does not invoke the rule of reason to immunize otherwise illegal conduct.' Id., at 375, 87 S.Ct. at 1863.
26
The same may properly be said of § 2 cases under the Sherman Act. That Act assumes that an enterprise will protect itself against loss by operating with superior service, lower costs, and improved efficiency. Otter Tail's theory collided with the Sherman Act as it sought to substitute for competition enticompetitive uses of its dominant economic power.10
27
The fact that three municipalities which Otter Tail opposed finally got their municipal systems does not excuse Otter Tail's conduct. That fact does not condone the antitrust tactics which Otter Tail sought to impose. Moreover, the District Court repeated what we said in FTC v. National Lead Co., 352 U.S. 419, 431, 77 S.Ct. 502, 510, 1 L.Ed.2d 438, 'those caught violating the Act must expect some fencing in.' The proclivity for predatory practices has always been a consideration for the District Court in fashioning its antitrust decree. See United States v. Crescent Amusement Co., 323 U.S. 173, 190, 65 S.Ct. 254, 262—263, 89 L.Ed. 160.
28
We do not suggest, however, that the District Court, concluding that Otter Tail violated the antitrust laws, should be impervious to Otter Tail's assertion that compulsory interconnection or wheeling will erode its integrated system and threaten its capacity to serve adequately the public. As the dissent properly notes, the Commission may not order interconnection if to do so 'would impair (the utility's) ability to render adequate service to its customers.' 16 U.S.C. § 824a(b). The District Court in this case found that the 'pessimistic view' advanced in Otter Tail's 'erosion study' 'is not supported by the record.' Furthermore, it concluded that 'it does not appear that Bureau of Reclamation power is a serious threat to the defendant nor that it will be in the foreseeable future.' Since the District Court has made future connections subject to Commission approval and in any event has retained jurisdiction to enable the parties to apply for 'necessary or appropriate' relief and presumably will give effect to the policies embodied in the Federal Power Act, we cannot say under these circumstances that it has abused its discretion.
29
Except for the provision of the order discussed in part IV of this opinion, the judgment is affirmed.
30
Affirmed.
31
Mr. Justice BLACKMUN and Mr. Justice POWELL took no part in the consideration or decision of this case.
32
Mr. Justice STEWART, with whom THE CHIEF JUSTICE and Mr. Justice REHNQUIST join, concurring in part and dissenting in part.
33
I join Part IV of the Court's opinion, which sets aside the judgment and remands the case to the District Court for consideration of the appellant's litigation activities in light of our decision in California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 92 S.Ct. 609, 30 L.Ed.2d 642. As to the rest of the Court's opinion, however, I respectfully dissent.
34
The Court in this case has followed the District Court into a misapplication of the Sherman Act to a highly regulated, natural-monopoly industry wholly different from those that have given rise to ordinary antitrust principles. In my view, Otter Tail's refusal to wholesale power through interconnection or to perform wheeling services was conduct entailing no antitrust violation.
35
It is undisputed that Otter Tail refused either to wheel power or to sell it at wholesale to the towns of Elbow Lake, Minnesota, and Hankinson, North Dakota, both of which had formerly been its customers and had elected to establish municipally owned electric utility systems. The District Court concluded that Otter Tail had substantial monopoly power at retail and 'strategic dominance' in the subtransmission of power in most of its market area.1 331 F.Supp. 54, 58—60. The District Court then mechanically applied the familiar Sherman Act formula: since Otter Tail possessed monopoly power and had acted to preserve that power, it was guilty of an antitrust violation. Nowhere did the District Court come to grips with the significance of the Federal Power Act, either in terms of the specific regulatory apparatus it established or the policy considerations that moved the Congress to enact it. Yet it seems to me that these concerns are central to the disposition of this case.
36
In considering the bill that became the Federal Power Act of 1935, the Congress had before it the report of the National Power Policy Committee on Public-Utility Holding Companies. That report chiefly concerned patterns of ownership in the power industry and the evils of concentrated ownership by holding companies. The problem that Congress addressed in fashioning a regulatory system reflected a purpose to prevent unnecessary financial concentration while recognizing the 'natural monopoly' aspects, and concomitant efficiencies, of power generation and transmission. The report stated that
37
'(w)hile the distribution of gas or electricity in any given community is tolerated as a 'natural monopoly' to avoid local duplication of plants, there is no justification for an extension of that idea of local monopoly to embrace the common control, by a few powerful interests, of utility plants scattered over many States and totally unconnected in operation.' S.Rep.No.621, 74th Cong., 1st Sess., 55 (emphasis added).
38
The resulting statutory system left room for the development of economies of large scale, single company operations. One of the stated mandates to the Federal Power Commission was for it to assure 'an abundant supply of electric energy throughout the United States with the greatest possible economy and with regard to the proper utilization and conservation of natural resources,' 16 U.S.C. § 824a. In the face of natural monopolies at retail and similar economies of scale in the subtransmission of power, Congress was forced to address the very problem raised by this case—use of the lines of one company by another. One obvious solution would have been to impose the obligations of a common carrier upon power companies owning lines capable of the wholesale transmission of electricity. Such a provision was originally included in the bill. One proposed section provided that:
39
'It shall be the duty of every public utility to furnish energy to, exchange energy with, and transmit energy for any person upon reasonable request therefor . . ..' S. 1725, 74th Cong., 1st Sess., § 213.
Another proposed provision was that:
40
'Whenever the Commission, after notice and opportunity for hearing, finds such action necessary or desirable in the public interest, it may by order direct a public utility to make additions, extensions, repairs, or improvements to or changes in its facilities, to establish physical connection with the facilities of one or more other persons, to permit the use of its facilities by one or more persons, or to utilize the facilities of, sell energy to, purchase energy from, transmit energy for, or exchange energy with, one or more other persons.'2 Ibid.
41
Had these provisions been enacted, the Commission would clearly have had the power to order interconnections and wheeling for the purpose of making available to local power companies wholesale power obtained from or through companies with subtransmission systems. The latter companies would equally clearly have had an obligation to provide such services upon request. Yet, after substantial debate,3 the Congress declined to follow this path. As the Senate report indicates in discussing § 202 as enacted:
42
'The committee is confident that enlightened self-interest will lead the utilities to cooperate with the commission and with each other in bringing about the economies which can alone be secured through the planned coordination which has long been advocated by the most able and progressive thinkers on this subject.
43
'When interconnection cannot be secured by voluntary action, subsection (b) gives the Commission limited authority to compel inter-state utilities to connect their lines and sell or exchange energy. The power may only be invoked upon complaint by a State commission or a utility subject to the act.' S.Rep.No.621, 74th Cong., 1st Sess., 49.
44
This legislative history, especially when viewed in the light of repeated subsequent congressional refusals to impose common carrier obligations in this area,4 indicates a clear congressional purpose to allow electric utilities to decide for themselves whether to wheel or sell at wholesale as they see fit. This freedom is qualified by a grant of authority to the Commission to order interconnection (but not wheeling) in certain circumstances. But the exercise of even that power is limited by a consideration of the ability of the regulated utility to function. The Commission may not order interconnection where this would entail an 'undue burden' on the regulated utility. In addition, the Commmission has
45
'no authority to compel the enlargement of generating facilities for such purposes, nor to compel such public utility to sell or exchange energy when to do so would impair its ability to render adequate service to its customers.' 16 U.S.C. § 824a(b).
46
As the District Court found, Otter Tail is a vertically integrated power company. But the bulk of its business—some 90% of its income—derives from sales of power at retail. Left to its own judgment in dealing with its customers, it seems entirely predictable that Otter Tail would decline wholesale dealing with towns in which it had previously done business at retail. If the purpose of the congressional scheme is to leave such decisions to the power companies in the absence of a contrary requirement imposed by the Commission, it would appear that Otter Tail's course of conduct in refusing to deal with the municipal system at Elbow Lake and in refusing to promise to deal with the proposed system at Hankinson, was foreseeably within the zone of freedom specifically created by the statutory scheme.5 As a retailer of power, Otter Tail asserted a legitimate business interest in keeping its lines free for its own power sales and in refusing to lend a hand in its own demise by wheeling cheaper power from the Bureau of Reclamation to municipal consumers which might otherwise purchase power at retail from Otter Tail itself.
47
The opinion of the Court emphasizes that Otter Tail's actions were not simple refusals to deal—they resulted in Otter Tail's maintenance of monopoly control by hindering the emergence of municipal power companies. The Court cites Lorain Journal Co. v. United States, 342 U.S. 143, 72 S.Ct. 181, 96 L.Ed. 162, for the proposition that '(u)se of monopoly power 'to destroy threatened competition' is a violation of the 'attempt to monopolize' clause of § 2 of the Sherman Act.' This proposition seems to me defective. Lorain Journal dealt neither with a natural monopoly at retail nor with a congressionally approved system predicated on the existence of such monopolies. In Lorain Journal, a newspaper in Lorain, Ohio, used its monopoly position to discourage advertisers from supporting a nearby radio station seen by the newspaper to be a competitor. The theory of the case was that competition in the communications business was being foreclosed by the newspaper's exercise of monopoly power. Here, by contrast, a monopoly is sure to result either way. If the consumers of Elbow Lake receive their electric power from a municipally owned company or from Otter Tail, there will be a monopoly at the retail level, for there will in any event be only one supplier. The very reason for the regulation of private utility rates—by state bodies and by the Commission—is the inevitability of a monopoly that requires price control to take the place of price competition. Antitrust principles applicable to other industries cannot be blindly applied to a unilateral refusal to deal on the part of a power company, operating in a regime of rate regulation and licensed monopolies.
48
The Court's opinion scoffs at Otter Tail's defense of business justification. United States v. Arnold, Schwinn & Co., 388 U.S. 365, 87 S.Ct. 1856, 18 L.Ed.2d 1249, is cited for the proposition that '(t)he promotion of self-inerest alone does not invoke the rule of reason to immunize otherwise illegal conduct.' This facet of the Court's reasoning also escapes me in the case before us, where the health of power companies and the abundance of our energy supply were considerations central to the congressional purpose in devising the regulatory scheme. As noted above, the Commission is specifically prohibited from imposing interconnection requirements that are unduly burdensome or that interfere with a public utility's ability to serve its customers efficiently. The District Court noted that Otter Tail had offered a 'so-called 'erosion study" documenting the way in which its business would suffer if it were forced to wholesale and wheel power to municipally owned companies. The District Court gave little credence to the report's predictions. 'But regardless,' the court went on, 'even the threat of losing business does not justify or excuse violating the law.' 331 F.Supp., at 64—65. This question-begging disregard of the economic health of Otter Tail is wholly at odds with the congressional purpose in specifying the conditions under which interconnections can be required.
49
This is not to say that Otter Tail's financial health is paramount in all instances,6 or that the electric power industry as regulated by the Commission is per se exempt from the antitrust laws. In the absence of a specific statutory immunity, cf. Hughes Tool Co. v. Trans World Airlines, 409 U.S. 363, 93 S.Ct. 647, 34 L.Ed.2d 577, such exemptions are not lightly to be implied, United States v. Philadelphia National Bank, 374 U.S. 321, 83 S.Ct. 1715, 10 L.Ed.2d 915. Furthermore, no sweeping antitrust exemption is warranted, as it has been in cases involving certain pervasively regulated industries, under the doctrine of 'primary jurisdiction.'7 Cf. United States v. Radio Corp. of America, 358 U.S. 334, 346—352, 79 S.Ct. 457, 464—468, 3 L.Ed.2d 354. See Far East Conference v. United States, 342 U.S. 570, 72 S.Ct. 492, 96 L.Ed. 576; Terminal Warehouse Co. v. Pennsylvania R. Co., 297 U.S. 500, 56 S.Ct. 546, 80 L.Ed. 827; United States Navigation Co. v. Cunard S.S. Co., 284 U.S. 474, 52 S.Ct. 247, 76 L.Ed. 408; Keogh v. Chicago & N.W.R. Co., 260 U.S. 156, 43 S.Ct. 47, 67 L.Ed. 183; Texas & Pacific R. Co. v. Abilene Cotton Oil Co., 204 U.S. 426, 27 S.Ct. 350, 51 L.Ed. 553; cf. Carnation Co. v. Pacific Westbound Conference, 383 U.S. 213, 86 S.Ct. 781, 15 L.Ed.2d 709. Our duty in attempting to reconcile the Federal Power Act with the Sherman Act on the facts of the case before us requires a judgment regarding the 'character and objectives' of the regulatory scheme and the extent to which they 'are incompatible with the maintenance of an antitrust action.' Silver v. New York Stock Exchange, 373 U.S. 341, 358, 83 S.Ct. 1246, 1257, 10 L.Ed.2d 389. 'Repeal (of the antitrust laws) is to be regarded as implied only if necessary to make the . . . (Act) work, and even then only to the minimum extent necessary.' Id., at 357, 83 S.Ct., at 1257.
50
With respect to decisions by regulated electric utilities as to whether or not to provide nonretail services, I think that in the absence of horizontal conspiracy, the teaching of the 'primary jurisdiction' cases argues for leaving governmental regulation to the Commission instead of the invariably less sensitive and less specifically expert process of antitrust litigation. I believe this is what Congress intended by declining to impose common carrier obligations on companies like Otter Tail, and by entrusting the Commission with the burden of 'assuring an abundant supply of electric energy throughout the United States' and with the power to order interconnections when necessary in the public interest. This is an area where 'sporadic action by federal courts' can 'work mischief.' Cf. United States v. Radio Corp. of America, 358 U.S., at 350, 79 S.Ct., at 466—467.8
51
Even assuming that Otter Tail's refusals to wholesale or wheel power to Elbow Lake and Hankinson were colorably within the reach of the antitrust laws, I cannot square the opinion of the Court with our recent decision in Ricci v. Chicago Mercantile Exchange, 409 U.S. 289, 93 S.Ct. 573, 34 L.Ed.2d 525. Otter Tail's refusal to wholesale or wheel power to Elbow Lake was the subject of two concurrent proceedings—one in the District Court, and another in the Federal Power Commission. It seems to me that the principles of Ricci, related to but not identical with the traditional doctrine of 'primary jurisdiction,' should require a District Court in a case like this one to defer to the Commission proceeding then in progress. Surely the regulatory authority of the Commission with respect to interconnection is at least as substantial as the responsibility of the Commodity Exchange Commission, in Ricci, for the implementation of reasonable membership practices by its regulated contract markets. Id., at 310—311, 93 S.Ct., at 584 (Marshall, J., dissenting). The responsibility of the Commission for 'assuring an abundant supply of electric energy throughout the United States' and its authority to order compulsory wholesaling satisfy the three criteria enunciated in Ricci for a deferral of antitrust jurisdiction to an administrative agency: (1) that the court must first decide whether the conduct complained of, in light of the regulatory statute, is immune from the antitrust laws; (2) that 'some facets of the dispute' are 'within the statutory jurisdiction' of the agency; and (3) 'that adjudication of that dispute . . . promises to be of material aid in resolving the immunity question.' Id., at 302, 93 S.Ct., at 580.
52
With respect to the last of the Ricci criteria, it is useful to contrast the cursory treatment given to Otter Tail's business-justification defense by the Court today with the opinion of the Commission ordering permanent interconnection:
53
'(W)e cannot disagree with the Examiner's view that Elbow Lake has engaged in 'an ill-advised excursion into the power business.' Given the facts of record before us, it is plain that Elbow Lake's effort has not brought it the rewards it expected; indeed, its first year of operations, during which it perpetuated the rates formerly charged by Otter Tail, resulted in a financial loss. Unlike Otter Tail's earlier service to Elbow Lake, Elbow Lake's own system is of doubtful reliability, as evidenced by its presence before us now. .. . While it is our responsibility to take all possible steps to insure to Elbow Lake's customers a high standard of service reliability, our terms and conditions must not invite improvident ventures elsewhere.
54
'We also share the Examiner's view that Otter Tail is legitimately concerned about the possible erosion of its system. If other communities were to follow Elbow Lake's route, and if, having miscalculated the results, they could expect to be rescued by overly-generous interconnection terms, then Otter Tail's fears that it will lose its customers, seriatim, seem to us to be supported. We do not mean by this that we accept a captive market concept, however. . . . The exercise of that (statutory) authority may well require, as it does here, that we order a public utility to interconnect with an isolated municipal system.' Elbow Lake v. Otter Tail Power Co., 46 F.P.C. 675, 677—678.
55
The opinion of the Court attempts to sidestep the Ricci problem by noting that the Commission has in fact ordered interconnection with Elbow Lake, resulting in the absence of a present actual conflict with the decree entered by the District Court. The Court goes on vaguely to suggest that there will be time to cope with the problem of a Commission refusal to order interconnection which conflicts with this antitrust decree when such a conflict arises.
56
But the basic conflict between the Commission's authority and the decree entered in the District Court cannot be so easily wished away. The decree enjoins Otter Tail from '(r)efusing to sell electric power at wholesale to existing or proposed municipal electric power systems in cities and towns located in any area serviced by Defendant.'9 This injunction is qualified by a provision that such wholesaling be done at 'compensatory' rates and under 'terms and conditions which are filed with and subject to approval by the Federal Power Commission.' The setting of rates, terms and conditions, however, is but part of the Commission's authority under § 202(b), 16 U.S.C. § 824a(b). The Court's decree plainly ignores the Commission's authority to decide whether involuntary interconnection is warranted under the enunciated statutory criteria. Unless the decree is modified, its future implementation will starkly conflict with the explicit statutory mandate of the Federal Power Commission.
57
Both because I believe Otter Tail's refusal to wheel or wholesale power was donduct exempt from the antitrust laws and because I believe the District Court's decree improperly pre-empted the jurisdiction of the Federal Power Commission, I would reverse the judgment before us.
1
Northern States Power Co. also supplies some towns in Otter Tail's area with electric power at retail. But the District Court excluded these towns from Otter Tail's area because the two companies do not compete in the towns served by each other. Of the 615 remaining towns in the area, 465 are served at retail by Otter Tail, 45 by municipal systems, and 105 by rural electric cooperatives. The cooperatives are barred by § 4 of the Rural Electrification Act of 1936, 49 Stat. 1365, as amended, 7 U.S.C. § 904, from borrowing federal funds to provide power to towns already receiving central station service. For this and related reasons, the District Court excluded the rural cooperatives from the relevant market.
2
Subtransmission lines, with voltages from 34.5 kv to 69 kv are used for moving power from the bulk supply lines to points of local distribution. Of Otter Tail's basic subtransmission system in this area, two-thirds of those lines are 41.6 kv subtransmission lines.
3
The 38 distribution rural cooperatives in Otter Tail's area generally own only low-voltage distribution lines, which in most instances could not be used to supply power to proposed municipal utilities. The few rural cooperatives that have generation and transmission services do not, it was found, cut significantly into Otter Tail's dominant position in subtransmission.
4
Elbow Lake v. Otter Tail Power Co., 40 F.P.C. 1262, aff'd, Otter Tail Power Co. v. FPC, 429 F.2d 232 (CA8), cert. denied, 401 U.S. 947, 91 S.Ct. 923, 28 L.Ed.2d 230.
5
Elbow Lake v. Otter Tail Power Co., 46 F.P.C. 675.
6
See S.Rep.No.621, 74th Cong., 1st Sess.; H.R.Rep.No.1318, 74th Cong., 1st Sess.; Elbow Lake v. Otter Tail Power Co., 46 F.P.C., at 679.
7
Section 202(b) provides: 'Whenever the Commission, upon application of any State commission or of any person engaged in the transmission or sale of electric energy, and after notice to each State commission and public utility affected and after opportunity for hearing, finds such action necessary or appropriate in the public interest it may by order direct a public utility (if the Commission finds that no undue burden will be placed upon such public utility thereby) to establish physical connection of its transmission facilities with the facilities of one or more other persons engaged in the transmission or sale of electric energy, to sell energy to or exchange energy with such persons: Provided, That the Commission shall have no authority to compel the enlargement of generating facilities for such purposes, nor to compel such public utility to sell or exchange energy when to do so would impair its ability to render adequate service to its customers. The Commission may prescribe the terms and conditions of the arrangement to be made between the persons affected by any such order, including the apportionment of cost between them and the compensation or reimbursement reasonably due to any of them.'
8
S.Rep.No.621, supra, n. 6, at 19.
9
After noting that the 'pendency of litigation has the effect of preventing the marketing of the necessary bonds thus preventing the establishment of a municipal system,' 331 F.Supp., at 62, the District Court went on to find:
'Most of the litigation sponsored by the defendant was carried to the highest available appellate court and although all of it was unsuccessful on the merits, the institution and maintenance of it had the effect of halting, or appreciably slowing, efforts for municipal ownership. The delay thus occasioned and the large financial burden imposed on the towns' limited treasury dampened local enthusiasm for public ownership. In some instances, Otter Tail made offers to the towns to absorb the towns' costs and expenses, and enhance the quality of its service in exchange for a new franchise. Hankinson, after several years of abortive effort, accepted this type of offer and renewed defendant's franchise.' Ibid.
10
The Federal Power Commission said in Elbow Lake v. Otter Tail Power Co., 46 F.P.C., at 678:
'The public interest is far broader than the economic interest of a particular power supplier. It is our legal responsibility, as the Supreme Court made clear in Pennsylvania Water & Power Co. v. FPC, 343 U.S. 414 (72 S.Ct. 843, 96 L.Ed. 1042) (1952), to use our statutory authority to assure 'an abundant supply of electric energy throughout the United States,' and particularly to use our statutory power under Section 202(b) to compel interconnection and coordination when the public interest requires it. The exercise of that authority may well require, as it does here, that we order a public utility to interconnect with an isolated municipal system. The private company's lack of enthusiasm for the arrangement cannot deter us, so long as the public interest requires it.'
1
The District Court looked to Otter Tail's service area, and measured market dominance in terms of the number of towns within that area served by Otter Tail. Computed this way, Otter Tail provides 91% of the retail market. 331 F.Supp. 54, 59. As the appellant points out, however, these towns vary in size from more than 29,000 to 20 inhabitants. If Otter Tail's size were measured by actual retail sales, its market share would be only 28.9% of the electricity sold at retail within its geographic market area. It is important to note that another reasonable geographical market unit might be each individual municipality. Viewed this way, whichever power company sells electricity at retail in a town has a complete monopoly.
2
Both of these provisions had identical counterparts in H.R. 5423, 74th Cong., 1st Sess.
3
Hearings on S. 1725 before the Senate Committee on Interstate Commerce, 74th Cong., 1st Sess. (1935); Hearings on H.R. 5423 before the House Committee on Interstate and Foreign Commerce, 74th Cong., 1st Sess. (1935).
4
See, e.g., S. 350 and H.R. 2101, 88th Cong., 1st Sess., providing that:
'Any certificate issued under the provisions of this subsection authorizing the operation of transmission facilities shall be subject to the condition that any capacity of such facilities not required for the transmission of electric energy in the ordinary cope of such applicant's business shall be made available on a common carrier basis for the transmission of other electric energy.'
This bill was re-introduced as S. 1472 and H.R. 2072 in the 89th Congress, 1st Session, and also failed to pass. See also S. 2140 and H.R. 7791, 89th Cong., 1st Sess.
These bills were all reintroduced in the 90th Congress, as was H.R. 12322, proposing an Electric Power Reliability Act that would have specifically provided the Commission with authority to order wheeling. In the 91st Congress, bills to establish an Electric Power Reliability Act were again introduced. Section 3 of that proposed Act included a grant of authority for the FPC to order wheeling, see, e.g., S. 1071, 91st Cong., 1st Sess. Yet another bill, H.R. 12585, 91st Cong., 1st Sess., included a very broad provision establishing open access to transmission networks at reasonable rates.
The proposed Electric Power Reliability Act was reintroduced in 92d Congress, 1st Session, as S. 294 and H.R. 605. H.R. 12585 from the 91st Congress was also reintroduced, as H.R. 6972, 92d Cong., 1st Sess. Still another bill would have prevented proposed regional bulk-power supply corporations from contracting with an electric utility unless that utility 'permit(s) . . . the use of its excess transmission capacity for the purpose of wheeling power from facilities of such corporation . . . to load centers of other electric utilities contracting to purchase electric power from such corporation.' S. 2324, H.R. 9970, 92d Cong., 1st Sess., § 103(c)(1)(B). None of these bills was enacted.
5
The District Court was persuaded that the restrictions on wheeling contained in Otter Tail's contracts with the Bureau of Reclamation were 'in reality, territorial allocation schemes.' 331 F.Supp., at 63. I think this finding was clearly erroneous. Territorial allocation arrangements that have run afoul of the antitrust laws have traditionally been horizontal, and have involved the elimination of competition between two enterprises that were similarly situated in the market. United States v. Topco Associates, 405 U.S. 596, 92 S.Ct. 1126, 31 L.Ed.2d 515; Timken Roller Bearing Co. v. United States, 341 U.S. 593, 71 S.Ct. 971, 95 L.Ed. 1199; cf. White Motor Co. v. United States, 372 U.S. 253, 261—264, 83 S.Ct. 696, 700—703, 9 L.Ed.2d 738. Otter Tail and the Bureau of Reclamation stand in a vertical, not a horizontal, relationship. Furthermore, though Otter Tail refused to wheel power to towns whose consumers it formerly served at retail, it did not exact from the Bureau a promise that the latter would not provide power to such towns by alternative means. Hence, I cannot see how these contracts operate as territorial-allocation schemes. If Otter Tail had demanded that the Bureau not sell to former Otter Tail customers, or if Otter Tail had combined with other retailers of electricity and undertaken mutual non-competition agreements, this would be a different case.
6
In ordering permanent interconnection between Otter Tail and the town of Elbow Lake municipal system, for example, the Commission correctly noted that, 'The public interest is far broader than the economic interest of a particular power supplier. . . . The private company's lack of enthusiasm for . . . (the interconnection order) cannot deter us, so long as the public interest requires it.' Elbow Lake v. Otter Tail Power Co., 46 F.P.C. 675, 678.
7
The Federal Power Commission, as noted above, only orders interconnection under the provisions of § 202(b), 16 U.S.C. § 824a(b), though it has broader powers in times of war or other emergency. 16 U.S.C. § 824a(c). The Commission does not normally set rates, though utilities subject to its jurisdiction must file proposed rate schedules with it, and it has the opportunity of assessing the lawfulness of those rates. 16 U.S.C. § 824d. In the event the Commission concludes that any rate or practice is 'unjust, unreasonable, unduly discriminatory or preferential,' it determines the 'just and reasonable rate . . ..' 16 U.S.C. § 824e(a). Under these same provisions, the Commission regulates the terms and conditions of interconnections and wheeling arrangements voluntarily entered into.
The resulting system of regulation is thus more comprehensive than the regulatory apparatus applicable to bank mergers which was held to be insufficient to oust antitrust jurisdiction in United States v. Philadelphia National Bank, 374 U.S. 321, 83 S.Ct. 1715, 10 L.Ed.2d 915, and the regulatory scheme with respect to broadcasters, which similarly failed to displace the antitrust laws in United States v. Radio Corp. of America, 358 U.S. 334, 79 S.Ct. 457, 3 L.Ed.2d 354. Nevertheless, the considerable freedom allowed to electric utilities with respect to coordination of service persuades me that the antitrust laws apply to the extent they are not repugnant to specific features of the regulatory scheme. For this reason, litigation and political activities that come within the so-called 'sham' exception in California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 92 S.Ct. 609, 30 L.Ed.2d 642, might constitute an antitrust violation. Similarly, a genuine territorial allocation agreement might be prohibited under the Sherman Act, see n. 5, supra. Were it not for the legislative history noted above, a consistent refusal to deal with municipally owned power companies might also be impermissible under the Sherman Act. For me, however, the legislative history with respect to wheeling and interconnection is dispositive.
8
Unlike the situation presented in R.C.A., supra, where the regulatory agency filed a brief in this Court disavowing any conflict between its regulatory functions and the operation of the antitrust laws, id., at 350 n. 18, 79 S.Ct., at 466—467, in this case the Federal Power Commission has taken the unusual step of filing a brief as amicus curiae in support of Otter Tail. The Commission points out that it was considering an application for interconnection filed by the town of Elbow Lake at the same time this lawsuit was progressing in the District Court. An order requiring long-term interconnection by Otter Tail with the Elbow Lake municipal system was entered by the Commission on September 13, 1971—just four days after the District Court entered judgment. The Commission reads its authority to order interconnection, 16 U.S.C. § 824a, as a grant of exclusive jurisdiction in matters involving interconnection.
9
The decree of the District Court is unreported.
| 78
|
410 U.S. 420
93 S.Ct. 1407
35 L.Ed.2d 397
State of MICHIGAN, Plaintiff,v.State of OHIO.
No. 30, Orig.
Supreme Court of the United States
February 22, 1973
1
Charles F. Keeley, Lansing, Mich., for plaintiff.
2
Charles S. Rawlings, Columbus, Ohio, for defendant.
3
On exceptions to special master's report.
4
Upon consideration of the Report filed Nov. 9, 1971, by Senior Judge Albert B. Maris, Special Master, exceptions filed thereto, and argument thereon, it is now ordered, adjudged, and decreed as follows:
5
1. The exceptions filed by the State of Michigan to the report and recommendations of the Special Master are overruled.
6
2. The boundary line between the States of Ohio and Michigan in Lake Erie follows a line drawn from the point in Maumee Bay where the north cape of that bay was located in 1836 on a course having a bearing North 45° East measured from a true meridian, passing over the center of the existing circular concrete seawall on Turtle Island and continuing on the same course through the lake to the point where it intersects the boundary line between the United States and Canada.
7
3. In 1836 the north cape of Maumee Bay was located at the point in that bay where a line drawn North 87°49'44" East from Post 71 on the land boundary line between the States of Ohio and Michigan intersects a line drawn South 45° West from the center of the existing circular concrete seawall on Turtle Island, both bearings being measured from a true meridian.
8
4. The costs of this suit, including the expenses of the special master, shall be borne by the State of Michigan.
| 1011
|
410 U.S. 396
93 S.Ct. 1007
35 L.Ed.2d 379
UNITED STATES, Appellant,v.Travis Paul ENMONS et al.
No. 71—1193.
Argued Dec. 4, 1972.
Decided Feb. 22, 1973.
Syllabus
The Hobbs Act, which makes it a federal crime to obstruct interstate commerce by robbery or extortion, does not reach the use of violence (which is readily punishable under state law) to achieve legitimate union objectives, such as higher wages in return for genuine services that the employer seeks. Pp. 399—411.
335 F.Supp. 641, affirmed.
William Bradford Reynolds, Washington, D.C., for appellant.
Bernard Dunau, Washington, D.C., for appellees.
Mr Justice STEWART delivered the opinion of the Court.
1
A one-court indictment was returned in the United States District Court for the Eastern District of Louisiana charging the appellees with a violation of the Hobbs Act, 18 U.S.C. § 1951. In pertinent part, that Act provides:
2
'(a) Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section shall be fined not more than $10,000 or imprisoned not more than twenty years, or both.'
3
'Extortion' is defined in the Act, as 'the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear . . ..' 18 U.S.C. § 1951(b)(2).
4
At the time of the alleged conspiracy, the employees of the Gulf States Utilities Company were out on strike. The appellees are members and officils of labor unions that were seeking a new collective-bargaining agreement with that company. The indictment charged that the appellees and two named coconspirators conspired to obstruct commerce, and that as part of that conspiracy, they
5
'would obtain the property of the Gulf States Utilities Company in the form of wages and other things of value with the consent of the Gulf States Utilities Company . . ., such consent to be induced by the wrongful use of actual force, violence and fear of economic injury by (the appellees) and co-conspirators, in that (the appellees) and the co-conspirators did commit acts of physical violence and destruction against property owned by the Gulf States Utilities Company in order to force said Company to agree to a contract with Local 2286 of the International Brotherhood of Electrical Workers calling for higher wages and other monetary benefits.'
6
Five specific acts of violence were charged to have been committed in furtherance of the conspiracy—firing high-powered rifles at three Company transformers, draining the oil from a Company transformer, and blowing up a transformer substation owned by the Company. In short, the indictment charged that the appellees had conspired to use and did in fact use violence to obtain for the striking employees higher wages and other employment benefits from the Company.
7
The District Court granted the appellees' motion to dismiss the indictment for failure to state an offense under the Hobbs Act. 335 F.Supp. 641. The court noted that the appellees were union members on strike against their employer, Gulf States, and that both the strike and its objective of higher wages were legal. The court expressed the view that if 'the wages sought by violent acts are wages to be paid for unneeded or unwanted services, or for no services at all,' then that violence would constitute extortion within the meaning of the Hobbs Act. Id., at 645. But in this case, by contrast, the court noted that the indictment alleged the use of force to obtain legitimate union objectives: 'The union had a right to disrupt the business of the employer by lawfully striking for higher wages. Acts of violence occurring during a lawful strike and resulting in damage to persons or property are undoubtedly punishable under State law. To punish persons for such acts of violence was not the purpose of the Hobbs Act.' Id., at 646. The court found 'no case where a court has gone so far as to hold the type of activity involved here to be a violation of the Hobbs Act.' Id., at 645.
8
We noted probable jurisdiction of the Government's appeal, 406 U.S. 916, 92 S.Ct. 1774, 32 L.Ed.2d 114,1 to determine whether the Hobbs Act proscribes violence committed during a lawful strike for the purpose of inducing an employer's agreement to legitimate collective-barganing demands.
9
* The Government contends that the statutory language unambiguously and without qualification proscribes interference with commerce by 'extortion,' and that in terms of the statute, 'extortion' is 'the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear . . ..' Wages are the 'property' of the employer, the argument continues, and strike violence to obtain such 'property' thus falls within the literal proscription of the Act. But the language of the statute is hardly as clear as the Government would make it out to be. Its interpretation of the Act slights the wording of the statute that proscribes obtaining property only by the 'wrongful' use of actual or threatened force, violence, or fear. The term 'wrongful,' which on the face of the statute modifies the use of each of the enumerated means of obtaining property—actual or threatened force, violence, or fear2 would be superfluous if it only served to describe the means used. For it would be redundant to speak of 'wrongful violence' or 'wrongful force' since, as the Government acknowledges, any violence or force to obtain property is 'wrongful.'3 Rather, 'wrongful' has meaning in the Act only if it limits the statute's coverage to those instances where the obtaining of the property would itself be 'WRONGFUL' BECAUSE THE ALLEGED EXTORTIONIST has no lawful claim to that property.
10
Construed in this fashion, the Hobbs Act has properly been held to reach instances where union officials threatened force or violence against an employer in order to obtain personal payoffs,4 and where unions used the proscribed means to exact 'wage' payments from employers in return for 'imposed, unwanted, superfluous and fictitious services' of workers.5 For in those situations, the employer's property has been misappropriated. But the literal language of the statute will not bear the Government's semantic argument that the Hobbs Act reaches the use of violence to achieve legitimate union objectives, such as higher wages in return for genuine services which the employer seeks. In that type of case, there has been no 'wrongful' taking of the employer's property; he has paid for the services he bargained for, and the workers receive the wages to which they are entitled in compensation for their services.
II
11
The legislative framework of the Hobbs Act dispels any ambiguity in the wording of the statute and makes it clear that the Act does not apply to the use of force to achieve legitimate labor ends. The predecessor of the Hobbs Act, § 2 of the Anti-Racketeering Act of 1934, 48 Stat. 979,6 proscribed, in connection with interstate commerce, the exaction of valuable consideration by force, violence, or coercion, 'not including, however, the payment of wages by a bona-fide employer to a bona-fide employee . . .'7 In United States v. Local 807, 315 U.S. 521, 62 S.Ct. 642, 86 L.Ed. 1004, the Court held that this exception covered the members of a New York City truck drivers union who, by violence or threats, exacted payments for themselves from out-of-town truckers in return for the unwanted and superfluous service of driving out-of-town trucks to and from the city. The New York City teamsters would lie in wait for the out-of-town trucks, and then demand payment from the owners and drivers in return for allowing the trucks to proceed into the city. The teamsters sometimes drove the arriving trucks into the city, but in other instances, the out-of-town truckers paid the fees but rejected the teamsters' services and drove the trucks themselves. In several cases there was evidence that, having exacted their fees, the city drivers disappeared without offering to perform any services at all. Id., at 526, 62 S.Ct., at 644. See also id., at 539, 62 S.Ct., at 649 (Stone, C.J., dissenting). The Court held that the activities of the city teamsters were included within the wage exception to the Anti-Racketeering Act although what work they performed was unneeded and unwanted, and although in some cases their work was rejected.
12
Congressional disapproval of this decision was swift. Several bills8 were introduced with the narrow purpose of correcting the result in the Local 807 case.9 H.R. 32, which became the Hobbs Act, 60 Stat. 420, eliminated the wage exception that had been the basis for the Local 807 decision.10 But, as frequently emphasized on the floor of the House, the limited effect of the bill was to shut off the possibility opened up by the Local 807 case, that union members could use their protected status to exact payments from employers for imposed, unwanted, and superfluous services. As Congressman Hancock explained:
13
'This bill is designed simply to prevent both union members and nonunion people from making use of robbery and extortion under the guise of obtaining wages in the obstruction of interstate commerce. That is all it does.
14
'(T)his bill is made necessary by the amazing decision of the Supreme Court in the case of the United States against Teamsters' Union 807, 3 years ago. That decision practically nullified the anti-racketeering bill of 1934 . . .. In effect the Supreme Court held that . . . members of the Teamsters' Union . . . were exempt from the provisions of that law when attempting by the use of force or the threat of violence to obtain wages for a job whether they rendered any service or not.' 91 Cong.Rec. 11900.
15
Congressman Hancock proceeded to read approvingly from an editorial which characterized the teamsters' action in the Local 807 case as 'compelling the truckers to pay day's wages to local union drivers whose services were neither wanted nor needed.' Ibid. Congressman Fellows stressed the fact that the facts of the Local 807 case showed that 'these stick-up men disappeared as soon as the money was paid without rendering or offering to render any service.' Id., at 11907. And Congressman Rivers characterized the facts of the Local 807 case as 'nothing short of hijacking, intimidation, extortion, and out-and-out highway robbery.' Id., at 11917.11
16
But by eliminating the wage exception to the Anti-Racketeering Act, the Hobbs Act did not sweep within its reach violence during a strike to achieve legitimate collective-bargaining objectives. It was repeatedly emphasized in the debates that the bill did not 'interfere in any way with any legitimate labor objective or activity';12 'there is not a thing in it to interfere in the slightest degree with any legitimate activity on the part of labor people or labor unions . . ..'13 And Congressman Jennings, in responding to a question concerning the Act's coverage, made it clear that the Act 'does not have a thing in the world to do with strikes.' Id., at 11912.
17
Indeed, in introducing his original bill, Congressman Hobbs14 explicitly refuted the suggestion that strike violence to achieve a union's legitimate objectives was encompassed by the Act:15
18
'Mr. MARCANTONIO. All right. In connection with a strike, if an incident occurs which involves—
19
'Mr. HOBBS. The gentleman need go no further. This bill does not cover strikes or any question relating to strikes.
20
'Mr. MARCANTONIO. Will the gentleman put a provision in the bill stating so?
21
'Mr. HOBBS. We do not have to, because a strike is perfectly lawful and has been so described by the Supreme Court and by the statutes we have passed. This bill takes off from the springboard that the act must be unlawful to come within the purview of this bill.
22
'Mr. MARCANTONIO. That does not answer my point. My point is that an incident such as a simple assault which takes place in a strike could happen. Am I correct?
23
'Mr. HOBBS. Certainly.
24
'Mr. MARCANTONIO. That then could become an extortion under the gentleman's bill, and that striker as well as his union officials could be charged with violation of sections is this bill.
25
'Mr. HOBBS. I disagree with that and deny it in toto.' 89 Cong.Rec. 3213.16
26
The Government would derive a different lesson from the legislative history. It points to statements made during the floor debates that the Act was meant to have 'broad coverage' and, unlike its predecessor, to encompass the 'employer-employee' relationship. But that proves n more than that the achievement of illegitimate objectives by employees or their representatives, such as the exaction of personal payoffs, or the pursuit of 'wages' for unwanted or fictitious services, would not be exempted from the Act solely because the extortionist was an employee or union official and the victim an employer.17 The Government would also find support for its expansive interpretation of the statute in the rejection of two amendments, one proposed by Congressman Celler, the other by Congressman LaFollette, which would have inserted in the Act an exception for cases where violence was used to obtain the payment of wages by a bonafide employer to a bona-fide employee. See 91 Cong.Rec. 11913, 11917, and 11919, 11922. But both amendments were rejected solely because they would have operated to continue the effect of the Local 807 case18 Their rejection thus proves nothing more than that Congress was intent on undoing the restrictive impact of that case.
III
27
In the nearly three decades that have passed since the enactment of the Hobbs Act, no reported case has upheld the theory that the Act proscribes the use of force to achieve legitimate collective-bargaining demands.
28
The only previous case in this Court relevant to the issue, United States v. Green, 350 U.S. 415, 76 S.Ct. 522, 100 L.Ed. 494, held no more than that the Hobbs Act had accomplished its objective of overruling the Local 807 case. The alleged extortions in that case, as in Local 807, consisted of attempts to obtain so-called wages for 'imposed, unwanted, superfluous and fictitious services of laborers . . ..' Id., at 417, 76 S.Ct., at 524. The indictment charged that the employer's consent was obtained 'by the wrongful use, to wit, the use for the purposes aforesaid, of actual and threatened force, violence and fear . . .' Ibid. The Government thus did not rely, as it does in the present case, solely on the use of force in an employer-employee relationship; it alleged a wrongful purpose—to obtain money from the employer that the union officials had no legitimate right to demand. We concluded that the Hobbs Act could reach extortion in an employer-employee relationship and that personal profit to the extortionist was not required, but our holding was carefully limited to the charges in that case: 'We rule only on the allegations of the indictment and hold that the acts charged against appellees fall within the terms of the Act.' Id., at 421, 76 S.Ct., at 526.
29
A prior decision in the Third Circuit, United States v. Kemble, 198 F.2d 889, on which the Government relied in Green, also concerned the exaction, by threats and violence of wages for superfluous services. In affirming a conviction under the Hobbs Act of a union business agent for using actual and threatened violence against an out-of-town driver in an attempt to force him to hire a local union member, the Court of Appeals carefully limited its holding:
30
'We need not consider the normal demand for wages as compensation for services desired by or valuable to the employer. It is enough for this case, and all we decide, that payment of money for imposed, unwanted and superfluous services . . . is within the language and intendment of the statute.' Id., at 892.
31
Most recently, in United States v. Caldes, 457 F.2d 74, the Court of Appeals for the Ninth Circuit was squarely presented with the question at issue in this case. Two union officials were convicted of Hobbs Act violations in that they damaged property of a company with which they were negotiating for a collective-bargaining agreement, in an attempt to pressure the company into agreeing to the union contract. Concluding that the Act was not intended to reach militant activity in the pursuit of legitimate unions ends, the court reversed the convictions and ordered the indictment of dismissed.
32
Indeed, not until the indictments were returned in 1970 in this and several other cases has the Government even sought to prosecute under the Hobbs Act actual or threatened violence employed to secure a union contract 'calling for higher wages and other monetary benefits.'19 Yet, throughout this period, the Nation has witnessed countless economic strikes, often unfortunately punctuated by violence. It is unlikely that if Congress had indeed wrought such a major expansion of federal criminal jurisdiction in enacting the Hobbs Act, its action would have so long passed unobserved. See United States v. Laub, 385 U.S. 475, 485, 87 S.Ct. 574, 580, 17 L.Ed.2d 526.
IV
33
The Government's broad concept of extortion—the 'wrongful' use of force to obtain even the legitimate union demands of higher wages—is not easily restricted. It would cover all overtly coercive conduct in the course of an economic strike, obstructing, delaying, or affecting commerce. The worker who threw a punch on a picket line, or the striker who deflated the tires on his employer's truck would be subject to a Hobbs Act prosecution and the possibility of 20 years' imprisonment and a $10,000 fine.20
34
Even if the language and history of the Act were less clear than we have found them to be, the Act could not properly be expanded as the Government suggests—for two related reasons. First, this being a criminal statute, it must be strictly construed, and any ambiguity must be resolved in favor of lenity. United States v. Wiltberger, 5 Wheat. 76, 95, 5 L.Ed. 37; United States v. Halseth, 342 U.S. 277, 280, 72 S.Ct. 275, 276, 96 L.Ed. 308; Bell v. United States, 349 U.S. 81, 83, 75 S.Ct. 620, 622, 99 L.Ed. 905; Arroyo v. United States, 359 U.S. 419, 424, 79 S.Ct. 864, 867, 3 L.Ed.2d 915; Rewis v. United States, 401 U.S. 808, 812, 91 S.Ct. 1056, 1059, 28 L.Ed.2d 493. Secondly, it would require statutory language much more explicit than that before us here to lead to the conclusion that Congress intended to put the Federal Government in the business of policing the orderly conduct of strikes. Neither the language of the Hobbs Act nor its legislative history can justify the conclusion that Congress intended to work such an extraordinary change in federal labor law or such an unprecendented incursion into the criminal jurisdiction of the States. See San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 247—248, 79 S.Ct. 773, 780—782, 3 L.Ed.2d 775; United Constr. Workers v. Laburnum Constr. Corp., 347 U.S. 656, 665, 74 S.Ct. 833, 838, 98 L.Ed. 1025; Garner v. Teamsters Local 776, 346 U.S. 485, 488, 74 S.Ct. 161, 164, 98 L.Ed. 228; UAW Local 232 v. Wisconsin Employment Relations Bd., 336 U.S. 245, 253, 69 S.Ct. 516, 521, 93 L.Ed. 651.
As we said last Term:
35
'(U)nless Congress conveys its purpose clearly, it will not be deemed to have significantly changed the federal-state balance. Congress has traditionally been reluctant to define as a federal crime conduct readily denounced as criminal by the States. . . . (W)e will not be quick to assume that Congress has meant to effect a significant change in the sensitive relation between federal and state criminal jurisdiction.' United States v. Bass, 404 U.S. 336, 349, 92 S.Ct. 515, 523, 30 L.Ed.2d 488 (footnotes omitted).
36
The District Court was correct in dismissing the indictment. Its judgment is affirmed.
37
Affirmed.
38
Mr. Justice BLACKMUN, concurring.
39
I join the Court's opinion. I readily concede that my visceral reaction to immaturely conceived acts of violence of the kind charged in this indictment is that such acts deserve to be dignified as federal crimes. That reaction on my part, however, is legislative in nature rather than judicial. If Congress wishes acts of that kind to be encompassed by a federal statute, it has the constitutional power in the interstate context to effect that result. The appellees so concede. Tr. of Oral Arg. 18—19. But Mr. Justice STEWART has gathered the pertinent and persuasive legislative history demonstrating that Congress did not intend to exercise its power to reach these acts of violence.
40
The Government's posture, with its concession that certain strike violence (which it would downgrade as 'incidental' and the dissent as 'low level,' post, at 418 n. 17), although aimed at achieving a legitimate end, is not covered by the Act, necessarily means that the legislation would be enforced selectively or, at the least, would embroil all concerned with drawing the distinction between major and minor violence. That, for me, is neither an appealing prospect nor solid support for the position taken.
41
This type of violence, as the Court points out, is subject to state criminal prosecution. That is where it must remain until the Congress acts otherwise in manner far more clear than the language of the Hobbs Act.
42
Mr. Justice DOUGLAS, with whom THE CHIEF JUSTICE, Mr. Justice POWELL, and Mr. Justice REHNQUIST concur, dissenting.
43
The Court today achieves by interpretation what those who were opposed to the Hobbs Act were unable to get Congress to do. The Court considers primarily the legislative history of a predecessor bill considered by the 78th Congress. The bill before us was considered and enacted by the 79th Congress; and, as I read the debates, the opposition lost in the 79th Congress what they win today. All of which makes pertinent Mr. Justice Holmes' admonition in Missouri, K. & T.R. Co. v. May, 194 U.S. 267, 270, 24 S.Ct. 638, 639, 48 L.Ed. 971, that 'it must be remembered that legislatures are ultimate guardians of the liberties and welfare of the people in quite as great a degree as the courts.'
44
In United States v. Local 807, 315 U.S. 521, 62 S.Ct. 642, 86 L.Ed. 1004, we had before us the Anti-Racketeering Act of 1934, 48 Stat. 979, which made it a crime to use violence respecting interstate trade or commerce to obtain the 'payment of money or other valuable considerations,' excluding 'the payment of wages by a bona-fide employer to a bona-fide employee.' We held that the exception included demands for unwanted or superfluous services and covered those who wanted jobs, not only those who presently had them.
45
Congress in the Hobbs Act changed the law. The critical change was the exclusion of the employer-employee clause. The Court said in United States v. Green, 350 U.S. 415, 419, 76 S.Ct. 522, 525, 100 L.Ed. 494: 'In the Hobbs Act, 60 Stat. 420, carried forward as 18 U.S.C. § 1951, which amended the Anti-Racketeering Act, the exclusion clause involved in the Local 807 decision was dropped. The legislative history makes clear that the new Act was meant to eliminate any grounds for future judicial conclusions that Congress did not intend to cover the employer-employee relationship. The words were defined to avoid any misunderstanding.'
46
In Green, the Court held that it was an extortion within the meaning of the Act to use force to obtain payment of wages for unwanted and superfluous services. Id., at 417, 76 S.Ct., at 524.
47
There, the services were not unwanted or superfluous; they were services being negotiated under a collective-bargaining agreement.
48
The Court relies mostly on the legislative history of a measure covering the same topic which was passed by the previous House but on which the Senate did not act. Two years later, the bill in its present form was enacted. It was a differently constituted House that debated it and the year was 1945 rather than 1943. So the most relevant legislative history, in my view, concerns the 79th Congress, not the 78th.
49
The fear was expressed in the House that the elimination of the Exception Clause would open up the prospect of labor's being prosecuted.1 As a consequence, Congressman Celler sought to amend the measure so as to exempt the use of violence to exact 'wages paid by a bona fide employer to a bona fide employee.'2 His precise amendment in that regard would define 'property' in the Act as not including 'wages paid by a bona fide employer to a bona fide employee.'3 Those who objected said that it would substantially restore the 1934 Act.4
50
Congressman Biemiller, in speaking for the Celler Amendment said:
51
'We fear, for example, under the bill as it now stands, that a simple, unfortunate altercation on a picket line—and we all know that human beings are frail and when tempers are hot some trouble may develop—under such a situation you may send a man to jail for 20 years or fine him $10,000.'5
The Celler Amendment was rejected.6
52
As I read the Congressional Record, Congressman Baldwin spoke for the concensus when he said:
53
'This bill would not have been presented to the House if organized labor had recognized law and order in striking and in establishing their rights, as they have a right to do. Everyone can remember the taxicab strike in the city of Baltimore, which does not pertain to this bill, where cabs were overthrown, bricks thrown through the windows endangering the lives of people, innocent victims. Those were the tactics of organized labor which you people support outright and which organized labor sanctioned. The leaders were locked up and put in jail for participating in those activities. Yet you stand here on the floor of this House and say they did not do it or they did not know anything about it.
54
'Mr. Chairman, labor has a right to strike, but when labor perpetrates that sort of thing, they are going far beyond the bounds of reason. Certainly, I do not take the position that labor has not the right to organize or to strike, but when they do so they should abide by the laws of the land and the laws of decency. If they had done that, we would not have this legislation before the House today.'7
55
Congressman Whittington voiced the same sentiments:
56
'The pending bill will provide for punishing racketeers who rob or extort. There is no justification for labor unions opposing the bill as it constitutes no invasion of the legitimate rights of labor. Robbery and extortion by members of labor unions must be punished. Labor unions owe that much to the public. In demanding the protection of laws, labor unions should urge that those engaged in legitimate interstate commerce be protected from robbery and extortion.'8
57
Congressman Celler offered another amendment which would give as a defense to a charge under the Hobbs Act that the employee 'did not violate the provisions of the Norris-LaGuardia Act, the Clayton Act, or the Railway Labor Act, or the National Labor Relations Act.'9 But that amendment was also voted down;10 the only provision of the Hobbs Act which touched on that problem was 18 U.S.C. § 1951(c), which stated that this section 'shall not be construed to repeal, modify or affect' those laws. References were made in the House debates to the trucking problem in New York, where farmers bringing their produce to market in trucks were held up and money was extorted 'from the drivers in order that the shipments might enter the Holland Tunnel and be delivered to their respective destinations in New York.'11
58
Congressman LaFollette offered an amendment which would keep the 1934 Act intact but would bar the use of violence by a person not a bona fide employee to obtain property from a bona fide employer.12 That, too, was defeated.13
59
In the present case, violence was used during the bargaining five acts of violence involving the shooting and sabotage of the employer's transformers and the blowing up of a company transformer substation. The violence was used to obtain higher wages and other benefits for union members. The acts literally fit the definition of extortion used in the Hobbs Act, 18 U.S.C. § 1951. The term 'extortion' means the use of violence to obtain 'property' from another. § 1951(b)(2). The crime is the use of 'extortion' in furtherance of a plan to do anything in violation of the section. § 1951(a). The prior exception covering those who seek 'the payment of wages by a bona-fide employer to a bona-fide employee' was taken out of the Act by Congress. Hence, the use of violence to obtain higher wages is plainly a method of obtaining 'property from another' within the meaning of § 1951(b)(2).
60
Seeking higher wages is certainly not unlawful. But using violence to obtain them seems plainly within the scope of 'extortion' as used in the Act, just as is the use of violence to exact payment for no work or the use of violence to get a sham substitution for no work. The regime of violence, whatever its precise objective, is a common device of extortion and is condemned by the Act.
61
Congressman Lemke said in the House debates on the Hobbs Act which he opposed, 'The minority is generally right.'14
62
Whatever may be thought of the policy which the Court today embroiders into the Act, it was the minority view in the House and clearly did not represent the consensus of the House. No light is thrown on the matter by the Senate, for it summarily approved the House version of the bill.15
63
It is easy in these insulated chambers to put an attractive gloss on an Act of Congress if five votes can be obtained. At times, the legislative history of a measure is so clouded or obscure that we must perforce give some meaning to vague words.16 But where, as here, the consensus of the House is so clear, we should carry out its purpose no matter how distasteful or undesirable that policy may be to us,17 unless of course the Act oversteps constitutional boundaries. But none has been so hardy as even to suggest that.
64
While we said in Kirschbaum Co. v. Walling, 316 U.S. 517, 522, 62 S.Ct. 1116, 1119, 86 L.Ed. 1638, that it is 'retrospective expansion of meaning which properly deserves the stigma of judicial legislation,' the same is true of retrospective contraction of meaning.
65
I would reverse.
1
This appeal was taken under 18 U.S.C. § 3731 (1964 ed.). The 1972 amendment to the Criminal Appeals Act, providing that all appeals from dismissals of indictments or informations must be taken to the Courts of Appeals, does not apply to cases instituted before January 2, 1971. Omnibus Crime Control Act of 1970, Pub.Law No. 91—644, § 14(a), 84 Stat. 1890, codified, 18 U.S.C. § 3731. See United States v. Jorn, 400 U.S. 470, 474 n. 1, 477—478 n. 6, 91 S.Ct. 547, 551, 553, 27 L.Ed.2d 543. The present indictment was filed on October 15, 1970.
2
Congressman Hobbs indicated that 'wrongful' was to modify the entire section. 91 Cong.Rec. 11908.
3
The Government suggests a convoluted construction of 'wrongful.' It concedes that when the means used are not 'wrongful,' such as where fear of economic loss from a strike is employed, then the objective must be illegal. If, on the other hand, 'wrongful' force and violence are used, even for a legal objective, the Government contends that the statute is satisfied. But that interpretation simply accepts the redundancy of the term 'wrongful' whenever it applies to 'force' and 'violence' in the statute.
4
See, e.g., United States v. Iozzi, 4 Cir., 420 F.2d 512; United States v. Kramer, 7 Cir., 355 F.2d 891, cert. granted and case remanded for resentencing, 384 U.S. 100, 86 S.Ct. 1366, 16 L.Ed.2d 396; Bianchi v. United States, 8 Cir., 219 F.2d 182.
5
See, e.g., United States v. Green, 350 U.S. 415, 417, 76 S.Ct. 522, 524, 100 L.Ed. 494; United States v. Kemble, 3 Cir., 198 F.2d 889.
6
Section 2 of the Act provided:
'Any person who, in connection with or in relation to any act in any way or in any degree affecting trade or commerce or any article or commodity moving or about to move in trade or commerce—
'(a) Obtains or attempts to obtain, by the use of or attempt to use or threat to use force, violence, or coercion, the payment of money or other valuable considerations, or the purchases or rental of property or protective services, not including, however, the payment of wages by a bona-fide employer to a bona-fide employee; or
'(b) Obtains the property of another, with his consent, induced by wrongful use of force or fear, or under color of official right; or
'(c) Commits or threatens to commit an act of physical violence or physical injury to a person or property in furtherance of a plan or purpose to violate sections (a) or (b); or
'(d) Conspires or acts concertedly with any other person or persons to commit any of the foregoing acts; shall, upon conviction thereof, be guilty of a felony and shall be punished by imprisonment from one to ten years or by a fine of $10,000, or both.'
7
See § 2(a) quoted in n. 6, supra. While the specific wage exception was found only in § 2(a) of the Act, § 3(b) excluded 'wages paid by a bona-fide employer to a bona-fide employee' from the definition of 'property,' 'money,' or other 'valuable considerations.' The wage exception thus permeated the entire Act. United States v. Green, 350 U.S., at 419 n. 4, 76 S.Ct., at 525; United States v. Local 807, 315 U.S. 521, 527 n. 2, 62 S.Ct. 642, 644, 86 L.Ed. 1004.
8
S. 2347, 77th Cong., 2d Sess.; H.R. 6872, 77th Cong., 2d Sess.; H.R. 7067, 77th Cong., 2d Sess.; H.R. 653, 78th Cong., 1st Sess.; H.R. 32, 79th Cong., 1st Sess. See Callanan v. United States, 364 U.S. 587, 591 n. 5, 81 S.Ct. 321, 324, 5 L.Ed.2d 312; United States v. Green, supra, 350 U.S., at 419 n. 5, 76 S.Ct., at 525.
9
See United States v. Green, supra, at 419 n. 5, 76 S.Ct., at 525; Note, Labor Faces the Amended Anti-Racketeering Act, 101 U.Pa.L.Rev. 1030, 1033—1034 (1953).
10
The Hobbs Act also eliminated the proviso in § 6 of the Anti-Racketeering Act of 1934: 'That no court of the United States shall construe or apply any of the provisions of this Act in such manner as to impair, diminish, or in any manner affect the rights of bona-fide labor organizations in lawfully carrying out the legitimate objects thereof, as such rights are expressed in existing statutes of the United States.' That proviso was one of the supports for the Local 807 decision, see 315 U.S., at 535, 62 S.Ct., at 648, and it was eliminated to prevent reliance on that clause as a means of resuscitating the Local 807 decision. See 91 Cong.Rec. 11912 (remarks of Rep. Hobbs).
11
See also 91 Cong.Rec. 11842 (remarks of Rep. Michener); id., at 11905 (remarks of Rep. Robsion); id., at 11909 (remarks of Rep. Gwynne); id., at 11909 (remarks of Rep. Vursell).
In its report on the bill, the House Committee on the Judiciary reproduced this Court's decision in the Local 807 case and concluded that '(t)he need for the legislation was emphasized by the opinion of the Supreme Court in . . . United States v. Local 807 . . ..' H.R.Rep. No. 238, 79th Cong., 1st Sess., 10. See also S.Rep.No.1516, 79th Cong., 2d Sess.
12
91 Cong.Rec. 11841 (remarks of Rep. Walter).
13
Id., at 11908 (remarks of Rep. Sumners). See also id., at 11900 (remarks of Rep. Hancock); id., at 11904 (remarks of Rep. Sumners); id., at 11912—11913 (remarks of Rep. Whittington).
14
The remarks with respect to that bill, H.R. 653, 78th Cong., 1st Sess., which passed only the House, are wholly relevant to an understanding of the Hobbs Act, since the operative language of the original bill was substantially carried forward into the Act. The congressional debates on the Hobbs Act in the 79th Congress repeatedly referred to the legislative history of the original bill. See 91 Cong.Rec. 11842 (remarks of Rep. Michener); id., at 11899—11900 (remarks of Rep. Hancock); id., at 11900 (remarks of Rep. Hobbs). Surely an interpretation placed by the sponsor of a bill on the very language subsequently enacted by Congress cannot be dismissed out of hand, as the dissent would have it, simply because the interpretation was given two years earlier.
15
See also 89 Cong.Rec. 3202 (remarks of Rep. Gwynne) (Act does not cover 'a clash between strikers and scabs during a strike').
16
The proponents of the Hobbs Act defended the Act as no encroachment on the legitimate activities of labor unions on the ground that the statute did no more than incorporate New York's conventional definition of extortion—'the obtaining of property from another . . . with his consent, induced by a wrongful use of force or fear, or under color of official right.' N.Y. Penal Law § 850 (1909). See 91 Cong.Rec. 11842 (remarks of Rep. Walter); id., at 11843 (remarks of Rep. Michener); id., at 11900 (remarks of Rep. Hancock); ibid., (remarks of Rep. Hobbs); id., at 11906 (remarks of Rep. Robsion). See also United States v. Caldes, 9 Cir., 457 F.2d 74, 77; United States v. Provenzano, 3 Cir., 334 F.2d 678, 686.
Judicial construction of the New York statute reinforces the conclusion that, however militant, union activities to obtain higher wages do not constitute extortion. For extortion requires an intent "to obtain that which in justice and equity the party is not entitled to receive." People v. Cuddihy, 151 Misc. 318, 324, 271 N.Y.S. 450, 456, aff'd, 243 App.Div. 694, 277 N.Y.S. 960; see People v. Weinseimer, 117 App.Div. 603, 616, 102 N.Y.S. 579, 588, aff'd, 190 N.Y. 537, 83 N.E. 1129. An accused would not be guilty of extortion for attempting to achieve legitimate labor goals; he could not be convicted without sufficient evidence that he 'was actuated by the purpose of obtaining a financial benefit for himself . . . and was not attempting in good faith to advance the cause of unionism . . ..' People v. Adelstein, 9 A.D.2d 907, 908, 195 N.Y.S.2d 27, 28, aff'd sub nom. People v. Squillante, 8 N.Y.2d 998, 205 N.Y.S.2d 332, 169 N.E.2d 425.
Hence, New York's highest court has interpreted its extortion statute to apply to a case where the accused received a pay-off to buy an end to labor picketing. People v. Dioguardi, 8 N.Y.2d 260, 203 N.Y.S.2d 870, 168 N.E.2d 683.
'The picketing here . . . may have been perfectly lawful in its inception (assuming it was part of a bona fide organizational effort) and may have remained so—despite its potentially ruinous effect on the employers' businesses—so long as it was employed to accomplish the legitimate labor objective of organization. Its entire character changed from legality to criminality, however, when it was used as a pressure device to exact the payment of money as a condition of its cessation . . .' Id., at 271, 203 N.Y.S.2d, at 880, 168 N.E.2d, at 690—691.
In short, when the objectives of the picketing changed from legitimate labor ends to personal payoffs, then the actions became extortionate.
17
The Government relies heavily on a statement by Congressman Michener, in a dialogue with two of his colleagues, to the effect that union members who 'by robbery or exploitation collect a day's wage—a union wage—they are not exempted from the law solely because they are engaging in a legitimate union activity.' 91 Cong.Rec. 11843—11844. But Congressman Michener was referring to the activity of 'robbery or exploitation,' and his statement continued: 'I cannot understand how any union man can claim that the conduct described by Mr. Justice Stone is a legitimate union activity.' Id., at 11844. Mr. Chief Justice Stone's dissenting opinion in the Local 807 case described payoffs for the superfluous and unwanted work involved in that case. See 315 U.S., at 539, 62 S.Ct., at 649, 86 L.Ed. 1004.
18
See 91 Cong.Rec. 11914 (remarks of Rep. Hobbs); ibid. (remarks of Rep. Walter); id., at 11920 (remarks of Rep. Gwynne).
19
As noted above, the indictment in United States v. Caldes, 457 F.2d 74, was ordered to be dismissed by the Ninth Circuit. Two similar indictments returned in the Southern District of Florida were dismissed by the District Court without opinion in June 1970. United States v. Rutcofsky, No. 70—101—CR—JE, June 24, 1970; United States v. Schiffman, No. 70—102—CR—JE, June 25, 1970. An additional indictment, based on a similar theory of the Hobbs Act, was filed in the Eastern District of New York on January 12, 1972, and is currently pending. United States v. Spero, No. 72—CR 17.
The briefs in the present case advise us of the other Hobbs Act prosecution that may have been brought under this theory—a 1962 indictment in United States v. Webb, ND Ala., No. 15080.
20
Realizing the breadth of its argument, the Government's brief concedes that there might be an exception for 'the incidental injury to person or property that not infrequently occurs as a consequence of the charged atmosphere attending a prolonged labor dispute . . ..' But nothing, either in the language or the history of the Act, justifies any such exception.
Similarly, there is nothing to support the dissent's exception for 'mischievous' conduct, post, at 418 n. 17, even if we could begin to define the meaning and limits of such a term.
1
91 Cong.Rec. 11914 (remarks of Rep. Marcantonio).
2
Id., at 11913.
3
Ibid.
4
Id., at 11914; 11914—11915; 11918.
5
Id., at 11916.
6
Id., at 11917.
7
Id., at 11918.
8
Id., at 11913.
9
Id., at 11919.
10
Ibid.
11
Id., at 11917.
12
Id., at 11919. The proposed amendment read as follows:
'(a) The term 'the payment of wages by a bona fide employer to a bona fide employee's shall not be construed so as to include the payment of money or the transfer of a thing of value by a person to another when the latter shall use or attempt to use or threaten to use force or violence against the body or to the physical property (as distinguished from intangible property) of the former or against the body of anyone having the possession, custody, or control of the physical property of the former, in attempting to obtain or obtaining such payment or transfer.
'(b) The term 'the rights of a bona fide labor organization in lawfully carrying out the legitimate objects thereof, as such rights are expressed in existing statutes of the United States' shall not be construed so as to ignore, void, set aside, or nullify the definitions set out or the words used in or the plain meaning of subsection (a) hereof.'
13
Id., at 11922.
14
Ibid.
15
92 Cong.Rec. 7308.
16
See, e.g., Addison v. Holly Hill, 322 U.S. 607, 615—616, 64 S.Ct. 1215, 1220—1221, 88 L.Ed. 1488, for the use by Congress of the rather opaque phrase 'area of production.'
17
The fear was expressed in the House debates by opponents of the measure that a fistfight on a picket line during a strike could bring down on the offender a $10,000 fine and 20 years in jail or both. See 91 Cong.Rec. 11916; supra, at 414—415. And the Government actually argued in one case, United States v. Caldes, 9 Cir., 457 F.2d 74, 78, that a union and its members were guilty of extortion if they used the coercion of a strike to obtain economic benefits from the employer. That, however, is nonsense, as the court in Caldes ruled, id., at 79, for the Hobbs Act specifically does not touch collective bargaining of which the strike is a component part. 18 U.S.C. § 1951(c). Moreover, the court in Caldes held that 'mischievous' conduct during a strike and actions which are 'the by-product of frustration engendered by a prolonged, bona fide collective bargaining negotiation,' id., at 78 are often only low-level acts of violence that may be unfair labor practices or at best, subject to state, not federal, prosecution. That is my view.
| 01
|
410 U.S. 422
93 S.Ct. 1408
35 L.Ed.2d 394
Marion P. MORRIS, on behalf of Linda Morris, Petitioner,v.Caspar W. WEINBERGER, Secretary of Health, Education, and Welfare.
No. 71-6698.
Supreme Court of the United States
February 22, 1973
E. R. McClelland, So. Charleston, W.Va., for petitioner.
Walter H. Fleischer for respondent.
On writ of certiorari to the United States Court of Appeals for the Fourth Circuit.
PER CURIAM.
1
Twenty days after this Court granted a writ of certiorari, 409 U.S. 841, 93 S.Ct. 152, 34 L.Ed.2d 80, Congress amended the relevant statutory provisions, § 202(d)(8) of the Social Security Act, 42 U.S.C. § 402(d)(8). See § 111(a), Social Security Amendments of 1972 (Oct. 30, 1972), Pub.L. 92-603, 86 Stat. 1329. The writ of certiorari heretofore granted is dismissed as improvidently granted.
2
Mr. Justice DOUGLAS, dissenting.
3
In this case, petitioner was denied social security benefits for his dependent adopted daughter because her court-approved adoption was not supervised by a child-placement agency. As noted by the Court, the section which barred his claim at the time that it was filed has now been repealed.1 What the Court does not deal with, however, is the patchwork nature of the relief that Congress has provided.
4
Section 111(b) of the new Act2 specifies the dates and circumstances to which § 111(a)3 applies. As I read § 111(b), should petitioner qualify for increased benefits under § 111(a)'s new standards, he could now secure retroactive application of the revised Act to cover the entire period at issue in this case. It is true that § 111(a) no longer requires that court-authorized adoptions be supervised by a child-placement agency. Petitioner's lot is not, however, bettered since § 111(a) now imposes a new requirement which petitioner cannot meet: that benefits may be paid to an adopted child only if the child was living with the beneficiary 'for the year immediately before the month in which began the period of [compensable] disability . . .' § 111(a)(8)(D)(ii)(II). Petitioner began receiving disability insurance benefits in July 1957. His adopted daughter was not born until 1965, however, and petitioner will accordingly not benefit under the terms of § 111(a).
5
Section 111(b) does not alter 42 U.S.C. § 402(d)(8) as to applications filed before October 1972 for benefits accruing before October 30, 1972. Such an application is before us in this case. Petitioner is therefore entitled to benefits under the former statute, if there is merit to his claim that the old § 402(d)(8) distinctions among types of adoption supervision are constitutionally infirm.
6
Because the new Act does not provide coverage for petitioner's child but the old Act remains applicable to the claim before us, I would reach the merits.
1
Social Security Amendment of 1972, Pub.L. 92-603, 86 Stat. 1329, § 111.
2
'The amendment made by subsection (a) shall apply with respect to monthly benefits payable under title II of the Social Security Act for months after December 1967 on the basis of an application filed in or after the month in which this Act is enacted; except that such amendments shall not apply with respect to benefits for any month before the month in which this Act is enacted unless such application is filed before the close of the sixth month after the month in which this Act is enacted.'
3
The relevant portion of that section reads:
'(8) In the case of——
'(A) . . ..
'(B) an individual entitled to disability insurance benefits . . . a child of such individual adopted after such individual became entitled to such . . . benefits shall be deemed not to meet the requirements of clause (i) . . . of paragraph (1)(C) unless such child——
'(C) . . ..
'(D) (i) was legally adopted by such individual in an adoption decreed by a court of competent jurisdiction within the United States,
'(ii) was living with such individual in the United States and receiving at least one-half of his support from such indidividual . . . for the year immediately before . . . the month in which such individual became entitled to disability insurance benefits, and
'(iii) had not attained the age of 18 before he began living with such individual.'
| 89
|
410 U.S. 425
93 S.Ct. 1019
35 L.Ed.2d 398
DEPARTMENT OF MOTOR VEHICLES OF the STATE OF CALIFORNIAv.Federico RIOS, a minor, etc.
No. 72—686.
Feb. 26, 1973.
410 U.S. 425, 35 L.Ed.2d 398, on remand 107 Cal.Rptr. 784, 509 P.2d 696, 9 C.3d 454.
PER CURIAM.
1
Petitioner, a California motorist, was involved in an automobile collision on March 18, 1971. Both drivers filed accident reports with the California Department of Motor Vehicles as required by the California Financial Responsibility Laws. Without affording petitioner a hearing on the question of potential liability, and based solely on the contents of the accident reports, the Department found that there was a reasonable possibility that a judgment might be recovered against petitioner as a result of the accident. Since petitioner was uninsured and could not deposit security, his license was suspended. The Supreme Court of California reversed, holding that prior to suspension 'a hearing is required and that at such a hearing the licensee is entitled to review the reports or other evidence upon which the department contemplates determining that he is possibly responsible for the accident, and to present reports or testimony to establish his claim of non-culpability, all within reasonable due process procedures which the department may employ.' Rios v. Cozens, 7 Cal.3d 792, 799, 103 Cal.Rptr. 299, 304, 499 P.2d 979, 984 (1972).
2
We are unable to determine, however, whether the California Supreme Court based its holding upon the Due Process Clause of the Fourteenth Amendment to the Constitution of the United States, or upon the equivalent provision of the California Constitution, or both. In reaching its result in this case, the California court relied primarily upon this Court's decisions in Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971), and Jennings v. Mahoney, 404 U.S. 25, 92 S.Ct. 180, 30 L.Ed.2d 146 (1971), but also cited its own decisions in Randone v. Appellate Department, 5 Cal.3d 536, 96 Cal.Rptr. 709, 488 P.2d 13 (1971); Blair v. Pitchess, 5 Cal.3d 258, 96 Cal.Rptr. 42, 486 P.2d 1242 (1971); McCallop v. Carberry, 1 Cal.3d 903, 83 Cal.Rptr. 666, 464 P.2d 122 (1970), and Cline v. Credit Bureau of Santa Clara Valley, 1 Cal.3d 908, 83 Cal.Rptr. 669, 464 P.2d 125 (1970), which apparently were premised upon both the state and federal provisions. In addition, the court in Rios specifically overruled its own prior decisions in Orr v. Superior Court, 71 Cal.2d 220, 77 Cal.Rptr. 816, 454 P.2d 712 (1969), and Escobedo v. State of California, 35 Cal.2d 870, 222 P.2d 1 (1950), which had upheld the procedures here under attack under both the state and federal provisions. Thus, as in Mental Hygiene Dept. v. Kirchner, 380 U.S. 194, 196—197, 85 S.Ct. 871, 873, 13 L.Ed.2d 753 (1965), '(w)hile we might speculate from the choice of words used in the opinion, and the authorities cited by the court, which provision was the basis for the judgment of the state court, we are unable to say with any degree of certainty that the judgment of the California Supreme Court was not based on an adequate and independent nonfederal ground.' We therefore grant the State of California's petition for certiorari, vacate the judgment of the Supreme Court of California, and remand the cause to that court for such further proceedings as may be appropriate. California v. Krivda, 409 U.S. 33, 93 S.Ct. 32, 34 L.Ed.2d 45 (1972); Mental Hygiene Dept. v. Kirchner, supra; Minnesota v. National Tea Co., 309 U.S. 551, 60 S.Ct. 676, 84 L.Ed. 920 (1940); State Tax Comm'n v. Van Cott, 306 U.S. 511, 59 S.Ct. 605, 8 L.Ed. 950 (1939).
3
It is so ordered.
4
Judgment vacated and cause remanded.
5
Mr. Justice DOUGLAS, with whom Mr. Justice BRENNAN, Mr. Justice STEWART, and Mr. Justice MARSHALL concur, dissenting.
6
The Court is quite correct in saying that we have vacated and remanded cases from state courts which we took by way of appeal or certiorari, when we were uncertain whether he judgment rested on state or federal grounds. But Minnesota v. National Tea Co., 309 U.S. 551, 60 S.Ct. 676, 84 L.Ed. 920, shows how unhappy that practice is.1 Yet, even assuming it is the proper procedure, we should not use it to determine whether we should take a case. No case from a state court can properly reach here until and unless a federal question is presented. Our Rule 19(1)(a) states as a standard for granting certiorari from a state court the following:
7
'Where a state court has decided a federal question of substance not therefore determined by this court, or has decided it in a way probably not in accord with applicable decisions of this court.'
8
The Court in Commercial Bank v. Buckingham's Executors, 5 How. 317, 341, 12 L.Ed. 169, said that it was not enough that a federal question had been presented to the state court but that 'it must appear, by clear and necessary intendment, that the question must have been raised, and must have been decided, in order to induce the judgment.' In Brown v. Atwell, 92 U.S. 327, 329, 23 L.Ed. 511, the Court ruled that it must appear that the decision of a federal question 'was necessary to the determination of the cause, and that it was actually decided, or that the judgment as rendered could not have been given without deciding it.'
9
We have at times vacated and remanded prior to our decision to take or deny or to note or dismiss a case, so that the record can be clarified. See Honeyman v. Hanan, 300 U.S. 14, 25—26, 57 S.Ct. 350, 355, 81 L.Ed. 476.
10
But we know in this case that a federal question was presented and ruled upon. We know that a state question was also presented and ruled upon. Where arguably 'the judgment of the state court rests on two grounds, one involving a federal question and the other not,' Lynch v. New York, 293 U.S. 52, 54, 55 S.Ct. 16, 17, 79 L.Ed. 191, we do not take the case.
11
The ruling of the Supreme Court of California in the present case involving the revocation of a driver's license without a hearing, was as follows:
12
'Petitioner relies on numerous recent cases in which the United States Supreme Court and this court have recognized that an individual is constitutionally entitled to a hearing prior to being deprived of a significant interest. (Goldberg v. Kelly (1970) 397 U.S. 254, 266, 90 S.Ct. 1011, 25 L.Ed.2d 287; Sniadach v. Family Finance Corp. (1969) 395 U.S. 337, 342, 89 S.Ct. 1820, 23 L.Ed.2d 349; Randone v. Appellate Department (1971) 5 Cal.3d 536, 547, 96 Cal.Rptr. 709, 488 P.2d 13.) This principle is applicable to a plethora of vital personal and property rights (see Randone v. Appellate Department, supra, 5 Cal.3d 536, 548, fn. 8, 96 Cal.Rptr. 709, 488 P.2d 13), but it has most frequently been applied in this state to invalidate statutes affording a creditor prejudgment remedies against a debtor without prior notice or hearing (see, e.g., Blair v. Pitchess (1971) 5 Cal.3d 258, 96 Cal.Rptr. 42, 486 P.2d 1242; McCallop v. Carberry (1970) 1 Cal.3d 903, 83 Cal.Rptr. 666, 464 P.2d 122; Cline v. Credit Bureau of Santa Clara Valley (1970) 1 Cal.3d 908, 83 Cal.Rptr. 669, 464 P.2d 125).
13
'The rule explicated in the foregoing cases is applicable to the instant circumstances.' 7 Cal.3d 792, 795, 103 Cal.Rptr. 299, 301, 499 P.2d 979, 981.
14
It seems plain that the California Supreme Court decision rested on both federal and state grounds and therefore that the requisite showing of the presence of a controlling federal question which has been on the books since the first Judiciary Act, 1 Stat. 73, 85, has not been made.2
15
The opinion of the Supreme Court of California written by Justice Mosk was agreed to by all. It makes clear that both state and federal grounds were the basis of the judgment. The International Court of Justice that has only a case or two a Term might be tempted to seek a larger docket. Ours is already large; and it hardly comports with the messages of distress which have emanated from here for us to seek to gather in more cases that from th beginning have been sparsely and discretely selected from the state domain. Cohens v. Virginia, 6 Wheat. 264, 5 L.Ed. 257, raised a storm of protest against federal intrusion on state rights that has not yet subsided. Minnesota v. National Tea Co., supra, taught me that it is wise to insist that cases taken from a state court be clearly decided on a federal ground and not, as here, on both state and federal grounds save where the state and federal questions are so intertwined as to make the state ground not an independent matter. See Enterprise Irrigation District v. Farmers' Mutual Canal Co., 243 U.S. 157, 163—165, 37 S.Ct. 318, 320—321, 61 L.Ed. 644.
16
I would deny this petition for certiorari.
1
On remand the Supreme Court of Minnesota said:
'If we were in error, then assuredly the opportunity to be set aright should be cheerfully and thankfully accepted. Having so re-examined them, we conclude that our prior decision was right. There is no need of further discussion of the problems presented for the former opinion adequately covers the ground. We think that the section of the statute here involved (L.1933, c. 213, § 2(b), 3 Mason Minn.St.1936 Supp. § 5887—2(b)), is violative of the uniformity clause of our own Constitution.' National Tea Co. v. State, 208 Minn. 607, 608, 294 N.W. 230, 231.
2
Title 28 U.S.C. § 1257 presently provides as to certiorari:
'Final judgments or decrees rendered by the highest court of a State in which a decision could be had, may be reviewed by the Supreme Court as follows:
'(3) By writ of Certiorari, where the validity of a treaty or statute of the United States is drawn in question or where the validity of a State statute is drawn in question on the ground of its being repugnant to the Constitution, treaties or laws of the United States, or where any title, right, privilege or immunity is specially set up or claimed under the Constitution, treaties or statutes of, or commission held or authority exercised under, the United States.'
| 89
|
410 U.S. 431
93 S.Ct. 1090
35 L.Ed.2d 403
Murray TILLMAN et al., Petitioners,v.WHEATON-HAVEN RECREATION ASSOCIATION, INC., et al.
No. 71—1136.
Argued Nov. 15, 1972.
Decided Feb. 27, 1973.
Syllabus
Respondent association (Wheaton-Haven) operates a community swimming pool, use of which is limited to white members and their white guests. Under Wheaton-Haven's bylaws, a person residing within a geographic preference area, unlike one living outside that area, needs no endorsement for membership from a current member; receives priority (if the membership is full) over all but those who have first options; and (if an owner-member selling his house) can confer a first option for membership on his vendee. Petitioners—the Presses, a Negro couple who bought a home in the preference area from a nonmember, and were denied membership for racial reasons; a white couple, members of Wheaton-Haven, whose Negro guest was refused admission to the pool for racial reasons; and the guest—brought suit for declaratory and injunctive relief under the Civil Rights Acts of 1866, 1870, and 1964, 42 U.S.C. §§ 1982, 1981, and 2000a et seq. The District Court granted respondents' motion for summary judgment. The Court of Appeals affirmed, holding that, because Wheaton-Haven membership rights could not be leased or transferred, the case was distinguishable from Sullivan v. Little Hunting Park, Inc., 396 U.S. 229, 90 S.Ct. 400, 24 L.Ed.2d 386, making § 1982 unavailable to the Presses, and agreeing with the District Court that Wheaton-Haven was a private club within the meaning of 42 U.S.C. § 2000a(e), and therefore implied an exception to § 1982. Held:
1. Respondents' racially discriminatory membership policy violates 42 U.S.C. § 1982. The preferences for membership in Wheaton-Haven gave valuable property rights to white residents in the preference area that were not available to the Presses, and this case is therefore not significantly distinguishable from Sullivan, supra. Pp. 435—437.
2. Wheaton-Haven is not a private club within the meaning of § 2000a(e), since membership, until the association reaches its full complement, 'is open to every white person within the geographic area, there being no selective element other than race,' Sullivan, supra, 396 U.S., at 236, 90 S.Ct., at 404. Wheaton-Haven is thus not even arguably exempt by virtue of § 2000a(e) from § 1982 or § 1981. Pp. 438—440.
4 Cir., 451 F.2d 1211, reversed and remanded.
Allison W. Brown, Jr., Washington, D.C., for petitioners.
Henry J. Noyes, Rockville, Md., for respondents Wheaton-Haven Recreation Association, Inc., and others.
John H. Mudd, Baltimore, Md., for respondent E. Richard McIntyre.
Mr. Justice BLACKMUN delivered the opinion of the Court.
1
Wheaton-Haven Recreation Association, Inc., a non-profit Maryland corporation, was organized in 1958 for the purpose of operating a swimming pool. After a membership drive to raise funds, the Association obtained zoning as a 'community pool' and constructed its facility near Silver Spring, Maryland. The Association is essentially a single-function recreational club, furnishing only swimming and related amenities.1
2
Membership is by family units, rather than individuals, and is limited to 325 families.2 This limit has been reached on at least one occasion. Membership is largely keyed to the geographical area within a three-quarter-mile radius of the pool.3 A resident (whether or not a homeowner) of that area requires no recommendation before he may apply for membership; the resident receives a preferential place on the waiting list if he applies when the membership is full; and the resident-member who is a homeowner and who sells his home and turns in his membership, confers on the purchaser of his property a first option on the vacancy created by his removal and resignation. A person residing outside the three-quarter-mile area may apply for membership only upon the recommendation of a member; he receives no preferential place on the waiting list if the membership is full; and if he becomes a member, he has no way of conferring an option upon the purchaser of his property. Beyond-the-area members may not exceed 30% of the total. Majority approval of those present at a meeting of the board of directors or of the general membership is required before an applicant is admitted as a member.
3
Only members and their guests are admitted to the pool. No one else may gain admission merely by payment of an entrance fee.
4
In the spring of 1968 petitioner, Harry C. Press, a Negro who had purchased from a nonmember a home within the geographical preference area, inquired about membership in Wheaton-Haven. At that time the Association had no Negro member. In November 1968 the general membership rejected a resolution that would have opened the way for Negro members. Dr. Press was never given an application form, and respondents concede that he was discouraged from applying because of his race.
5
In July 1968 petitioners Murray and Rosalind N. Tillman, who were husband and wife and members in good standing, brought petitioner Grace Rosner, a Negro, to the pool as their guest. Although Mrs. Rosner was admitted on that occasion, the guest policy was changed by the board of directors, at a special meeting the following day, to limit guests to relatives of members. Respondents concede that one reason for the adoption of this policy was to prevent members from having Negroes as guests at the pool. Under this new policy Mrs. Rosner thereafter was refused admission when the Tillmans sought to have her as their guest. In the fall of 1968 the membership, by resolution, reaffirmed the policy.
6
In October 1969 petitioners (Mr. and Mrs. Tillman, Dr. and Mrs. Press, and Mrs. Rosner) instituted this civil action against the Association and individuals who were its officers or directors, seeking damages and declaratory and injunctive relief, particularly under the Civil Rights Act of 1866, now 42 U.S.C. § 1982,4 the Civil Rights Act of 1870, now 42 U.S.C. § 1981, and Title II of the Civil Rights Act of 1964, 78 Stat. 243, 42 U.S.C. § 2000a et seq. The District Court, in an unreported opinion, held that Wheaton-Haven was a private club and exempt from the nondiscrimination provisions of the statutes. It granted summary judgment for defendants. The Court of Appeals affirmed, one judge dissenting. 451 F.2d 1211 (C.A.4 1971). It later denied rehearing en banc over two dissents, id., at 1225. We granted certiorari, 406 U.S. 916, 92 S.Ct. 1770, 32 L.Ed.2d 115 (1972), to review the case in the light of Sullivan v. Little Hunting Park, Inc., 396 U.S. 229, 90 S.Ct. 400, 24 L.Ed.2d 386 (1969).
7
* In Jones v. Alfred H. Mayer Co., 392 U.S. 409, 88 S.Ct. 2186, 20 L.Ed.2d 1189 (1968), this Court, after a detailed review of the legislative history of 42 U.S.C. § 1982, id., at 422—437, 88 S.Ct. at 2194—2202, held that the statute reaches beyond state action and is not confined to officially sanctioned segregation. The Court subsequently applied § 1982 in Sullivan to private racial discrimination practiced by a nonstock corporation organized to operate a community park and playground facilities, including a swimming pool, for residents of a designated area. The Presses contend that their § 1982 claim is controlled by Sullivan. We agree.
8
A. The Court of Appeals held that § 1982 would not apply to the Presses because membership rights in Wheaton-Haven could neither be leased nor transferred incident to the acquisition of property. 451 F.2d, at 1216—1217. In Sullivan, the Court concluded that the right to enjoy a membership share in the corporation, assigned by a property owner as part of a leasehold he was granting, constituted a right 'to . . . lease . . . property' protected by § 1982. 396 U.S., at 236—237, 90 S.Ct., at 404—405. The Court of Appeals distinguished property-linked membership shares in Sullivan from property-linked membership preferences in Wheaton-Haven by emphasizing the speculative nature of the benefits available to residents of the area around Wheaton-Haven. We conclude that the Court of Appeals erroneously characterized the property-linked preferences conferred by Wheaton-Haven's bylaws.
9
Under the bylaws, a resident of the area within three-quarters of a mile from the pool receives the three preferences noted above: he is allowed to apply for membership without seeking a recommendation from a current member; he receives preference over others, except those with first options, when applying for a membeship vacancy; and, if he is an owner-member, he is able to pass to his successor-in-title a first option to acquire the membership Wheaton-Haven purchases from him.5 If the membership is full, the preferencearea resident is placed on the waiting list; other applicants, however, are required to reapply after those on the waiting list obtain memberships.
10
The Court of Appeals concluded, incorrectly it later appeared, that the membership had never been full,6 and that the option possibility, therefore, was 'far too tenuous a thread to support a conclusion that there is a transfer of membership incident to the purchase of property.' 451 F.2d, at 1217. Since the Presses had not purchased their area home from a member, the court found no transaction by which the Presses could have acquired a membership preference. 451 F.2d, at 1217—1218, n. 14.
11
We differ from the Court of Appeals in our evaluation of the three rights obtained. The record indicates that the membership was full in the spring of 1968 but dropped, perhaps not unexpectedly in view of the season, in the fall of that year. We cannot be certain, either, that the membership would not have remained full in the absence of racial discrimination,7 or that the membership will never be full in the future. As was observed in dissent in the Court of Appeals:
12
'Several years from now it may well be that a white neighbor can sell his home at a considerably higher price than Dr. and Mrs. Press because the white owner will be able to assure his purchaser of an option for membership in Wheaton-Haven. Dr. and Mrs. Press, however, are denied this advantage.' 451 F.2d, at 1223.
13
Similarly, the automatic waiting-list preference given to residents of the favored area may have affected the price paid by the Presses when they bought their home. Thus, the purchase price to them, like the rental paid by Freeman in Sullivan, may well reflect benefits dependent on residency in the preference area. For them, however, the right to acquire a home in the area is abridged and diluted.
14
When an organization links membership benefits to residency in a narrow geographical area, that decision infuses those benefits into the bundle of rights for which an individual pays when buying or leasing within the area. The mandate of 42 U.S.C. § 1982 then operates to guarantee a nonwhite resident, who purchases, leases, or holds this property, the same rights as are enjoyed by a white resident.
15
B. Respondents contend that even if 42 U.S.C. § 1982 applies, Wheaton-Haven nevertheless is exempt as a private club under § 201(e) of the Civil Rights Act of 1964, 42 U.S.C. § 2000a(e),8 with a consequent implied narrowing effect upon the range and application of the older § 1982. In Sullivan we found it unnecessary to consider limits on § 1982 as applied to a truly private association because we found 'no plan or purposes of exclusiveness' in Little Hunting Park, 396 U.S., at 236, 90 S.Ct., at 404. But here, as there, membership 'is open to every white person within the geographic area, there being no selective element other than race.' Ibid. The only restrictions are the stated maximum number of memberships and, as in Sullivan id., at 234, 90 S.Ct., at 403, the requirement of formal board or membership approval. The structure and practices of Wheaton-Haven thus are indistinguishable from those of Little Hunting Park.9 We hold, as a consequence, that Wheaton-Haven is not a private club and that it is not necessary in this case to consider the issue of any implied limitation on the sweep of § 1982 when its application to a truly private club, within the meaning of § 2000a(e), is under consideration. Cf. Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 92 S.Ct. 1965, 32 L.Ed.2d 627 (1972); Daniel v. Paul, 395 U.S. 298, 89 S.Ct. 1697, 23 L.Ed.2d 318 (1969).
II
16
Mrs. Rosner and the Tillmans, relying on 42 U.S.C. §§ 1981,10 1982, and 2000a et seq., contend that Wheaton-Haven could not adopt a racially discriminatory policy toward guests. The District Court granted summary judgment for the respondents on these claims also, holding that Wheaton-Haven was a private club and exempt from all three statutes.
17
The operative language of both § 1981 and § 1982 is traceable to the Act of April 9, 1866, c. 31, § 1, 14 Stat. 27. Hurd v. Hodge, 334 U.S. 24, 30—31 n. 7, 68 S.Ct. 847, 850—851, 92 L.Ed. 1187 (1948).11 In light of the historical interrelationship between § 1981 and § 1982, we see no reason to construe these sections differently when applied, on these facts, to the claim of Wheaton-Haven that it is a private club. Consequently, our discussion and rejection of Wheaton-Haven's claim that it is exempt from § 1982 disposes of the argument that Wheaton-Haven is exempt from § 1981. On remand the District Court will develop any necessary facts concerning the adoption of the guest policy and will evaluate the claims of the parties12 free of the misconception that Wheaton-Haven is exempt from §§ 1981, 1982, and 2000a.
18
The judgment of the court of Appeals is reversed, and the case is remanded for furthr proceedings.
19
It is so ordered.
20
Reversed and remanded.
1
Candy, ice cream, and soft drinks have been sold on the premises, but these were merely incidentals for the convenience of swimmers during the season. Aside from meetings of the board of directors and of the general membership, the premises apparently have been utilized only for poolrelated activities.
2
Wheaton-Haven presently charges an initiation fee of $375 and annual dues ranging from $50 to $60, depending on the number of persons in the family unit.
3
The Association's bylaws provide that '(m)embership shall be open to bona fide residents (whether or not home owners) of the area within a three-quarter mile radius of the pool,' and 'may be extended' to others 'who shall have been recommended . . . by a member.'
4
'All citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property.' 42 U.S.C. § 1982.
5
Under the Wheaton-Haven system, a within-the-area member selling his home may either retain his membership or seek to sell it back to the Association. If Wheaton-Haven is willing to purchase, it pays 80% of the initial cost if the membership is not full, and 90% if the membership is full. The purchaser of the member's home then has a first option on the membership so released by the seller. The practical effect of this system is to prefer applicants who purchase from members over other applicants, particularly at a time when the membership is full.
6
In the court's per curiam statement responsive to the petition for rehearing, it described its earlier observation that the membership list had never been full as an 'inadvertent misstatement. . . now corrected to reflect a full membership list in the spring of 1968.' 451 F.2d 1211, 1225.
7
The record reveals that a number of members withdrew when the present suit was filed. Tr. of Oral Arg. in District Court 15.
8
'The provisions of this subchapter shall not apply to a private club or other establishment not in fact open to the public, except to the extent that the facilities of such establishment are made available to the customers or patrons of an establishment within the scope of subsection (b) of this section.' 42 U.S.C. § 2000a(e).
9
Apparently one applicant was formally rejected during the preceding 12 years of Little Hunting Park's operation. App. 127 and Brief for Petitioner 7, Sullivan v. Little Hunting Park, 396 U.S. 229, 90 S.Ct. 400, 24 L.Ed.2d 386 (1969). At Wheaton-Haven one applicant was formally rejected in the preceding 11 years.
The Court of Appeals found it 'inferable from Little Hunting Park's organization and membership provisions that it was built by the same real estate developers who built the four subdivisions from which members were drawn, as an aid to the sale of homes.' 451 F.2d, at 1215 n. 8. This inference may be erroneous. App. 24 36 and Tr. of Oral Arg. 24, 31—34, Sullivan v. Little Hunting Park, supra. In any event, Sullivan did not rest on any relationship between the club and real estate developers.
10
'All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.'
11
The Act of Apr. 9, 1866, § 1, read in part:
'That all persons born in the United States . . . of every race and color . . . shall have the same right, in every State and Territory in the United States, to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom, to the contrary notwithstanding.' 14 Stat. 27.
The present codification of § 1981 is derived from Revised Statutes § 1977 (1874), which codified the Act of May 31, 1870, § 16, 16 Stat. 144. Although the 1866 Act rested only on the Thir-teenth Amendment, United States v. Harris, 106 U.S. 629, 640, 1 S.Ct. 601, 610, 27 L.Ed. 290 (1883); Civil Rights Cases, 109 U.S. 3, 22, 3 S.Ct. 18, 29, 27 L.Ed. 835 (1883); United States v. Morris, 125 F. 322, 323 (E.D.Ark.1903), and, indeed, was enacted before the Fourteenth Amendment was formally proposed, United States v. Price, 383 U.S. 787, 804, 86 S.Ct. 1152, 1162, 16 L.Ed.2d 267 (1966); Hurd v. Hodge, 334 U.S. 24, 32 n. 11, 68 S.Ct. 847, 92 L.Ed. 1187 (1948); Oyama v. California, 332 U.S. 633, 640, 68 S.Ct. 269, 272—273, 92 L.Ed. 249 (1948); Civil Rights Cases, supra, 109 U.S., at 22, 3 S.Ct., at 29, the 1870 Act was passed pursuant to the Fourteenth, and changes in wording may have reflected the language of the Fourteenth Amendment. See United States v. Wong Kim Ark, 169 U.S. 649, 695—696, 18 S.Ct. 456, 474 475, 42 L.Ed. 890 (1898). The 1866 Act was re-enacted in 1870, and the predecessor of the present § 1981 was to be 'enforced according to the provisions' of the 1866 Act. Act of May 31, 1870, § 18, 16 Stat. 144.
12
Respondent McIntyre urges that the judgment in his favor should be affirmed as to him because he was merely a director of Wheaton-Haven and was later defeated in his bid for re-election to its board, and because, in his deposition, he stated that he opposed the Association's exclusionary practices. Neither the District Court nor the Court of Appeals discussed Mr. McIntyre's individual liability, and we find it inappropriate to attempt resolution of this issue on the present record.
| 12
|
35 L.Ed.2d 412
93 S.Ct. 1080
410 U.S. 441
UNITED STATES, Petitioner,v.James A. BASYE et al.
No. 71—1022.
Argued Dec. 11, 1972.
Decided Feb. 27, 1973.
Rehearing Denied Apr. 16, 1973.
See 411 U.S. 940, 93 S.Ct. 1888.
Syllabus
A medical partnership (Permanente), in which respondent physicians were partners, made an agreement to supply medical services to members of a health foundation (Kaiser). A portion of Kaiser's compensation to Permanente was in the form of payments into a retirement trust for the benefit of Permanente's physicians, none of whom was eligible to receive the amounts in his tentative account prior to retirement after specified years of service. No interest in the account was deemed to vest in a particular beneficiary before retirement, and a physician's preretirement severance from Permanente would occasion the forfeiture of his interest, with redistribution to the remaining participants. Under no circumstances, however, could Kaiser recoup the payments once made. The Commissioner of Internal Revenue assessed a deficiency against each partner-respondent for his distributive share of the amount paid by Kaiser, which he had not reported as taxable income. In this refund suit the District Court, with the Court of Appeals affirming, held that the payments to the fund were not income to the partnership because it did not receive and had no 'right to receive' them. Held: The retirement fund payments notwithstanding the fact that they were contributed directly to the trust, were compensation for services that Permanente rendered under the medical-service agreement and should have been reported as income to Permanente; and the individual partners should have included their shares of that income in their individual returns, since the existence of conditions upon the actual receipt by a partner of income fully earned by the partnership is not a relevant factor in determining its taxability to him. Pp. 448—457.
9 Cir., 450 F.2d 109, reversed and remanded.
Solicitor General Erwin N. Griswold for petitioner.
Valentine Brookes, San Francisco, Cal., for respondents.
Mr. Justice POWELL delivered the opinion of the Court.
1
This is a partnership income tax case brought here by the United States on a petition for writ of certiorari from the Court of Appeals for the Ninth Circuit. Respondents, physicians and partners in a medical partnership, filed suit in the District Court for the Northern District of California seeking the refund of income taxes previously paid pursuant to a deficiency assessed by the Commissioner of Internal Revenue. The case was heard on an agreed statement of facts and the District Court ruled in respondents' favor. 295 F.Supp. 1289 (1968). The Government appealed to the Ninth Circuit and that court affirmed the lower court's judgment. 450 F.2d 109 (1971). We agreed to hear this case to consider whether, as the Government contends, the decision below is in conflict with precedents of this Court. 405 U.S. 1039, 92 S.Ct. 1315, 31 L.Ed.2d 579 (1972). Because we find that the decision is incompatible with basic principles of income taxation as developed in our prior cases, we reverse.
2
* Respondents, each of whom is a physician,1 are partners in a limited partnership known as Permanente Medical Group, which was organized in California in 1949. Associated with the partnership are over 200 partner physicians, as well as numerous nonpartner physicians and other employees. In 1959, Permanente entered into an agreement with Kaiser Foundation Health Plan, Inc., a nonprofit corporation providing prepaid medical care and hospital services to its dues-paying members.
3
Pursuant to the terms of the agreement, Permanente agreed to supply medical services for the 390,000 member-families, or about 900,000 individuals, in Kaiser's Northern California Region which covers primarily the San Francisco Bay area. In exchange for those services, Kaiser agreed to pay the partnership a 'base compensation' composed of two elements. First, Kaiser undertook to pay directly to the partnership a sum each month computed on the basis of the total number of members enrolled in the health program. That number was multiplied by a stated fee, which originally was set at a little over $2.60. The second item of compensation—and the one that has occasioned the present dispute called for the creation of a program, funded entirely by Kaiser, to pay retirement benefits to Permanente's partner and non-partner physicians.
4
The pertinent compensation provision of the agreement did not itself establish the details of the retirement program; it simply obligated Kaiser to make contributions to such a program in the event that the parties might thereafter agree to adopt one.2 As might be expected, a separate trust agreement establishing the contemplated plan soon was executed by Permanente, Kaiser, and the Bank of America Trust and Savings Association, acting as trustee. Under this agreement Kaiser agreed to make payments to the trust at a predetermined rate, initially pegged at 12 cents per health plan member per month. Additionally, Kaiser made a flat payment of $200,000 to start the fund and agreed that its pro rata payment obligation would be retroactive to the date of the signing of the medical service agreement.
5
The beneficiaries of the trust were all partner and nonpartner physicians who had completed at least two years of continuous service with the partnership and who elected to participate. The trust maintained a separate tentative account for each beneficiary. As periodic payments were received from Kaiser, the funds were allocated among these accounts pursuant to a complicated formula designed to take into consideration on a relative basis each participant's compensation level, length of service, and age. No physician was eligible to receive the amounts in his tentative account prior to retirement, and retirement established entitlement only if the participant had rendered at least 15 years of continuous service or 10 years of continuous service and had attained age 65. Prior to such time, however, the trust agreement explicitly provided that no interest in any tentative account was to be regarded as having vested in any particular beneficiary.3 The agreement also provided for the forfeiture of any physician's interest and its redistribution among the remaining participants if he were to terminate his relationship with Permanente prior to retirement.4 A similar forfeiture and redistribution also would occur if, after retirement, a physician were to render professional services for any hospital or health plan other than one operated by Kaiser. The trust agreement further stipulated that a retired physician's right to receive benefits would cease if he were to refuse any reasonable request to render consultative services to any Kaiser-operated health plan.
6
The agreement provided that the plan would continue irrespective either of changes in the partnership's personnel or of alterations in its organizational structure. The plan would survive any reorganization of the partnership so long as at least 50% of the plan's participants remained associated with the reorganized entity. In the event of dissolution or of a nonqualifying reorganization, all of the amounts in the trust were to be divided among the participants entitled thereto in amounts governed by each participant's tentative account. Under no circumstances, however, could payments from Kaiser to the trust be recouped by Kaiser: once compensation was paid into the trust it was thereafter committed exclusively to the benefit of Permanente's participating physicians.
7
Upon the retirement of any partner or eligible nonpartner physician, if he had satisfied each of the requirements for participation, the amount that had accumulated in his tentative account over the years would be applied to the purchase of a retirement income contract. While the program thus provided obvious benefits to Permanente's physicians, it also served Kaiser's interests. By providing attractive deferred benefits for Permanente's staff of professionals, the retirement plan was designed to 'create an incentive' for physicians to remain with Permanente and thus 'insure' that Kaiser would have a 'stable and reliable group of physicians.'5
8
During the years from the plan's inception until its discontinuance in 1963, Kaiser paid a total of more than $2,000,000 into the trust. Permanente, however, did not report these payments as income in its partnership returns. Nor did the individual partners include these payments in the computations of their distributive shares of the partnership's taxable income. The Commissioner assessed deficiencies against each partner-respondent for his distributive share of the amount paid by Kaiser. Respondents, after paying the assessments under protest, filed these consolidated suits for refund.
9
The Commissioner premised his assessment on the conclusion that Kaiser's payments to the trust constituted a form of compensation to the partnership for the services it rendered and therefore was income to the partnership. And, notwithstanding the deflection of those payments to the retirement trust and their current unavailability to the partners, the partners were still taxable on their distributive shares of that compensation. Both the District Court and the Court of Appeals disagreed. They held that the payments to the fund were not income to the pertnership because it did not receive them and never had a 'right to receive' them. 295 F.Supp., at 1292—1294; 450 F.2d, at 114—115. They reasoned that the partnership, as an entity, should be disregarded and that each partner should be treated simply as a potential beneficiary of his tentative share of the retirement fund.6 Viewed in this light, no presently taxable income could be attributed to these cash basis7 taxpayers because of the contingent and forfeitable nature of the fund allocations. 295 F.Supp., at 1294—1296; 450 F.2d, at 112.
10
We hold that the courts below erred and that respondents were properly taxable on the partnership's retirement fund income. This conclusion rests on two familiar principles of income taxation, first, that income is taxed to the party who earns it and that liability may not be avoided through an anticipatory assignment of that income, and, second, that partners are taxable on their distributive or proportionate shares of current partnership income irrespective of whether that income is actually distributed to them. The ensuing discussion is simply an application of those principles to the facts of the present case.
II
11
Section 703 of the Internal Revenue Code of 1954, insofar as pertinent here, prescribes that '(t)he taxable income of a partnership shall be computed in the same manner as in the case of an individual.' 26 U.S.C. § 703(a). Thus, while the partnership itself pays no taxes, 26 U.S.C. § 701, it must report the income it generates and such income must be calculated in largely the same manner as an individual computes his personal income. For this purpose, then, the partnership is regarded as an independently recognizable entity apart from the aggregate of its partners. Once its income is ascertained and reported, its existence may be disregarded since each partner must pay tax on a portion of the total income as if the partnership were merely an agent or conduit through which the income passed.8
12
In determining any partner's income, it is first necessary to compute the gross income of the partnership. One of the major sources of gross income, as defined in § 61(a)(1) of the Code, is '(c)ompensation for services, including fees, commissions, and similar items.' 26 U.S.C. § 61(a)(1). There can be no question that Kaiser's payments to the retirement trust were compensation for services rendered by the partnership under the medical service agreement. These payments constituted an integral part of the employment arrangement. The agreement itself called for two forms of 'base compensation' to be paid in exchange for services rendered—direct per-member, per-month payments to the partnership and other, similarly computed, payments to the trust. Nor was the receipt of these payments contingent upon any condition other than continuation of the contractual relationship and the performance of the prescribed medical services. Payments to the trust, much like the direct payments to the partnership, were not forfeitable by the partnership or recoverable by Kaiser upon the happening of any contingency.
13
Yet the courts below, focusing on the fact that the retirement fund payments were never actually received by the partnership but were contributed directly to the trust, found that the payments were not includable as income in the partnership's returns. The view of tax accountability upon which this conclusion rests is incompatible with a foundational rule, which this Court has described as 'the first principle of income taxation: that income must be taxed to him who earns it.' Commissioner of Internal Revenue v. Culbertson, 337 U.S. 733, 739—740, 69 S.Ct. 1210, 1213, 93 L.Ed. 1659 (1949). The entity earning the income whether a partnership or an individual taxpayer—cannot avoid taxation by entering into a contractual arrangement whereby that income is diverted to some other person or entity. Such arrangements, known to the tax law as 'anticipatory assignments of income,' have frequently been held ineffective as means of avoiding tax liability. The seminal precedent, written over 40 years ago, is Mr. Justice Holmes' opinion for a unanimous Court in Lucas v. Earl, 281 U.S. 111, 50 S.Ct. 241, 74 S.Ct. 731 (1930). There the taxpayer entered into a contract with his wife whereby she became entitled to one-half of any income he might earn in the future. On the belief that a taxpayer was accountable only for income actually received by him, the husband thereafter reported only half of his income. The Court, unwilling to accept that a reasonable construction of the tax laws permitted such easy deflection of income tax liability, held that the taxpayer was responsible for the entire amount of his income.
14
The basis for the Court's ruling is explicit and controls the case before us today:
15
'(T)his case is not to be decided by attenuated subtleties. It turns on the import and reasonable construction of the taxing act. There is no doubt that the statute could tax salaries to those who earned them and provide that the tax could not be escaped by anticipatory arrangements and contracts however skilfully devised to prevent the salary when paid from vesting even for a second in the man who earned it. That seems to us the import of the statute before us and we think that no distinction can be taken according to the motives leading to the arrangement by which the fruits are attributed to a different tree from that on which they grew.' Id., at 114—115, 50 S.Ct. at 241.
16
The principle of Lucas v. Earl, that he who earns income may not avoid taxation through anticipatory arrangements no matter how clever or subtle, has been repeatedly invoked by this Court and stands today as a cornerstone of our graduated income tax system. See, e.g., Commissioner of Internal Revenue v. Harmon, 323 U.S. 44, 65 S.Ct. 103, 89 L.Ed. 60 (1944); United States v. Joliet & Chicago R. Co., 315 U.S. 44, 62 S.Ct. 442, 86 L.Ed. 658 (1942); Helvering v. Eubank, 311 U.S. 122, 61 S.Ct. 149, 85 L.Ed. 81 (1940); Burnet v. Leininger, 285 U.S. 136, 52 S.Ct. 345, 76 L.Ed. 665 (1932). And, of course, that principle applies with equal force in assessing partnership income.
17
Permanente's agreement with Kaiser, whereby a portion of the partnership compensation was deflected to the retirement fund, is certainly within the ambit of Lucas v. Earl. The partnership earned the income and, as a result of arm's length bargaining with Kaiser,9 was responsible for its diversion into the trust fund. The Court of Appeals found the Lucas principle inapplicable because Permanente 'never had the right itself to receive the payments made into the trust as current income.' 420 F.2d at 114. In support of this assertion, the court relied on language in the agreed statement of facts stipulating that '(t)he payments . . . were paid solely to fund the retirement plan, and were not otherwise available to (Permanente) . . ..' Ibid. Emphasizing that the fund was created to serve Kaiser's interest in a stable source of qualified, experienced physicians,10 the court found that Permanente could not have received that income except in the form in which it was received.
18
The court's reasoning seems to be that, before the partnership could be found to have received income, there must be proof that 'Permanente agreed to accept less direct compensation from Kaiser in exchange for the retirement plan payments.' Id., at 114—115. Apart from the inherent difficulty of adducing such evidence, we know of no authority imposing this burden upon the Government. Nor do we believe that the guiding principle of Lucas v. Earl may be so easily circumvented. Kaiser's motives for making payments are irrelevant to the determination whether those amounts may fairly be viewed as compensation for services rendered.11 Neither does Kaiser's apparent insistence upon payment to the trust deprive the agreed contributions of their character as compensation. The Government need not prove that the taxpayer had complete and unrestricted power to designate the manner and form in which his income is received. We may assume, especially in view of the relatively unfavorable tax status of self-employed persons with respect to the tax treatment of retirement plans,12 that many partnerships would eagerly accept conditions similar to those prescribed by this trust in consideration for tax-deferral benefits of the sort suggested here. We think it clear, however, that the tax laws permit no such easy road to tax avoidance or deferment.13 Despite the novelty and ingenuity of this arrangement, Permanente's 'base compensation' in the form of payments to a retirement fund was income to the partnership and should have been reported as such.
III
19
Since the retirement fund payments should have been reported as income to the partnership, along with other income received from Kaiser, the individual partners should have included their shares of that income in their individual returns. 26 U.S.C. §§ 61(a)(13), 702, 704. For it is axiomatic that each partner must pay taxes on his distributive share of the partnership's income without regard to whether that amount is actually distributed to him. Heiner v. Mellon, 304 U.S. 271, 58 S.Ct. 926, 82 L.Ed. 1337 (1938), decided under a predecessor to the current partnership provisions of the Code,14 articulates the salient proposition. After concluding that 'distributive' share means the 'proportionate' share as determined by the partnership agreement, id., at 280, 58 S.Ct. at 931, the Court stated:
20
'The tax is thus imposed upon the partner's proportionate share of the net income of the partnership, and the fact that it may not be currently distributable, whether by agreement of the parties or by operation of law, is not material,' Id., at 281, 58 S.Ct., at 931.
21
Few principles of partnership taxation are more firmly established than that no matter the reason for nondistribution each partner must pay taxes on his distributive share. Treas.Reg. § 1.702—1, 26 CFR § 1.702—1 (1972).15 See, e.g., Hulbert v. Commissioner of Internal Revenue, 227 F.2d 399 (CA7 1955); Bell v. Commissioner of Internal Revenue, 219 F.2d 442 (CA5 1955); Stewart v. United States, 263 F.Supp. 451 (SDNY 1967); Freudmann v. Commissioner of Internal Revenue, 10 T.C. 775 (1948); S. Surrey & W. Warren, Federal Income Taxation 1115 (1960); 6 J. Mertens, Law of Federal Income Taxation §§ 35.01, 35.22 (1968); A. Willis, On Partnership Taxation § 5.01 (1971).
22
The courts below reasoned to the contrary, holding that the partners here were not properly taxable on the amounts contributed to the retirement fund. This view, apparently, was based on the assumption that each partner's distributive share prior to retirement was too contingent and unascertainable to constitute presently recognizable income. It is true that no partner knew with certainty exactly how much he would ultimately receive or whether he would in fact be entitled to receive anything. But the existence of conditions upon the actual receipt by a partner of income fully earned by the partnership is irrelevant in determining the amount of tax due from him. The fact that the courts below placed such emphasis on this factor suggests the basic misapprehension under which they labored in this case. Rather than being viewed as responsible contributors to the partnership's total income respondent-partners were seen only as contingent beneficiaries of the trust. In some measure, this misplaced focus on the considerations of uncertainty and forfeitability may be a consequence of the erroneous manner in which the Commissioner originally assessed the partners' deficiencies. The Commissioner divided Kaiser's trust fund payments into two categories: (1) payments earmarked for the tentative accounts of nonpartner physicians; and (2) those allotted to purtner physicians. The payments to the trust for the former category of nonpartner physicians were correctly counted as income to the partners in accord with the distributive-share formula as established in the partnership agreement.16 The latter payments to the tentative accounts of the individual partners, however, were improperly allocated to each partner pursuant to the complex formula in the retirement plan itself, just as if that agreement operated as an amendment to the partnership agreement. 295 F.Supp., at 1292.
23
The Solicitor General, alluding to this miscomputation during oral argument, suggested that this error 'may be what threw the court below off the track.'17 It should be clear that the contingent and unascertainable nature of each partner's share under the retirement trust is irrelevant to the computation of his distributive share. The partnership had received as income a definite sum which was not subject to diminution or forfeiture. Only its ultimate disposition among the employees and partners remained uncertain. For purposes of income tax computation it made no difference that some partners might have elected not to participate in the retirement program or that, for any number of reasons, they might not ultimately receive any of the trust's benefits. Indeed, as the Government suggests, the result would be quite the same if the 'potential beneficiaries included no partners at all, but were children, relatives, or other objects of the partnership's largesse.'18 The sole operative consideration is that the income had been received by the partnership, not what disposition might have been effected once the funds were received.
IV
24
In summary, we find this case controlled by familiar and long-settled principles of income and partnership taxation. There being no doubt about the character of the payments as compensation, or about their actual receipt, the partnership was obligated to report them as income presently received. Likewise, each partner was responsible for his distributive share of that income. We, therefore, reverse the judgment and remand the case with directions that judgment be entered for the United States.
25
It is so ordered.
26
Judgment reversed and case remanded with directions.
27
Mr. Justice DOUGLAS dissents.
1
Technically, the married respondents' spouses are also parties because they filed joint income tax returns for the years in question here. Any reference to respondents in this opinion, however, refers only to the partner-physicians.
2
The pertinent portion of the Kaiser-Permanente medical service contract states:
'Article H
'Base Compensation to Medical Group
'As base compensation to (Permanente) for Medical Services to be provided by (Permanente) hereunder, (Kaiser) shall pay to (Permanente) the amounts specified in this Article H.
'Section H—4. Provision for Savings and Retirement Program for Physicians.
'In the event that (Permanente) establishes a savings and retirement plan or other deferred compensation plan approved by (Kaiser), (Kaiser) will pay, in addition to all other sums payable by (Kaiser) under this Agreement, the contributions required under such plan to the extent that such contributions exceed amounts, if any, contributed by Physicians . . ..'
3
The trust agreement states:
'The tentative accounts and suspended tentative accounts provided for Participants hereunder are solely for the purpose of facilitating record keeping and necessary computations, and confer no rights in the trust fund upon the individuals for whom they are established. . . .'
4
If, however, termination were occasioned by death or permanent disability, the trust agreement provided for receipt of such amounts as had accumulated in that physician's tentative account. Additionally, if, after his termination for reasons of disability prior to retirement, a physician should reassociate with some affiliated medical group his rights as a participant would not be forfeited.
5
The agreed statement of facts filed by the parties in the District Court states:
'The primary purpose of the retirement plan was to create an incentive for physicians to remain with (Permanente) . . . and thus to insure (Kaiser) that it would have a stable and reliable group of physicians providing medical services to its members with a minimum of turn-over. . . .'
6
The Court of Appeals purported not to decide, as the District Court had, whether the partnership should be viewed as an 'entity' or as a 'conduit.' 450 F.2d 109, 113 n. 5, and 115. Yet, its analysis indicates that it found it proper to disregard the partnership as a separate entity. After explaining its view that Permanente never had a right to receive the payments, the Court of Appeals stated: 'When the transaction is viewed in this light, the partnership becomes a mere agent contracting on behalf of its members for payments to the trust for their ultimate benefit, rather than a principal which itself realizes taxable income.' Id., at 115 (emphasis supplied).
7
Each respondent reported his income for the years in question on the cash basis. The partnership reported its taxable receipts under the accrual method.
8
There has been a great deal of discussion in the briefs and in the lower court opinions with respect to whether a partnership is to be viewed as an 'entity' or as a 'conduit.' We find ourselves in agreement with the Solicitor General's remark during oral argument when he suggested that '(i)t seems odd that we should still be discussing such things in 1972.' Tr. of Oral Arg. 14. The legislative history indicates, and the commentators agree, that partnerships are entities for purposes of calculating and filing informational returns but that they are conduits through which the taxpaying obligation passes to the individual partners in accord with their distributive shares. See, e.g., H.R.Rep.No.1337, 83d Cong., 2d Sess., 65—66 (1954); S.Rep.No.1622, 83d Cong., 2d Sess., 89—90 (1954), U.S.Code Cong. & Admin.News 1954, p. 4017; 6 J. Mertens, Law of Federal Income Taxation § 35.01 (1968); S. Surrey & W. Warren, Federal Income Taxation 1115 1116 (1960); Jackson, Johnson, Surrey, Tenen & Warren, The Internal Revenue Code of 1954: Partnerships, 54 Col.L.Rev. 1183 (1954).
9
The agreed statement of facts states that the contracting parties were 'separate organizations independently contracting with one another at arms' length.'
10
See n. 5, supra.
11
Respondents do not contend that such payments were gifts or some other type of nontaxable contribution. See Commissioner of Internal Revenue v. LoBue, 351 U.S. 243, 76 S.Ct. 800, 100 L.Ed. 1142 (1956); Bingler v. Johnson, 394 U.S. 741, 89 S.Ct. 1439, 22 L.Ed.2d 695 (1969).
12
Disparities have long existed between the tax treatment of pension plans for corporate employees and the treatment of similar plans for the self-employed and for members of partnerships. S. Surrey & W. Warren, supra, n. 8, at 598—599. In 1962, Congress endeavored to ameliorate these differences by enacting corrective legislation, Pul.L. 87—792, 76 Stat. 809. While that legislation, commonly known as H.R.10 or the Jenkins-Keogh Bill, provided some relief, it fell far short of affording a parity of treatment for professionals and other self-employed individuals. Internal Revenue Code of 1954, § 404. For a detailed review of the intricate provisions of the applicable statute and for a close comparison of the present differences, see Grayck, Tax Qualified Retirement Plans for Professional Practitioners: A Comparison of the Self-Employed Individuals Tax Requirement Act of 1962 and the Professional Association, 63 Col.L.Rev. 415 (1963); Note, Federal Tax Policy and Retirement Benefits—A New Approach, 59 Geo.L.J. 1299 (1971); Note, Tax Parity for Self-Employed Retirement Plans, 58 Va.L.Rev. 338 (1972).
13
Respondents contend in this Court that this case is controlled by Commissioner of Internal Revenue v. First Security Bank of Utah, 405 U.S. 394, 92 S.Ct. 1085, 31 L.Ed.2d 318 (1972), decided last Term. We held there that the Commissioner could not properly allocate income to one of a controlled group of corporations under 26 U.S.C. § 482 where that corporation could not have received that income as a matter of law. The 'assignment-of-income doctrine' could have no application in that peculiar circumstance because the taxpayer had no legal right to receive the income in question. Id., at 403—404, 92 S.Ct. at 1091 1092. In essence, that case involved a deflection of income imposed by law, not an assignment arrived at by the consensual agreement of two parties acting at arm's length as we have in the present case. See, n. 5, supra.
14
Revenue Act of 1918, § 218(a), 40 Stat. 1070:
'There shall be included in computing the net income of each partner his distributive share, whether distributed or not, of the net income of the partnership for the taxable year . . ..'
Other predecessor statutes contained similar explicit indications that a partner's distributive share was to be computed without reference to actual distribution. See Income Tax Act of 1913 § II D, 38 Stat. 169 ('whether divided or otherwise'); Revenue Act of 1938, § 182, 52 Stat. 521 ('whether or not distribution is made to him'). Nothing in the legislative history suggests that any substantive change was intended by the deletion of this phrase from the 1954 Code revisions. See H.R.Rep.No.1337, 83d Cong., 2d Sess., 65 (1954); S.Rep.No.1622, 83d Cong., 2d Sess., 89 (1954).
15
The regulation states as follows:
'Each partner is required to take into account separately in his return his distributive share, whether or not distributed, of each class or item of partnership income . . ..'
16
These amounts would be divided equally among the partners pursuant to the partnership agreement's stipulation that all income above each partner's drawing account 'shall be distributed equally.'
17
Tr. of Oral Arg. 13—14. As the Solicitor General has also pointed out, the parties have, by stipulation in their agreed statement of facts, foreseen that recomputations might be necessary in light of the ultimate resolution of this controversy and have taken precautions to assure that any necessary reallocations may be handled expeditiously. Agreed Statement of Facts 24, App. 87—88.
18
Brief for United States 21. For this reason, the cases relied on by the Court of Appeals, 450 F.2d, at 113, which have held that payments made into deferred compensation programs having contingent and forfeitable features are not taxable until received, are inapposite. Schaefer v. Bowers, 50 F.2d 689 (C.A.2 1931); Perkins v. Commissioner, 8 T.C. 1051 (1947); Robertson v. Commissioner, 6 T.C. 1060 (1946). Indeed, the Government notes, possibly as a consequence of these cases, that the Commissioner has not sought to tax the nonpartner physicians on their contingent accounts under the retirement plan. Brief for United States 21.
| 1112
|
410 U.S. 458
93 S.Ct. 1066
35 L.Ed.2d 425
State of ILLINOIS, Petitioner,v.Donald SOMERVILLE.
No. 71—692.
Argued Nov. 13, 1972.
Decided Feb. 27, 1973.
Syllabus
Respondent was brought to trial under an indictment which, it developed before any evidence was presented, contained a defect that under Illinois law could not be cured by amendment and that on appeal could be asserted to overturn any judgment of conviction. The trial judge declared a mistrial over respondent's objection, following which respondent was reindicted, tried, and convicted. He thereafter petitioned for habeas corpus, which was ultimately granted on the ground that, jeopardy having attached when the jury was initially impaneled and sworn, the second trial constituted double jeopardy. Held: Under the circumstances of this case, the trial judge's action in declaring a mistrial was a rational determination designed to implement a legitimate state policy, with no suggestion that the policy was manipulated to respondent's prejudice. The declaration of a mistrial was therefore required by 'manifest necessity' and the 'ends of public justice,' and the Double Jeopardy Clause of the Fifth Amendment as made applicable to the States by the Fourteenth did not bar respondent's retrial. Pp. 461—471.
447 F.2d 733, reversed.
Edward J. Gildea, Chicago, Ill., for petitioner.
Ronald P. Alwin, Chicago, Ill., for respondent.
Mr. Justice REHNQUIST delivered the opinion of the Court.
1
We must here decide whether declaration of a mistrial over the defendant's objection, because the trial court concluded that the indictment was insufficient to charge a crime, necessarily prevents a State from subsequently trying the defendant under a valid indictment. We hold that the mistrial met the 'manifest necessity' requirement of our cases, since the trial court could reasonably have concluded that the 'ends of public justice' would be defeated by having allowed the trial to continue. Therefore, the Double Jeopardy Clause of the Fifth Amendment, made applicable to the States through the Due Process Clause of the Fourteenth Amendment, Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), did not bar retrial under a valid indictment.
2
* On March 19, 1964, respondent was indicted by an Illinois grand jury for the crime of theft. The case was called for trial and a jury impaneled and sworn on November 1, 1965. The following day, before any evidence had been presented, the prosecuting attorney realized that the indictment was fatally deficient under Illinois law because it did not allege that respondent intended to permanently deprive the owner of his property. Under the applicable Illinois criminal statute, such intent is a necessary element of the crime of theft,1 and failure to allege intent renders the indictment insufficient to charge a crime. But under the Illinois Constitution at that time,2 an indictment was the sole means by which a criminal proceeding such as this may be commenced against a defendant. Illinois further provides that only formal defects, of which this was not one, may be cured by amendment. The combined operation of these rules of Illinois procedure and substantive law meant that the defect in the indictment was 'jurisdictional'; it could not be waived by the defendant's failure to object, and could be asserted on appeal or in a post-conviction proceeding to overturn a final judgment of conviction.
3
Faced with this situation, the Illinois trial court concluded that further proceedings under this defective indictment would be useless and granted the State's motion for a mistrial. On November 3, the grand jury handed down a second indictment alleging the requisite intent. Respondent was arraigned two weeks after the first trial was aborted, raised a claim of double jeopardy which was over-ruled, and the second trial commenced shortly thereafter. The jury returned a verdict of guilty, sentence was imposed, and the Illinois courts upheld the conviction. Respondent then sought federal habeas corpus, alleging that the conviction constituted double jeopardy contrary to the prohibition of the Fifth and Fourteenth Amendments. The Seventh Circuit affirmed the denial of habeas corpus prior to our decision in United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971). The respondent's petition for certiorari was granted, and the case remanded for reconsideration in light of Jorn and Downum v. United States, 372 U.S. 734, 83 S.Ct. 1033, 10 L.Ed.2d 100 (1963). On remand, the Seventh Circuit held that respondent's petition for habeas corpus should have been granted because, although he had not been tried and acquitted as in United States v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300 (1896), and Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), jeopardy had attached when the jury was impaneled and sworn, and a declaration of mistrial over respondent's objection precluded a retrial under a valid indictment. 447 F.2d 733 (1971). For the reasons stated below, we reverse that judgment.
II
4
The fountainhead decision construing the Double Jeopardy Clause in the context of a declaration of a mistrial over a defendant's objection is United States v. Perez, 9 Wheat. 579 (1824). Mr. Justice Story, writing for a unanimous Court, set forth the standards for determining whether a retrial, following a declaration of a mistrial over a defendant's objection, constitutes double jeopardy within the meaning of the Fifth Amendment. In holding that the failure of the jury to agree on a verdict of either acquittal or conviction did not bar retrial of the defendant, Mr. Justice Story wrote:
5
'We think, that in all cases of this nature, the law has invested Courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. They are to exercise a sound discretion on the subject; and it is impossible to define all the circumstances, which would render it proper to interfere. To be sure, the power ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes; and, in capital cases especially, Courts should be extremely careful how they interfere with any of the chances of life, in favour of the prisoner. But, after all, they have the right to order the discharge; and the security which the public have for the faithful, sound, and conscientious exercise of this discretion, rests, in this, as in other cases, upon the responsibility of the Judges, under their oaths of office.' Id., at 580.
6
This formulation, consistently adhered to by this Court in subsequent decisions, abjures the application of any mechanical formula by which to judge the propriety of declaring a mistrial in the varying and often unique situations arising during the course of a criminal trial. The broad discretion reserved to the trial judge in such circumstances has been consistently reiterated in decisions of this Court. In Wade v. Hunter, 336 U.S. 684, 69 S.Ct. 834, 93 L.Ed. 974 (1949), the Court, in reaffirming this flexible standard, wrote:
7
'We are asked to adopt the Cornero (v. United States, 48 F.2d 69) rule under which petitioner contends the absence of witnesses can never justify discontinuance of a trial. Such a rigid formula is inconsistent with the guilding principles of the Perez decision to which we adhere. Those principles command courts in considering whether a trial should be terminated without judgment to take 'all circumstances into account' and thereby forbid the mechanical application of an abstract formula. The value of the Perez principles thus lies in their capacity for informed application under widely different circumstances, without injury to defendants or to the public interest.' Id., at 691, 69 S.Ct., at 838.
8
Similarly, in Gori v. United States, 367 U.S. 364, 81 S.Ct. 1523, 6 L.Ed.2d 901 (1961), the Court again underscored the breadth of a trial judge's discretion, and the reasons therefor, to declare a mistrial.
9
'Where, for reasons deemed compelling by the trial judge, who is best situated intelligently to make such a decision, the ends of substantial justice cannot be attained without discontinuing the trial, a mistrial may be declared without the defendant's consent and even over his objection, and he may be retried consistently with the Fifth Amendment.' Id., at 368, 81 S.Ct., at 1526.
10
In reviewing the propriety of the trial judge's exercise of his discretion, this Court, following the counsel of Mr. Justice Story, has scrutinized the action to determine whether, in the context of that particular trial, the declaration of a mistrial was dictated by 'manifest necessity' or the 'ends of public justice.' The interests of the public in seeing that a criminal prosecution proceed to verdict, either of acquittal or conviction, need not be forsaken by the formulation or application of rigid rules that necessarily preclude the vindication of that interest. This consideration, whether termed the 'ends of public justice,' United States v. Perez, supra, at 580 of 22 U.S. or, more precisely, 'the public's interest in fair trials designed to end in just judgments,' Wade v. Hunter, supra, at 689 of 336 U.S., at 837 of 69 S.Ct. has not been disregarded by this Court.
11
In United States v. Perez, supra, and Logan v. United States, 144 U.S. 263, 12 S.Ct. 617, 36 L.Ed. 429 (1892), this Court held that 'manifest necessity' justified the discharge of juries unable to reach verdicts, and, therefore, the Double Jeopardy Clause did not bar retrial. Cf. Keerl v. Montana, 213 U.S. 135, 29 S.Ct. 469, 53 L.Ed. 734 (1909); Dreyer v. Illinois, 187 U.S. 71, 23 S.Ct. 28, 47 L.Ed. 79 (1902). In Simmons v. United States, 142 U.S. 148, 12 S.Ct. 171, 35 L.Ed. 968 (1891), a trial judge dismissed the jury, over defendant's objection, because one of the jurors had been acquainted with the defendant, and, therefore, was probably prejudiced against the Government; this Court held that the trial judge properly exercised his power 'to prevent the defeat of the ends of public justice.' Id., at 154, 12 S.Ct., at 172. In Thompson v. United States, 155 U.S. 271, 15 S.Ct. 73, 39 L.Ed. 146 (1894), a mistrial was declared after the trial judge learned that one of the jurors was disqualified, he having been a member of the grand jury that indicted the defendant. Similarly, in Lovato v. New Mexico, 242 U.S. 199, 37 S.Ct. 107, 61 L.Ed. 244 (1916), the defendant demurred to the indictment, his demurrer was overruled, and a jury sworn. The district attorney, realizing that the defendant had not pleaded to the indictment after the demurrer had been overruled, moved for the discharge of the jury and arraignment of the defendant for pleading; the jury was discharged, the defendant pleaded not guilty, the same jury was again impaneled, and a verdict of guilty rendered. In both of those cases this Court held that the Double Jeopardy Clause did not bar reprosecution.
12
While virtually all of the cases turn on the particular facts and thus escape meaningful categorization, see Gori v. United States, supra; Wade v. Hunter, supra, it is possible to distill from them a general approach, premised on the 'public justice' policy enunciated in United States v. Perez, to situations such as that presented by this case. A trial judge properly exercises his discretion to declare a mistrial if an impartial verdict cannot be reached, or if a verdict of conviction could be reached but would have to be reversed on appeal due to an obvious procedural error in the trial. If an error would make reversal on appeal a certainty, it would not serve 'the ends of public justice' to require that the Government proceed with its proof when, if it succeeded before the jury, it would automatically be stripped of that success by an appellate court. This was substantially the situation in both Thompson v. United States, supra, and Lovato v. New Mexico, supra. While the declaration of a mistrial on the basis of a rule or a defective procedure that would lend itself to prosecutorial manipulation would involve an entirely different question, cf. Downum v. United States, supra, such was not the situation in the above cases or in the instant case.
13
In Downum v. United States, the defendant was charged with six counts of mail theft, and forging and uttering stolen checks. A jury was selected and sworn in the morning, and instructed to return that afternoon. When the jury returned, the Government moved for the discharge of the jury on the ground that a key prosecution witness, for two of the six counts against defendant, was not present. The prosecution knew, prior to the selection and swearing of the jury, that this witness could not be found and had not been served with a subpoena. The trial judge discharged the jury over the defendant's motions to dismiss two courts for failure to prosecute and to continue the other four. This Court, in reversing the convictions on the ground of double jeopardy, emphasized that '(e)ach case must turn on its facts,' 372 U.S., at 737, 83 S.Ct., at 1035 and held that the second prosecution constituted double jeopardy, because the absence of the witness and the reason therefor did not there justify, in terms of 'manifest necessity,' the declaration of a mistrial.
14
In United States v. Jorn, supra, the Government called a taxpayer witness in a prosecution for willfully assisting in the preparation of fraudulent income tax returns. Prior to his testimony, defense counsel suggested he be warned of his constitutional right against compulsory self-incrimination. The trial judge warned him of his rights, and the witness stated that he was willing to testify and that the Internal Revenue Service agent who first contacted him warned him of his rights. The trial judge, however, did not believe the witness' declaration that the IRS had so warned him, and refused to allow him to testify until after he had consulted with an attorney. After learning from the Government that the remaining four witnesses were 'similarly situated,' and after surmising that they, too, had not been properly informed of their rights, the trial judge declared a mistrial to give the witnesses the opportunity to consult with attorneys. In sustaining a plea in bar of double jeopardy to an attempted second trial of the defendant, the plurality opinion of the Court, emphasizing the importance to the defendant of proceeding before the first jury sworn, concluded:
15
'It is apparent from the record that no consideration was given to the possibility of a trial continuance; indeed, the trial judge acted so abruptly in discharging the jury that, had the prosecutor been disposed to suggest a continuance, or the defendant to object to the discharge of the jury, there would have been no opportunity to do so. When one examines the circumstances surrounding the discharge of this jury, it seems abundantly apparent that the trial judge made no effort to exercise a sound discretion to assure that, taking all the circumstances into account, there was a manifest necessity for the sua sponte declaration of this mistrial. United States v. Perez, 9 Wheat., at 580. Therefore, we must conclude that in the circumstances of this case, appellee's reprosecution would violate the double jeopardy provision of the Fifth Amendment.' 400 U.S., at 487, 91 S.Ct., at 558.
III
16
Respondent advances two arguments to support the conclusion that the Double Jeopardy Clause precluded the second trial in the instant case. The first is that since United States v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300 (1896), held that jeopardy obtained even though the indictment upon which the defendant was first acquitted had been defective, and since Downum v. United States, supra, held that jeopardy 'attaches' when a jury has been selected and sworn, the Double Jeopardy Clause precluded the State from instituting the second proceeding that resulted in respondent's conviction. Alternatively, respondent argues that our decision in United States v. Jorn, supra, which respondent interprets as narrowly limiting the circumstances in which a mistrial is manifestly necessary, requires affirmance. Emphasizing the "valued right to have his trial completed by a particular tribunal," United States v. Jorn, supra, at 484 of 400 U.S., at 557 of 91 S.Ct., quoting Wade v. Hunter, 336 U.S., at 689, 69 S.Ct., at 837, respondent contends that the circumstances did not justify depriving him of that right.
17
Respondent's first contention is precisely the type of rigid, mechanical rule which the Court had eschewed since the seminal decision in Perez. The major premise of the syllogism—that trial on a defective indictment precludes retrial—is not applicable to the instant case because it overlooks a crucial element of the Court's reasoning in United States v. Ball, supra. There, three men were indicted and tried for murder; two were convicted by a jury and one acquitted. This Court reversed the convictions on the ground that the indictment was fatally deficient in failing to allege that the victim died within a year and a day of the assault. Ball v. United States, 140 U.S. 118, 11 S.Ct. 761, 35 L.Ed. 377 (1891). A proper indictment was returned and the Government retried all three of the original defendants; that trial resulted in the conviction of all. This Court reversed the conviction of the one defendant who originally had been acquitted, sustaining his plea of double jeopardy. But the Court was obviously and properly influenced by the fact that the first trial had proceeded to verdict. This focus of the Court is reflected in the opinion:
18
'(W)e are unable to resist the conclusion that a general verdict of acquittal upon the issue of not guilty to an indictment undertaking to charge murder, and not objected to before the verdict as insufficient in that respect, is a bar to a second indictment for the same killing.
19
'. . . (T)he accused, whether convicted or acquitted, is equally put in jeopardy at the first trial. . . .' 163 U.S., at 669, 16 S.Ct., at 1194 (emphasis added).
20
In Downum, the Court held, as respondent argues, that jeopardy 'attached' when the first jury was selected and sworn. But in cases in which a mistrial has been declared prior to verdict, the conclusion that jeopardy has attached begins, rather than ends, the inquiry as to whether the Double Jeopardy Clause bars retrial. That, indeed, was precisely the rationale of Perez and subsequent cases. Only if jeopardy has attached is a court called upon to determine whether the declaration of a mistrial was required by 'manifest necessity' or the 'ends of public justice.'
21
We believe that in light of the State's established rules of criminal procedure, the trial judge's declaration of a mistrial was not an abuse of discretion. Since this Court's decision in Benton v. Maryland, supra, federal courts will be confronted with such claims that arise in large measure from the often diverse procedural rules existing in the 50 States. Federal courts should not be quick to conclude that simply because a state procedure does not conform to the corresponding federal statute or rule, it does not serve a legitimate state policy. Last Term, recognizing this fact, we dismissed a writ of certiorari as improvidently granted in a case involving a claim of double jeopardy stemming from the dismissal of an indictment under the 'rules of criminal pleading peculiar to' an individual State followed by a retrial under a proper indictment. Duncan v. Tennessee, 405 U.S. 127, 92 S.Ct. 785, 31 L.Ed.2d 86 (1972).
22
In the instant case, the trial judge terminated the proceeding because a defect was found to exist in the indictment that was, as a matter of Illinois law, not curable by amendment. The Illinois courts have held that even after a judgment of conviction has become final, the defendant may be released on habeas corpus, because the defect in the indictment deprives the trial court of 'jurisdiction.' The rule prohibiting the amendment of all but formal defects in indictments is designed to implement the State's policy of preserving the right of each defendant to insist that a criminal prosecution against him be commenced by the action of a grand jury. The trial judge was faced with a situation similar to those in Simmons, Lovato, and Thompson, in which a procedural defect might or would preclude the public from either obtaining an impartial verdict or keeping a verdict of conviction if its evidence persuaded the jury. If a mistrial were constitutionally unavailable in situations such as this, the State's policy could only be implemented by conducting a second trial after verdict and reversal on appeal, thus wasting time, energy, and money for all concerned. Here, the trial judge's action was a rational determination designed to implement a legitimate state policy, with no suggestion that the implementation of that policy in this manner could be manipulated so as to prejudice the defendant. This situation is thus unlike Downum, where the mistrial entailed not only a delay for the defendant, but also operated as a post-jeopardy continuance to allow the prosecution an opportunity to strengthen its case. Here, the delay was minimal, and the mistrial was, under Illinois law, the only why in which a defect in the indictment could be corrected. Given the established standard of discretion set forth in Perez, Gori, and Hunter, we cannot say that the declaration of a mistrial was not required by 'manifest necessity' or the 'ends of public justice.'
23
Our decision in Jorn, relied upon by the court below and respondent, does not support the opposite conclusion. While it is possible to excise various portions of the plurality opinion to support the result reached below, divorcing the language from the facts of the case serves only to distort its holdings. That opinion dealt with action by a trial judge that can fairly be described as erratic. The Court held that the lack of apparent harm to the defendant from the declaration of a mistrial did not itself justify the mistrial, and concluded that there was no 'manifest necessity' for the mistrial, as opposed to loss drastic alternatives. The Court emphasized that the absence of any manifest need for the mistrial had deprived the defendant of his right to proceed before the first jury, but it did not hold that that right may never be forced to yield, as in this case, to 'the public's interest in fair trials designed to end in just judgments.' The Court's opinion in Jorn is replete with approving references to Wade v. Hunter, supra, which latter case stated:
24
'The double-jeopardy provision of the Fifth Amendment, however, does not mean that every time a defendant is put to trial before a competent tribunal he is entitled to go free if the trial fails to end in a final judgment. Such a rule would create an insuperable obstacle to the administration of justice in many cases in which there is no semblance of the type of oppressive practices at which the double-jeopardy prohibition is aimed. There may be unforeseeable circumstances that arise during a trial making its completion impossible, such as the failure of a jury to agree on a verdict. In such event the purpose of law to protect society from those guilty of crimes frequently would be frustrated by denying courts power to put the defendant to trial again. And there have been instances where a trial judge has discovered facts during a trial which indicated that one or more members of the jury might be biased against the Government or the defendant. It is settled that the duty of the judge in this event is to discharge the jury and direct a retrial. What has been said is enough to show that a defendant's valued right to have his trial completed by a particular tribunal must in some instances be subordinated to the public's interest in fair trials designed to end in just judgments.' Wade v. Hunter, 336 U.S., at 688—689, 69 S.Ct., at 836—837 (footnote omitted; emphasis added).
25
The determination by the trial court to abort a criminal proceeding where jeopardy has attached is not one to be lightly undertaken, since the interest of the defendant in having his fate determined by the jury first impaneled is itself a weighty one. United States v. Jorn, supra. Nor will the lack of demonstrable additional prejudice preclude the defendant's invocation of the double jeopardy bar in the absence of some important countervailing interest of proper judicial administration. Ibid. But where the declaration of a mistrial implements a reasonable state policy and aborts a proceeding that at best would have produced a verdict that could have been upset at will by one of the parties, the defendant's interest in proceeding to verdict is outweighed by the competing and equally legitimate demand for public justice. Wade v. Hunter, supra.
26
Reversed.
27
Mr. Justice WHITE, with whom Mr. Justice DOUGLAS and Mr. Justice BRENNAN join, dissenting.
28
For the purposes of the Double Jeopardy Clause, jeopardy attaches when a criminal trial commences before judge or jury, United States v. Jorn, 400 U.S. 470, 479—480, 91 S.Ct. 547, 554, 27 L.Ed.2d 543 (1971); Green v. United States, 355 U.S. 184, 188, 78 S.Ct. 221, 223, 2 L.Ed.2d 199 (1957); Wade v. Hunter, 336 U.S. 684, 688, 69 S.Ct. 834, 836, 93 L.Ed. 974 (1949), and this point has arrived when a jury has been selected and sworn, even though no evidence has been taken. Downum v. United States, 372 U.S. 734, 83 S.Ct. 1033, 10 L.Ed.2d 100 (1963). Clearly, Somerville was placed in jeopardy at his first trial despite the fact that the indictment against him was defective under Illinois law. Benton v. Maryland, 395 U.S. 784, 796—797, 89 S.Ct. 2056, 2063—2064, 23 L.Ed.2d 707 (1969); United States v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300 (1896). The question remains, however, whether the facts of this case present one of those circumstances where a trial, once begun, may be aborted over the defendant's objection and the defendant retried without twice being placed in jeopardy contrary to the Constitution.
29
The Court has frequently addressed itself to the general problem of mistrials and the Double Jeopardy Clause, most recently in United States v. Jorn, supra. We have abjured mechanical, per se rules and have preferred to rely upon the approach first announced in United States v. Perez, 9 Wheat. 579 (1824). Under the Perez analysis, a trial court has authority to discharge a jury prior to verdict, and the Double Jeopardy Clause will not prevent retrial, only if the trial court takes 'all the circumstances into consideration' and in its 'sound discretion' determines that 'there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated.' Id., at 580. See also United States v. Jorn, supra, at 480—481, 91 S.Ct. 547, 554, 555 (opinion of Harlan, J.); id., at 492, 91 S.Ct., at 560 (Stewart, J., dissenting); Gori v. United States, 367 U.S. 364, 367—369, 81 S.Ct. 1523, 1525—1526, 6 L.Ed.2d 901 (1961); id., at 370—373, 81 S.Ct., at 1527—1528 (Douglas, J., dissenting); Downum v. United States, supra, at 735—736, 83 S.Ct., at 1033—1034; id., at 740, 83 S.Ct., at 1036 (Clark, J., dissenting). Despite the generality of the Perez standard, some guidelines have evolved from past cases, as this Court has reviewed the exercise of trial court discretion in a variety of circumstances.
30
United States v. Jorn, supra, and Downum v. United States, supra, for example, make it abundantly clear that trial courts should have constantly in mind the purposes of the Double Jeopardy Clause to protect the defendant from continued exposure to embarrassment, anxiety, expense, and restrictions on his liberty, as well as to preserve his "valued right to have his trial completed by a particular tribunal." United States v. Jorn, supra, at 484, 91 S.Ct., at 557, quoting from Wade v. Hunter, 336 U.S., at 689, 69 S.Ct., at 837.
31
'(I)n the final analysis, the judge must always temper the decision whether or not to abort the trial by considering the importance to the defendant of being able, once and for all, to conclude his confrontation with society through the verdict of a tribunal he might believe to be favorably disposed to his fate.' United States v. Jorn, supra, at 486, 91 S.Ct., at 558.
32
It was in light of this interest that the Court in Downum reversed a conviction on double jeopardy grounds where a mistrial was declared to permit further efforts to secure the attendance of a key prosecution witness who should have been, but was not, subpoenaed. Although no prosecutorial misconduct other than mere oversight and mistake was claimed or proved, the policies of the Double Jeopardy Clause, and the interest of the defendant in taking his case to the jury that he had just accepted, were sufficient to raise the double jeopardy barrier to a second trial.
33
Similarly, in Jorn, a trial was terminated when the trial judge, sua sponte and mistakenly, declared a mistrial, apparently to protect nonparty witnesses from the possibility of self-incrimination. There was no showing of intent by the prosecutor or the judge to harass the defendant or to enhance chances of conviction at a second trial; the defendant was given a complete preview of the Government's case, and no specific prejudice to the defense at a second trial was shown. Noting that the courts 'must bear in mind the potential risks of abuse by the defendant of society's unwillingness to unnecessarily subject him to repeated prosecution,' 400 U.S., at 486, 91 S.Ct., at 558, this Court held that the defendant's interest in submitting his case to the initial jury was itself sufficient to invoke the Double Jeopardy Clause and, as in Downum, to override the Government's concern with enforcing the criminal laws by having another chance to try the defendant for the crime with which he was charged. In neither case was there 'manifest necessity' for a mistrial and a double trial of the defendant.
34
Very similar considerations govern this case. Somerville asserts a right to but one trial and to a verdict by the initial jury. A mistrial was directed at the instance of the State, over Somerville's objection, and was occasioned by official error in drafting the indictment—error unaccompanied by bad faith, overreaching, or specific prejudice to the defense at a later trial. The State may no more try the defendant a second time in these circumstances than could the United States in Downum and Jorn. Although the exact extent of the emotional and physical harm suffered by Somerville during the period between his first and second trial is open to debate, it cannot be gainsaid that Somerville lost 'his option to go to the first jury and, perhaps, end the dispute then and there with an acquittal.' United States v. Jorn, 400 U.S., at 484, 91 S.Ct., at 557. Downum and Jorn, over serious dissent, rejected the view that the Double Jeopardy Clause protects only against those mistrials that lend themselves to prosecutorial manipulation and underwrote the independent right of a defendant in a criminal case to have the verdict of the initial jury. Both cases made it quite clear that the discretion of the trial court to declare mistrials is reviewable and that the defendant's right to a verdict by his first jury is not to be overridden except for 'manifest necessity.' There was not, in this case any more than in Downum and Jorn, 'manifest necessity' for the loss of that right.
35
The majority recognizes that 'the interest of the defendant in having his fate determined by the jury first impaneled is itself a weighty one,' but finds that interest outweighed by the State's desire to avoid 'conducting a second trial after verdict and reversal on appeal (on the basis of a defective indictment), thus wasting time, energy, and money for all concerned.' The majority finds paramount the interest of the State in 'keeping a verdict of conviction if its evidence persuaded the jury.' Such analysis, however, completely ignores the possibility that the defendant might be acquitted by the initial jury. It is, after all, that possibility—the chance to 'end the dispute then and there with an acquittal,' United States v. Jorn, supra, at 484, 91 S.Ct., at 557—that makes the right to a trial before a particular tribunal of importance to a defendant. In addition, the majority's balancing gives too little weight to the fundamental place of the Double Jeopardy Clause, and the purposes which it seeks to serve, in 'the framework of procedural protections which the Constitution establishes for the conduct of a criminal trial.' Id., at 479 of 400 U.S., at 554 of 91 S.Ct.
36
Apparently the majority finds 'manifest necessity' for a mistrial and the retrial of the defendant in 'the State's policy of preserving the right of each defendant to insist that a criminal prosecution against him be commenced by the action of a ground jury' and the implementation of that policy in the absence from Illinois procedural rules of any procedure for the amendment of indictments. Conceding the reasonableness of such a policy, it must be remembered that the inability to amend an indictment does not come into play, and a mistrial is not necessitated, unless an error on the part of the State in the framing of the indictment is committed. Only when the indictment is defective—only when the State has failed to properly execute its responsibility to frame a proper indictment—does the State's procedural framework necessitate a mistrial.
37
Although recognizing that 'a criminal trial is, even in the best of circumstances, a complicated affair to manage,' ibid., the Court has not previously thought prosecutorial error sufficient excuse for not applying the Double Jeopardy Clause. In Jorn, for instance, the Court declared that 'unquestionably an important factor to be considered is the need to hold litigants on both sides to standards of responsible professional conduct in the clash of an adversary criminal process,' id., at 485—486, 91 S.Ct., at 557, and cautioned. 'The trial judge must recognize that lack of preparedness by the Government . . . directly implicates policies underpinning both the double jeopardy provision and the speedy trial guarantee.' Id., at 486, 91 S.Ct., at 557. See also id., at 487—488, 91 S.Ct., at 558 (Burger, C.J., concurring); Downum v. United States, 372 U.S., at 737, 83 S.Ct., at 1035. Here, the prosecutorial error, not the independent operation of a state procedural rule, necessitated the mistrial. Judged by the standards of Downum and Jorn I cannot find, in the words of the majority, an 'important countervailing interest of proper judicial administration' in this case; I cannot find 'manifest necessity' for a mistrial to compensate for prosecutorial mistake.
38
Finally, the majority notes that 'the declaration of a mistrial on the basis of a rule or a defective procedure that would lend itself to prosecutorial manipulation would involve an entirely different question.' See United States v. Jorn, 400 U.S., at 479, 91 S.Ct., at 554; Downum v. United States, supra; Green v. United States, 355 U.S., at 187—188, 78 S.Ct., at 223. Surely there is no evidence of bad faith or overreaching on this record. However, the words of the Court in Ball seem particularly appropriate.
39
'This case, in short, presents the novel and unheard-of-spectacle, of a public officer, whose business it was to frame a correct bill, openly alleging his own inaccuracy or neglect, as a reason for a second trial, when it is not pretended that the merits were not fairly in issue on the first. . . . If this practice be tolerated, when are trials of the accused to end? If a conviction take place, whether an indictment be good, or otherwise, it is ten to one that judgment passes; for, if he read the bill, it is not probable he will have penetration enough to discern its defects. His counsel, if any be assigned to him, will be content with hearing the substance of the charge, without looking further; and the court will hardly, of its own accord, think it a duty to examine the indictment to detect errors in it. Many hundreds, perhaps, are now in the state prison on erroneous indictments, who, however, have been fairly tried on the merits.' 163 U.S., at 667—668, 16 S.Ct., at 1194. I respectfully dissent.
40
Mr. Justice MARSHALL, dissenting.
41
The opinion of the Court explicitly disclaims the suggestion that it overrules the recent cases of United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971), and Downum v. United States, 372 U.S. 734, 83 S.Ct. 1033, 10 L.Ed.2d 100 (1963). Ante, at 1073. But the Court substantially eviscerates the rationale of those cases. Jorn and Downum appeared to give judges some guidance in determining what constituted a 'manifest necessity' for declaring a mistrial over a defendant's objection. Today the Court seems to revert to a totally unstructured analysis of such cases. I believe that one of the strengths of the articulation of legal rules in a series of cases is that successive cases present in a clearer focus considerations only vaguely seen earlier. Cases help delineate the factors to be considered and suggest how they ought to affect the result in particular situations. That is what Jorn and Downum did. The Court, it seems to me, today abandons the effort in those cases to suggest the importance of particular factors, and adopts a general 'balancing' test which, even on its own terms, the Court improperly applies to this case.
42
The majority purports to balance the manifest necessity for declaring a mistrial, ante, at 463, the public interest 'in seeing that a criminal prosecution proceed to verdict,' ante, at ibid., and the interest in assuring impartial verdicts, ante, at 464. The second interest is obviously present in every case, and placing it in the balance cannot alter the result of the analysis of different cases. It is, at most, a constant whose importance a judge must consider when weighing other factors on which the availability of the double jeopardy defense depends.
43
At the same time, the balance that the majority strikes essentially ignores the importance of a factor which was determinative in Jorn and Downum: the accused's interest in his 'valued right to have his trial completed by a particular tribunal,' Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 837, 93 L.Ed. 974 (1949), quoted in United States v. Jorn, 400 U.S., at 484, 91 S.Ct., at 556. This is not a factor which is excised from isolated passages of Jorn, as the majority would have it, ante, at 469; it is the core of that case, as even the most cursory reading will disclose. See, e.g., 400 U.S., at 479, 484—486, 91 S.Ct., at 554, 556—557.
44
By mischaracterizing Jorn and Downum, the Court finds it possible to reach today's result. A fair reading of those cases shows how the balance should properly be struck here. The first element to be considered is the necessity for declaring a mistrial. That I take to mean consideration of the alternatives available to the judge confronted with a situation in the midst of trial that seems to require correction. In Downum, for example, a key prosecution witness was not available when the case was called for trial, because of the prosecutor's negligence. Because the witness was essential to presentation of only two of the six counts concerning Downum, there was no necessity to declare a mistrial as to all six. Trial could have proceeded on the four counts for which the prosecution was ready. Downum v. United States, 372 U.S., at 737, 83 S.Ct., at 1035. Similarly, in Jorn, the District Judge precipitately aborted the trial in order to protect the rights of prospective witnesses. Again, the alternative of interrupting the trial briefly so that the witnesses might consult with attorneys was available but not invoked. United States v. Jorn, 400 U.S., at 487, 91 S.Ct., at 558.
45
A superficial examination of this case might suggest that there were no alternatives except to proceed where 'reversal on appeal (would be) a certainly' ante, at 464. Respondent had been indicted for 'knowingly obtain(ing) unauthorized control over stolen property, to wit: thirteen hundred dollars in United States Currency, the property of Zayre of Birdgeview, Inc., a corporation, knowing the same to have been stolen by another in violation of Chapter 38, Section 16—1(d) of the Illinois Revised Statutes.' Petition for Writ of Certiorari 3. The statute named in the indictment requires that the defendant have '(i)ntend(ed) to deprive the owner permanently of the use or benefit of the property.' Ill.Rev.Stat., c. 38, § 16—1(d)(1) (1963).
46
The majority treats it as unquestionably clear that the failure to allege that intent in the indictment made the indictment fatally defective. And, indeed, since the time of the trial of this case, Illinois courts have so held. See, e.g., People v. Matthews, 122 Ill.App.2d 264, 258 N.E.2d 378 (1970); People v. Hayn, 116 Ill.App.2d 241, 253 N.E.2d 575 (1969). But the answer was not so clear when the trial judge made his decision. The Illinois Code of Criminal Procedure had just recently been amended to require that an indictment name the offense and the statutory provision alleged to have been violated, and that it set forth the nature and elements of the offense charged. Ill.Rev.Stat., c. 38, § 111—3(a) (1963). The indictment here was sufficiently detailed to meet the federal requirement that the indictment 'contains the elements of the offense intended to be charged, 'and sufficiently apprises the defendant of what he must be prepared to meet," Hagner v. United States, 285 U.S. 427, 431, 52 S.Ct. 417, 419, 76 L.Ed. 861 (1932); see also Russell v. United States, 369 U.S. 749, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962).
47
Had the Illinois courts been made aware of the substantial constitutional questions raised by rigid application of an archaic mode of reading indictments, they might well have refused to hold that the defect in the indictment here was jurisdictional and nonwaivable. Conscientious state trial judges certainly must attempt to anticipate the course of interpretation of state law. But they must also contribute to that course by pointing out the constitutional implications of alternative interpretations. By doing so, they would themselves help shape the interpretation of state law. Here, for example, had the trial judge refused to declare a mistrial because of his constitutional misgivings about the implications of that course, he might have prevented what Chief Justice Underwood has called a 'reversion to an overly technical, highly unrealistic and completely undesirable type of formalism in pleading which . . . serves no useful purpose,' in interpreting the Code of Criminal Procedure. People ex rel. Ledford v. Brantley, 46 Ill.2d 419, 423, 263 N.E.2d 27, 29 (1970) (Underwood, C.J., dissenting). A trial judge in 1965 might have forestalled that unhappy development. Thus, he could have proceeded to try the case on the first indictment, risking reversal as any trial judge does when making rulings of law, but with no guarantee of reversal. In proceeding with the trial, he would have fully protected the defendant's interest in having his trial completed by the jury already chosen.
48
If the only alternative to declaring a mistrial did require the trial judge to ignore the tenor of previous state decisional law though perhaps declaring a mistrial would have been a manifest necessity. But there obviously was another alternative. The trial judge could have continued the trial. The majority suggests that this would have been a useless charade. But to a defendant, forcing the Government to proceed with its proof would almost certainly not be useless. The Government might not persuade the jury of the defendant's guilt. The majority concedes that the Double Jeopardy Clause would then bar a retrial. Ante, at 467; United States v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300 (1896). To assume that continuing the trial would be useless is to assume that conviction is inevitable. I would not structure the analysis of problems under the Double Jeopardy Clause on an assumption that appears to be inconsistent with the presumption of innocence.
49
Once it is shown that alternatives to the declaration of a mistrial existed, as they did here, we must consider whether the reasons which led to the declaration were sufficient, in light of those alternatives, to overcome the defendant's interest in trying the case to the jury. Here Jorn and Downum run directly counter to the holding today.
50
I would not characterize the District Judge's behavior in Jorn as 'erratic,' as the Court does, ante, at 469. His desire to protect the rights of prospective witnesses, who might have unknowingly implicated them in criminal activities if they testified, was hardly irrational. It, too, was 'a legitimate state policy.' Ibid. The defect in Jorn was the District Judge's failure to consider alternative courses of action, not the irrationality of the policy he sought to promote.
51
But even if I agreed with the majority's description of Jorn, that would not end the inquiry. I would turn to a consideration of the importance of the state policy that seemed to require declaring a mistrial, when weighed against the defendant's interest in concluding the trial with the jury already chosen.
52
Here again the majority mischaracterized the state policy at stake here. What is involved is not, as the majority says, 'the right of each defendant to insist that a criminal prosecution against him be commenced by the action of a grand jury.' Ante, at 468. Rather, the interest is in making the defect in the indictment here jurisdictional and not waivable by a defendant. Ordinarily, a defect in jurisdiction means that one institution has invaded the proper province of another. Such defects are not waivable because the State has an interest in preserving the allocation of competence between those institutions. Here, for example, the petit jury would invade the province of the grand jury if it returned a verdict of guilty on an improper indictment. However, allocation of jurisdiction is most important when one continuing body acts in the area of competence reserved to another continuing body. While it may be desirable to keep a single petit jury from invading the province of a single grand jury, surely that interest is not so substantial as to outweigh the 'defendant's valued right to have his trial completed by a particular tribunal.' Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 837, 93 L.Ed. 974 (1949). Cf. Henry v. Mississippi, 379 U.S. 443, 85 S.Ct. 564, 13 L.Ed.2d 408 (1965).
53
Downum v. United States, 372 U.S. 734, 83 S.Ct. 1033, 10 L.Ed.2d 100 (1963), is an even harder case for the majority, which succeeds in distinguishing it only by misrepresenting the facts of the case. The majority treats Downum as a case involving a procedure 'that would lend itself to prosecutorial manipulation.' Ante, at 464. However, the facts in Downum, set out at 372 U.S., at 740—742, 83 S.Ct., at 1036, 1037 (Clark, J., dissenting), clearly show that the prosecutor's failure to have a crucial witness present was a negligent oversight. Except in the most attenuated sense that it may induce a prosecutor to fail to take steps to prevent such oversights, I cannot understand how negligence lends itself to manipulation. And even if I could understand that, I cannot understand how negligence in failing to draw an adequate indictment is different from negligence in failing to assure the presence of a crucial witness.1
54
I believe that Downum and Jorn are controlling.2 As in those cases, the trial judge here did not pursue an available alternative, and the reason which led him to declare a mistrial was prosecutorial negligence, a reason that this Court found insufficient in Downum. Jorn and Downum were in the tradition of elaboration of rules which give increasing guidance as case after case is decided. I see no reason to abandon that tradition in this case and to adopt a new balancing test whose elements are stated on such a high level of abstraction as to give judges virtually no guidance at all in deciding subsequent cases. I therefore respectfully dissent.
1
Ill.Rev.Stat., c. 38, § 16—1(d)(1) (1963).
2
See Constitution of Illinois, Art. II, § 8 (1967). When the State Constitution was amended in 1970, this provision was retained as the first paragraph of Art. I, § 7.
1
Downum may perhaps be read as stating a prophylactic rule. While the evil to be avoided is the intentional manipulation by the prosecutor of the availability of his witnesses, it may be extremely difficult to secure a determination of intentional manipulation. Proof will inevitably be hard to come by. And the relations between judges and prosecutors in many places may make judges reluctant to find intentional manipulation. Thus, a general rule that the absence of crucial prosecution witnesses is not a reason for declaring a mistrial is necessary. Although the abuses of misdrawing indictments are less apparent that those of manipulating the availability of witnesses, I believe that, even if Downum is based on the foregoing analysis—an analysis which appears nowhere in the opinion—a similar prophylactic rule is desirable here.
For example, in this case the State gained two weeks to strengthen a weak case. This is far longer than the two-day delay in Downum, and, to the extent that the time was used to strengthen the case, the prosecutor could have capitalized on his previous negligence in drawing the indictment.
2
So far I have read Jorn and Downum as restrictively as they can be fairly read. But those cases, I believe, should be read more expansively. They show to me that 'manifest necessity' cannot be created by errors on the part of the prosecutor or judge; it must arise from some source outside their control. Wade v. Hunter, 336 U.S. 684, 69 S.Ct. 834, 93 L.Ed. 974 (1949), was clearly such a case. So were the cases that the majority says involved situations where 'an impartial verdict cannot be reached,' ante, at 464. In those cases, a juror or the jury as a whole, uncontrolled by the judge or prosecutor, prevented the trial from proceeding to a verdict. United States v. Perez, 9 Wheat. 579 (1824); Simmons v. United States, 142 U.S. 148, 12 S.Ct. 171, 35 L.Ed. 968 (1891); Thompson v. United States, 155 U.S. 271, 15 S.Ct. 73, 39 L.Ed. 146 (1894).
| 01
|
410 U.S. 577
93 S.Ct. 1434
35 L.Ed.2d 507
UNITED STATES, appellant,v.FIRST NATIONAL BANCORPORATION, INC., et al.
No. 71-703.
Supreme Court of the United States
February 28, 1973
Daniel M. Friedman, Washington, D.C., for appellant.
Eugene J. Metzger, Washington, D. C., for appellees.
PER CURIAM.
1
The judgment is affirmed by an equally divided Court.
2
Mr. Justice POWELL took no part in the consideration or decision of this case.
| 78
|
35 L.Ed.2d 475
93 S.Ct. 1096
410 U.S. 526
UNITED STATES, Appellant,v.FALSTAFF BREWING CORPORATION et al.
No. 71—873.
Argued Oct. 17, 1972.
Decided Feb. 28, 1973.
Syllabus
Respondent Falstaff, the Nation's fourth largest beer producer, which was desirous of achieving national status, agreed to acquire the largest seller of beer in the New England market rather than enter de novo. The District Court dismissed the Government's resultant suit charging violation of § 7 of the Clayton Act, finding that entry by acquisition, which the court found was the only way that respondent intended to penetrate the New England market, would not result in a substantial lessening of competition. Held: The District Court erred in assuming that, because respondent would not have entered the market de novo, it could not be considered a potential competitor. The court should have considered whether respondent was a potential competitor in the sense that its position on the edge of the market exerted a beneficial infuence on the market's competitive conditions. Pp. 531—583.
332 F.Supp. 970, reversed and remanded.
Thomas E. Kauper, Washington, D.C., for appellant.
Matthew W. Goring, Providence, R.I., for appellees.
Mr. Justice WHITE, delivered the opinion of the Court.
1
Alleging that Falstaff Brewing Corp.'s acquisition of the Narragansett Brewing Co., in 1965 violated § 7 of the Clayton Act, 38 Stat. 731, as amended, 15 U.S.C. § 18,1 the United States brought this antitrust suit under the theory that potential competition in the New England beer market may be substantially lessened by the acquisition. The District Court held to the contrary, 332 F.Supp. 970 (1971), and we noted probable jurisdiction2 to determine whether the trial court applied an erroneous legal standard in so deciding, 405 U.S. 952, 92 S.Ct. 1175, 31 L.Ed.2d 229 (1972). We remand to the District Court for a proper assessment of Falstaff as a potential competitor.
2
As stipulated by the parties, the relevant product market is the production and sale of beer, and the six New England States3 compose the geographic market. While beer sales in New England increased approximately 9.5% in the four years preceding the acquisition, the eight largest sellers increased their share of these sales from approximately 74% to 81.2%. In 1960, approximately 50% of the sales were made by the four largest sellers; by 1964, their share of the market was 54%; and by 1965, the year of acquisition, their share was 61.3%. The number of brewers operating plants in the geographic market decreased from 32 in 1935, to 11 in 1957, to six in 1964.4
3
Of the Nation's 10 largest brewers in 1964, only Falstaff and two others did not sell beer in New England; Falstaff was the largest of the three and had the closest brewery.5 In relation to the New England market, Falstaff sold its product in western Ohio, to the west and in Washington, D.C., to the south.
4
The acquired firm, Narragansett, was the largest seller of beer in New England at the time of its acquisition, with approximately 20% of the market; had been the largest seller for the five preceding years; had constantly expanded its brewery capacity between 1960 and 1965; and had acquired either the assets or the trademarks of several smaller brewers in and around the geographic market.
5
The fourth largest producer of beer in the United States at the time of acquisition, Falstaff was a regional brewer6 with 5.9% of the Nation's production in 1964, having grown steadily since its beginning as a brewer in 1933 through acquisition and expansion of other breweries. As of January 1965, Falstaff sold beer in 32 States, but did not sell in the Northeast, an area composed of New England and States such as New York and New Jersey; the area being the highest beer consumption region in the United States. Between 1955 and 1966, the company's net sales and net income almost doubled, and in 1964 it was planning a 10-year, $35 million program to expand its existing plants.
6
Falstaff met increasingly strong competition in the 1960's from four brewers who sold in all of the significant markets. National brewers possess competitive advantages since they are able to advertise on a nationwide basis, their beers have greater prestige than regional or local beers, and they are less affected by the weather or labor problems in a particular region. Thus Falstaff concluded that it must convert from 'regional' to 'national' status, if it was to compete effectively with the national producers.7 For several years Falstaff publicly expressed its desire for national distribution8 and after making several efforts in the early 1960's to enter the Northeast by acquisition, agreed to acquire Narragansett in 1965.
7
Before the acquisition was accomplished, the United States brought suit9 alleging that the acquisition would violate § 7 because its effect may be to substantially lessen competition in the production and sale of beer in the New England market. This contention was based on two grounds: because Falstaff was a potential entrant and because the acquisition eliminated competition that would have existed had Falstaff entered the market de novo or by acquisition and expansion of a smaller firm, a so-called 'toe-hold' acquisition.10 The acquisition was completed after the Government's motions for injunctive relief were denied, and Falstaff agreed to operate Narragansett as a separate subsidiary until otherwise ordered by the court.
8
After a trial on the merits, the District Court found that the geographic market was highly competitive; that Falstaff was desirous of becoming a national brewer by entering the Northeast; that its management was committed against de novo entry; and that competition had not diminished since the acquisition.11 The District Court then held:
9
'The Government's contentions that Falstaff at the time of said acquisition was a potential entrant into said New England market, and that said acquisition deprived the New England market of additional competition are not supported by the evidence. On the contrary, the credible evidence establishes beyond a reasonable doubt that the executive management of Falstaff had consistently decided not to attempt to enter said market unless it could acquire a brewery with a strong and viable distribution system such as that possessed by Narragansett. Said executives had carefully considered such possible alternatives as (1) acquisition of a small brewery on the east coast, (2) the shipping of beer from its existing breweries, the nearest of which was located in Ft. Wayne, Indiana, (3) the building of a new brewery on the east coast and other possible alternatives, but concluded that none of said alternatives would have effected a reasonable probability of a profitable entry for it in said New England market. In my considered opinion the plaintiff has failed to establish by a fair preponderance of the evidence that Falstaff was a potential competitor in said New England market at the time it acquired Narragansett. The credible evidence establishes that it was not a potential entrant into said market by any means or way other than by said acquisition. Consequently it cannot be said that its acquisition of Narragansett eliminated it as a potential competitor therein.' 332 F.Supp., at 972.
10
Also finding that the Government had failed to establish that the acquisition would result in a substantial lessening of competition, the District Court entered judgment for Falstaff and dismissed the complaint.
11
* Section 7 of the Clayton Act forbids mergers in any line of commerce where the effect may be substantially to lessen competition or tend to create a monopoly. The section proscribes many mergers between competitors in a market, United States v. Continental Can Co., 378 U.S. 441, 84 S.Ct. 1738, 12 L.Ed.2d 953 (1964); Brown Shoe Co. v. United States, 370 U.S. 294, 82 S.Ct. 1502, 8 L.Ed.2d 510 (1962); it also bars certain acquisitions of a market competitor by a noncompetitor, such as a merger by an entrant who threatens to dominate the market or otherwise upset market conditions to the detriment of Competition, FTC v. Procter & Gamble Co., 386 U.S. 568, 578—580, 87 S.Ct. 1224, 1230—1231, 18 L.Ed.2d 303 (1967). Suspect also is the acquisition by a company not competing in the market but so situated as to be a potential competitor and likely to exercise substantial influence on market behavior. Entry through merger by such a company, although its competitive conduct in the market may be the mirror image of that of the acquired company, may nevertheless violate § 7 because the entry eliminates a potential competitor exercising present influence on the market. Id., 386 U.S., at 580 581, 87 S.Ct., at 1231—1232; United States v. Penn-Olin Chemical Co., 378 U.S. 158, 173—174, 84 S.Ct. 1710, 1718—1719, 12 L.Ed.2d 775 (1964). As the Court stated in United States v. Penn-Olin Chemical Co., supra, at 174, 84 S.Ct., at 1719, 'The existence of an aggressive, well equipped and well financed corporation engaged in the same or related lines of commerce waiting anxiously to enter an oligopolistic market would be a substantial incentive to competition which cannot be underestimated.'
12
In the case before us, Falstaff was not a competitor in the New England market, nor is it contended that its merger with Narragansett represented an entry by a dominant market force. It was urged, however, that Falstaff was a potential competitor so situated that its entry by merger rather than de novo violated § 7. The District Court, however, relying heavily on testimony of Falstaff officers, concluded that the company had no intent to enter the New England market except through acquisition and that it therefore could not be considered a potential competitor in that market. Having put aside Falstaff as a potential de novo competitor, it followed for the District Court that entry by a merger would not adversely affect competition in New England.
13
The District Court erred as a matter of law. The error lay in the assumption that because Falstaff, as a matter of fact, would never have entered the market de novo, it could in no sense be considered a potential competitor. More specifically, the District Court failed to give separate consideration to whether Falstaff was a potential competitor in the sense that it was so positioned on the edge of the market that it exerted beneficial influence on competitive conditions in that market.
14
A similar error was committed by the Court of Appeals in FTC v. Procter & Gamble Co., supra, where one of the reasons for the Commission's finding the acquisition in violation of § 7 was that the merger eliminated Procter as a potential entrant, not because Procter would have entered independently, but because the acquisition eliminated the procompetitive effect Procter exerted from the fringe of the market. Id., 386 U.S., at 575, 87 S.Ct., at 1228—1229. The Court of Appeals struck down this finding because there was no evidence that Procter ever intended de novo entry, but we held the Commission's finding was 'amply supported by the evidence,' id., at 581, 87 S.Ct., at 1231—1232, because the evidence 'clearly show(ed) that Procter was the most likely entrant,' id., at 580, 87 S.Ct., at 1231, and it was 'clear that the existence of Procter at the edge of the industry exerted considerable influence on the market,' id., at 581, 87 S.Ct., at 1231. Thus, the fact that Falstaff and its management had no intent to enter de novo, and would not have done so, does not ipso facto dispose of the potential-competition issue.
15
The specific question with respect to this phase of the case is not what Falstaff's internal company decisions were but whether, given its financial capabilities and conditions in the New England market, it would be reasonable to consider it a potential entrant into that market. Surely, it could not be said on this record that Falstaff's general interest in the New England market was unknown;12 and if it would appear to rational beer merchants in New England that Falstaff might well build a new brewery to supply the northeastern market then its entry by merger becomes suspect under § 7. The District Court should therefore have appraised the economic facts about Falstaff and the New England market in order to determine whether in any realistic sense Falstaff could be said to be a potential competitor on the fringe of the market with likely influence on existing competition.13 This does not mean that the testimony of company officials about actual intentions of the company is irrelevant or is to be looked upon with suspicion; but it does mean that theirs is not necessarily the last word in arriving at a conclusion about how Falstaff should be considered in terms of its status as a potential entrant into the market in issue.
16
Since it appears that the District Court entertained too narrow a view of Falstaff as a potential competitor and since it appears that the District Court's conclusion that the merger posed no probable threat to competition followed automatically from the finding that Falstaff had no intent to enter de novo, we remand this case for the District Court to make the proper assessment of Falstaff as a potential competitor.
II
17
Because we remand for proper assessment of Falstaff as an on-the-fringe potential competitor, it is not necessary to reach the question of whether § 7 bars a market-extension merger by a company whose entry into the market would have no influence whatsoever on the present state of competition in the market—that is, the entrant will not be a dominant force in the market and has no current influence in the marketplace. We leave for another day the question of the applicability of § 7 to a merger that will leave competition in the marketplace exactly as it was, neither hurt nor helped, and that is challengeable under § 7 only on grounds that the company could, but did not, enter de novo or through 'toe-hold' acquisition and that there is less competition than there would have been had entry been in such a manner. There are traces of this view in our cases, see Ford Motor Co. v. United States, 405 U.S. 562, 567, 92 S.Ct. 1142, 1146, 31 L.Ed.2d 492 (1972); id., at 587, 92 S.Ct. at 1156 (Burger, C.J., concurring in part and dissenting in part); FTC v. Procter & Gamble Co., 386 U.S., at 580, 87 S.Ct., at 1231; Id., at 586, 87 S.Ct., at 1234 (Harlan, J., concurring); United States v. Penn-Olin Chemical Co., 378 U.S., at 173, 84 S.Ct., at 1718, but the Court has not squarely faced the qestion,14 if for no other reason than because there has been no necessity to consider it. See Ford Motor Co. v. United States, supra; FTC v. Procter & Gamble Co., supra; United States v. Penn-Olin Chemical Co., supra; United States v. El Paso Natural Gas Co., 376 U.S. 651, 84 S.Ct. 1044, 12 L.Ed.2d 12 (1964).
18
The judgment of the District Court dismissing the complaint against Falstaff is reversed, and the case is remanded for further proceedings consistent with this opinion.
19
So ordered.
20
Reversed and remanded.
21
Mr. Justice BRENNAN took no part in the decision of this case. Mr. Justice POWELL took no part in the consideration or decision of this case.
22
Mr. Justice DOUGLAS, concurring in part.
23
Although I join Part I of the Court's opinion and its judgment remanding the case to the District Court for further proceedings consistent with the opinion, I offer the following observations with respect to the question which the Court does not reach.
24
There can be no question that it would be sufficient for the Government to prove its case to show that Falstaff would have made a de novo entry but for the acquisition of Narragansett, or that Falstaff was a potential competitor exercising present influence on the market. See Ford Motor Co. v. United States, 405 U.S. 562, 92 S.Ct. 1142, 31 L.Ed.2d 492; FTC v. Procter & Gamble Co., 386 U.S. 568, 87 S.Ct. 1224, 18 L.Ed.2d 303; United States v. Penn-Olin Chemical Co., 378 U.S. 158, 84 S.Ct. 1710, 12 L.Ed.2d 775; United States v. El Paso Natural Gas Co., 376 U.S. 651, 84 S.Ct. 1044, 12 L.Ed.2d 12. But, I do not be-lieve that it was a prerequisite to the Government's case to prove that the acquisition had marked immediate, i.e., present, anticompetitive effects.
25
Section 7 evidences a definite concern for protecting competitive markets. It does not require 'merely an appraisal of the immediate impact of the merger upon competition, but a prediction of its impact upon competitive conditions in the future . . ..' United States v. Philadelphia National Bank, 374 U.S. 321, 362, 83 S.Ct. 1715, 1741, 10 L.Ed.2d 915. In United States v. Penn-Olin Chemical Co., supra, 378 U.S., at 170—171, 84 S.Ct., at 1717, the Court said:
26
'The grand design of the original § 7, as to stock acquisitions, as well as the Celler-Kefauver Amendment, as to the acquisition of assets, was to arrest incipient threats to competition which the Sherman Act did not ordinarily reach. It follows that actual restraints need not be proved. The requirements of the amendment are satisfied when a 'tendency' toward monopoly or the 'reasonable likelihood' of a substantial lessening of competition in the relevant market is shown.'
27
Moreover, we are concerned with probabilities, not certainties. See Brown Shoe Co. v. United States, 370 U.S. 294, 323, 82 S.Ct. 1502, 1522—1523, 8 L.Ed.2d 510.
28
Falstaff acquired Narragansett in 1965. Prior to that time, Falstaff was the largest brewer in the country that did not sell in the New England market. It had stated publicly that it wanted to become a national brewer to allow it to compete more effectively with the existing national brewers. Falstaff has conceded in its brief that 'given an acceptable level of profit it had the financial capability and the interest to enter the New England beer market.'
29
During the four years preceding 1965, beer sales in New England had increased approximately 9.5%. Nevertheless, the market had become more concentrated. In 1960, the eight largest sellers accounted for approximately 74% of the beer sales; by 1964, they accounted for 81.2%. From 1957 to 1964, the number of breweries decreased from 11 to 6. In addition, there is evidence that two of the remaining breweries were interested in being acquired. And, by Falstaff's own admissin, '(a)t the time of the acquisition, the substantial growth in the market shares of the national brewers was just beginning to occur.'
30
One of the principal purposes of § 7 was to stem the "rising tide' of concentration in American business.' United States v. Pabst Brewing Co., 384 U.S. 546, 552, 86 S.Ct. 1665, 1669, 16 L.Ed.2d 765. When an industry or a market evidences signs of decreasing competition, we cannot allow an acquisition which may 'tend to accelerate concentration.' Ibid.; Brown Shoe Co. v. United States, supra, 370 U.S., at 346, 82 S.Ct., at 1535.
31
The implications of the Clayton Act, as amended by the Celler-Kefauver Act, 15 U.S.C. § 18, are much, much broader than the customary restraints of competition and the power of monopoly. Louis D. Brandeis testified in favor of the bill that became the Clayton Act in 1914. 'You cannot have true American citizenship, you cannot preserve political liberty, you cannot secure American standards of living unless some degree of industrial liberty accompanies it.'1 He went on to say2 in answer to George W. Perkins, who testified against the bill:
32
'Mr. Perkins' argument in favor of the efficiency of monopoly proceeds upon the assumption, in the first place, and mainly upon the assumption, that with increase of size comes increase of efficiency. If any general proposition could be laid down on that subject, it would, in my opinion, be the opposite. It is, of course, true that a business unit may be too small to be efficient, but it is equally true that a unit may be too large to be efficient. And the circumstances attending business today are such that the temptation is toward the creation of too large units of efficiency rather than too small. The tendency to create large units is great, not because larger units tend to greater efficiency, but because the owner of a business may make a great deal more money if he increases the volume of his business ten-fold, even if the unit profit is in the process reduced one-half. It may, therefore, be for the interest of an owner of a business who has capital, or who can obtain capital at a reasonable cost, to forfeit efficiency to a certain degree, because the result to him, in profits, may be greater by reason of the volume of the business. Now, not only may that be so, but in very many cases it is so.
33
'And the reason why . . . increasing the size of a business may tend to inefficiency is perfectly obvious when one stops to consider. Anyone who critically analyzes a business learns this: That success or failure of an enterprise depends usually upon one man; upon the quality of one man's judgment, and, above all things, his capacity to see what is needed and his capacity to direct others.'
34
That is why the Celler Committee reporting in 1971 on conglomerates and other types of mergers3 said that 'Preservation of a competitive system was seen as essential to avoid the concentration of economic power that was thought to be a threat to the Nation's political and social system.'4 Control of American business is being transferred from local communities to distant cities where men on the 54th floor with only balance sheets and profit and loss statements before them decide the fate of communities with which they have little or no relationship. As a result of mergers and other acquisitions, some States are losing major corporate headquarters and their local communities are becoming satellites of a distant corporate control.5 The antitrust laws favored a wide diffusion of corporate control; and that aim has been largely defeated with serious consequences. Thus, a recent Wisconsin study shows that '(t)he growth of aggregate Wisconsin employment of companies acquired by out-of-state corporations declined substantially more than that of those acquired by in-state corporations.'6 In this connection, the Celler Report states:7
35
'The Wisconsin study found, also, that 53 percent of acquired companies after the merger had a slower rate of payroll growth. Payroll growth, notably in large firms acquired by out-of-State corporations, was depressed by mergers. Inflation in recent years has markedly raised wages and salaries. It would be reasonable to expect that payrolls in acquired companies, because of the inflation, would have advanced more than employment. In this connection, the report states: 'The fact that this frequently did not happen in companies acquired by out-of-state firms would lead one to believe that their acquirers have transferred a portion of the higher salaried employees to a location outside Wisconsin. Such transfers mean a loss of talent, retail expenditures, and personal income taxes in the economies of Wisconsin's communities and the state." The adverse influence on local affairs of out-of-state acquisitions has not gone unnoticed in our opinions. Thus 'the desirability of retaining 'local control' over industry and the protection of small businesses' was our comment in Brown Shoe Co. v. United States, 370 U.S., at 315—316, 82 S.Ct., at 1518—1519, on one of the purposes of strengthening § 7 of the Clayton Act through passage of the Celler-Kefauver Act.
36
By reason of the antitrust laws, efficiency in terms of the accounting of dollar costs and profits is not the measure of the public interest nor is growth in size where no substantial competition is curtailed. The antitrust laws look with suspicion on the acquisition of local business units by out-of-state companies. For then local employment is apt to suffer, local payrolls are likely to drop off, and responsible entrepreneurs in counties and States are replaced by clerks.
37
A case in point is Goldendale in my State of Washington. It was a thriving community—an ideal place to raise a family—until the company that owned the sawmill was bought by an out-of-state giant. In a year or so, auditors in faraway New York City, who never knew the glories of Goldendale, decided to close the local mill and truck all the logs to Yakima. Goldendale became greatly crippled. It is Exhibit A to the Brandeis concern, which became part of the Clayton Act concern, with the effects that the impact of monopoly often has on a community, as contrasted with the beneficient effect of competition.
38
A nation of clerks is anathema to the American antitrust dream. So is the spawning of federal regulatory agencies to police the mounting economic power. For the path of those who want the concentration of power to develop unhindered leads predictably to socialism that is antagonistic to our system. See Blake & Jones, The Goals of Antitrust: A Dialogue on Policy—In Defense of Antitrust, 65 Col.L.Rev. 377 (1965).
39
It is against this background that we must assess the acquisition by Falstaff, the largest producer of beer in the United States that did not sell in the New England market, of the leading seller in that market.
40
In United States v. El Paso Natural Gas Co., 376 U.S., at 660, 84 S.Ct., at 1049, we indicated that '(t)he effect on competition in a particular market through acquisition of another company is determined by the nature or extent of that market and by the nearness of the absorbed company to it, that company's eagerness to enter that market, its resourcefulness, and so on.' Falstaff's president testified below that Falstaff for some time had wanted to enter the New England market as part of its interest in becoming a national brewer. And Falstaff has conceded in its brief before this Court that 'given an acceptable level of profit it had the financial capability and the interest to enter the New England beer market.' With both the interest and the capability to enter the market, Falstaff was 'the most likely entrant.' FTC v. Procter & Gamble Co., 386 U.S., at 581, 87 S.Ct., at 1231. Thus, although Falstaff might not have made a de novo entry if it had not been allowed to acquire Narragansett,8 we cannot say that it would be unwilling to make such an entry in the future when the New England market might be ripe for an infusion of new competition. At this point in time, it is the most likely new competitor. Moreover, there can be no question that replacing the leading seller in the market, a regional brewer, with a seller with national capabilities increased the trend toward concentration.
41
I conclude that there is 'reasonable likelihood' that the acquisition in question 'may be substantially to lessen competition.' Accordingly, I would be inclined to reverse and direct the District Judge to enter judgment for the Government and afford appropriate relief. Nevertheless, since the Court will not reach this question and I agree with the legal principles set forth in Part I of its opinion, I join the judgment remanding the case for further proceedings.
42
Mr. Justice MARSHALL, concurring in the result.
43
I share the majority's view that the District Judge erred as a matter of law and that the case must be remanded for further proceedings. I cannot agree, however, with the theory upon which the majority bases the remand.
44
The majority accuses the District Judge of neglecting to assess the present procompetitive effect which Falstaff exerted by remaining on the fringe of the market. The explanation for this failing is rather simple. The Government never alleged in its complaint that Falstaff was exerting a present procompetitive influence,1 it introduced not a scrap of evidence to support this view,2 and even at this stage of the proceedings, it seemingly disclaims reliance on this theory.3
45
Thus, our remand leaves the hapless District Judge with the unenviable taks of reassessing nonexistent evidence under a theory advanced by neither of the parties. I submit that civil antitrust litigation is complicated enough when the trial judge confines his attention to the legal arguments and evidence offered by the parties and avoids investigation of hypothetical lawsuits which might have been brought.
46
The majority's departure from this self-evident proposition is all the more startling when one realizes that the Court eschews reliance on a well-established, plainly applicable body of law in order to reach questions not properly before it. As Mr. Justice DOUBLAS ably domonstrates, see ante, at 539—540, many decisions of this Court hold that § 7 is violated when a merger is reasonably likely to eliminate future or potential competition. See also infra, at 560—562. I know of no case suggesting that this principle is only applicable when the plaintiff can show that the merger will have present anticompetitive consequences, and the majority cites no authority for this proposition.
47
In the course of a nine-day trial, the Government introduced voluminous evidence to support its potential competition theory. But at the conclusion of the trial, the District Judge dismissed the Government's action in an opinion covering a scant two and one-half pages in the Federal Supplement4 and without making any findings of fact or conclusions of law.5 See United States v. Falstaff Brewing Corp., 332 F.Supp. 970 (RI 1971).
48
The court held that Falstaff 'was not a potential entrant into said market by any means or way other than by said acquisition. Consequently, it cannot be said that its acquisition of Narragansett eliminated it as a potential competitor therein.' Id., at 972. The District Judge based this conclusion on testimony by Falstaff executive personnel that 'Falstaff had consistently decided not to attempt to enter said market unless it could acquire a brewery with a strong and viable distribution system such as that possessed by Narragansett.' Ibid.
49
Inasmuch as the District Court grounded its dismissal on these conclusions, I think we have a responsibility to assess the validity of the legal standard from which they are derived. I would hold that where, as here, strong objective evidence indicates that a firm is a potential entrant into a market, it is error for the trial judge to rely solely on the firm's subjective prediction of its own future conduct. While such subjective evidence is probative on the issue of potential entry, it is inherently unreliable and must be used with great care. Ordinarily, the district court should presume that objectively measurable market forces will govern a firm's future conduct. Only when there is a compelling demonstration that a firm will not follow its economic self-interest may the district court consider subjective evidence in predicting that conduct. Even then, subjective evidence should be preferred only when the objective evidence is weak or contradictory. Because the District Court failed to apply these standards, I would remand the case for further consideration.
50
* Although this case ultimately turns on a point of law, it cannot be satisfactorily understood without some appreciation of the factual context in which it arises. A somewhat more detailed description of the relevant line of commerce, the relevant geographic market, and the market structure than that provided by the majority is therefore in order.
A. The Product Market
51
The relevant product market is the production and sale of beer. The firms competing for this market can be divided into three categories: national, regional, and local. The national firms, Anheuser-Busch, Schlitz, Pabst, and Miller, sell their product throughout the country and advertise on a national basis. In contrast, the regional firms, the largest of which are Hamm's, Carling, Coors, Falstaff, and National Bohemian, market their beer in narrower geographical areas of varying size. Local brewers sell their product in a small area, sometimes no larger than a single State.
52
Originally, most of the market was held by a large number of small local and regional brewers. The high cost of transporting beer favored the local distributor in early years. But more recently, the national brewers have been able to overcome this difficulty to some extent by decentralizing their production facilities. Moreover, any remaining extra transportation costs associated with national distribution are now outweighed by the advantages of centralized management and, especially, national advertising. Thus, in recent years, while the beer market as a whole has expanded, the number of breweries has declined dramatically. See United States v. Pabst Brewing Co., 384 U.S. 546, 550, 86 S.Ct. 1665, 1668, 16 L.Ed.2d 765 (1966). Whereas in 1935 there were 684 brewing plants operating in the United States, by 1965 the number had been reduced to 178. Economies of scale, a relatively low profit margin, and significant barriers to market entry have all led to a concentration of beer production among the few national and large regional brewers.
B. The Geographic Market
53
These national trends are reflected in the six New England States, which constitute the relevant geographic market. In the four years preceding Falstaff's acquisition of Narragansett, New England beer sales increased 9.5%—a substantial gain, although somewhat below the increase in national sales for the same period. At the same time, however, the number of brewers operating plants in the region declined precipitately. Thus, in 1957, there were 11 breweries in the New England States, but by 1964 the number had declined to six, and of those six, two of the three smallest had publicly expressed an interest in merging with a larger competitor.
54
Not surprisingly, this decline in the number of breweries in New England was accompanied by an increase in the market shares of those selling in the region. In 1960, the eight largest participants in the New England market claimed 74% of all beer sales, and by 1964 this figure had risen to 81.2%. Examination of the four largest brewers shows that their share of the market rose from about 50% in 1960 to 54% in 1964, to 61.3% in 1965. In large part, these figures are probably explicable in terms of the nationwide trend in favor of the large national and regional brewers. Seven of the Nation's 10 largest breweries, including, of course, all the national breweries, sell beer in New England, and their share of the market has increased as the small, local brewers disappeared.
55
At the same time, however, the concentration of the market does not yet seem to have produced blatantly anti-competitive effects. In recent years, prices have remained fairly stable despite rising costs, and competition seems relatively intense among the few large firms which dominate the market. Still, there is no doubt that the seeds of anti-competitive conduct are present, since '(a)s (an oligopolistic) condition develops, the greater is the likelihood that parallel policies of mutual advantage, not competition, will emerge.' United States v. Aluminum Co. of America, 377 U.S. 271, 280, 84 S.Ct. 1283, 1289, 12 L.Ed.2d 314 (1964). One commentator's description of the national beer market aptly characterizes the situation in New England: 'The increasing concentration . . . and the unlikely entrance of new rivals poses a threat to the future level of competition in this industry. Thus far, there is no evidence of collusion in the beer industry. But as the industry becomes populated by fewer and fewer companies, the possibility and likelihood will be enhanced of their engaging in tacit or direct collusion—given the inelastic nature of demand—to establish a joint profit maximizing price and output. Similarly, the chances will become slimmer that individual firms in the industry will follow a truly independent price and production strategy, vigorously striving to take sales away from rival brewers. With only a few sellers will come the increasing awareness that parallel business behavior might be feasible.' Elzinga, The Beer Industry, in W. Adams, The Structure of American Industry 189, 213 (4th ed. 1971).
C. Narragansett—The Acquired Firm
56
Narragansett is a regional brewery with only miniscule sales outside of New England. Within the New England market, however, the firm has been highly successful. Although only twenty-first in national sales and accounting for only 1.4% of the beer sales in the United States, Narragansett was the largest seller of beer in New England for the five years preceding its acquisition. In recent years, the firm has expanded steadily until, in 1964, the year before acquisition, it sold 1.275 million barrels, which was about 20% of the New England market. Net profits had increased from $417,284 in 1960 to a record level of $713,083 in 1964.
57
Notwithstanding this growth, Narragansett felt itself under some pressure from the national brewers.6 The corporation was closely held by the Haffenreffer family, and the stockholders apparently concluded that it was in their interest to diversify their personal holdings by selling Narragansett.
D. Falstaff—The Acquiring Firm
58
Like Narragansett, Falstaff has been highly successful in recent years. Beginning with a 100,000-barrel plant in St. Louis shortly after the repeal of Prohibition, the firm has steadily grown. By 1964, it was the Nation's fourth largest producer, marketing 5.8 million barrels, or 5.9% of the total national production.
59
Throughout its history, Falstaff has followed a pattern of acquiring weak breweries and expanding them so as to extend its influence to new markets. Although still a regional brewer, by 1965 the company had expanded its network of plants and distributorships over an area far larger than that in which Narragansett competed. In that year, Falstaff operated eight plants and sold its product in 32 States in the West, Midwest, and South. Sixteen of these States were added in the period after 1950. However, as of 1965, Falstaff sold virtually no beer in any of the Northeastern States, including the six composing the New England area. Falstaff marketed its product both through company-owned branches and through some 600 independent distributorships.7
60
In the years immediately prior to its acquisition of Narragansett, Falstaff's steady pattern of growth had continued. Between 1955 and 1964, its sales increased from $77 million to $139.5 million and its net profits grew from $4.3 million to $7 million. In the year before acquisition, the company announced a 10-year expansion program in which it was prepared to invest $35 million.
61
Yet, despite this encouraging trend, Falstaff, like Narragansett, was to some extent handicapped by the competitive advantages—in particular, national advertising—enjoyed by national distributors. For years, the company had publicly expressed the desire to become a national brewer, and the logical region for market extension was the Northeast. New England seemed a particularly appropriate area to initiate expansion. As indicated above, seven of the 10 largest manufacturers already sold beer in New England, and Falstaff was the largest of the three remaining outside the market. The New England market was expanding at a healthy rate, and it appeared to be a fertile area for growth.
62
In 1958, Falstaff commissioned a study from Arthur D. Little, Inc., to determine the feasibility of future expansion. The Little Report, two years in the making, concluded that Falstaff should enter the northeastern market sometime within the next five years. But although it was clear that Falstaff should move into the northeast market, the method of entry was less obvious. After a careful review of cost estimates and the ratio of earnings to net worth, the Little Report recommended de novo entry through the construction of a new plant to serve the Northeast. The report concluded that '(t)here appears to be ample reason . . . for building rather than buying . . . (and) that major new market entrances need not be predicated on the availability of a brewery Falstaff could purchase.'
63
Despite this analysis, Falstaff's own management personnel apparently concluded that the profit return on a de novo entry would be inordinately low.8 Falstaff argued at trial that it needed a strong, pre-existing distribution system to make a profitable entry. But cf. n. 7, supra. An independent economist, Dr. Ira Horowitz, testified on behalf of Falstaff that de novo entry would result in a 6.7% return which he characterized as 'a very, very poor investment indeed.' However, it should be noted that the 6.7% figure failed to account for the increment in Falstaff's profit margin which would result from its newly gained status as a national brewer with modern plants to serve the eastern part of the Nation—the very increment which provided the primary motivation for expansion in the first place. While Dr. Horowitz apparently recognized that such an increment might materialize, he stated that he was unable to estimate its size.9 Moreover, even the 6.7% return rate compares favorably with Falstaff's actual rate of return on its Narragansett purchase, which was a mere 3.7%.
64
In any event, whatever the abstract merits of this dispute, it is clear that Falstaff's management personnel determined that entry by acquisition offered the preferable avenue for expansion. Beginning in 1962, the company held discussions with Liebmann, P. Ballantine & Sons,10 Piel Brothers, and Dawsons, all of which did a significant percentage of their business in the New England market. All of these possibilities were eventually rejected, and in 1965, Falstaff finally settled on Narragansett as the most promising available brewery.
II
65
With this factual background, it becomes possible to articulate the legal standards which should govern the resolution of this case.
A. The Purposes of § 7
66
As is clear from its face, § 7 was designed to deal with the anticompetitive effects of excessive industrial concentration caused by the corporate marriage of two competitors. 'It is the basic premise of (§ 7) that competition will be most vital 'when there are many sellers, none of which has any significant market share." United States v. Aluminum Co. of America, 377 U.S., at 280, 84 S.Ct., at 1289.
67
But § 7 does more than prohibit mergers with immediate anticompetitive effects. The Act by its terms prohibits acquisitions which 'may . . . substantially . . . lessen competition, or . . . tend to create a monopoly.' The use of the subjunctive indicates that Congress was concerned with the potential effects of mergers even though, at the time they occur, they may cause no present anticompetitive consequences. See, e.g., FTC v. Procter & Gamble Co., 386 U.S. 568, 577, 87 S.Ct. 1224, 1229—1230, 18 L.Ed.2d 303 (1967). To be sure, remote possibilities are not sufficient to satisfy the test set forth in § 7. Despite substantial concern with halting a trend toward concentration in its incipiency, Congress did not intend to prohibit all expansion and growth through acquisition and merger. The predictive judgment often required under § 7 involves a decision based upon a careful scrutiny and a reasonable assessment of the future consequences of a merger without unjustifiable, speculative interference with traditional market freedoms. As we stated in Brown Shoe Co. v. United States, 370 U.S. 294, 323, 82 S.Ct. 1502, 1522, 8 L.Ed.2d 510 (1962): 'Congress used the words 'may be substantially to lessen competition' (emphasis supplied), to indicate that its concern was with probabilities, not certainties. Statutes existed for dealing with clear-cut menaces to competition; no statute was sought for dealing with ephemeral possibilities. Mergers with a probable anticompetitive effect were to be proscribed by this Act.' See also United States v. Pabst Brewing Co., 384 U.S., at 552, 86 S.Ct., at 1669; United States v. Penn-Olin Chemical Co., 378 U.S. 158, 171, 84 S.Ct. 1710, 1717, 12 L.Ed.2d 775 (1964).
68
The legislative history of § 7 makes plain that this was the intent of Congress. Before 1950, § 7 prohibited only those mergers which lessened competition 'between the corporation whose stock is so acquired and the corporation making the acquisition.'11 The Celler-Kefauver Amendment, added in 1950, deleted these words and provided instead that all mergers which substantially lessened competition 'in any line of commerce in any section of the country' were to be outlawed. See 64 Stat. 1126. Thus, whereas before 1950, § 7 proscribed only those mergers which eliminated present, actual competition between the merging firms, the Celler-Kefauver Amendment reached cases where future or potential competition in the entire relevant market might be adversely affected by the merger.12 'Section 7 of the Clayton Act was intended to arrest the anticompetitive effects of market power in their incipiency. The core question is whether a merger may substantially lessen competition, and necessarily requires a prediction of the merger's impact on competition, present and future. . . . The section can deal only with probabilities, not with certainties. . . . And there is certainly no requirement that the anticompetitive power manifest itself in anticompetitive action before § 7 can be called into play. If the enforcement of § 7 turned on the existence of actual anticompetitive practices, the congressional policy of thwarting such practices in their incipiency would be frustrated.' FTC v. Procter & Gamble Co., 386 U.S., at 577, 87 S.Ct., at 1229.
69
Since 1950, we have repeatedly applied § 7 to cases where the merging firms competed in the same line of commerce, and we have been willing to define the line of commerce liberally so as to reach anticompetitive practices in their 'incipiency.' See, e.g., United States v. Phillipsburg National Bank & Trust Co., 399 U.S. 350, 90 S.Ct. 2035, 26 L.Ed.2d 658 (1970); United States v. Pabst Brewing Co., 384 U.S. 546, 86 S.Ct. 1665, 16 L.Ed.2d 765 (1966); United States v. Aluminum Co. of America, 377 U.S. 271, 84 S.Ct. 1903, 12 L.Ed.2d 314 (1964); United States v. Philadelphia National Bank, 374 U.S. 321, 83 S.Ct. 1715, 10 L.Ed.2d 915 (1963); Brown Shoe Co. v. United States, 370 U.S. 294, 82 S.Ct. 1502, 8 L.Ed.2d 510 (1962). But in keeping with the spirit of the Celler-Kefauver Amendment, we have also applied § 7 to cases where the acquiring firm is outside the market in which the acquired firm competes. These cases fall into three broad categories which, while frequently overlapping, can be dealt with separately for analytical purposes.
70
1. The Dominant Entrant.—In some situations, a firm outside the market may have overpowering resources which, if brought to bear within the market, could ultimately have a substantial anticompetitive effect. If such a firm were to acquire a company within the relevant market, it might drive other marginal companies out of business, thus creating an oligopoly, or it might raise entry barriers to such an extent that potential new entrants would be discouraged from entering the market. Cf. Ford Motor Co. v. United States, 405 U.S. 562, 567—568, 92 S.Ct. 1142, 1146—1147, 31 L.Ed.2d 492 (1972); FTC v. Procter & Gamble Co., 386 U.S., at 575, 87 S.Ct., at 1228—1229.13 Such a danger is especially intense when the market is already highly concentrated or entry barriers are already unusually high before the dominant firm enters the market.
71
2. The Perceived Potential Entrant.—Even if the entry of a firm does not upset the competitive balance within the market, it may be that the removal of the firm from the fringe of the market has a present anticompetitive effect. In a concentrated oligopolistic market, the presence of a large potential competitor on the edge of the market, apparently ready to enter if entry barriers are lowered, may deter anticompetitive conduct within the market. As we pointed out in United States v. Penn-Olin Chemical Co., 378 U.S., at 174, 84 S.Ct., at 1718—1719: 'The existence of an aggressive, well equipped and well financed corporation engaged in the same or related lines of commerce waiting anxiously to enter an oligopolistic market (is) a substantial incentive to competition which cannot be underestimated.' From the perspective of the firms already in the market, the possibility of entry by such a lingering firm may be an important consideration in their pricing and marketing decisions. When the lingering firm enters the market by acquisition, the competitive influence exerted by the firm is lost with no offsetting gain through an increase in the number of companies seeking a share of the relevant market. The result is a net decrease in competitive pressure.14 Cf. United States v. El Paso Natural Gas Co., 376 U.S. 651, 659—660, 84 S.Ct. 1044, 1048—1049, 12 L.Ed.2d 12 (1964).
72
3. The Actual Potential Entrant.—Since the effect of a perceived potential entrant depends upon the perception of those already in the market, it may in some cases be difficult to prove. Moreover, in a market which is already competitive, the existence of a perceived potential entrant will have no present effect at all.15 The entry by acquisition of such a firm may nonetheless have an anticompetitive effect by eliminating an actual potential competitor. When a firm enters the market by acquiring a strong company within the market, it merely assumes the position of that company without necessarily increasing competitive pressures. Had such a firm not entered by acquisition, it might at some point have entered de novo. An entry de novo would increase competitive pressures within the market, and an entry by acquisition eliminates the possibility that such an increase will take place in the future. Thus, even if a firm at the fringe of the market exerts no present procompetitive effect, its entry by acquisition may end for all time the promise of more effective competition at some future date.
73
Obviously, the anticompetitive effect of such an acquisition depends on the possibility that the firm would have entered de novo had it not entered by acquisition. If the company would have remained outside the market but for the possibility of entry by acquisition, and if it is exerting no influence as a perceived potential entrant, then there will normally be no competitive loss when it enters by acquisition. Indeed, there may even be a competitive gain to the extent that it strengthens the market position of the acquired firm.16 Thus, mere entry by acquisition would not prima facie establish a firm's status as an actual potential entrant. For example, a firm, although able to enter the market by acquisition, might, because of inability to shoulder the de novo start-up costs, be unable to enter de novo. But where a powerful firm is engaging in a related line of commerce at the fringe of the relevant market, where it has a strong incentive to enter the market de novo, and where it has the financial capabilities to do so, we have not hesitated to ascribe to it the role of an actual potential entrant. In such cases, we have held that § 7 prohibits an entry by acquisition since such an entry eliminates the possibility of future actual competition which would occur if there were an entry de novo.
74
In light of the many decisions to this effect, the majority's assertion that 'the Court has not squarely faced (this) question' is inexplicable. In United States v. Continental Can Co., 378 U.S. 441, 84 S.Ct. 1738, 12 L.Ed.2d 953 (1964), for example, the defendant argued that 'the types of containers produced by Continental and Hazel-Atlas (the acquired firm) at the time of the merger were for the most part not in competition with each other and hence the merger could have no effect on competition.' Id., at 462, 84 S.Ct., at 1749. But Mr. Justice White, writing for the Court, rejected that argument, holding that '(i)t is not at all self-evident that the lack of current competition between Continental and Hazel-Atlas for some important end uses of metal and glass containers significantly diminished the adverse effect of the merger on competition. Continental might have concluded that it could effectively insulate itself from competition by acquiring a major firm not presently directing its market acquisition efforts toward the same end uses as Continental, but possessing the potential to do so.' Id., at 464, 84 S.Ct., at 1751. (Emphasis added). The majority says it is 'only arbitrary' to read this language as not referring to Hazel-Atlas' present procompetitive influence on the market. But the Continental Can Court said not a word about present procompetitive effects, and, indeed, made clear that it was relying on the future anticompetitive impact of the merger. The Court held, for example, that 'the fact that Continental and Hazel-Atlas were not substantial competitors of each other for certain end uses at the time of the merger may actually enhance the long-run tendency of the merger to lessen competition.' Id., at 465, 84 S.Ct., at 1751 (emphasis added). See also Ford Motor Co. v. United States, 405 U.S. 562, 92 S.Ct. 1142, 31 L.Ed.2d 492 (1972); FTC v. Procter & Gamble Co., 386 U.S. 568, 87 S.Ct. 1224, 18 L.Ed.2d 303 (1967); United States v. Penn-Olin Chemical Co., 378 U.S. 158, 84 S.Ct. 1710, 12 L.Ed.2d 775 (1964); United States v. El Paso Natural Gas Co., 376 U.S. 651, 84 S.Ct. 1044, 12 L.Ed.2d 12 (1964).
75
C. Problems of Proof—The Role of Subjective Evidence
76
Although § 7 deals with probabilities, not ephemeral possibilities, all forms of potential competition involve future events and all of them are, therefore, to some extent speculative and uncertain. Whether future competition will be reduced by a present merger is clearly 'not the kind of question which is suspectible of a ready and precise answer in most cases. It requires not merely an appraisal of the immediate impact of the merger upon competition, but a prediction of its impact upon competitive conditions in the future; this is what is meant when it is said that the amended § 7 was intended to arrest anticompetitive tendencies in their 'incipiency." United States v. Philadelphia National Bank, 374 U.S., at 362, 83 S.Ct., at 1741.
77
The unavoidable problems of proof are compounded in some cases by the relevance of subjective statements of future intent by the managers of the acquiring firm. Although not susceptible of precise analysis, the objective conditions of the market may at least be measured and quantified. But there exists no very good way of evaluating a subjective statement by the manager of a firm that the firm does or does not intend to enter a given market at some future date.
78
Fortunately, in two of the three forms of potential competition, such subjective evidence has no role to play. Clearly, in the case of a dominant entrant, the only issue is whether the firm's entry by acquisition will so upset objective market forces as to substantially reduce future competition. Since the firm will have already taken steps to enter the market by the time a § 7 action is filed, its statements of subjective intent are irrelevant.
79
Similarly, when the Government proceeds on the theory that the acquiring firm is a perceived potential entrant, testimony as to the subjective intent of the acquiring firm is not probative. The perceived potential entrant exerts a procompetitive effect because companies in the market perceive it as a potential entrant. The companies in the market may entertain this perception whether the perceived potential entrant is in fact a potential entrant or not. Thus, a firm on the fringe of the market may exert a procompetitive effect even if it has no intention of entering the market, so long as it seems to those within the market that it may have such an intention.17 It follows that subjective testimony by the managers of the perceived potential entrant is irrelevant.18
80
However, subjective statements of management are probative in cases where the acquiring firm is alleged to be an actual potential entrant. First, management's statements that it does not intend to make a de novo market entry, together with its associated reasons, provide an expert judgment on the conclusions to be drawn by the trier of fact from the objective market forces. Just as the Government may introduce expert testimony to inform and guide the trial court with respect to the appropriate business judgments to be derived from the objective data, so too the defendant is entitled to present the evaluation of its own 'experts' who may include its management personnel. Although such evidence from management is obviously biased and self-serving, it is nonetheless admissible to prove that the objective market pressures do not favor a de novo entry.
81
More significantly, management's statement of subjective intent, if believed, affects the firm's status as an actual potential entrant. As indicated above, the actual potential entrant's entry by acquisition is anticompetitive only if it eliminates some future possibility that it might have entered de novo. An unequivocal statement by management that it has absolutely no intention of entering the market de novo at any time in the future is relevant to the issue of whether the possibility of such an entry exists. After all, the character of management is itself essentially an objective factor in determining whether the acquiring firm is an actual potential entrant.
82
But although subjective evidence is probative and admissible in actual potential-entry cases, its utility is sharply limited. We have certainly never suggested that subjective evidence of likely future entry is required to make out a § 7 case. On the contrary, in United States v. Penn-Olin Chemical Co., 378 U.S., at 175, 84 S.Ct., at 1719, where the objective evidence of potential entry was strong, we said, 'Unless we are going to require subjective evidence, this array of probability certainly reaches the prima facie stage. As we have indicated, to require more would be to read the statutory requirement of reasonable probability into a requirement of certainty. This we will not do.' (Emphasis added.) Nor do our prior cases hold that the district courts are bound by subjective statements of company officials that they have no intention of making a de novo entry. We have emphasized that the decision whether the acquiring firm is an actual potential entrant is, in the last analysis, an independent one to be made by the trial court on the basis of all relevant evidence properly weighted according to its credibility. Thus, in FTC v. Procter & Gamble Co., for example, managers of Procter & Gamble testified that they had no intention of making a de novo entry, and the Court of Appeals thought itself bound by that testimony. See 386 U.S., at 580, 87 S.Ct., at 1231, and id., at 585, 87 S.Ct., at 1233 (Harlan, J., concurring). We reversed, holding that '(t)he evidence . . . clearly shows that Procter was the most likely entrant.' Id., at 580, 87 S.Ct., at 1231.
83
As these cases indicate, subjective evidence has, at best, only a marginal role to play in actual potential-entry cases. In order to make out a prima facie case, the Government need only show that objectively measurable market data favor a de novo entry and that the alleged potential entrant has the economic capability to make such an entry. To be sure, the defendant may then introduce subjective testimony in rebuttal, and in the rare case where the objective evidence is evenly divided, it is conceivable that extremely credible subjective evidence might tip the balance. But where objectively measurable market forces make clear that it is in a firm's economic self-interest to make a de novo entry and that the firm has the economic capability to do so, I would hold that it is error for the District Court to conclude that the firm is not an actual potential entrant on the basis of testimony by company officials as to the firm's future intent.19
84
The reasons for so limiting the role of subjective evidence are not difficult to discern. Such evidence should obviously be given no weight if it is not credible. But it is in the very nature of such evidence that in the usual case it is not worthy of credit.20 First, any statement of future intent will be inherently self-serving. A defendant in a § 7 case such as this wishes to enter the market by acquisition and its managers know that its ability to do so depends upon whether it can convince a court that it would not have entered de novo if entry by acquisition were prevented. It is thus strongly in management's interest to represent that it has no intention of entering de novo—a representation which is not subject to external verification and which is so speculative in nature that it could virtually never serve as the predicate for a perjury charge.
85
Moreover, in a case where the objective evidence strongly favors entry de novo, a firm which asks us to believe that it does not intend to enter de novo by implication asks us to believe that it does not intend to act in its own economic self-interest. But corporations are, after all, profit-making institutions, and, absent special circumstances, they can be expected to follow courses of action most likely to maximize profits.21 The trier of fact should, therefore, look with great suspicion upon a suggestion that a company with an opportunity to expand its market and the means to seize upon that opportunity will follow a deliberate policy of self-abnegation if the route of expansion first selected is legally foreclosed to it.
86
Thus, in most cases, subjective statements contrary to the objective evidence simply should not be believed. But even if the threshold credibility gap is breached, it still does not follow that subjective statements of future intent should outweigh strong objective evidence to the contrary. Even if it is true that management has no present intent of entering the market de novo, the possibility remains that it may change its mind as the objective factors favoring such entry are more clearly perceived. Of course, it is possible that management will adamantly continue to close its eyes to the company's own self-interest. But in that event, the chance remains that the stockholders will install new, more competent officers who will better serve their interests. All of these possibilities are abruptly and irrevocably aborted when the firm is allowed to enter the market by acquisition. And while it is conceivable that none of the possibilities will materialize if entry by acquisition is prevented, it is absolutely certain that they will not materialize if such entry is permitted. All that is necessary to trigger a § 7 violation is a finding by the trial court of a reasonable chance of future competition. In most cases, strong objective evidence will be sufficient to create such a chance despite even credible subjective statements to the contrary.22
87
To summarize, then, I would not hold that subjective evidence may never be considered in the context of an actual potential-entry case. Such evidence should always be admissible as expert, although biased, commentary on the nature of the objective evidence. And in a rare case, the subjective evidence may serve as a counterweight to weak or inconclusive objective data. But when the district court can point to no compelling reason why the subjective testimony should be believed or when the objective evidence strongly points to the feasibility of entry de novo, I would hold that it is error for the court to rely in any way upon management's subjective statements as to its own future intent.
III
88
As indicated above, the Government failed to press the argument that Falstaff was a dominant or perceived potential entrant. Since there is virtually no evidence in the record to support either of these theories, I cannot say that the District Judge erred in rejecting them. It does appear, however, that he applied an erroneous standard in evaluating the subjective evidence relevant to Falstaff's position as an actual potential entrant and that this error infected the court's factual determinations. I would therefore remand the cause so that a proper factfinding can be made.
89
The record shows that the New England market is highly concentrated with a few large firms gaining a greater and greater share of the market. Although this market structure has yet to produce overtly anticompetitive behavior, there is a real danger that parallel pricing and marketing policies will soon emerge if new competitors do not enter the field.
90
The objective evidence in the record strongly suggests that Falstaff had both the capability and the incentive to enter the New England market de novo. It is undisputed that it was in Falstaff's interest to gain the status of a national brewer in the near future and that New England was a logical area to begin its expansion. Indeed, Falstaff's own actions in entering the New England market support this conclusion. Nor can it be doubted that Falstaff had the economic capability to enter New England. Falstaff is the Nation's fourth largest brewer and the largest still outside of New England. It has been consistently profitable in recent years, has an excellant credit rating, and had, in 1964, enough excess capital to finance a 10-year, $35 million expansion project. The Little Report concluded that de novo entry into the Northeast was feasible and, although Falstaff attacks these findings, the trier of fact might well have accepted them had he relied upon the objective evidence.
91
To be sure, Falstaff introduced a great deal of evidence tending to show that entry de novo would have been less profitable for it than entry by acquisition. I have no doubt that this is true. Indeed, if it can be assumed that Falstaff is a rational, profit-maximizing corporation, its own decision offers strong proof that entry by acquisition was the preferable alternative. But the test in § 7 cases is not whether anticompetitive conduct is profit maximizing. The very purpose of § 7 is to direct the profit incentive into channels which are procompetitive. Thus, the proper test is whether Falstaff would have entered the market de novo if the preferable alternative of entry by acquisition had been denied it. The objective evidence strongly suggests that such an entry would have occurred.
92
The District Court, however, chose to ignore this objective evidence almost totally. Instead, the trial judge seems to have considered himself bound by Falstaff's subjective representations that it had no intention of entering the market de novo. As noted above, even if these subjective statements are credible, they appear to be insufficient to outweigh the strong objective evidence to the contrary.
93
Findings of fact are, of course, for the trial judge in the first instance, and even in antitrust cases where the evidence is largely documentary, appellate courts should be reluctant to set them aside. But when the facts are found under a standard which is legally deficient, the situation is fundamentally different. It is the duty of appellate courts to establish the legal standards by which the facts are to be judged. The facts in this case were judged by a wrong standard, and the cause should therefore be remanded for a new, error-free determination.
94
Mr. Justice REHNQUIST, with whom Mr. Justice STEWART concurs, dissenting.
95
Civil litigation in our common-law system is conducted within the framework of the time-honored principle that the plaintiff must introduce sufficient evidence to convince the trier of fact that his claim for relief is factually meritorious. However large the societal interest in the area of antitrust law, so long as Congress assigns the vindication of those interests to civil litigation in the federal courts, antitrust litigation is no exception to that rule. The plaintiff, whether public or private, must prove to the satisfaction of the judge or jury that the defendant violated the antitrust laws. United States v. Yellow Cab Co., 338 U.S. 338, 70 S.Ct. 177, 94 L.Ed. 150, (1949). It is the exclusive responsibility of the trier of fact to weigh, as he sees fit, all admissible evidence in resolving disputed issues of fact, ibid., and his findings of fact cannot be overturned on appeal unless 'the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.' United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948). Cf. FTC v. Procter & Gamble Co., 386 U.S. 568, 87 S.Ct. 1224, 18 L.Ed.2d 303 (1967). The Court today simply disregards these principles.
96
The Court remands this case to the District Court to consider 'whether Falstaff was a potential competitor in the sense that it was so positioned on the edge of the market that it exerted beneficial influence on competitive conditions in that market.' Ante, at 532—533. The antitrust theory underlying the remand is that the competitors in the relative geographic market, aware of Falstaff's presence on the periphery, would not exercise their ostensible market power to raise prices because of the possibility that Falstaff, sufficiently tempted by the high prices in that market, would enter. A Government suit challenging a merger or acquisition can, of course, be premised on this theory, and, if sufficient evidence to convince the trier of fact is introduced, the determination that the merger or acquisition violated § 7 would not be reversed on appeal.
97
As my Brother MARSHALL convincingly demonstrates, however, in this case the Government neither proceeded on the theory advanced by the Court nor introduced any evidence that would support that theory. The theory that the Government did advance, and upon which it offered its evidence, is concisely summarized in the Government's statement in opposition to Falstaff's motion to dismiss.
98
'In our opening statement we attempted to show that the Government would prove—and I believe we have—that Falstaff, the fourth largest brewing corporation in the nation, had a continuous intensive interest in entering New England; that it carried on negotiations for five years with companies serving New England; that alternative methods of entry other than the acquisition of the largest New England brewer were available to Falstaff; and that it was in fact one of a few and the most likely entrant into this market; that its entrance into this market was especially important because the market is concentrated; that is, the sales of beer in New England are highly concentrated in the hands of the relatively few number of brewers.
99
'The entry by Falstaff by building a brewery, by shipping into this market, and opening it up, by the acquisition of a company less than number 1, thereby eliminating its most significant potential competitor, were all available to it. Because of the concentration in the market and because of Falstaff's being the most potential entrant, the acquisition by Falstaff of the leading firm in this market eliminated what we consider to be one of a few potential competitive effects that this market could expect for years.' Transcript, Vol. 3, p. 7.
100
For this Court to reverse and to remand for consideration of a possible factual basis for a theory never advanced by the plaintiff is a drastic and unwarranted departure from the most basic principles of civil litigation and appellate review. In this case, the Government originally advanced one theory, but failed to introduce sufficient evidence to convince the trier of fact. That failure is 'a not uncommon form of litigation casualty, from which the Government is no more immune than others.' United States v. Yellow Cab Co., 338 U.S., at 341, 70 S.Ct., at 179. The Court now resuscitates this 'casualty' by use of a theory transplant, allowing the Government a second opportunity to vindicate its position by arguing a different theory not originally propounded before the District Court or on appeal. I cannot join in the Court's rescue operation for this 'litigation casualty,' an operation which succeeds only by flagrantly disregarding some of the axioms upon which our judicial system is founded.
101
Although agreeing with my Brother MARSHALL'S criticism of the Court's reason for remanding this case, I cannot agree with his grounds for remanding to the District Court for reconsideration. That theory is based, erroneously I believe, on the notion that there is an identifiable difference between 'objective' and 'subjective' evidence in an antitrust case such as this. My Brother MARSHALL would have the District Court weigh 'objective' evidence more heavily than 'subjective' evidence. In the field of economic forecasting in general, and in the area of potential competition in particular, however, the distinction between 'objective' and 'subjective' evidence is largely illusory. It is, I believe, incorrect to state that a trier of fact can determine 'objectively' what 'is in a firm's economic self-interest.' Such a determination is guesswork. The term 'economic self-interest' is a convenient shorthand for describing the economic decision reached by an individual or firm, but does not connote some simple, mechanical formula which determines the input values, or their assigned weight, in the process of economic decisionmaking. The simple fact is that any economic decision is largely subjective. In the instant case, Falstaff sought to prove why it was not in the 'economic self-interest' of that firm to enter a new geographic market without an established distribution system. Its explanation is as 'objective' as any of the evidence offered by the Government to show why a hypothetical Falstaff should enter the market. The question of who is an 'actual potential competitor' is entirely factual. In deciding questions of fact, it is the province of the trier to weigh all of the evidence; but it is peculiarly his province to determine questions of credibility.
102
'Findings as to the design, motive and intent with which men act depend peculiarly upon the credit given to witnesses by those who see and hear them. . . .
103
'. . . There is no exception (to the 'clearly erroneous' rule of appellate review) which permits (the Government), even in an antitrust case, to come to this Court for what virtually amounts to a trial de novo on the record of such findings as intent, motive and design.' United States v. Yellow Cab Co., 338 U.S., at 341—342, 70 S.Ct., at 179.
104
I would not ignore our prior decisions or rewrite the rules of evidence simply to afford the Government a second chance, which is uniformly denied to other litigants, to convince the trier of fact.
1
Section 7 provides in relevant part:
'No corporation engaged in commerce shall acquire, directly or indirectly, the whole or any part of the stock or other share capital and no corporation subject to the jurisdiction of the Federal Trade Commission shall acquire the whole or any part of the assets of another corporation engaged also in commerce, where in any line of commerce in any section of the country, the effect of such acquisition may be substantially to lessen competition, or to tend to create a monopoly.' 15 U.S.C. § 18.
For the legislative history of the amendment in 1950 that greatly expanded the section's scope, 64 Stat. 1125, see Brown Shoe Co. v. United States, 370 U.S. 294, 311—323, 82 S.Ct. 1502, 1516—1523, 8 L.Ed.2d 510 (1962).
2
Jurisdiction lies under § 2 of the Expediting Act, 32 Stat. 823, as amended, 15 U.S.C. § 29.
3
Maine, New Hampshire, Vermont, Massachusetts, Connecticut, and Rhode Island.
4
Nationally, the number of brewers decreased from 663 in 1935 to 140 in 1965.
5
Of the three 'top ten' brewers that were not selling in New England, Falstaff ranked fourth nationally, the other two ranking eighth and ninth. From Boston, Massachusetts, the distance to Falstaff's closest brewery was 844 miles, while the distance to the eighth and ninth largest sellers' breweries was 1,385 and 2,000 miles respectively.
6
A 'regional,' as contrasted with a 'national' brewer, is one that is not selling in all the significant national markets.
7
In 1958, Falstaff commissioned a study of actions it should take to maximize profits. The study recommended, inter alia, that Alstaff become a national brewer by entering those areas where it was not then marketing its product, especially the Northeast, and that Falstaff should build a brewery on the East Coast rather than buy.
8
For example, Falstaff in several press releases and in the company publication expressed its desires for national distribution, and at a panel discussion in October 1964 the president of Falstaff, in response to a question as to Falstaff's reaction to industry trends in beer sales, stated: 'For long range planning we are aiming for national distribution. Naturally this involves coming East.' App. 82.
9
Suit was filed against both Falstaff and Narragansett, but as to the later, the complaint was dismissed shortly after it was filed.
10
Hereinafter, reference to de novo entry includes 'toe-hold' acquisition as well.
11
Over the objections of the Government, the District Court allowed post-acquisition evidence and noted in the opinion that the market share of Narragansett dropped from 21.5% in 1964 to 15.5% in 1969, while the shares of the two leading national brewers increased from 16.5% to 35.8%.
12
See n. 8, supra, and accompanying text.
13
In FTC v. Procter & Gamble Co., 386 U.S. 568, 581, 87 S.Ct. 1224, 1231—1232, 18 L.Ed.2d 303 (1967), we found the acquiring company at the edge of the market exerted 'considerable influence' on the market because 'market behavior . . . was influenced by each firm's predictions of the market behavior of its competitors, actual and potential'; because 'barriers to entry . . . were not significant' as to the acquiring company; because 'the number of potential entrants was not so large that the elimination of one would be insignificant'; and because the acquiring firm was the most likely entrant.
It is suggested that the District Court failed to consider whether Falstaff was an on-the-fringe potential competitor with influence on existing competition because the Government never alleged in its complaint that Falstaff was exerting a present procompetitive influence, never proceeded under this theory, and further failed to introduce any evidence to support this view. But this position merely ascribes an arbitrary meaning to the language of the complaint. The Government in its complaint alleged that the acquisition violated § 7 because it elimininated potential competition; since potential competition may stimulate a present procompetitive influence, the allegation certainly encompassed the 'on-the-fringe influence' that the District Court failed to consider, and the Government was not required to be more specific in its allegation.
The Government did not produce direct evidence of how members of the New England market reacted to potential competition from Falstaff, but circumstantial evidence is the lifeblood of antitrust law, see Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 89 S.Ct. 1562, 23 L.Ed.2d 129 (1969); Interstate Circuit, Inc. v. United States, 306 U.S. 208, 221, 59 S.Ct. 467, 472, 83 L.Ed. 610 (1939); Frey & Son, Inc. v. Cudahy Packing Co., 256 U.S. 208, 210, 41 S.Ct. 451, 452, 65 L.Ed. 892 (1921), especially for § 7 which is concerned 'with probabilities, not certainties,' Brown Shoe Co. v. United States, 370 U.S., at 323, 82 S.Ct., at 1522—1523. As was stated in United States v. Penn-Olin Chemical Co., 378 U.S. 158, 174, 84 S.Ct. 1710, 1718 1719, 12 L.Ed.2d 775 (1964), '(p)otential competition cannot be put to a subjective test. It is not 'susceptible of a ready and precise answer."
Nor was there any lack of circumstantial evidence of Falstaff's on-the-fringe competitive impact. As the record shows, Fastaff was in the relevant line of commerce, was admittedly interested in
entering the Northeast, and had, among other ways, see n. 8, supra, made its interest known by prior-acquisition discussions. Moreover, there were, as my Brother Marshall would put it, objective economic facts as to Falstaff's capability to enter the New England market; and the same facts which he would have the District Court look to in determining whether the particular theory of potential competition we do not reach has been violated, would be probative of violation of § 7 through loss of a procompetitive on-the-fringe influence. See FTC v. Procter & Gamble Co., supra, 386 U.S., at 580—581, 87 S.Ct., at 1231—1232; United States v. Penn-Olin Chemical Co., supra, 378 U.S., at 173 177, 84 S.Ct., at 1718—1720; United States v. El Paso Natural Gas Co., 376 U.S. 651, 660, 84 S.Ct. 1044, 1049, 12 L.Ed.2d 12 (1964).
And as for the contention that the Government did not proceed under this on-the-fringe influence view, the record is to the contrary. At one point in the trial, the Government informed the trial judge that a deposition was being introduced into evidence 'to establish that Falstaff was a company that was on the wings or at the edge of the New England market. . . . What I mean by that is that Falstaff was capable and interested in entering the New England market and would be waiting for the opportunity to develop, but that Falstaff, over the long term, would eventually or could eventually or was a likely entrant into the New England market, to use the terminology in FTC v. Procter & Gamble Company.' App. 124. Further into its presentation of proof, the Government was introducing evidence of the trend toward concentration in the market, and stated: 'It is this concentration, your Honor, which, as we attempted to point out in our pretrial brief, makes potential competition. . . . The concentration of sales within a small number of firms in New England. This is what makes the potential competition . . . so very, very important to this market. . . . In such a situation the potential entry of a fresh competitive factor is of extreme importance.' App. 170.
That the on-the-fringe influence theory was one of the theories the Government was proceeding under was apparent to Falstaff. In its opening statement, Falstaff stated:
'Now, the Government has a theory which is, so far as the judicial determinations on the point are concerned, comparatively new. You were handed the other day a portion of the record in FTC against Bendix-Fram Corporation, and you were handed at the
same time a typed or otherwise reproduced copy of the opinion of Commissioner Elman of the FTC in that case.
'That opinion is not yet officially reported. The case is on its way to an appeal . . .. The Commissioner announced a theory upon which the Government relies and which they say lies within the ambit of this vague, undefined creature, potential competition. What that decision, on appeal as I say, what that decision announces is the doctrine which is called the toe-hold doctrine, and it goes like this:
'If a producer of Product A is standing in the wings, as the Commissioner says, outside the market, merely standing there, but in a position to move into the market if he chooses. He must remain there in the wings and forbear acquiring the producer of a like product within the market area.
'The Commissioner fancies that the mere presence of such a manufacturer or seller close to the market area had some effect which could fall within his ill-defined concept of potential competition. And he found in Bendix-Fram that Bendix was in such a position. He found that Bendix could have acquired a small company rather than Fram, a relatively larger one, beefed it up by expenditures of money which Bendix could afford, and develop it into a full-blown competitor within the market area. I do not know whether that notion will gain substantial acceptance in the theory of antitrust law. I do not know that it will have the approval of the Supreme Court if and when it ever reaches it. I do know, however, that that is an entirely different situation (than) we have here.
'If there is any sense to this total theory at all it must be that the acquiring company was in fact so closely located to the market served by the acquired company that its entrance into the market unilaterally, under its own steam, without motivation was a distinct threat to those who were competing in the market.' App. 182—183 (Emphasis added.) Falstaff then proceeded to state why it felt that the on-the-fringe influence theory did not apply in this case.
During its proof, Falstaff had both its expert witness on economics, App. 257, and an officer of Narragansett, App. 376, testify as to whether Falstaff's presence had a procompetitive effect, both stating that it did not.
14
It is suggested that certain language in the Court's opinion in United States v. Continental Can Co., 378 U.S. 441, 464, 84 S.Ct. 1738, 1750, 1751, 12 L.Ed.2d 953 (1964), is to the contrary. But there the merger was held proved prima facie anticompetitive because the acquiring and acquired companies were engaged in the same overall line of commerce in the same geographic market. This notwithstanding, it is again only arbitrary to assume that the quoted language was not referring to the acquired company's on-the-fringe in-fluence as a potential competitor for certain end uses for containers.
1
Hearings on S.Res. 98 before the Senate Committee on Interstate Commerce, 62d Cong., Vol. 1, p. 1155.
2
Id., at 1147.
3
Investigation of Conglomerate Corporations, Report by the Staff of Antitrust Subcommittee of the House Committee on the Judiciary on H.Res. 161, 92d Cong., 1st Sess. (Comm.Print).
4
Id., at 18.
5
Id., at 52—53.
6
Id., at 53.
7
Id., at 54.
8
Falstaff contended below that a de novo entry would not be profitable. Management stated that an established distribution system was a prerequisite to entry. The District Judge concluded that '(t)he credible evidence establishes that (Falstaff) was not a potential entrant into said market by any means or way other than by said acquisition.' 332 F.Supp. 970, 972.
1
The Government's complaint alleged that the merger violated § 7 because '(p)otential competition in the production and sale of beer between Falstaff and Narragansett will be eliminated.' (Emphasis added.) While it is true, as the majority asserts, that 'potential competition may stimulate a present procompetitive influence,' see ante, at 534 n. 13, the complaint nowhere alleges that such a procompetitive influence occurred in this case.
2
Significantly, the majority cites no evidence at all from the record indicating that firms within the New England market were deterred from anticompetitive practices by Falstaff's presence at the market fringe. Indeed, my Brethren concede that '(t)he Government did not produce direct evidence of how members of the New England market reacted to potential competition from Falstaff,' ibid. While the majority contends that there was 'circumstantial evidence' relevant to determining whether there was a loss of procompetitive influence, the evidence it points to suggests only that Falstaff might have been perceived as a potential entrant—not that this perception produced a present procompetitive effect. In fact, the little evidence on the question which does appear in the record strongly suggests that Falstaff was exerting no procompetitive influence. Thus, an economist testifying for the defense stated that, in his expert judgment, Falstaff's presence on the fringe of the market 'had no effect' on the practices of firms within the market (App. 257). Similarly, the director of marketing for Narragansett testified that those within the market did not view Falstaff as a threat and that it never occurred to them that Falstaff would attempt a de novo entry (App. 376).
To be sure, this testimony may well have been biased and might properly have been discounted by the trier of fact. But it is harder to dismiss the documentary evidence showing continued vigorous competition after Falstaff's entry by acquisition. If Falstaff was exerting a substantial procompetitive influence by threating entry, it would seem to follow that anticompetitive practices should have emerged when this threat was removed. The majority nowhere accounts for the continuing absence of such practices.
3
In its brief before this Court, the Government characterizes its cause of action as follows:
'The theory of the suit was that potential competition in the New England beer market may be substantially lessened by the acquisition.' Brief for United States 2—3.
4
Cf. United States v. El Paso Natural Gas Co., 376 U.S. 651, 663, 84 S.Ct. 1044, 1050, 12 L.Ed.2d 12 (1964) (opinion of Harlan, J.):
'Both as a practitioner and as a judge I have more than once felt that a closely contested government antitrust case, decided below in favor of the defendant, has foundered in this Court for lack of an illuminating opinion by the District Court. District Courts should not forget that such cases, the trials of which usually result in long and complex factual records, come here without the benefit of any sifting by the Courts of Appeals. The absence of an opinion by the District Court has been a handicap in this instance.'
5
See Fed.Rule Civ.Proc. 52(a). Cf. United States v. El Paso Natural Gas Co., supra, 376 U.S., at 656—657, 84 S.Ct., at 1047 1048.
6
This pressure continued during the post-acquisition period. From 1964 to 1969, Narragansett's share of the market slipped from 21.5% to 15.5%, while Anheuser-Busch and Schlitz, two large national firms, increased their combined share from 16.5% to 35.8%.
7
At trial, Falstaff argued that it was unlikely to make a de novo entry into the New England market since it had learned through experience that a strong, pre-existing organization of distributors was essential to success. It is true that Falstaff sold most of its beer through independent distributors. However, it should be noted that between 20% and 25% of its sales were made through company branches which Falstaff had established itself. As might be expected, Falstaff's profit margin was significantly higher in areas where it used its own distribution facilities. Moreover, Falstaff's assertion is belied by its own prior history. As noted above, for years Falstaff had successfully expanded by purchasing failing breweries with weak distribution facilities and turning them into effective competitors.
8
At trial, Falstaff also argued that the other Little recommendations which Falstaff did follow led to disastrous consequences, that Little's estimate of construction costs were unrealistic, and that the Little Report was premised on Falstaff's penetration of the mid-Atlantic as well as the New England market.
9
Dr. Horowitz' estimates were based on the assumption that Falstaff's profit margin would be $1.16 per barrel, which was the margin currently enjoyed by the company. However, Anheuser-Busch and Pabst, two of the larger national breweries, both earned more than $2.50 per barrel in their modern plants.
10
Ultimately, on March 6, 1972, Falstaff announced plans to acquire Ballantine's trademarks and tradename.
11
The original § 7 provided in relevant part: '(N)o corporation engaged in commerce shall acquire, directly or indirectly, the whole or any part of the stock or other share capital of another corporation engaged also in commerce, where the effect of such acquisition may be to substantially lessen competition between the corporation whose stock is so acquired and the corporation making the acquisition, or to restrain such commerce in any section or community, or tend to create a monopoly of any line of commerce.' 38 Stat. 731.
12
The legislative history of the 1950 amendment was traced in detail in our opinion in Brown Shoe Co. v. United States, 370 U.S. 294, 82 S.Ct. 1502, 8 L.Ed.2d 510 (1962). 'The deletion of the 'acquiring-acquired' test was the direct result of an amendment offered by the Federal Trade Commission. In presenting the proposed change, Commission Counsel Kelley made the following points: this Court's decisions had implied that the effect on competition between the parties to the merger was not the only test of the illegality of a stock merger; the Court had applied Sherman Act tests to Clayton Act cases and thus judged the effect of a merger on the industry as a whole; this incorporation of Sherman Act tests, with the accompanying 'rule of reason,' was inadequate for reaching some mergers which the Commission felt were not in the public interest; and the new amendment proposed a middle ground between what appeared to be an overly restrictive test insofar as mergers between competitors were concerned, and what appeared to the Commission to be an overly lenient test insofar as all other mergers were concerned. Congressman Kefauver supported this amendment and the Commission's proposal was then incorporated into the bill which was eventually adopted by the Congress. See Hearings (before Subcommittee No. 2 of the House Committee on the Judiciary) on H.R. 515, (80th Cong., 1st Sess.) at 23, 117—119, 238—240, 259; Hearings before a Subcommittee of the Senate Judiciary Committee on H.R. 2734, 81st Cong., 1st Sess. . . . 147.' 370 U.S., at 317 n. 30, 82 S.Ct., at 1519. CI B. Modes of Potential Competition
13
To be sure, in terms of anticompetitive effects, the dominant firm's acquisition of another firm within the market might be functionally indistinguishable from a de novo entry, which § 7 does not forbid. But 'surely one premise of an antimerger statute such as § 7 is that corporate growth by internal expansion is socially preferable to growth by acquisition.' United States v. Philadelphia National Bank, 374 U.S. 321, 370, 83 S.Ct. 1715, 1745, 10 L.Ed.2d 915 (1963). Moreover, entry by acquisition has the added evil of eliminating one firm in the market and thus increasing the burden on the remaining firms which must compete with the dominant entering firm.
14
Thus, whereas the practical difference between entry by acquisition and entry de novo may be marginal in the case of a dominant entrant, see n. 13, supra, it is crucial in the case of a perceived potential entrant. If the perceived potential entrant enters de novo, its deterrent effect on anticompetitive practices remains and the total number of firms competing for market shares increases. But when such a firm enters by acquisition, it merely steps into the shoes of the acquired firm. The result is no net increase in the actual competition for market shares and the removal of a threat exerting procompetitive influence from outside the market.
15
Still, even if the market is presently competitive, it is possible that it might grow less competitive in the future. For example, a market might be so concentrated that even though it is presently competitive, there is a serious risk that parallel pricing policies might emerge sometime in the near future. In such a situation, an effective competitor lingering on the fringe of the market—what might be called a potential perceived potential entrant—could exert a deterrent force when anti-competitive conduct is about to emerge. As its very name suggests, however, such a firm would be still a further step removed from the exertion of actual, present competitive influence, and the problems of proof are compounded accordingly—particularly in light of the showing of reasonable probability required under § 7.
16
However, if the acquired firm is strengthened to such an extent that it upsets the market balance and drives its competitors out of the market, the acquiring firm takes on the characteristics of a dominent entrant, and the merger may therefore violate § 7 under that theory. See supra, at 558—560 and n. 14.
17
Thus, in United States v. Penn-Olin Chemical Co., 378 U.S. 158, 84 S.Ct. 1710, 12 L.Ed.2d 775 (1964), for example, management testified that the company had no intention of making a de novo, a nonacquisitive entry. Id., at 166, 84 S.Ct. at 1714 1715, and in part on the basis of this testimony, the District Court found that such an entry was unlikely, id., at 173, 84 S.Ct. at 1718. But we rejected this finding as irrelevant to the company's status as a perceived potential entrant since 'the corporation . . . might have remained at the edge of the market, continually threatening to enter,' ibid., and so affected competition within the market.
18
Public statements by management that the firm does not intend to enter the market may be relevant. To the extent that such statements are believed by the firms within the market, they affect their perception of the firm outside the market as a potential entrant. But in that event, the statements of intent are admissible, not to show subjective state of mind, but, rather, as one of the objective factors controlling the perception of the firms within the market.
19
It might be argued that economic decisions are 'inherently subjective' and that any attempt to derive objective conclusions from
economic data is futile. If this observation means that different people reach different conclusions from the same objective data, then the point must, of course, be conceded. Similarly, if the point is that economic predictions are difficult and fraught with uncertainty, it is well taken. As we recognized in United States v. Philadelphia National Bank, such questions are 'not . . . susceptible of a ready and precise answer in most cases.' 374 U.S., at 362, 83 S.Ct., at 1741. But although the factual controversies in § 7 cases may prove difficult to resolve, the statutory scheme clearly demands their resolution. As this Court held years ago, in response to a similar argument: 'So far as the arguments proceed upon the conception that in view of the generality of the statute it is not susceptible of being enforced by the courts because it cannot be carried out without a judicial exertion of legislative power, they are clearly unsound. The statute certainly generically enumerates the character of acts which it prohibits and the wrong which it was intended to prevent. The propositions therefore but insist that . . . it never can be left to the judiciary to decide whether in a given case particular acts come within a generic statutory provision. But to reduce the propositions, however, to this, their final meaning, makes it clear that in substance they deny the existence of essential legislative authority and challenge the right of the judiciary to perform duties which that department of the government has exerted from the beginning.' Standard Oil Co. of New Jersey v. United States, 221 U.S. 1, 69—70, 31 S.Ct. 502, 519, 55 L.Ed. 619 (1911). Section 7 by its terms requires the trial judge to make a prediction, and it is entirely possible that others may reasonably disagree with the conclusion he reaches. But a holding that the fact of such disagreement requires the judge to delegate his decision-making authority to one of the parties would strike at the heart of the very notion of judicial conflict resolution. While it may be true that different people see economic facts in different light, § 7 gives federal judges and juries the responsibility to reach their conclusions as to the economic facts. And '(i)f justice requires the fact to be ascertained, the difficulty of doing so is no ground for refusing to try.' O. Holmes, The Common Law 48.
20
The Government directs our attention to a case which dramatically illustrates the unreliable character of such evidence. When the Government challenged Bethlehem Steel's acquisition of Youngstown Steel in a § 7 proceeding, Bethlehem vigorously argued that it would never enter the Midwestern steel market de novo. But when the merger was disallowed, see United States v. Bethlehem Steel Corp., 168 F.Supp. 576 (SDNY 1958), Bethlehem nonetheless elected to make a de novo entry. See Moody's Industrial Manual 2861 (1966).
21
It is possible to imagine a small, closely held corporation which is not solely concerned with profit maximization and which through excessive conservatism or inertia would not seize upon an opportunity to expand its profits. But such a corporation is exceedingly unlikely to become the defendant in a § 7 lawsuit. Section 7 suits of this type are triggered when a firm tries to expand its market by entering hitherto foreign territory by acquisition. A firm caught
in the act of expanding by acquisition can hardly be heard to say that it is uninterested in expansion.
It is also possible that a firm might make a good-faith error as to the nature of objective market forces. Thus, even though the objective factors favor entry de novo, the firm's managers might think that the same factors are unfavorable. But as the objective evidence favoring entry becomes stronger, the possibility of good-faith error correspondingly decreases, so that if the objective forces favoring entry are clear, the chance of good-faith error becomes de minimis. Moreover, the mere fact that a firm is presently making a good-faith error does not demonstrate that it will continue to do so in the future. See supra, this page.
22
The distinction between subjective statements of intent and objectively verifiable facts is not unknown in other areas of the law. See, e.g., Wright v. Council of City of Emporia, 407 U.S. 451, 460—462, 92 S.Ct. 2196, 2202, 33 L.Ed.2d 51 (1972); NLRB v. Erie Resistor Corp., 373 U.S. 221, 227—228, 83 S.Ct. 1139, 1144 1145, 10 L.Ed.2d 308 (1963). Indeed, perhaps the oldest rule of evidence—that a man is presumed to intend the natural and probable consequences of his acts—is based on the common law's preference for objectively measurable data over subjective statements of opinion and intent. Nor have we hesitated to apply this principle to antitrust law. See, e.g., Utah Pie Co. v. Continental Baking Co., 386 U.S. 685, 702—703, 87 S.Ct. 1326, 1335—1336, 18 L.Ed.2d 406 (1967); United States v. United States Gypsum Co., 333 U.S. 364, 394, 68 S.Ct. 525, 541, 92 L.Ed. 746 (1948).
| 78
|
410 U.S. 484
93 S.Ct. 1123
35 L.Ed.2d 443
Charles D. BRADEN, Petitioner,v.30TH JUDICIAL CIRCUIT COURT OF KENTUCKY.
No. 71—6516.
Argued Dec. 5, 1972.
Decided Feb. 28, 1973.
Syllabus
Petitioner, imprisoned in Alabama, applied to the District Court for the Western District of Kentucky for a writ of federal habeas corpus to compel the Commonwealth of Kentucky to grant him a speedy trial on an indictment returned by the grand jury of respondent court regarding which Kentucky had lodged a detainer with Alabma. The District Court granted the writ, but the Court of Appeals reversed on the ground that 28 U.S.C. § 2241(a), which provides that '(w)rits of habeas corpus may be granted by the . . . district courts . . . within their respective jurisdictions' precluded granting the writ to a prisoner who was not physically present within the territorial limits of the district court. Held:
1. Under Peyton v. Rowe, 391 U.S. 54, 88 S.Ct. 1549, 20 L.Ed.2d 426 which discarded the 'prematurity doctrine' of McNally v. Hill, 293 U.S. 131, 55 S.Ct. 24, 79 L.Ed. 238, the petitioner was 'in custody' within the meaning of 28 U.S.C. § 2241(c)(3) for purposes of a habeas corpus attack on the Kentucky indictment underlying the detainer, even though he was confined in an Alabama prison. Pp. 448—489.
2. The exhaustion doctrine of Ex parte Royall, 117 U.S. 241, 66 S.Ct. 734, 29 L.Ed. 868, does not bar a petition for federal habeas corpus alleging, under Smith v. Hooey, 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607, a constitutional claim of present denial of a speedy trial, even though the petitioner has not yet been brought to trial on the state charge. The petitioner must, however, have exhausted available state court remedies for consideration of that constitutional claim. Pp. 489—493.
3. The jurisdiction of a district court considering a habeas corpus petition requires only that the court issuing the writ have jurisdiction over the custodian of the prisoner. Pp. 494—495.
4. Ahrens v. Clark, 335 U.S. 188, 68 S.Ct. 1443, 92 L.Ed. 1898, on which respondent relies, can no longer be viewed as requiring that habeas corpus petitions be brought only in the district of the petitioner's confinement. Here, since respondent was properly served with process in the Western District of Kentucky, the Court of Appeals erred in concluding that the District Court should have dismissed the petition for lack of jurisdiction. Pp. 495—501.
454 F.2d 145, reversed and remanded.
David R. Hood, Detroit, Mich., for petitioner.
John M. Famularo, Lexington, Ky., for respondent, pro hac vice, by special leave of Court.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
Petitioner is presently serving a sentence in an Alabama prison. He applied to the District Court for the Western District of Kentucky for a writ of federal habeas corpus, alleging denial of his constitutional right to a speedy trial, Smith v. Hooey, 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607 (1969), and praying that an order issue directing respondent to afford him an immediate trial on a then three-year-old Kentucky indictment. We are to consider whether, as petitioner was not physically present within the territorial limits of the District Court for the Western District of Kentucky, the provision of 28 U.S.C. § 2241(a) that '(w)rits of habeas corpus may be granted by the . . . district courts . . . within their respective jurisdictions' (emphasis supplied), precluded the District Court from entertaining petitioner's application. The District Court held that the section did not bar its determination of the application. The court held further that petitioner had been denied a speedy trial and ordered respondent either to secure his presence in Kentucky for trial within 60 days or to dismiss the indictment. The Court of Appeals for the Sixth Circuit reversed on the ground that 'the habeas corpus jurisdiction conferred on the federal courts by 28 U.S.C. § 2241(a) is 'limited to petitions filed by persons physically present within the territorial limits of the District Court." 454 F.2d 145, 146 (1972). We granted certiorari. 407 U.S. 909, 92 S.Ct. 2451, 32 L.Ed.2d 682 (1972). We reverse.
2
* On July 31, 1967, the grand jury of the Jefferson County Circuit Court (30th Judicial Circuit of Kentucky) indicted petitioner on one count of storehouse breaking and one count of safebreaking. At the time of the indictment, petitioner was in custody in California, and he was returned to Kentucky to stand trial on the indictment. But on November 13, 1967, he escaped from the custody of Kentucky officials and remained at large until his arrest in Alabama on February 24, 1968. Petitioner was convicted of certain unspecified felonies in the Alabama state courts, and was sentenced to the Alabama state prison, where he was confined when he filed this action.
3
The validity of petitioner's conviction on the Alabama felonies is not at issue here, just as it was not at issue before the District Court for the Western District of Kentucky. Nor does petitioner challenge the 'present effect being given the (Kentucky) detainer by the (Alabama) authorities . . ..' Nelson v. George, 399 U.S. 224, 225, 90 S.Ct. 1963, 1964, 26 L.Ed.2d 578 (1970). He attacks, rather, the validity of the Kentucky indictment which underlies the detainer lodged against him by officials of that State.
4
In a pro se application for habeas corpus relief to the Federal District Court in the Western District of Kentucky, petitioner alleged that he had made repeated demands for a speedy trial on the Kentucky indictment, that he had been denied his right to a speedy trial, that further delay in trial would impair his ability to defend himself, and that the existence of the Kentucky indictment adversely affected his condition of confinement in Alabama by prejudicing his opportunity for parole. In response to an order to show cause, respondent argued that the District Court lacked jurisdiction because the petitioner was not confined within the district. Respondent added that 'petitioner in the case at bar may challenge the legality of any of the adverse effects of any Kentucky detainer against him in Alabama by habeas corpus in the Alabama Federal District Court.' App. 6—7. The District Court held, citing Smith v. Hooey, 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607 (1969), that Kentucky must 'attempt to effect the return of a prisoner from a foreign jurisdiction for trial on pending state charges when such prisoner so demands . . .. Since it is the State of Kentucky which must take action, it follows that jurisdiction rests in this district which has jurisdiction over the necessary state officials.' App. 9.
5
Under the constraint of its earlier decision,1 the Court of Appeals reversed but stated that it 'reach(ed) this conclusion reluctantly' because of the possibility that the decision would 'result in Braden's inability to find a forum in which to assert his constitutional right to a speedy trial—a right which he is legally entitled to assert at this time under Peyton v. Rowe, 391 U.S. 54, 88 S.Ct. 1549, 20 L.Ed.2d 426 (1968). This is a possibility because the rule in the Fifth Circuit, where (Braden) is incarcerated, appears to be that a district court in the state that has filed the detainer is the proper forum in which to file the petition. See May v. Georgia, 409 F.2d 203 (5th Cir. 1969). See also Rodgers v. Louisiana, 418 F.2d 237 (5th Cir. 1969). Braden thus may find himself ensnared in what has aptly been termed 'Catch 2254'—unable to vindicate his constitutional rights in either of the only two states that could possibly afford a remedy. See Tuttle, Catch 2254: Federal Jurisdiction and Interstate Detainers, 32 U.PittL.Rev. 489, 502—03 (1971).' 454 F.2d, at 146—147.
II
6
We granted certiorari to resolve a sharp conflict among the federal courts2 on the choice of forum where a prisoner attacks an interstate detainer on federal habeas corpus. Before turning to that question, we must make clear that petitioner is entitled to raise his speedy trial claim on federal habeas corpus at this time. First, he is currently 'in custody' within the meaning of the federal habeas corpus statute, 28 U.S.C. § 2241(c)(3). Prior to our decision in Peyton v. Rowe, 391 U.S. 54, 88 S.Ct. 1549, 20 L.Ed.2d 426 (1968), the 'prematurity doctrine' of McNally v. Hill, 293 U.S. 131, 55 S.Ct. 24, 79 L.Ed. 238 (1934), would, of course, have barred his petition for relief.3 But our decision in Peyton v. Rowe discarded the prematurity doctrine, which had permitted a prisoner to attack on habeas corpus only his current confinement, and not confinement that would be imposed in the future, and opened the door to this action.4
7
Second, petitioner has exhausted all available state remedies as a prelude to this action. It is true, of course, that he has not yet been tried on the Kentucky indictment, and he can assert a speedy trial defense when, and if, he is finally brought to trial. It is also true, as our Brother REHNQUIST points out in dissent, that federal habeas corpus does not lie, absent 'special circumstances,' to adjudicate the merits of an affirmative defense to a state criminal charge prior to a judgment of conviction by a state court. Ex parte Royall, 117 U.S. 241, 253, 6 S.Ct. 734, 741, 29 L.Ed. 868 (1886). Petitioner does not, however, seek at this time to litigate a federal defense to a criminal charge, but only to demand enforcement of the Commonwealth's affirmative constitutional obligation to bring him promptly to trial. Smith v. Hooey, 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607 (1969). He has made repeated demands for trial to the courts of Kentucky, offering those courts an opportunity to consider on the merits his constitutional claim of the present denial of a speedy trial. Under these circumstances it is clear that he has exhausted all available state court remedies for consideration of that constitutional claim, even though Kentucky has not yet brought him to trial.
8
The exhaustion doctrine is a judicially crafted instrument which reflects a careful balance between important interests of federalism and the need to preserve the writ of habeas corpus as a 'swift and imperative remedy in all cases of illegal restraint or confinement.' Secretary of State for Home Affairs v. O'Brien, (1923) A.C. 603, 609 (H.L.). It cannot be used as a blunderbuss to shatter the attempt at litigation of constitutional claims without regard to the purposes that underlie the doctrine and that called it into existence. As applied in our earlier decisions, the doctrine
9
'preserves the role of the state courts in the application and enforcement of federal law. Early federal intervention in state criminal proceedings would tend to remove federal questions from the state courts, isolate those courts from constitutional issues, and thereby remove their understanding of and hospitality to federally protected interests. Second, (the doctrine) preserves orderly administration of state judicial business, preventing the interruption of state adjudication by federal habeas proceedings. It is important that petitioners reach state appellate courts, which can bevelop and correct errors of state and federal law and most effectively supervise and impose uniformity on trial courts.' Note, Developments in the Law—Federal Habeas Corpus, 83 Harv.L.Rev. 1038, 1094 (1970).
10
See Darr v. Burford, 339 U.S. 200, 204—206, 70 S.Ct. 587, 590 591, 94 L.Ed. 761 (1950), and the case which overruled it, Fay v. Noia, 372 U.S. 391, 417—420, 83 S.Ct. 822, 837—838, 9 L.Ed.2d 837 (1963). See also Ex parte Royall, supra, 117 U.S., at 251—252, 6 S.Ct., at 740—471; Ex parte Hawk, 321 U.S. 114, 64 S.Ct. 448, 88 L.Ed. 572 (1944); cf. Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971); Stefanelli v. Minard, 342 U.S. 117, 72 S.Ct. 118, 96 L.Ed. 138 (1951).
11
The fundamental interests underlying the exhaustion doctrine have been fully satisfied in petitioner's situation. He has already presented his federal constitutional claim of a present denial of a speedy trial to the courts of Kentucky. The state courts rejected the claim, apparently on the ground that since he had once escaped from custody the Commonwealth should not be obligated to incur the risk of another escape by returning him for trial. Petitioner exhausted all available state court opportunities to establish his position that the prior escape did not obviate the Commonwealth's duty under Smith v. Hooey, supra. Moreover, petitioner made no effort to abort a state proceeding or to disrupt the orderly functioning of state judicial processes. He comes to federal court, not in an effort to forestall a state prosecution, but to enforce the Commonwealth's obligation to provide him with a state court forum. He delayed his application for federal relief until the state courts had conclusively determined that his prosecution was temporarily moribund. Since petitioner began serving the second of two 10-year Alabama sentences in March 1972, the revival of the prosecution may be delayed until as late as 1982. A federal habeas corpus action at this time and under these circumstances does not jeopardize any legitimate interest of federalism.5 Respondent apparently shares that view since it specifically concedes that petitioner has exhausted all available state remedies, Tr. of Oral Arg. 41.
12
In the case before us, the Court of Appeals held—not surprisingly, in view of the considerations discussed above—that even though petitioner had chosen the wrong forum, his speedy trial claim was one 'which he is legally entitled to assert at this time under Peyton v. Rowe, 391 U.S. 54, 88 S.Ct. 1549, 20 L.Ed.2d 426 (1968).' 454 F.2d, at 146. And the District Court, which upheld on the merits petitioner's speedy trial claim, necessarily adopted that view. Indeed, the great majority of lower federal courts which have considered the question since Smith v. Hooey, supra, have reached this same, and indisputably correct, conclusion.6
13
We emphasize that nothing we have said would permit the derailment of a pending state proceeding by an attempt to litigate constitutional defenses prematurely in federal court. The contention in dissent that our decision converts fedral habeas corpus into 'a pretrial-motion forum for state prisoners,' wholly misapprehends today's holding.
III
14
Accordingly, we turn to the determination of the forum in which the petition for habeas corpus should be brought. In terms of traditional venue considerations, the District Court for the Western District of Kentucky is almost surely the most desirable forum for the adjudication of the claim.7 It is in Kentucky, where all of the material events took place, that the records and witnesses pertinent to petitioner's claim are likely to be found. And that forum is presumably no less convenient for the respondent and the Commonwealth of Kentucky, than for the petitioner. The expense and risk of transporting the petitioner to the Western District of Kentucky, should his presence at a hearing prove necessary, would in all likelihood be outweighed by the difficulties of transporting records and witnesses from Kentucky to the district where petitioner is confined.8 Indeed, respondent makes clear that 'on balance, it would appear simpler and less expensive for the State of Kentucky to litigate such questions (as those involved in this case) in one of its own Federal judicial districts.' Brief for Respondent 6.
15
But respondent insists that however the balance of convenience might be struck with reference to the question of venue, the choice of forum is rigidly and jurisdictionally controlled by the provision of § 2241(a) that '(w)rits of habeas corpus may be granted by the Supreme Court, any justice thereof, the district courts and any circuit judge within their respective jurisdictions.' 28 U.S.C. § 2241(a) (emphasis supplied). Relying on our decision in Ahrens v. Clark, 335 U.S. 188, 68 S.Ct. 1443, 92 L.Ed. 1898 (1948), respondent contends—and the Court of Appeals held—that the italicized words limit a District Court's habeas corpus jurisdiction to cases where the prisoner seeking relief is confined within its territorial jurisdiction. Since that interpretation is not compelled either by the language of the statute or by the decision in Ahrens, and since it is fundamentally at odds with the purposes of the statutory scheme, we cannot agree.
16
The writ of habeas corpus does not act upon the prisoner who seeks relief, but upon the person who holds him in what is alleged to be unlawful custody. Wales v. Whitney, 114 U.S. 564, 574, 5 S.Ct. 1050, 1054—1055, 29 L.Ed. 277 (1885). In the classic statement:
17
'The important fact to be observed in regard to the mode of procedure upon this writ is, that it is directed to, and served upon, not the person confined, but his jailer. It does not reach the former except through the latter. The officer or person who serves it does not unbar the prison doors, and set the prisoner free, but the court relieves him by compelling the oppressor to release his constraint. The whole force of the writ is spent upon the respondent.' In the Matter of Jackson, 15 Mich. 417, 439—440 (1867), quoted with approval in Ex parte Endo, 323 U.S. 283, 306, 65 S.Ct. 208, 220, 89 L.Ed. 243 (1944). See also Ahrens v. Clark, 335 U.S., at 196—197, 68 S.Ct., at 1447. (Rutledge, J., dissenting).
18
Read literally, the language of § 2241(a) requires nothing more than that the court issuing the writ have jurisdiction over the custodian. So long as the custodian can be reached by service of process, the court can issue a writ 'within its jurisdiction' requiring that the prisoner be brought before the court for a hearing on his claim, or requiring that he be released outright from custody, even if the prisoner himself is confined outside the court's territorial jurisdiction.
19
Nevertheless, there is language in our opinion in Ahrens v. Clark, supra, indicating that the prisoner's presence within the territorial confines of the district is an invariable prerequisite to the exercise of the District Court's habeas corpus jurisdiction. In Ahrens, 120 German nationals confined at Ellis Island, New York, pending deportation sought habeas corpus on the principal ground that the removal orders exceeded the President's statutory authority under the Alien Enemy Act of 1789. They filed their petitions in the District Court for the District of Columbia, naming as respondent the Attorney General of the United States. Construing the statutory predecessor to § 2241(a), we held that the phrase, 'within their respective jurisdictions,' precluded the District Court for the District of Columbia from inquiring into the validity of the prisoners' detention at Ellis Island, and we therefore affirmed the dismissal of the petitions on jurisdictional grounds.
20
Our decision in Ahrens rested on the view that Congress' paramount concern was the risk and expense attendant to the 'production of prisoners from remote sections, perhaps thousands of miles from the District Court that issued the writ. The opportunities for escape afforded by travel, the cost of transportation, the administrative burden of such an undertaking negate such a purpose.' 335 U.S., at 191, 68 S.Ct., at 1444. And we found support for that assumption in the legislative history of the Act.9 During the course of Senate debate on the habeas corpus statute of 1867,10 the bill was criticized on the ground that it would permit 'a district judge in Florida to bring before him some men convicted and sentenced and held under imprisonment in the State of Vermont or in any of the further States.' Cong. Globe, 39th Cong., 2d Sess., 730. Senator Trumbull, sponsor of the bill, met the objection with an amendment adding the words, 'within their respective jurisdictions,' as a circumscription of the power of the district courts to issue the writ.11
21
But developments since Ahrens have had a profound impact on the continuing vitality of that decision. First, in the course of overruling the application of Ahrens to the ordinary case where a prisoner attacks the conviction and sentence of a federal or state court, Congress has indicated that a number of the premises which were thought to require that decision are untenable. A 1950 amendment to the habeas corpus statute requires that a collateral attack on a federal sentence be brought in the sentencing court rather than the district where the prisoner is confined. 28 U.S.C. § 2255. Similarly, a prisoner contesting a conviction and sentence of a state court of a State which contains two or more federal judicial districts, who is confined in a district within the State other than that in which the sentencing court is located, has the option of seeking habeas corpus either in the district where he is confined or the district where the sentencing court is located. 28 U.S.C. § 2241(d).12 In enacting these amendments, Congress explicitly recognized the substantial advantages of having these cases resolved in the court which originally imposed the confinement or in the court located nearest the site of the underlying controversy.13 And Congress has further challenged the theoretical underpinnings of the decision by codifying in the habeas corpus statute a procedure we sanctioned in Walker v. Johnston, 312 U.S. 275, 284, 61 S.Ct. 574, 578, 85 L.Ed. 830 (1941), whereby a petition for habeas corpus can in many instances be resolved without requiring the presence of the petitioner before the court that adjudicates his claim. 28 U.S.C. § 2243. See also United States v. Hayman, 342 U.S. 205, 222—223, 72 S.Ct. 263, 273—274, 96 L.Ed. 232 (1952).14
22
This Court, too, has undercut some of the premises of the Ahrens decision. Where American citizens confined overseas (and thus outside the territory of any district court) have sought relief in habeas corpus, we have held, if only implicitly, that the petitioners' absence from the district does not present a jurisdictional obstacle to the consideration of the claim. Burns v. Wilson, 346 U.S. 137, 73 S.Ct. 1045, 97 L.Ed. 1508 (1953), rehearing denied, 346 U.S. 844, 851—852, 74 S.Ct. 3, 7—8, 98 L.Ed. 363 (opinion of Frankfurter, J.); cf. United States ex rel. Toth v. Quarles, 350 U.S. 11, 76 S.Ct. 1, 100 L.Ed. 8 (1955); Hirota v. General of the Army MacArthur, 338 U.S. 197, 199, 69 S.Ct. 1238, 93 L.Ed. 1902 (1948) (Douglas, J., concurring (1949)).
23
A further, critical development since our decision in Ahrens is the emergence of new classes of prisoners who are able to petition for habeas corpus because of the adoption of a more expansive definition of the 'custody' requirement of the habeas statute. See Peyton v. Rowe, 391 U.S. 54, 88 S.Ct. 1549, 20 L.Ed.2d 426 (1968); Carafas v. LaVallee, 391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968); Jones v. Cunningham, 371 U.S. 236, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963). The overruling of McNally v. Hill, 293 U.S. 131, 55 S.Ct. 24, 79 L.Ed. 238 (1934), made it possible for prisoners in custody under one sentence to attack a sentence which they had not yet brgun to serve. And it also enabled a petitioner held in one State to attack a detainer lodged against him by another State. In such a case, the State holding the prisoner in immediate confinement acts as agent for the demanding State,15 and the custodian State is presumably indifferent to the resolution of the prisoner's attack on the detainer. Here, for example, the petitioner is confined in Alabama, but his dispute is with the Commonwealth of Kentucky, not the State of Alabama. Under these circumstances it would serve no useful purpose to apply the Ahrens rule and require that the action be brought in Alabama. In fact, a slavish application of the rule would jar with the very purpose underlying the addition of the phrase, 'within their respective jurisdictions.' We cannot assume that Congress intended to require the Commonwealth of Kentucky to defend its action in a distant State and to preclude the resolution of the dispute by a federal judge familiar with the laws and practices of Kentucky.16 See United States ex rel. Meadows v. New York, 426 F.2d 1176, 1181 (C.A.2, 1970); Word v. North Carolina, 406 F.2d 352 (C.A.4, 1969).
IV
24
In view of these developments since Ahrens v. Clark, we can no longer view that decision as establishing an inflexible jurisdictional rule, dictating the choice of an inconvenient forum even in a class of cases which could not have been foreseen at the time of our decision.17 Of course, in many instances the district in which petitioners are held will be the most convenient forum for the litigation of their claims. On the facts of Ahrens itself, for example, petitioners could have challenged their detention by bringing an action in the Eastern District of New York against the federal officials who confined them in that district. No reason is apparent why the District of Columbia would have been a more convenient forum, or why the Government should have undertaken the burden of transporting 120 detainees to a hearing in the District of Columbia. Under these circumstances, traditional principles of venue would have mandated the bringing of the action in the Eastern District of New York, rather than the District of Columbia. Ahrens v. Clark stands for no broader proposition.
25
Since the petitioner's absence from the Western District of Kentucky did not deprive the court of jurisdiction, and since the respondent was properly served in that district, see Strait v. Laird, 406 U.S. 341, 92 S.Ct. 1693, 32 L.Ed.2d 141 (1972); Schlanger v. Seamans, 401 U.S. 487, 91 S.Ct. 995, 28 L.Ed.2d 251 (1971), the court below erred in ordering the dismissal of the petition on jurisdictional grounds. The judgment of the Court of Appeals is reversed and the case is remanded for proceedings consistent with this opinion.
26
Reversed and remanded.
27
Mr. Justice BLACKMUN, concurring in the result.
28
I concur in the result. The conclusion the Court reaches is not unexpected when one notes the extraordinary expansion of the concept of habeas corpus effected in recent years. See Ex parte Hull, 312 U.S. 546, 61 S.Ct. 640, 85 L.Ed. 1034 (1941); Ex parte Endo, 323 U.S. 283, 65 S.Ct. 208, 89 L.Ed. 243 (1944); Jones v. Cunningham, 371 U.S. 236, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963); Peyton v. Rowe, 391 U.S. 54, 88 S.Ct. 1549, 20 L.Ed.2d 426 (1968); Carafas v. LaVallee, 391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968); Nelson v. George, 399 U.S. 224, 90 S.Ct. 1963, 26 L.Ed.2d 578 (1970). Cf. Schlanger v. Seamans, 401 U.S. 487, 91 S.Ct. 995, 28 L.Ed.2d 251 (1971). A trend of this kind, once begun, easily assumes startling proportions. The present case is but one more step, with the Alabama warden now made the agent of the Commonwealth of Kentucky.
29
I do not go so far as to say that on the facts of this case the result is necessarily wrong. I merely point out that we have come a long way from the traditional notions of the Great Writ. The common-law scholars of the past hardly would recognize what the Court has developed, see 4 W. Blackstone, Commentaries 131 134, and they would, I suspect, conclude that it is not for the better.
30
The result in this case is not without its irony. The petitioner's speedy trial claim follows upon his escape from Kentucky custody after that State, at its expense, had returned the petitioner from California to stand trial in Kentucky. Had he not escaped, his Kentucky trial would have taken place five years ago. Furthermore, the petitioner is free to assert his speedy trial claim in the Kentucky courts if and when he is brought to trial there. And the claim, already strong on the facts here, increases in strength as time goes by.
31
Mr. Justice REHNQUIST, with whom THE CHIEF JUSTICE and Mr. Justice POWELL concur, dissenting.
32
Today the Court overrules Ahrens v. Clark, 335 U.S. 188, 68 S.Ct. 1443, 92 L.Ed. 1898 (1948), which construed the legislative intent of Congress in enacting the lineal predecessor of 28 U.S.C. § 2241. Although considerations of 'convenience' may support the result reached in this case, those considerations are, in this context, appropriate for Congress, not this Court, to make. Congress has not legislatively overruled Ahrens, and subsequent 'developments' are simply irrelevant to the judicial task of ascertaining the legislative intent of Congress in providing, in 1867, that federal district courts may issue writs of habeas corpus 'within their respective jurisdictions' for prisoners in the custody of state authorities. The Court, however, not only accomplishes a feat of judicial prestidigitation but, without discussion or analysis, explicitly extends the scope of Peyton v. Rowe, 391 U.S. 54, 88 S.Ct. 1549, 20 L.Ed.2d 426 (1968), and implicitly rejects Ex parte Royall, 117 U.S. 241, 6 S.Ct. 734, 29 L.Ed. 868 (1886).
33
* In order to appreciate the full impact of the Court's decision, a brief reiteration of the procedural stance of the case at the time the petition for habeas corpus was filed is necessary. Petitioner is incarcerated in Alabama pursuant to a state court judgment, the validity of which petitioner does not attack. Petitioner had been indicted in Kentucky and a detainer filed by Kentucky authorities with the Alabama authorities. Kentucky had conducted no proceedings against petitioner; no judgment of conviction on the Kentucky indictment had been obtained. From Alabama, petitioner requested Kentucky authorities to ask the Alabama authorities to deliver him to Kentucky so that petitioner could be tried on the Kentucky indictment. No action was taken on this request, and the Kentucky Supreme Court refused to issue a writ of mandamus requiring Kentucky authorities to request that Alabama deliver petitioner for trial in Kentucky. Petitioner then filed the instant habeas corpus proceeding in Kentucky, contending that he was 'in custody' of Kentucky authorities and that the 'custody' was illegal because he had been denied his right to a speedy trial. Petitioner is not seeking to attack collaterally a state judgment of conviction in federal court. In substance, petitioner is seeking, prior to trial, to force the Commonwealth of Kentucky to litigate a question that otherwise could only be raised as an absolute defense in a state criminal proceeding against petitioner.
II
34
The first inquiry is whether a state prisoner can, prior to trial, raise the claim of the denial of a right to a speedy trial by petitioning a federal court for writ of habeas corpus. The Court reasons that since Peyton v. Rowe, supra, 'discarded the prematurity doctrine,' ante, at 488, 'petitioner is entitled to raise his speedy trial claim on federal habeas corpus.'
35
Petitioner filed this petition alleging federal jurisdiction pursuant to 28 U.S.C. §§ 2241, 2254. Section 2254 pertains only to a prisoner in custody pursuant to a judgment of conviction of a state court; in the context of the attempt to assert a right to a speedy trial, there is simply no § 2254 trap to 'ensnare' petitioner, such as the court below felt existed. The issue here is whether habeas corpus is warranted under § 2241(c)(3); that section empowers district courts to issue the writ, inter alia, before a judgment is rendered in a criminal proceeding. It is in the context of an application for federal habeas corpus by a state prisoner prior to any trial in a state court that the effect of the instant decision must be analyzed.
36
The Court reasons that since Smith v. Hooey, 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607 (1969), held that a State must, consistent with the Sixth and Fourteenth Amendments, 'make a diligent, good-faith effort to bring' a prisoner to trial on a state indictment even though he is incarcerated in another jurisdiction, id., at 383, 89 S.Ct., at 579, and, since Peyton v. Rowe, supra, overruled 'the prematurity doctrine,' therefore, a prisoner can attack in a federal habeas corpus proceeding the validity of an indictment lodged against him in one State even though he is imprisoned in another. I cannot agree with this reasoning.
37
In Smith, this Court held that a State must make an effort to try a person even though he was incarcerated in another jurisdiction. That case did not, however, involve federal habeas corpus. It came here on certiorari after the state court had denied a petition for a writ of mandamus seeking to have the underlying indictment dismissed. The Texas Supreme Court had ruled that the state courts had no power to order the federal prisoner produced for trial on the state indictment. This Court reversed, holding that, in view of the Sixth and Fourteenth Amendment guarantees of a speedy trial, the State must, after demand therefor, attempt to obtain the prisoner from the sovereignty with custody over the prisoner.
38
It by no means follows, however, that a state prisoner can assert the right to a speedy trial in a federal district court. The fundamental flaw in the reasoning of the Court is the assumption that since a prisoner has some 'right' under Smith v. Hooey, supra, he must have some forum in which affirmatively to assert that right, and that therefore the right may be vindicated in a federal district court under § 2241(c)(3). Smith v. Hooey did not, however, establish that a right distinct from the right to a speedy trial existed. It merely held that a State could not totally rely on the fact that it could not order that a prisoner be brought from another jurisdiction as a justification for not attempting to try the defendant as expeditiously as possible. The right to a speedy trial is, like other constitutional rights, a defense to a criminal charge, but one which, unlike others, increases in terms of potential benefit to the accused with the passage of time. Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). The fact that a State must make an effort to obtain a defendant from another sovereign for trial but fails, after demand, to make an effort would weigh heavily in the defendant's favor. But Smith v. Hooey does not necessarily imply that federal courts may, as the District Court did in this case, in effect, issue an injunction requiring a state court to conduct a criminal trial. If the State fails to perform its duty, Smith v. Hooey, it must face the consequences of possibly not obtaining a conviction, Barker v. Wingo. But the fact that the State has a duty by no means leads to the conclusion that the failure to perform that duty can be raised by a prospective defendant on federal habeas corpus in advance of trial. The history of habeas corpus and the principles of federalism strongly support the approach established by Ex parte Royall, supra, that, absent extraordinary circumstances, federal habeas corpus should not be used to adjudicate the merits of an affirmative defense to a state criminal charge prior to a judgment of conviction by a state court.
39
The Court's reasoning for allowing a state prisoner to resort to federal habeas corpus is that the prisoner is attacking the validity of a 'future custody.' The Court relies on Peyton to justify federal jurisdiction. Peyton, however, was in a significantly different procedural posture from the instant case. There, the Court held that a state prisoner could challenge the constitutional validity of a sentence which he had not yet begun to serve when he was currently incarcerated pursuant to a valid conviction and sentence, but the sentence he sought to attack was to run consecutively to the valid sentence. Even though a person may be 'in custody' for purposes of §§ 2241(c) (3), or 2254, if he has not yet begun to serve a sentence entered after a judgment of conviction, as the Court held in Peyton, it by no means follows that he is similarly 'in custody' when no judgment of conviction has been entered or even any trial on the underlying charge conducted. The Court's suggestion that a person may challenge by way of federal habeas corpus any custody that might possibly be imposed at some time in the 'future,' which suggestion unwarrantedly assumes both that a constitutional defense will be rejected and that the jury will convict, is not supported by the language or reasoning of Peyton. Mr. Chief Justice Warren, writing for the Court in Peyton, emphasized the role of federal habeas corpus for state prisoners as 'substantially a post-conviction device,' 391 U.S., at 60, 88 S.Ct., at 1552, and 'the instrument for resolving fact issues not adequately developed in the original proceedings.' Id., at 63, 88 S.Ct., at 1554. The Court there stated that the demise of the McNally rule would allow prisoners 'the opportunity to challenge defective convictions.' Id., 391 U.S., at 65, 88 S.Ct., at 1555.
40
The Court here glosses over the disparate procedural posture of this case, and merely asserts, without analyzing the historical function of federal habeas corpus for state prisoners, that the rationale of Peyton is applicable to a pretrial, preconviction situation. Citation to that decision cannot obscure the fact that the Court here makes a significant departure from previous decisions, a departure that certainly requires analysis and justification more detailed than that which the Court puts forth.
41
There is no doubt that a prisoner such as petitioner can assert, by appropriate motion in the courts of the State in which the indictment was handed down, that he should be brought to trial on that charge. Smith v. Hooey, supra. There is also no doubt that such a prisoner may petition a federal district court for a writ of habeas corpus prior to trial. See 28 U.S.C. § 2241(c)(3). What the Court here disregards, however, is almost a century of decisions of this Court to the effect that federal habeas corpus for state prisoners, prior to conviction, should not be granted absent truly extraordinary circumstances.
42
In Ex parte Royall, supra, the petitioner was indicted in state court for selling a bond coupon without a license. Prior to trial on that indictment, he petitioned in federal court for a writ of habeas corpus, contending that the statute upon which the indictment was predicated violated the contract clause, insofar as it was applied to owners of coupons. In holding that the (then) Circuit Court had the power to issue the writ but had properly exercised its discretion not to do so, the Court wrote:
43
'That discretion should be exercised in the light of the relations existing, under our system of government, between the judicial tribunals of the Union and of the states, and in recognition of the fact that the public good requires that those relations be not disturbed by unnecessary conflict between courts equally bound to guard and protect rights secured by the constitution.' 117 U.S., at 251, 6 S.Ct., at 740.
44
The judicial approach set forth in Ex parte Royall—that federal courts should not, absent extraordinary circumstances, interfere with the judicial administration and process of state courts prior to trial and conviction, even though the state prisoner claims that he is held in violation of the Constitution has been consistently followed. Cook v. Hart, 146 U.S. 183, 13 S.Ct. 40, 36 L.Ed. 934 (1892) (custody alleged to violate Art. 4, § 2); New York v. Eno, 155 U.S. 89, 15 S.Ct. 30, 39 L.Ed. 80 (1894) (custody alleged to violate Supremacy Clause); Whitten v. Tomlinson, 160 U.S. 231, 16 S.Ct. 297, 40 L.Ed. 406 (1895) (custody alleged in violation of Constitution due to improper extradition); Drury v. Lewis, 200 U.S. 1, 26 S.Ct. 229, 50 L.Ed. 343 (1906) (custody alleged to violate Supremacy Clause). Cf. Ex parte Fonda, 117 U.S. 516, 6 S.Ct. 848, 29 L.Ed. 994 (1886); In re Duncan, 139 U.S. 449, 11 S.Ct. 573, 35 L.Ed. 219 (1891); In re Wood, 140 U.S. 278, 11 S.Ct. 738, 35 L.Ed. 505 (1891); In re Frederich, 149 U.S. 70, 13 S.Ct. 793, 37 L.Ed. 653 (1893). The situations in which pretrial or preconviction federal interference by way of habeas corpus with state criminal processes is justified involve the lack of jurisdiction, under the Supremacy Clause, for the State to bring any criminal charges against the petitioner. Wildenhus's Case, 120 U.S. 1, 7 S.Ct. 385, 30 L.Ed. 565 (1887); In re Loney, 134 U.S. 372, 10 S.Ct. 584, 33 L.Ed. 949 (1890); In re Neagle, 135 U.S. 1, 10 S.Ct. 658, 34 L.Ed. 55 (1890).
45
The effect of today's ruling that federal habeas corpus prior to trial is appropriate because it will determine the validity of custody that may be imposed in actuality only sometime in the indefinite future constitutes an unjustifiable federal interference with the judicial administation of a State's criminal laws. The use of federal habeas corpus is, presumably, limited neither to the interstate detainer situation nor to the constitutional rights secured by the Sixth and Fourteenth Amendments. The same reasoning would apply to a state prisoner who alleges that 'future custody' will result because the State plans to introduce at a criminal trial sometime in the future a confession allegedly obtained in violation of the Fifth and Fourteenth Amendments, or evidence obtained in violation of the Fourth and Fourteenth Amendments. I thoroughly disagree with this conversion of federal habeas corpus into a pretrial-motion forum for state prisoners.
III
46
In addition to sanctioning an expansion of when a federal court may interfere with state judicial administration, the Court overrules Ahrens v. Clark, supra, and expands the parameters of which federal courts may so intervene. In Ahrens, the Court held that 'the presence within the territorial jurisdiction of the District Court of the person detained is (a) prerequisite to filing a petition for writ of habeas corpus.' 335 U.S., at 189, 68 S.Ct., at 1443. The Court construed the phrase 'within their respective jurisdictions' to mean that Congress intended to limit the jurisdiction of a district court to prisoners in custody within its territorial jurisdiction. Id., at 193, 68 S.Ct., at 1445.
47
The Court here says that the 'language' of Ahrens 'indicates' the result reached below. The explicit holding of the Court, however, is plainly much more than an 'indication.'
48
'Thus the view that the jurisdiction of the District Court to issue the writ in cases such as this is restricted to those petitioners who are confined or detained within the territorial jurisdiction of the court is supported by the language of the statute, by considerations of policy, and by the legislative history of the enactment. We therefore do not feel free to weigh the policy considerations which are advanced for giving district courts discretion in cases like this. If that concept is to be imported into this statute, Congress must do so.' Id., at 192—193, 68 S.Ct., at 1445 (emphasis added; footnote omitted).
49
The result reached today may be desirable from the point of view of sound judicial administration, see Ahrens v. Clark, supra, at 191, 68 S.Ct., at 1444; Nelson v. George, 399 U.S. 224, 228 n. 5, 90 S.Ct. 1963, 1966, 26 L.Ed.2d 578 (1970). It is the function of this Court, however, to ascertain the intent of Congress as to the meaning of 'within their respective jurisdictions.' Having completed that task in Ahrens, it is the function of Congress to amend the statute if this Court misinterpreted congressional intent or if subsequent developments suggest the desirability, from a policy viewpoint, of alterations in the statute. See Cleveland v. United States, 329 U.S. 14, 67 S.Ct. 13, 91 L.Ed. 12 (1946). We noted in Nelson that the resolution of any apparent dilemma 'caused' by this Court's holding in Ahrens is appropriately one to be undertaken by Congress. 399 U.S., at 228 n. 5, 90 S.Ct., at 1966. Legislative 'inaction' in amending a statute to comport with this Court's evaluation of '(s)ound judicial administration' hardly warrants the disingenuous reading of a previous decision to achieve the result that Congress, despite judicial prodding, has refused to mandate. However impatient we may be with a federal statute which sometimes may fail to provide a remedy for every situation, one would have thought it inappropriate for the Court to amend the statute by judicial action.
50
The Court lists several 'developments' that have somehow undercut the validity, in the Court's opinion, of the statutory interpretation of the phrase 'within their respective jurisdicitions.' As the amended § 2255 is relevant only to federal prisoners collaterally attacking a conviction, and as § 2241(d) applies only to intrastate jurisdiction, the relevance of the amendments with respect to the jurisdictional requirement of § 2241(c)(3) is not a little obscure. The interpretation of the phrase 'within their respective jurisdictions' in Ahrens is hardly incompatible with these recent amendments of statutes dealing with situations not involving the interstate transportation of state prisoners. The further argument that Burns v. Wilson, 346 U.S. 137, 73 S.Ct. 1045, 97 L.Ed. 1508 (1953), 'undermines' Ahrens overlooks the fact that the Court in Ahrens specifically reserved that question, 335 U.S., at 192 n. 4, 68 S.Ct., at 1445, the resolution of which is by no means an explicit rejection of Ahrens. Finally, the fact that this Court has expanded the notion of 'custody' for habeas corpus purposes hardly supports, much less compels, the rejection of a statutory construction of an unrelated phrase.
51
In the final analysis, the Court apparently reasons that since Congress amended other statutory provisions dealing with habeas corpus, therefore the congressional intent with respect to the meaning of an unamended phrase must somehow have changed since the Court previously ascertained that intent. This approach to statutory construction, however, justifies with as much, if not more, force, the result reached below: Congress, aware of this Court's interpretation of the phrase in Ahrens, deliberately chose not to amend § 2241(c)(3) when it selectively amended other statutory provisions dealing with federal habeas corpus. Indeed, the most recent indications of legislative intent support this conclusion rather than that advanced by the Court. See H.R.Rep.No.1894, 89th Cong., 2d Sess., 1—2 (1966); S.Rep.No.1502, 89th Cong., 2d Sess. (1966), U.S.Code Cong. & Admin.News (1966) p. 2968. See also n. 13, ante, at 497.
52
I would adhere to this Court's interpretation of the legislative intent set forth in Ahrens v. Clark, supra, and leave it to Congress, during the process of considering legislation to amend this section, to consider and to weigh the various policy factors that the Court today weighs for itself.
1
White v. Tennessee, 447 F.2d 1354 (CA6 1971).
2
Compare United States ex rel. Meadows v. New York, 426 F.2d 1176 (CA2 1970), and Word v. North Carolina, 406 F.2d 352 (CA4 1969) (proper forum is in the demanding State), with United States ex rel. Van Scoten v. Pennsylvania, 404 F.2d 767 (CA3 1968); Ashley v. Washington, 394 F.2d 125 (CA9 1968), and Booker v. Arkansas, 380 F.2d 240 (CA8 1967) (proper forum is in the State of confinement).
3
See generally Note, Developments in the Law—Federal Habeas Corpus, 83 Harv.L.Rev. 1038, 1087—1093 (1970).
4
In Smith v. Hooey, 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607 (1969), we considered a speedy trial claim similar to the one presented in the case before us, and we held that a State which had lodged a detainer against a petitioner in another State must, on the prisoner's demand, 'make a diligent, good-faith effort' to bring the prisoner to trial. Id., at 383, 89 S.Ct., at 579. But that case arose on direct review of the denial of relief by the state court, and we had no occasion to consider whether the same or similar claims could have been raised on federal habeas corpus. Yet it logically follows from Peyton v. Rowe, 391 U.S. 54, 88 S.Ct. 1549, 20 L.Ed.2d 426 (1968), that the claims can be raised on collateral attack. In this context, as opposed to the situation presented in Peyton, the 'future custody' under attack will not be imposed by the same sovereign which holds the petitioner in his current confinement. Nevertheless, the considerations which were held in Peyton to warrant a prompt resolution of the claim also apply with full force in this context. 391 U.S., at 63—64, 88 S.Ct., at 1554—1555. See United States ex rel. Meadows v. New York, supra, 426 F.2d, at 1179; Word v. North Carolina, supra, 406 F.2d, at 353—355. Since the Alabama warden acts here as the agent of the Commonwealth of Kentucky in holding the petitioner pursuant to the Kentucky detainer, we have no difficulty concluding that petitioner is 'in custody' for purposes of 28 U.S.C. § 2241(c)(3). On the facts of this case, we need not decide whether, if no detainer had been issued against him, petitioner would be sufficiently 'in custody' to attack the Kentucky indictment by an action in habeas corpus.
5
Cf. Baker v. Grice, 169 U.S. 284, 18 S.Ct. 323, 42 L.Ed. 748 (1898), where this Court held that a petitioner for a writ of habeas corpus had failed to exhaust state court remedies. In rejecting each of the grounds relied on by the federal court below in concluding that special circumstances warranted that court's immediate intervention, this Court stated:
'It is also said that since the trial of Hathaway and the granting of a new trial to him the case of the petitioner (Grice) has not been called for trial, and that two terms of court since the granting of a new trial to Hathaway had come, and the second one was about expiring, at the time when the petitioner filed his petition in the circuit court for this writ. Here, again, there is no allegation and no proof that any attempt had been made on the part of this petitioner to obtain a trial in the state court or that he had been refused such trial by that court upon any application which he made. It is the simple case of a failure to call the indictment for trial; the petitioner being in the meantime on bail, and making no effort to obtain a trial and evincing no desire, by way of a demand, that a trial in his case should be had.
'We do not say that a refusal to try a person who is on bail can furnish any foundation for a resort to the federal courts, even in cases in which a trial may involve federal questions, but in this case no refusal is shown. A mere omission to move the case for trial (the party being on bail) is all that is set up, coupled with the assertion that defendant was eager and anxious for trial, but showing no action whatever on his part which might render such anxiety and eagerness known to the state authorities.' Id., at 292 293, 18 S.Ct., at 326—327.
Cf. Young v. Ragen, 337 U.S. 235, 238—239, 69 S.Ct. 1073, 1074—1075, 93 L.Ed. 1333 (1949); Marino v. Ragen, 332 U.S. 561, 563—570, 68 S.Ct. 240, 241—245, 92 L.Ed. 170 (1947) (Rutledge, J., concurring).
6
See Chauncey v. Second Judicial District Court, 453 F.2d 389, 390 n. 1 (CA9 1971); Beck v. United States, 442 F.2d 1037 (CA5 1971); Kane v. Virginia, 419 F.2d 1369 (CA4 1970); May v. Georgia, 409 F.2d 203 (CA5 1969); White v. Coleman, 341 F.Supp. 272, 274 (WD Ky.1971) (dictum); United States ex rel. Pitts v. Rundle, 325 F.Supp. 480 (ED Pa.1971) (dictum); Williams v. Pennsylvania, 315 F.Supp. 1261 (WD. Mo.1970) (dictum); Varallo v. Ohio, 312 F.Supp. 45 (ED Tex.1970) (dictum); Campbell v. Smith, 308 F.Supp. 796 (SD Ga. 1970); Piper v. United States, 306 F.Supp. 1259 (Conn.1969) (dictum); United States ex rel. White v. Hocker, 306 F.Supp. 485 (Nev. 1969). But see Lawrence v. Blackwell, 298 F.Supp. 708 (ND Ga. 1969); Carnage v. Sanborn, 304 F.Supp. 857 (ND Ga. 1969); Kirk v. Oklahoma, 300 F.Supp. 453 (WD Okl. 1969) (alternative holding).
7
See United States v. Hayman, 342 U.S. 205, 72 S.Ct. 263, 96 L.Ed. 232 (1952), discussing the legislative history of 28 U.S.C. § 2255; S.Rep.No.1502, 89th Cong., 2d Sess., 2 (1966) U.S.Code Cong. & Admin.News 1966, p. 2968, discussing 28 U.S.C. § 2241(d); Uniform Post-Conviction Procedure Act § 3; American Bar Association Project on Standards for Criminal Justice, Post-Conviction Remedies § 1.4, p. 28 (approved draft 1968); Note, Developments in the Law—Federal Habeas Corpus, 83 Harv.L.Rev. 1038, 1161 (1970).
8
S.Rep.No.1526, 80th Cong., 2d Sess., 3 (1948).
9
But see Fairman, Some New Problems of the Constitution Following the Flag, 1 Stan.L.Rev. 587, 633—640 (1949).
10
Act of Feb. 5, 1867, 14 Stat. 385.
11
As passed, the statute provided:
'That the several courts of the United States, and the several justices and judges of such courts, within their respective jurisdictions . . . shall have power to grant writs of habeas corpus . . ..' 14 Stat. 385.
12
The amendment was adopted in 1966.
13
See H.R.Rep.No.1894, 89th Cong., 2d Sess. (1966); S.Rep.No.1502, 89th Cong., 2d Sess. (1966), U.S.Code Cong. & Admin.News 1966, p. 2968 (legislative history of amendments to 28 U.S.C. § 2241(d)); United States v. Hayman, 342 U.S. 205, 72 S.Ct. 263, 96 L.Ed. 232 (1952) (discussing legislative history of 28 U.S.C. § 2255). Of course, these amendments were not motivated solely by a desire to insure that the disputes could be resolved in the most convenient forum. It was also a critical part of the congressional purpose to avoid the vastly disproportionate burden of handling habeas corpus petitions which had fallen, prior to the amendments, on those districts in which large numbers of prisoners are confined.
14
See Note, Developments in the Law—Federal Habeas Corpus, 83 Harv.L.Rev. 1038, 1189—1191 (1970).
15
Nothing in this opinion should be taken to preclude the exercise of concurrent habeas corpus jurisdiction over the petitioner's claim by a federal district court in the district of confinement. But as we have made clear above, that forum will not in the ordinary case prove as convenient as the district court in the State which has lodged the detainer. Where a prisoner brings an action in the district of confinement attacking a detainer lodged by another State, the court can, of course, transfer the suit to a more convenient forum. 28 U.S.C. § 1404(a). Hoffman v. Blaski, 363 U.S. 335, 80 S.Ct. 1084, 4 L.Ed.2d 1254 (1960).
16
Obviously, since petitioner could not have presented his habeas corpus claim prior to our 1968 decision in Peyton v. Rowe, supra, and since the choice-offorum provisions in the habeas corpus statute were most recently amended in 1966, see n. 13, supra, we can hardly draw any inference from the fact that the amendment did not specifically overrule Ahrens with respect to the type of case now before us.
17
In Nelson v. George, 399 U.S. 224, 228 n. 5, 90 S.Ct. 1963, 1966, 26 L.Ed.2d 578 (1970), we adverted to but reserved judgment on, the precise question at issue here. We did point out, however, that the 'obvious, logical, and practical solution is an amendment to § 2241 to remedy the shortcoming that has become apparent following the holding in Peyton v. Rowe. Sound judicial administration calls for such an amendment.' We note that an amendment to § 2241 drafted by the Administrative Conference of the United States Courts was introduced during the 92d Congress, but no action was taken upon it.
| 01
|
410 U.S. 512
93 S.Ct. 1138
35 L.Ed.2d 463
Peter J. BRENNAN, Secretary of Labor, Petitioner,v.ARNHEIM AND NEELY, INC., et al.
No. 71—1598.
Argued Jan. 16, 1973.
Decided Feb. 28, 1973.
Rehearing Denied Apr. 16, 1973.
See 411 U.S. 940, 93 S.Ct. 1888.
Syllabus
Respondent company, a fully integrated real estate management concern directing from its central office manifold operations at nine separately owned buildings, including leasing the properties for the owners and hiring, firing, supervising, and negotiating the wages of those employed in the buildings, held to be an 'enterprise' within the meaning of § 3(r) of the Fair Labor Standards Act since respondent conducts related activities through unified operation or control, for a common business purpose. It is irrelevant, for purposes of defining the respondent's enterprise under § 3(r), that the building owners, who are not defendants in this enforcement action under the Act, have no relationship with one another and no common business purpose, since their activities as employers are not at issue here. Pp. 516—521.
3 Cir., 444 F.2d 609, reversed and remanded.
Andrew L. Frey, Washington, D.C., for petitioner.
Eugene B. Strassburger, Jr., Pittsburgh, Pa., for the respondent Arnheim and Neely, Inc.
Frank L. Seamans, Pittsburgh, Pa., for the respondent Institute of Real Estate Management.
Mr. Justice STEWART delivered the opinion of the Court.
1
This case began when the Secretary of Labor sued the respondent real estate management company for alleged violations of the Fair Labor Standards Act of 1938, as amended, 52 Stat. 1060, 29 U.S.C. § 201 et seq. The Secretary sought an injunction against future violations of the minimum wage, overtime, and recordkeeping provisions of the Act, as well as back wages for the affected employees. An employee is entitled to the benefits of the minimum wage and maximum hours provisions of the Act, if he is, inter alia, 'employed in an enterprise engaged in commerce or in the production of goods for commerce . . ..' 29 U.S.C. §§ 206(a), 207(a).
2
As stipulated in the District Court, the respondent company manages eight commercial office buildings and one apartment complex in the Pittsburgh area. With the exception of a minor ownership interest in one of the buildings, the respondent does not own these properties. Its services are provided according to management contracts entered into with the owners. Under these contracts, the respondent obtains tenants for the buildings, negotiates and signs leases, institutes whatever legal actions are necessary with respect to these leases, and generally manages and maintains the properties. The respondent collects rental payments on behalf of the owners, and deposits them in separate bank accounts for each building. These accounts, net of management expenses and the respondent's fees, belong to the owners of the properties. Payments are periodically made from the accounts to these owners.
3
The respondent's services with respect to the supervisory, maintenance, and janitorial staffs of the buildings are similarly extensive. The respondent conducts the hiring, firing, payroll operations, and job supervision of those employed in the buildings. It also fixes hours of work, and negotiates rates of pay and fringe benefits—subject to the approval of the owners. The respondent engages in collective bargaining on behalf of the owners where the building employees are unionized. D.C., 324 F.Supp. 987, 990—991.
4
The District Court held that the maintenance, custodial, and operational workers at the buildings managed by the respondent were 'employees,' and that the respondent was an 'employer,' within the meaning of §§ 3(d) and 3(e) of the Act, 29 U.S.C. §§ 203(d), (e). 324 F.Supp., at 990—993. The District Court also held that gross rentals, rather than commissions obtained, were the proper measure of 'annual gross volume of sales made or business done' for purposes of the dollar volume portion of the staturory definition of an 'enterprise engaged in commerce.' Id., at 993 994.1 Though it rejected the claim that the respondent was sufficiently engaged in commerce for its employees to be covered for the time before the 1966 amendments to the Act went into effect,2 the District Court determined that the aggregate activities of the respondent at all nine locations were 'related,' performed under 'common control,' and for 'a common business purpose,' thereby constituting an 'enterprise' within the meaning f § 3(r), 29 U.S.C. § 203(r). 324 F.Supp., at 994—995.
5
On cross appeals, the Court of Appeals for the Third Circuit affirmed the District Court's determination that the respondent is an 'employer' of the building 'employees,' and also affirmed the use of gross rentals of the buildings as the proper measure of 'gross sales.' 444 F.2d 609, 611—612. The Court of Appeals held that the District Court erred, however, in aggregating the gross rentals of the nine properties to determine the 'gross sales' of the respondent's 'enterprise.' Recognizing that its decision conflicted with a substantially identical case in the Fourth Circuit, Shultz v. Falk, 439 F.2d 340, the Court of Appeals held that before separate establishments could be deemed part of a single enterprise, a showing of common business purpose was required. 444 F.2d, at 613.
6
'If the record in this case revealed that the retention of the Company, as agent, were accompanied by a change in the independent business purposes of the owners—for example facts such as the pooling of profits from the various buildings demonstrating a common business purpose—the result might be different. Here, however, the record reveals that the owners share no common purpose except the decision to hire the Company as their rental or management agent. .. . Without more than here presented, we think the 'enterprise' requirement of the Act has not been satisfied.' Id., at 614.
7
Without reaching the issues regarding the respondent's engagement in commerce prior to 1967, the Court of Appeals reversed and remanded for proof of the individual gross rentals of the buildings. Ibid. In order to resolve the intercircuit conflict, we granted the Secretary's petition for certiorari, 409 U.S. 840, 93 S.Ct. 56, 34 L.Ed.2d 79, which raises the question whether the management activities of the respondent at all of the buildings served should be aggregated as part of a single 'enterprise' within the meaning of § 3(r) of the Act. Since no cross-petition for certiorari was filed by the respondent, the important issues of whether the respondent is in fact an 'employer' of the building workers within the meaning of the Act, and whether gross rentals rather than gross commissions should serve as the measure of 'gross sales,' are not before us.3
8
The concept of 'enterprise' under the Fair Labor Standards Act came into being with the 1961 amendments, which substantially broadened the coverage of the Act. Rather than confining the protections of the Act to employees who were themselves 'engaged in commerce or in the production of goods for commerce,' 29 U.S.C. §§ 206(a), 207(a), the new amendments brought those 'employed in an enterprise engaged in commerce' within the ambit of the minimum wage and maximum hours provisions.4 The Congress defined 'enterprise engaged in commerce' to include a dollar volume limitation. The standard in the original amendments included 'any such enterprise which has one or more retail or service establishments if the annual gross volume of sales of such enterprise is not less than $1,000,000 . . ..,' 75 Stat. 66, and has since been changed to include enterprises 'whose annual gross volume of sales made or business done is not less than $500,000' for the period from February 1, 1967, to January 31, 1969, and those with annual gross sales of not less than $250,000 thereafter. 29 U.S.C. § 203(s)(1). The presence of this dollar-volume cutoff for coverage under the Act, in turn, places importance on the Act's definition of 'enterprise.'
9
The term 'enterprise' is defined by the statute as follows:
10
"Enterprise' means the related activities performed (either through unified operation or common control) by any person or persons for a common business purpose, and includes all such activities whether performed in one or more establishments or by one or more corporate or other organizational units . . ..' 29 U.S.C. § 203(r) (emphasis added).
11
Specific exemptions are noted, making clear that exclusive-dealership arrangements, collective-purchasing pools, franchises, and leases of business premises from large commercial landlords do not create 'enterprises' whthin the meaning of the Act. Ibid.
12
The District Court correctly identified the three main elements of the statutory definition of 'enterprise': related activities, unified operation or common control, and common business purpose. We believe the Court of Appeals erred in holding that the aggregate management activities of the respondent failed to meet these statutory criteria. Once the respondent is recognized to be the employer of all of the building employees, it follows quite simply that it is a single enterprise under the Act. The respondent is, after all, but one company. Its activities in all of the buildings are virtually identical, and are plainly 'related' in the sense that Congress intended. As the Senate report accompanying the 1961 amendments indicated: 'Within the meaning of this term, activities are 'related' when they are the same or similar . . ..' S.Rep. No. 145, 87th Cong., 1st Sess., 41; U.S.Cope Congressional & Admin.News, 1961, p. 1660. The respondent's activities, similarly, are performed 'either through unified operation or common control.' The respondent is a fully integrated management company directing operations at all nine buildings from its central office. For purposes of determining whether it is an 'enterprise' under the Act, it is irrelevant that the relationship between the respondent and the owners is one of agency; that separate bank accounts are maintained for each building; and that the risk of loss and the chance of gain on capital investment belong to the owners, not the respondent. All that is required under the statutory definition is that the respondent's own activities be related and under common control or unified operation, as they plainly are.
13
In its analysis of this problem, the Court of Appeals placed great weight on the fact that the building owners have no relationship with one another, and have no common business purpose. This is true, but beside the point, for the owners are not defendants in this action and it is not their activities that are under examination. As Judge Winter wrote in the conflicting case from the Fourth Circuit, 'It is defendants' activities at each building which must be held together by a common business purpose, not all the activities of all owners of apartment projects.' Shultz v. Falk, 439 F.2d, at 346. In the present case, the respondent's activities at the several locations are tied together by the common business purpose of managing commercial properties for profit. The fact that the buildings are separate establishments is specifically made irrelevant by § 3(r).
14
The Court of Appeals also cited the portion of the Senate report explaining the exemptions to § 3(r), noted above, for exclusive-dealing contracts, franchises, leasing space in shopping centers, and the like:
15
'The bill also contains provisions which should insure that a small local independent business, not in itself large enough to come within the new coverage, will not become subject to the act by being considered a part of a large enterprise with which it has business dealings.
16
'The definition of 'enterprise' expressly makes it clear that a local retail or service establishment which is under independent ownership shall not be considered to be so operated and controlled as to be other than a separate enterprise because of a franchise, or group purchasing, or group advertising arrangement with other establishments or because the establishment leases premises from a person who also happens to lease premises to other retail or service establishments.' S.Rep. No. 145, 87th Cong., 1st Sess., 41.
17
The Court of Appeals went on to stress that the building owners should not be brought under the Act simply because they dealt with a large real estate management company. This is true, but also beside the point, since we deal here with that large management company as a party and, for purposes of this case, as an employer of the employees in question. We do not hold, nor could we in this case, that the individual building owners in their capacity as employers5 are to be aggregated to create some abstract 'enterprise' for purposes of the Fair Labor Standards Act.6
18
It is argued that such a straightforward application of the statutory criteria to the respondent's business ignores the significance of the dollar volume limitation included in the § 3(s) definition of '(e)nterprise engaged in commerce or in the production of goods for commerce.' The Court of Appeals cited evidence in the legislative history of the 1961 amendments that indicates a purpose to exempt small businesses from the obligations of the Act. 444 F.2d, at 613; S.Rep. No. 145, 87th Cong., 1st Sess. 5. If the individual building owners are engaged in enterprises too small to come within the reach of the Fair Labor Standards Act, reasoned the Court of Appeals, it would be 'anomalous' to treat them as a single enterprise subject to the Act 'merely because they hire a rental agent who manages other buildings.' 444 F.2d, at 614. Once again, however, the response to this argument is that it is the respondent management company not the individual building owners, that has been held in this case to an 'employer' of all the affected 'employees.' Furthermore, the proper measure of the respondent's size has been held to be the gross rentals produced by properties under its management. It is true that one purpose of the dollar-volume limitation in the statutory definition of 'enterprise' is the exemption of small businesses, but this respondent is not such a business under these holdings of the Court of Appeals.7 The argument to the contrary amounts to a collateral attack on the 'employer' and 'gross sales' determinations made below, and the respondent cannot make such an attack in the absence of a cross-petition for certiorari.8
19
We hold that the District Court was correct in aggregating all of the respondent's management activities as a single 'enterprise.' Accordingly, the judgment of the Court of Appeals is reversed and the case is remanded to the Court of Appeals for further proceedings consistent with this opinion.
20
It is so ordered.
21
Judgment of Court of Appeals reversed and case remanded.
22
Mr. Justice WHITE, dissenting.
23
It is undisputed that for the minimum wage and maximum hour requirements of the Fair Labor Standards Act, 52 Stat. 1060, as amended, 29 U.S.C. § 201 et seq., to apply to all the employees involved in this case, they must be employed in an 'enterprise engaged in commerce or in the production of goods for commerce.'1 29 U.S.C. §§ 203(s), 206, and 207. An 'enterprise' for the purpose of the Act 'means the related activities performed (either through unified operation or common control) by any person or person for a common business purpose . . .' Id., § 203(r). An enterprise, however, does not include the related activities performed for the enterprise by an independent contractor or other specified arrangements, including otherwise independent establishments occupying premises leased to them by the same person. Ibid.
24
But, for an 'enterprise' to be 'engaged in commerce or in the production of goods for commerce,' the enterprise must have an 'annual gross volume of sales made or business done' in an amount not less than the specified statutory minimum. Id. § 203(s)(1). Congress did not intend to cover all establishments by expanding the coverage of the Act through the enterprise approach. Instead, it drew an economic line. 'It is the line which the Congress must draw in determining who shall and who shall not be covered by a minimum wage.' S.Rep. No. 145, 87th Cong., 1st Sess., 5; U.S.Code Congressional & Admin.News, 1961, p. 1624. Nor was the definition of enterprise intended to swallow up the exclusion of small businesses. Related activities conducted by separate businesses would be considered a part of an enterprise only 'where they are joined either through unified operation or common control into a unified business system or economic unit to serve a common business purpose.' Id., at 41; U.S.Code Congressional & Admin.News 1961, p. 1660. And the express exemptions provided in § 203(r) from the enterprise concept, the Senate Report said, would 'insure that a small local independent business, not in itself large enough to come within the new coverage, will not become subject to the act by being considered a part of a large enterprise with which it has business dealings.' Ibid.
25
In the case before us, nine separately and independently owned buildings leasing space to tenants employed the same management company as agent to recommend tenants, collect rents, hire, fire, and supervise employees, and maintain and operate the buildings. The Court holds that even if none of the individual building owners would itself generate gross rentals in sufficient amount to be covered by the Act, the buildings and the management company collectively are an enterprise with collective gross rentals in excess of the statutory minimums and hence covered by the Act.2 Because it appears to me that the Court is applying the concept of enterprise in a way which ignores the economic limitations in the Act and the congressional intention they represent, I respectfully dissent.
26
There is no connection between these separately owned buildings other than the fact that they employ the same management company to represent them. They have a common managing agent, but that agent is separately accountable to, and must follow the perhaps diverse directions of, each of its principals. They have no unified operation, do not constitute a unified business system or an economic unit, and surely do not serve a common business purpose. Hence there is no 'enterprise' within the meaning of the Act which covers only those 'related activities' performed through unified operation or common control 'for a common business purpose.'
27
As I have indicated, Congress was not unaware of the possibility of stretching the concept 'enterprise' beyond its proper bounds and sought to guard against it. The Senate Committee said: 'Thus the mere fact that a group of independently owned and operated stores join together to combine their purchasing activities or to run combined advertising will not for these reasons mean that their activities are performed through unified operation or common control and they will not for these reasons be considered a part of the same 'enterprise." S.Rep. No. 145, 87th Cong., 1st Sess., 42; U.S.Code Congressional & Admin.News 1961, p. 1661. Common agents, therefore are not sufficient to convert otherwise independent entities into an enterprise.
28
The Committee also said: 'There may be a number of different types of arrangements established in such cases. The key in each case may be found in the answer to the question, 'Who receives the profits, suffers the losses, sets the wages and working conditions of employees, or otherwise manages the business in those respects which are the common attributes of an independent businessman operating a business for profit?" Ibid.
29
Under this standard, there can be no question that the buildings are separate economic units and should be treated as such. The manager receives merely a commission for his services. The managing agent manages, but is subject to direction by his principal. The income and expenses for each building are accounted for separately. The owner of each building receives the profits and suffers the losses, if any. Each owner sets the wages and working conditions for each building in the sense that, although the manager negotiates such matters, he negotiates under instructions, and it is each owner who must approve them. Each building carries a separate employer identification number. Employees are hired with respect to each building, and supplies and other items necessary for the operation of the buildings are purchased separately for each building. Should a particular building terminate its relationship with the manager, the building employees remain with the building.
30
The Arnheim & Neely agency unquestionably was an 'employer' insofar as its relationship to each of the buildings was concerned, for 29 U.S.C. § 203(d) defines the term employer as including 'any person acting directly or indirectly in the interest of an employer in relation to an employee . . .. But this is a far cry from concluding that the separate buildings and their common agent constitute an enterprise engaged in commerce.3
31
Unquestionably, it is the individual owner who bears the burden of the Act and if any one of them, or each of them, individually has gross sales less than the jurisdictional minimums nentioned in the Act, construing the work 'enterprise' concept as the majority does distorts clear congressional intent.
1
In pertinent part, the statute provides that:
'(s) 'Enterprise engaged in commerce or in the production of goods for commerce' means an enterprise which has employees engaged in commerce or in the production of goods for commerce, including employees handling, selling, or otherwise working on goods that have been moved in or produced for commrce by any person, and which—
'(1) during the period February 1, 1967, through January 31, 1969, is an enterprise whose annual gross volume of sales made or business done is not less than $500,000 (exclusive of excise taxes at the retail level which are separately stated) or is a gasoline service establishment whose annual gross volume of sales is not less than $250,000 (exclusive of excise taxes at the retail level which are separately stated), and beginning February 1, 1969, is an enterprise whose annual gross volume of sales made or business done is not less than $250,000 (exclusive of excise taxes at the retail level which are separately stated) . . ..' 29 U.S.C. § 203(s).
2
Section 3(s)(3) of the Act, as enacted in 1961, referred in its definition of '(e)nterprise engaged in commerce or in the production of goods for commerce,' inter alia, to: 'any establishment of any such enterprise . . . which has employees engaged in commerce or in the production of goods for commerce if the annual gross volume of sales of such enterprise is not less than $1,000,000 . . ..' Pub.L. 87—30, 75 Stat. 65, 66 (emphasis added). The District Court construed the statute to require that two or more employees in each building be engaged in commerce in order for that building to be covered under the Act. It found that in no building were there two such employees, and therefore held that there was no coverage under the Act prior to the 1966 amendments. 324 F.Supp. 987, 995—997. The 1966 amendments, see n. 1, supra, required only that the 'enterprise' have 'employees' engaged in commerce, and under this standard the District Court found that the respondent qualified. Id., at 997. Though the Government appealed on this issue, the Court of Appeals did not reach it, 444 F.2d 609, 614.
3
NLRB v. International Van Lines, 409 U.S. 48, 52 n. 4, 93 S.Ct. 74, 77, 34 L.Ed.2d 201, and cases there cited. But see n. 8, infra.
4
Pub.L. 87—30, 75 Stat. 65, 67, 69.
5
As both the District Court and the Court of Appeals noted, the statutory concept of 'employer' is 'any person acting directly or indirectly in the interest of an employer in relation to an employee . . ..' 29 U.S.C. § 203(d). This definition was held to be broad enough that there might be 'several simultaneous 'employers." 444 F.2d, at 611—612. See also 324 F.Supp. 987, 992; Wirtz v. Hebert, 5 Cir., 368 F.2d 139; Mid-Continent Pipe Line Co. v. Hargrave, 10 Cir., 129 F.2d 655.
6
Contrary to the view taken by the dissent, we specifically do not hold that 'the buildings and the management company collectively are an enterprise . . ..' We deal solely with the management company and its 'related activities performed . . . for a common business purpose.'
7
It is stipulated that in all relevant years, the annual gross rental income collected by the respondent exceeded $1,000,000. 324 F.Supp., at 993.
8
We have granted certiorari in No. 72—844, Falk v. Brennan, sub nom. Falk v. Shultz, 410 U.S. 954, 93 S.Ct. 1419, 35 L.Ed.2d 686, to consider whether the proper measure of 'gross sales' in this context is gross rentals collected or gross commissions, and whether maintenance employees are 'employees' of the management company within the meaning of the Act.
1
As discussed in the majority opinion, the Act as passed in 1938, 52 Stat. 1060, covered only employees 'engaged in commerce or in the production of goods for commerce.' The 1961 amendments, 75 Stat. 65—67, 69, greatly broadened the scope of the Act by adding the 'enterprise' concept to cover those employees not directly engaged in commerce or in the production of goods for commerce but employed by an 'enterprise' that was. Therefore, those employees in this case not engaged in commerce or in the production of goods for commerce, must belong to an 'enterprise' so engaged, if they are to be covered.
2
If I agreed that the building owners and their common agent were an 'enterprise,' I would also agree that the cumulative gross rentals would be the proper measure of coverage.
3
This is demonstrated by 29 CFR § 779.203, which provides that the 'terms ('employer,' 'establishment,' and 'enterprise') are not synonymous.'
| 67
|
410 U.S. 641
93 S.Ct. 1178
35 L.Ed.2d 560
State of OHIO, Plaintiff,v.Commonwealth of KENTUCKY.
No. 27, Orig.
Argued Jan. 10, 1973.
Decided March 5, 1973.
Syllabus
Ohio sought leave to file an amended bill of complaint in an original action involving a boundary dispute with Kentucky. By the amendment Ohio claimed that the boundary between Ohio and Kentucky was located in the middle of the Ohio River. The motion was referred to the Special Master, who recommended that the motion be denied. Held:
1. In the exercise of its original jurisdiction, this Court is not invariably bound by common-law precedent or by current rules of civil procedure. The requirement of a motion for leave to file a complaint permits the Court to dispose of it at a preliminary stage in an appropriate case, such as where the claim is barred as a matter of law and a hearing on the issues presented 'would only serve to delay adjudication on the merits and needlessly add to the expense that the litigants must bear.' Pp. 644—645.
2. Ohio's long acquiescence in the location of the Ohio-Kentucky line at the northern edge of the Ohio River bars Ohio's present claim that the boundary is at the middle of the river. Pp. 648—652.
Motion for leave to file amended bill of complaint denied.
Joseph M. Howard, Washington, D.C., for plaintiff.
John M. Famularo, Lexington, Ky., for defendant, pro hac vice, by special leave of Court.
Mr. Justice BLACKMUN delivered the opinion of the Court.
1
Almost seven years ago, in March 1966, the State of Ohio instituted this original action against the Commonwealth of Kentucky. By its prayer for relief in its proposed bill of complaint, Ohio asked only that the Court declare and establish:
2
'1. The boundary line between the State of Ohio and the State of Kentucky as being the low water mark on the northerly side of the Ohio River in the year 1792 . . ..
3
'2. The State of Ohio and the State of Kentucky have equal and concurrent jurisdiction over and on all of the Ohio River from the northerly shore to the southerly shore, except jurisdiction incidental to the sover-eignty of the soil under the river and structures permanently attached thereto.'
In its complaint Ohio alleged:
4
'4. The State of Ohio was established from the land ceded by legislative act of the Commonwealth of Virginia to the United States on the 1st day of March, 1784, which act is known as the Cession of Virginia.
5
'5. The State of Kentucky was established by the separation of the District of Kentucky from the jurisdiction of the Commonwealth of Virginia pursuant to that certain act of the Virginia Legislature entitled 'An Act concerning the erection of the district of Kentucky into an independent state,' passed on the 18th day of December, 1789, which act is known as the Virginia-Kentucky Compact.
6
'6. The northern boundary line of the State of Kentucky was established from the Cession of Virginia and the Virginia-Kentucky Compact as the low water mark on the northerly side of the Ohio River as it existed in the year 1792.'1
7
Ohio went on to allege: From 1910 to 1929, the United States erected dams in the Ohio River for navigational purposes. Since 1955, it has been replacing the earlier dams with higher ones. This has caused the waters of the river to rise and permanently inundate various areas of both Ohio and Kentucky. 'As a result, the shores or banks of the Ohio River have been moved farther northerly and southerly as the water levels have increased by the dammning of the river.' The north low water mark of 1792 'has been obscured by the increased elevation of the water levels.' Kentucky has claimed that the line between the two States is 'along the present northerly shore line of the Ohio River rather than the 1792 northerly low water mark which is located to the south of the present north shore line.' Ohio 'does now and has always claimed . . . that the boundary between it and Kentucky is the 1792 northerly low water mark.'
8
Leave to file the bill of complaint was granted. 384 U.S. 982, 86 S.Ct. 1883, 16 L.Ed.2d 1002 (1966). Kentucky by its answer admitted the allegations of the above-quoted numbered paragraphs of Ohio's complaint. The Court then appointed the Honorable Phillip Forman as Special Master in the case. 385 U.S. 803, 87 S.Ct. 29, 17 L.Ed.2d 49 (1966).
9
Five years later, in August 1971, Ohio moved for leave to file an amended complaint. By this amendment Ohio would assert that the boundary between it and Kentucky is the middle of the Ohio River, or, only alternatively, is the 1792 low water mark on the northerly shore. We referred the motion to the Special Master. 404 U.S. 933, 92 S.Ct. 266, 30 L.Ed.2d 246 (1971). He held a hearing and in due course filed his report. 406 U.S. 915, 92 S.Ct. 1762, 32 L.Ed.2d 114 (1972). The Master recommended that this Court enter its order denying Ohio's petition for leave to amend. His conclusion rested on the ground 'that the proposed amendment, in any view of its factual allegations, fails as a matter of law to state a cause of action.' Report 16. Upon the filing of Ohio's exceptions and Kentucky's reply, we set the matter for argument. 409 U.S. 974, 93 S.Ct. 303, 34 L.Ed.2d 238 (1972).
10
* Accepted procedures for an ordinary case in this posture would probably lead us to conclude that the motion for leave to file should be granted, and the case would then proceed to trial or judgment on the pleadings. This, however, is not an ordinary case. It is one within the original and exclusive jurisdiction of the Court. Const., Art. III, § 2; 28 U.S.C. § 1251(a). Procedures governing the exercise of our original jurisdiction are not invariably governed by common-law precedent or by current rules of civil procedure. See United States Supreme Court Rule 9; Rhode Island v. Massachusetts, 14 Pet. 210, 10 L.Ed. 423 (1840). Under our rules, the requirement of a motion for leave to file a complaint, and the requirement of a brief in opposition, permit and enable us to dispose of matters at a preliminary stage. See, for example, Alabama v. Texas, 347 U.S. 272, 74 S.Ct. 481, 98 L.Ed. 689 (1954); California v. Washington, 358 U.S. 64, 79 S.Ct. 116, 3 L.Ed.2d 106 (1958); Virginia v. West Virginia, 234 U.S. 117, 121, 34 S.Ct. 889, 891, 58 L.Ed. 1243 (1914). Our object in original cases is to have the parties, as promptly as possible, reach and argue the merits of the controversy presented. To this end, where feasible, we dispose of issues that would only serve to delay adjudiction on the merits and needlessly add to the expense that the litigations must bear.
11
This case is peculiarly susceptible to treatment of that kind. The allegations in Ohio's proposed amendment are not as yet formally controverted by Kentucky. We, therefore, treat the new material as admitted. Kentucky asserts, however, that, even assuming the new allegations to be true, no cause of action is stated, for the subject matter of Ohio's proposed amendment is barred as a matter of law.
II
12
In Handly's Lessee v. Anthony, 5 Wheat. 374, 5 L.Ed. 113 (1820), this Court stated that the boundary between Indiana and Kentucky was the low water mark on the western or northwestern side of the Ohio River. Handly was an action for ejectment brought by a plaintiff claiming under a grant from Kentucky against defendants claiming under a grant 'from the United States, as being part of Indiana.' Id., at 375. The disputed land was a neck south of a channel, or bayou, that had formed north of the main river. When the river was high, the channel filled and cut off the land to the north. When the river was low, the channel was dry in part and the separation did not exist. The resolution of the case turned on whether the land was in Indiana or in Kentucky. Indiana, like Ohio, received its territory from the United States. The Court in Handly observed that the question 'depends chiefly on the land law of Virginia, and on the cession made by that State to the United States,' id., at 376, and concluded that the United States acquired title from Virginia when negotiations during the period from 1781—1784 resulted in Virginia's ceding its lands north and west of the Ohio River to the Federal Government.2 Kentucky was received as a State of the Union in 1792 out of territory Virginia purported to retain at the time of the 1784 cession. The Court concluded, on the basis of this history, that Kentucky, through Virginia, extended up to the low water mark on the northern, or far, side of the Ohio River. Mr. Chief Justice Marshall enunciated the following, now familiar, principle:
13
'When a great river is the boundary between two nations or states, if the original property is in neither, and there be no convention respecting it, each holds to the middle of the stream. But when, as in this case, one State is the original proprietor, and grants the territory on one side only, it retains the river within its own domain, and the newly-created State extends to the river only. The river, however, is its boundary.' 5 Wheat., at 379.
14
The rule of the Handly case, as well as its specific application to the Kentucky-Indiana border, has been consistently adhered to in subsequent decisions of this Court. Indiana v. Kentucky, 136 U.S. 479, 10 S.Ct. 1051, 34 L.Ed. 329 (1890) (despite Indiana's argument, id., at 486—493, 10 S.Ct. 1051, that its boundary was the middle of the river); Henderson Bridge Co. v. Henderson City, 173 U.S. 592, 19 S.Ct. 553, 43 L.Ed. 823 (1899);3 Nicoulin v. O'Brien, 248 U.S. 113, 39 S.Ct. 23, 63 L.Ed. 155 (1918). It has been explicitly recognized by the Supreme Court of Ohio in Booth v. Shepherd, 8 Ohio St. 243, 247—248 (1858), where it was stated with far greater precision than the mere assumption the dissent suggests, post, at 654—655, that:
15
'The construction given to the Virginia deed of cession by the supreme court of the United States, having been thus acquiesced in and acted on by the courts, both of Virginia and Ohio, may be regarded as decisive of the question.'
16
See also Lessee of McCullock v. Aten, 2 Ohio 307, 310 (1826); Lessee of Blanchard v. Porter, 11 Ohio 138, 142 (1841).4 See Commonwealth v. Garner, 3 Gratt. 655 (Gen.Court of Va.1846).
17
In order to counter this history, Ohio argues that, as it was not a party to the Handly case, or to any of the later cases in this Court that reaffirmed Handly, it is not bound by the rule there established, which it characterizes as dictum. In particular, Ohio contends that it is free to challenge the conclusion that Virginia, prior to ceding the land that now encompasses both Indiana and Ohio, held good title to that land.
18
Handly and the later decisions to which Ohio was not a party of course do not foreclose Ohio's claim in a res judicata sense. But proceedings under this Court's original jurisdiction are basically equitable in nature, Rhode Island v. Massachusetts, 14 Pet. 210, 10 L.Ed. 423 (1840), and a claim not technically precluded nonetheless may be foreclosed by acquiescence. Indiana v. Kentucky, 136 U.S., at 510, 518, 10 S.Ct., at 1054, 1056. We turn to that aspect to the present case.
III
19
By its amended complaint Ohio seeks to re-examine an accepted premise of the Handly decision and, in the process of doing so, to alter legal rights that, as a practical matter, have long been settled. By presently claiming ownership of half the Ohio River, Ohio does not assert that when Virginia ceded the lands northwest of the river, it intended to establish the river's center as the line between Ohio and Kentucky, but, at the same time and thus inconsistently, to establish its northern edge as the line between Indiana and Kentucky. Rather, Ohio challenges the very postulate underlying the Handly decision, which must be taken, in practical effect, as establishing the entire northern boundary of Kentucky including its contact with Ohio. Ohio's new theory is that Virginia did not have title to the lands north of the Ohio River in 1784 when Virginia surrendered its claim to the United States. Virginia's claim, it is said, was baseless. Indeed, Ohio argues that title to these lands was hotly contested, with Virginia, New York, Massachusetts, Connecticut, and the United States all laying claim to the territory north of the river. The Continental Congress, fearing the threat this controversy posed for the youthful Nation, refused to resolve the disputed claims, and, instead, prevailed upon each of the claimants to forgo its claim in favor of the United States for the common good. Accordingly, Ohio contends, the premise of Handly that Virginia had title to the northwest territory prior to ceding it to the United States, or, to say it another way, that it was the common proprietor of lands on both sides of the river—is historically invalid.
20
We need intimate no view on the merits of Ohio's historical analysis, for the State's long acquiescence in the location of its southern border at the northern edge of the Ohio River, and its persistent failure to assert a claim to the northern half of the river, convince us that it may not arise the middle-of-the-river issue at this very late date. The 1820 decision in Handly necessarily placed Ohio on notice that any claim it might assert to half the river would be precluded by the reasoning of that opinion. The Court in Handly concluded that the entire border between Indiana and Kentucky was the river's northern edge. Virginia's claim to the territory that is now Indiana arose from the same source as its claim to what is now Ohio. The lands to which Virginia purportedly surrendered title to the United States in 1784 encompassed both Ohio and Indiana.5 Ohio could not reasonably have believed, after Handly, that its claim over the northern half of the Ohio River rested on a footing different from that of Indiana.
21
Indeed, Ohio consistently has recognized that Handly and the cases that followed it foreclosed any claim that its border was located in the middle of the river. Even its original 1966 bill of complaint and supporting brief6 in this case so state. The decisions of Ohio's highest court are to the same effect. And Ohio for over 150 years has failed to assert, through proceedings available in this Court, the claim it now would raise in the face of Kentucky's legislative7 and judicial8 assertions of sovereignty over the river.
22
Ohio does not say that its failure to assert its claim over the past century and a half is due to any excusable neglect. The implications of Handly and later decisions of this Court are too clear to support that claim. Ohio recognized this in its initial brief here.9 Not, in the light of the longstanding and unequivocal claims of Kentucky over the river, and Ohio's failure to oppose those claims, may Ohio credibly suggest that it has not acquiesced. 'The rule, longsettled and never doubted by this court, is that long acquiescence by one state in the possession of territory by another and in the exercise of sovereignty and dominion over it is conclusive of the later's title and rightful authority.' Michigan v. Wisconsin, 270 U.S. 295, 308, 46 S.Ct. 290, 294, 70 L.Ed. 595 (1926). To like effect are Vermont v. New Hampshire, 289 U.S. 593, 613, 53 S.Ct. 708, 715, 77 L.Ed. 1392 (1933); Maryland v. West Virginia, 217 U.S 1, 42—44, 30 S.Ct. 268, 278—279, 54 L.Ed. 645 (1910); Louisiana v. Mississippi, 202 U.S. 1, 53—54, 26 S.Ct. 408, 422—423, 50 L.Ed. 913 (1906); Virginia v. Tennessee, 148 U.S. 503, 523, 13 S.Ct. 728, 736, 37 L.Ed. 537 (1893); Indiana v. Kentucky, 136 U.S., at 509—510, 518, 10 S.Ct., at 1053—1054, 1056; Rhode Island v. Massachusetts, 4 How. 591, 639, 11 L.Ed. 1116 (1846).10
23
Here we have not only long acquiescence by Ohio in Kentucky's open claims over the river, but also lines of cases by this Court and the courts of both Ohio and Kentucky that, for more than 150 years, placed Ohio on consistent notice of the inadequacy of the claim it now asserts. We find ourselves in agreement with the Special Master that Ohio is foreclosed from claiming that its boundary with Kentucky lies in the middle of the Ohio River.
24
The Special Master's recommendation is adopted and Ohio's motion for leave to amend its bill of complaint is denied. The case is remanded to the Special Master for further proceedings.
25
It is so ordered.
26
Case remanded to Special Master.
27
Mr. Justice DOUGLAS, dissenting.
28
The State of Ohio instituted this original action to locate the boundary between it and the Commonwealth of Kentucky on the Ohio River. The initial complaint recognized Kentucky's northern boundary as following 'the low water mark on the northerly side of the Ohio River as it existed in the year 1792,'1 but asserted that subsequent events had altered the location of the low-water mark. Today the Court denies Ohio's request that it be permitted to amend its complaint to plead an alternative boundary theory: that the true boundary between the States is in the middle of the Ohio River.2
29
Basic concepts of pleading preclude determination of factual issues in testing the sufficiency of a claim.3 The appropriate question for the Court at this stage of the proceedings, therefore, is whether if the facts as stated by Ohio are true, a valid legal issue is tendered. Ohio asserts that Virginia, Kentucky's predecessor in title, never held ownership rights to both banks of the Ohio River and that, accordingly, Kentucky's current claim to land underlying the northern side of the Ohio River is invalid.4 The question before us is equivalent to that posed by a demurrer. The majority's conclusion of insufficiency is, therefore, not sustainable.
30
The Court's decision is a determination upon the merits of Ohio's proffered allegations and should be made only after all the evidence is before it. The Master concludes, and the Court agrees, that Ohio has acquiesced to Kentucky's ownship of the northern half of the Ohio River as established by adjudications in this Court. Although I find such consideration of the merits to be premature, the Court's reasoning prompts me to review the case law upon which estoppel is urged.
31
The Ohio River serves as the boundary between the States of Kentucky and Indiana as well as the boundary between the parties to this suit, Kentucky and Ohio. During the 19th century, this Court dealt with the nature of the Kentucky-Indiana boundary in two cases. Handly's Lessee v. Anthony, 5 Wheat. 374, 5 L.Ed. 113 (1820), and Indiana v. Kentucky, 136 U.S. 479, 10 S.Ct. 1051, 34 L.Ed. 329 (1890). Later cases dealt with issues that turned upon the boundary determination of Handly's Lessee.5 Based upon a historical analysis that Ohio here contests, the Court held in the Handly case that the Kentucky-Indiana boundary coincides with the northern low-water mark of the Ohio River.6 Ohio, of course, was not involved in that litigation. Yet, the Master's recommendation that is now adopted would bind Ohio today to a determination made in 1820 in a case to which it was not a party. And, since the doctrine of res judicata does not reach so far, reliance is placed upon an estoppel theory. Simply stated, Kentucky contends that Ohio has lost whatever rights it may once have had to challenge the Kentucky claim to land underlying the northern half of the Ohio River by failing to object earlier and by recognizing the boundary rationale that was applied to Indiana in cases tried in Ohio courts since 1820. Ohio disputes the suggestion.
32
First, Ohio notes that the argument it wishes to present to substantiate a claim to the center of the river has not been considered by this Court. The early cases turned instead on the assumption that Virginia's prior title, upon which Kentucky's claims are predicated, was valid as to the land involved.7 Ohio additionally points out that the three Ohio cases proffered as evidence of Ohio's recognition of Kentucky's claim to the northern half of the river8 concerned private disputes that hinged upon location of the river's edge, rather than a determination as to the boundary between the States. That the further determination was not required is made clear by the language of those cases.9 The most recent of the three, indeed, states quite explicitly:
33
'It does not become necessary, in this case, to determine whether the middle of the Ohio River . . . does or does not constitute the boundary line between the states of Virginia and Ohio. For all the purposes of this case, it may be assumed that Virginia was the original, undisputed owner of the territory on both sides of the river, and still retains all that she did not part with by her deed of cession in 1784.'10
34
Ohio now wishes to question precisely that assumption. In prematurely judging the issues and pretermitting briefing and argument of Ohio's attack on the validity of Virginia's title, the Court does disservice both to the adjudication of this dispute and to the procedural contours of original actions. I would allow Ohio to amend its complaint so that the merits might be reached in due course.
1
1792 is this year Kentucky became a State. 1 Stat. 189.
2
Recommendation of the Continental Congress, September 6, 1780, 10 W. Hening, Laws of Virginia 562 (1822); Resolution of the General Assembly of Virginia, January 2, 1781, conditioned, among other things, upon ratification of the Articles of Confederation and upon like cessions by other States, id., at 564, 567; Act of the Continental Congress, September 13, 1783, 25 J. of the Cont.Cong. 1774—1789, p. 559 (1922); Act of Confirmation, October 20, 1783, 11 W. Hening, Laws of Virginia 326 (1823); Act of the Continental Congress, March 1, 1784, 1 Laws of the United States 472 (B. & D. ed. 1815).
The 1781 Virginia resolution recited that the Commonwealth 'will yield to the congress of the United States . . . all right, title, and claim that the said commonwealth hath to the lands northwest of the river Ohio.' 10 W. Hening, Laws of Virginia 564 (1822). Among the proposed conditions was also a guarantee by the United States to Virginia of 'all the remaining territory of Virginia included between the Atlantic Ocean and the south east side of the river Ohio.' Id., at 566. This latter condition was not agreed to by the Congress by its Act of 1783. 25 J. of the Cont.Cong. 1774—1789, p. 563 (1922).
The 1783 Act referred to territory 'to the north-west of the river Ohio.' 11 W. Hening, Laws of Virginia 327. So, too, did the deed of March 1, 1784, from Virginia to the United States accepted by Congress on the same day. 1 Laws of the United States, supra, at 474.
3
'Upon this question of boundary nothing can be added to what was said in the cases cited; and it must be assumed as indisputable that the boundary of Kentucky extends to low-water mark on the western and northwestern banks of the Ohio River.' Henderson Bridge Co. v. Henderson City, 173 U.S. 592, 613, 19 S.Ct. 553, 561, 43 L.Ed. 823 (1899).
4
There is a possible intimation to the contrary in the bridge tax case of Covington & Cincinnati Bridge Co. v. Mayer, 31 Ohio St. 317, 327, 329 (1877). The case appears, however, to have been resolved on the content of the bridge company's Ohio charter granting permission for the erection of the bridge. See Sebastian v. Covington & Cincinnati Bridge Co., 21 Ohio St. 451 (1871).
5
See Indiana v. Kentucky, 136 U.S. 479, 505, 10 S.Ct. 1051, 1052, 34 L.Ed. 329 (1890). See also the deed of March 1, 1784, referred to in n. 2, supra, from Virginia to the United States. On August 7, 1789, Congress passed 'An Act to provide for the Government of the Territory Northwest of the river Ohio.' 1 Stat. 50. In 1800, this territory was divided into two separate governments. 2 Stat. 58. And on April 30, 1802 the enabling Act for the admission of Ohio was passed. 2 Stat. 173. The State was formed out of the eastern half of the theretofore divided territory and was 'bounded . . . on the south by the Ohio river,' ibid.; the land in the eastern division not included within the boundaries described for Ohio 'is hereby attached to, and made a part of the Indiana territory.' Id., at 174.
6
'The State of Ohio does now, and has always claimed and maintained that the boundary between it and the State of Kentucky is the northerly low water mark of the Ohio River, as that mark existed in the year 1792 when Kentucky became a state.' Brief in support of motion for leave to file complaint 8. (Emphasis in original.)
7
In 1810, a decade before the Handly decision, the Kentucky Legislature enacted the following statute:
'Sec. 1 Be it enacted by the General Assembly, That each county of this commonwealth, calling for the river Ohio, as the boundary line, shall be considered as bounded in that particular by the state line on the north west side of said river, and the bed of the river and the islands, therefore shall be within the respective counties, holding the main land opposite thereto, within this state, and the several county tribunals, shall hold jurisdiction accordingly.' Acts of Kentucky, 1809, p. 100 (1810); 1 Statute Laws of Kentucky 268 (1834).
See also 2 Ky.Rev.Stat., Tit. 1, c. 1, p. 2 (1971).
8
Commonwealth v. Henderson County, 371 S.W.2d 27, 29—30 (Ky.1963); Louisville Sand & Gravel Co. v. Ralston, 266 S.W.2d 119, 121—122 (Ky.1954); Shannon v. Streckfus Steamers, Inc., 279 Ky. 649, 653, 131 S.W.2d 833, 835 (1939); McFarland v. McKnight, 45 Ky. 500, 510 (1846); Church v. Chambers, 3 Dana 274, 278—279 (Ct.App.Ky.1835); Fleming v. Kenney, 27 Ky. 155, 158 (1830); McFall v. Commonwealth, 2 Metc. 394, 396 (Ky.1859).
9
'Like Ohio, the State of Indiana was formed from the land ceded by Virginia; therefore, it has for its southern boundary the Ohio River. See 3 Stat. 289 (1816), and 3 Stat. 399 (1816). Thus, a determination of the boundary between the states of Indiana and Kentucky would control the determination of the boundary between the states of Ohio and Kentucky.' Brief in support of motion for leave to file complaint 10.
10
The situation, of course, is otherwise when the States' boundary dispute has been open, continuous and of long standing. See, for example, New Jersey v. Delaware, 291 U.S. 361, 376—377, 54 S.Ct. 407, 412—413, 78 L.Ed. 847 (1934); Oklahoma v. Texas, 272 U.S. 21, 46—47, 47 S.Ct. 9, 17—18, 71 L.Ed. 145 (1926); Arkansas v. Tennessee, 246 U.S. 158, 172, 38 S.Ct. 301, 304, 62 L.Ed. 638 (1918).
1
Complaint 6.
2
Amended complaint 1—3.
3
F. James, Civil Procedure § 4.1, p. 127; Conley v. Gibson, 355 U.S. 41, 45—46, 78 S.Ct. 99, 101—102, 2 L.Ed.2d 80.
4
Virginia's claim of title rests upon the charter granted by King James I to the London Company in 1609. Ohio argues that later events, including the revocation of the charter in 1624 when Virginia became a Crown colony, 1 J. Marshall, The Life of George Washington 69; 2 W. Hening's Stat. at Large 525—526; 1 Laws of the United States 465 (B. & D. ed. 1815) (hereinafter Laws), and the ceding by the French to the British of the Eastern Mississippi Valley north of the Ohio River under the Treaty of Paris in 1763, 1 Laws 441—442; A. Shortt & A. Doughty, Documents Relating to the Constitutional History of Canada, 1759—1791, pp. 113, 116, sharply curtailed Virginia's reach and that the middle of the river was intended as the boundary between old and new States by the United States following the Revolution. It seeks to substantiate this final point by references to various laws that prescribe the boundaries of new States, 1 Laws 475, 480, provide for navigational rights, id., at 479—480, and speak in general terms of Virginia, Kentucky, and Tennessee as the lands south, or south and east, of the Ohio River, and of Ohio, Indiana, and Illinois as the lands to the north, or the north and west, 2 Laws 14, 104, 138, 179, 311, 421, 533; 3 Laws 367, 385, 396, 596, 612.
5
Henderson Bridge Co. v. Henderson City, 173 U.S. 592, 19 S.Ct. 553, 43 L.Ed. 823 (1899); Wedding v. Meyler, 192 U.S. 573, 24 S.Ct. 322, 48 L.Ed. 570 (1904); Nicoulin v. O'Brien, 248 U.S. 113, 39 S.Ct. 23, 63 L.Ed. 155 (1918).
6
Handly's Lessee v. Anthony, 5 Wheat. 374, 377, 379, 5 L.Ed. 113.
7
See ibid.; Indiana v. Kentucky, 136 U.S. 479, 503—504, 10 S.Ct. 1051, 1052, 34 L.Ed. 329.
8
Lessee of McCullock v. Aten, 2 Ohio 307 (1826); Lessee of Blanchard v. Porter, 11 Ohio 138 (1841); Booth v. Shepherd, 8 Ohio St. 243 (1858).
9
2 Ohio, at 310, (discussing only ownership of the land above the water line but below the bank); 11 Ohio, at 139—140 ('The defendant's deed conveys the soil to the top of the river bank, and reserves the 'break and slope,' between that point and the river').
10
8 Ohio St., at 245—246 (noting that 'In the case of Handly's Lessee v. Anthony, the supreme court of the United States, proceed(ed) on the assumption that Virginia was the original proprietor of both sides of the river . . .' (emphasis added)).
| 1011
|
410 U.S. 614
93 S.Ct. 1146
35 L.Ed.2d 536
Linda R.S., Appellant,v.Richard D. and Texas et al.
No. 71—6078.
Argued Dec. 6, 1972.
Decided March 5, 1973.
Syllabus
Appellant, the mother of an illegitimate child, brought a class action to enjoin the 'discriminatory application' of Art. 602 of the Vernon's Ann. Texas Penal Code providing that any 'parent' who fails to support his 'children' is subject to prosecution, but which by state judicial construction applies only to married parents. Appellant sought to enjoin the local district attorney from refraining to prosecute the father of her child. The three-judge District Court dismissed appellant's action for want of standing: Held: Although appellant has an interest in her child's support, application of Art. 602 would not result in support but only in the father's incarceration, and a private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another. Pp. 616—619.
335 F.Supp. 804, affirmed.
Windle Turley, Dallas, Tex., for appellant.
Robert W. Gauss, Lubbock, Tex., for appellees.
Mr. Justice MARSHALL delivered the opinion of the Court.
1
Appellant, the mother of an illegitimate child, brought this action in United States District Court on behalf of herself, her child, and others similarly situated to enjoin the 'discriminatory application' of Art. 602 of the Vernon's Ann. Texas Penal Code. A three-judge court was convened pursuant to 28 U.S.C. § 2281, but that court dismissed the action for want of standing.1 335 F.Supp. 804 (N.D.Tex.1971). We postponed consideration of jurisdiction until argument on the merits, 405 U.S. 1064, 92 S.Ct. 1520, 31 L.Ed.2d 793, and now affirm the judgment below.
2
Article 602, in relevant part, provides: 'any parent who shall wilfully desert, neglect or refuse to provide for the support and maintenance of his or her child or children under eighteen years of age, shall be guilty of a misdemeanor, and upon conviction, shall be punished by confinement in the County Jail for not more than two years.' The Texas courts have consistently construed this statute to apply solely to the parents of legitimate children and to impose no duty of support on the parents of illegitimate children. See Home of Holy Infancy v. Kaska, 397 S.W.2d 208, 210 (Tex.1966); Beaver v. State, 96 Tex.Cr.R. 179, 256 S.W. 929 (1923). In her complaint, appellant alleges that one Richard D. is the father of her child, that Richard D. has refused to provide support for the child, and that although appellant made application to the local district attorney for enforcement of Art. 602 against Richard D., the district attorney refused to take action for the express reason that, in his view, the fathers of illegitimate children were not within the scope of Art. 602.2
3
Appellant argues that this interpretation of Art. 602 discriminates between legitimate and illegitimate children without rational foundation and therefore violates the Equal Protection Clause of the Fourteenth Amendment. Cf. Gomez v. Perez, 409 U.S. 535, 93 S.Ct. 872, 35 L.Ed.2d 56 (1973); Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 92 S.Ct. 1400, 31 L.Ed.2d 768 (1972); Glona v. American Guarantee & Liability Ins. Co., 391 U.S. 73, 88 S.Ct. 1515, 20 L.Ed. 441 (1968); Levy v. Louisiana, 391 U.S. 68, 88 S.Ct. 1509, 20 L.Ed.2d 436 (968). But cf. Labine v. Vincent, 401 U.S. 532, 91 S.Ct. 1017, 28 L.Ed.2d 288 (1971). Although her complaint is not entirely clear on this point, she apparently seeks an injunction running against the district attorney forbidding him from declining prosecution on the ground that the unsupported child is illegitimate.
4
Before we can consider the merits of appellant's claim or the propriety of the relief requested, however, appellant must first demonstrate that she is entitled to invoke the judicial process. She must, in other words, show that the facts alleged present the court with a 'case or controversy' in the constitutional sense and that she is a proper plaintiff to raise the issues sought to be litigated. The threshold question which must be answered is whether the appellant has 'alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions.' Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962).
5
Recent decisions by this Court have greatly expanded the types of 'personal stake(s)' which are capable of conferring standing on a potential plaintiff. Compare Tennessee Electric Power Co. v. TVA, 306 U.S. 118, 59 S.Ct. 366, 83 L.Ed. 543 (1939), and Alabama Power Co. v. Ickes, 302 U.S. 464, 58 S.Ct. 300, 82 L.Ed. 374 (1938), with Barlow v. Collins, 397 U.S. 159, 90 S.Ct. 832, 25 L.Ed.2d 192 (1970), and Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970). But as we pointed out only last Term, 'broadening the categories of injury that may be alleged in support of standing is a different matter from abandoning the requirement that the party seeking review must himself have suffered an injury.' Sierra Club v. Morton, 405 U.S. 727, 738, 92 S.Ct. 1361, 1368, 31 L.Ed.2d 636 (1972). Although the law of standing has been greatly changed in the last 10 years, we have steadfastly adhered to the requirement that, at least in the absence of a statute expressly conferring standing,3 federal plaintiffs must allege some threatened or actual injury resulting from the putatively illegal action before a federal court may assume jurisdiction.4 See, e.g., Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 166—167, 92 S.Ct. 1965, 1968, 32 L.Ed.2d 627 (1972); Flast v. Cohen, 392 U.S. 83, 101, 88 S.Ct. 1942, 1953, 20 L.Ed.2d 947 (1968); Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962). Cf. Laird v. Tatum, 408 U.S. 1, 13, 92 S.Ct. 2318, 2325, 33 L.Ed.2d 154
6
Applying this test to the facts of this case, we hold that, in the unique context of a challenge to a criminal statute, appellant has failed to allege a sufficient nexus between her injury and the government action which she attacks to justify judicial intervention. To be sure, appellant no doubt suffered an injury stemming from the failure of her child's father to contribute support payments. But the bare existence of an abstract injury meets only the first half of the standing requirement. 'The party who invokes (judicial) power must be able to show . . . that he has sustained or is immediately in danger of sustaining some direct injury as the result of (a statute's) enforcement.' Massachusetts v. Mellon, 262 U.S. 447, 488, 43 S.Ct. 597, 601, 67 L.Ed. 1078 (1923) (emphasis added). See also Ex parte Levitt, 302 U.S. 633, 634, 58 S.Ct. 1, 82 L.Ed. 493 (1937). As this Court made plain in Flast v. Cohen, supra, a plaintiff must show 'a logical nexus between the status asserted and the claim sought to be adjudicated. . . . Such inquiries into the nexus between the status asserted by the litigant and the claim he presents are essential to assure that he is a proper and appropriate party to invoke federal judicial power.' 392 U.S., at 102, 88 S.Ct., at 1953.
7
Here, appellant has made no showing that her failure to secure support payments results from the nonenforcement, as to her child's father, of Art. 602. Although the Texas statute appears to create a continuing duty, it does not follow the civil contempt model whereby the defendant 'keeps the keys to the jail in his own picket' and may be released whenever he complies with his legal obligations. On the contrary, the statute creates a completed offense with a fixed penalty as soon as a parent fails to support his child. Thus, if appellant were granted the requested relief, it would result only in the jailing of the child's father. The prospect that prosecution will, at least in the future, result in payment of support can, at best, be termed only speculative. Certainly the 'direct' relationship between the alleged injury and the claim sought to be adjudicated, which previous decisions of this Court suggest is a prerequisite of standing, is absent in this case.
8
The Court's prior decisions consistently hold that a citizen lacks standing to contest the policies of the prosecuting authority when he himself is neither prosecuted nor threatened with prosecution. See Younger v. Harris, 401 U.S. 37, 42, 91 S.Ct. 746, 749, 27 L.Ed.2d 669 (1971); Bailey v. Patterson, 369 U.S. 31, 33, 82 S.Ct. 549, 551, 7 L.Ed.2d 512 (1962); Poe v. Ullman, 367 U.S. 497, 501, 81 S.Ct. 1752, 1754, 6 L.Ed.2d 989 (1961). Although these cases arose in a somewhat different context, they demonstrate that, in American jurisprudence at least, a private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another. Appellant does have an interest in the support of her child. But given the special status of criminal prosecutions in our system, we hold that appellant has made an insufficient showing of a direct nexus between the vindication of her interest and the enforcement of the State's criminal laws. The District Court was therefore correct in dismissing the action for want of standing,5 and its judgment must be affirmed.6
9
Judgment affirmed.
10
Mr. Justice WHITE, with whom Mr. Justice DOUGLAS joins, dissenting.
11
Appellant Linda R.S. alleged that she is the mother of an illegitimate child and that she is suing 'on behalf of herself, her minor daughter, and on behalf of all other women and minor children who have sought, are seeking, or in the future will seek to obtain support for so-called illegitimate children from said child's father.' Appellant sought a declaratory judgment that Art. 602 is unconstitutional and an injunction against its continued enforcement against fathers of legitimate children only. Appellant further sought an order requiring Richard D., the putative father, 'to pay a reasonable amount of money for the support of his child.'
12
Obviously, there are serious difficulties with appellant's complaint insofar as it may be construed as seeking to require the official appellees to prosecute Richard D. or others, or to obtain what amounts to a federal child-support order. But those difficulties go to the question of what relief the court may ultimately grant appellant. They do not affect her right to bring this class action. The Court notes, as it must, that the father of a legitimate child, if prosecuted under Art. 602, could properly raise the statute's underinclusiveness as an affirmative defense. See McLaughlin v. Florida, 379 U.S. 184, 85 S.Ct. 283, 13 L.Ed.2d 222 (1964); Railway Express Agency v. New York, 336 U.S. 106, 69 S.Ct. 463, 93 L.Ed. 533 (1949). Presumably, that same father would have standing to affirmatively seek to enjoin enforcement of the statute against him. Cf. Rinaldi v. Yeager, 384 U.S. 305, 86 S.Ct. 1497, 16 L.Ed.2d 577 (1966); see also Epperson v. Arkansas, 393 U.S. 97, 89 S.Ct. 266, 21 L.Ed.2d 228 (1968). The question then becomes simply: why should only an actual or potential criminal defendant have a recognizable interest in attacking this allegedly discriminatory statute and not appellant and her class? They are not, after all, in the position of members of the public at large who wish merely to force an enlargement of state criminal laws. Cf. Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972). Appellant, her daughter, and the children born out of wedlock whom she is attempting to represent have all allegedly been excluded intentionally from the class of persons protected by a particular criminal law. They do not get the protection of the laws that other women and children get. Under Art. 602, they are rendered nonpersons; a father may ignore them with full knowledge that he will be subjected to no penal sanctions. The Court states that the actual coercive effect of those sanctions on Richard D. or others 'can, at best, be termed only speculative.' This is a very odd statement. I had always thought our civilization has assumed that the threat of penal sanctions had something more than a 'speculative' effect on a person's conduct. This Court has long acted on that assumption in demanding that criminal laws be plainly and explicitly worded so that people will know what they mean and be in a position to conform their conduct to the mandates of law. Certainly Texas does not share the Court's surprisingly novel view. It assumes that criminal sanctions are useful in coercing fathers to fulfill their support obligations to their legitimate children.
13
Unquestionably, Texas prosecutes fathers of legitimate children on the complaint of the mother asserting nonsupport and refuses to entertain like complaints from a mother of an illegitimate child. I see no basis for saying that the latter mother has no standing to demand that the discrimination be ended, one way or the other.
14
If a State were to pass a law that made only the murder of a white person a crime, I would think that Negroes as a class would have sufficient interest to seek a declaration that that law invidiously discriminated against them. Appellant and her class have no less interest in challenging their exclusion from what their own State perceives as being the beneficial protections that flow from the existence and enforcement of a criminal child-support law.
15
I would hold that appellant has standing to maintain this suit and would, accordingly, reverse the judgment and remand the case for further proceedings.
16
Mr. Justice BLACKMUN, with whom Mr. Justice BRENNAN joins, dissenting.
17
By her complaint, appellant challenged Texas' exemption of fathers of illegitimate children from both civil and criminal liability. Our decision in Gomez v. Perez, 409 U.S. 535, 93 S.Ct. 872, 35 L.Ed.2d 56 (1973), announced after oral argument in this case, has important implications for the Texas law governing a man's civil liability for the support of children he has fathered illegitimately. Although appellant's challenge to the civil statute, as the Court points out, is not procedurally before us, ante, at 615 n. 1, her brief makes it clear that her basic objection to the Texas system concerns the absence of a duty of paternal support for illegitimate children. The history of the case suggests that appellant sought to utilize the criminal statute as a tool to compel support payments for her child. The decision in Gomez may remove the need for appellant to rely on the criminal law if she continues her quest for paternal contribution.
18
The standing issue now decided by the Court is, in my opinion, a difficult one with constitutional overtones. I see no reason to decide that question in the absence of a live, ongoing controversy. See Rice v. Sioux City Memorial Park Cemetery, 349 U.S. 70, 75 S.Ct. 614, 99 L.Ed. 897 (1955). Gomez now has beclouded the state precedents relied upon by both parties in the District Court. Thus 'intervening circumstances may well have altered the views of the participants,' and the necessity for resolving the particular dispute may no longer be present. Protective Committee for Independent Stockholders of TMT Trailer Ferry, Inc. v. Anderson, 390 U.S. 414, 453—454, 88 S.Ct. 1157, 1178, 20 L.Ed.2d 1 (1968). Under these circumstances, I would remand the case to the District Court for clarification of the status of the litigation.
1
The District Court also considered an attack on Art. 4.02 of the Texas Family Code, V.T.C.A., which imposes civil liability upon 'spouses' for the support of their minor children. Petitioner argued that the statute violated equal protection because it imposed no civil liability on the parents of illegitimate children. However, the three-judge court held that the challenge to this statute was not properly before it since appellant did not seek an injunction running against any state official as to it. See 28 U.S.C. § 2281. The Court, therefore, remanded this portion of the case to a single district judge. 335 F.Supp. 804, 807. The District Court's disposition of petitioner's Art. 4.02 claim is not presently before us. But see Gomez v. Perez, 409 U.S. 535, 93 S.Ct. 872, 35 L.Ed.2d 56 (1973).
2
Appellant attached to her complaint an affidavit, signed by an assistant district attorney, stating that the State was unable to institute prosecution 'due to caselaw construing Art. 602 of the Penal Code to be inapplicable to fathers of illegitimate children.'
3
It is, of course, true that 'Congress may not confer jurisdiction on Art. III federal courts to render advisory opinions,' Sierra Club v. Morton, 405 U.S. 727, 732 n. 3, 92 S.Ct. 1361, 1365, 31 L.Ed.2d 636 (1972). But Congress may enact statutes creating legal rights, the invasion of which creates standing, even though no injury would exist without the statute. See, e.g., Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205, 212, 93 S.Ct. 364, 368, 34 L.Ed.2d 415 (1972) (White, J., concurring); Hardin v. Kentucky Utilities Co., 390 U.S. 1, 6, 88 S.Ct. 651, 654, 19 L.Ed.2d 787 (1968).
4
One of the leading commentators on standing has written, 'Even though the past law of standing is so cluttered and confused that almost every proposition has some exception, the federal courts have consistently adhered to one major proposition without exception: One who has no interest of his own at stake always lacks standing.' K. Davis, Administrative Law Text 428—429 (3d ed. 1972).
5
We noted last Term that '(t)he requirement that a party seeking review must allege facts showing that he is himself adversely affected does not insulate executive action from judicial review, nor does it prevent any public interests from being protected through the judicial process.' Sierra Club v. Morton, 405 U.S., at 740, 92 S.Ct., at 1368. That observation is fully applicable here. As the District Court stated, 'the proper party to challenge the constitutionality of Article 602 would be a parent of a legitimate child who has been prosecuted under the statute. Such a challenge would allege that because the parents of illegitimate children may not be prosecuted, the statute unfairly discriminates against the parents of legitimate children.' 335 F.Supp., at 806.
6
Since we dispose of this case on the basis of lack of standing, we intimate no view as to the merits of appellant's claim. But cf. Gomez v. Perez, 409 U.S. 535, 93 S.Ct. 872, 35 L.Ed.2d 56 (1973).
| 12
|
410 U.S. 605
93 S.Ct. 1151
35 L.Ed.2d 528
Charles B. BRADLEY, Jr., et al., Petitioners,v.UNITED STATES.
No. 71—1304.
Argued Jan. 8, 1973.
Decided March 5, 1973.
Syllabus
On May 6, 1971, petitioners were convicted and sentenced for narcotics offenses committed in March 1971. They received the minimum five-year sentences under a provision that was mandatory and made the sentences not subject to suspension, probation, or parole. Effective May 1, 1971, that provision was repealed and liberalized by the Comprehensive Drug Abuse Prevention and Control Act of 1970. On petitioners' motion for vacation of their sentences and remand for resentencing, the Court of Appeals held that the new provisions were unavailable in view of the Act's saving clause, which made them inapplicable to 'prosecutions' antedating the Act's effective date. Held:
1. The word 'prosecutions' in the saving clause is to be accorded its normal legal sense, under which sentencing is a part of the concept of prosecution. therefore, the saving clause barred the District Judge from suspending sentence or placing petitioners on probation. Pp. 607—610.
2. Under the saving clause, parole under 18 U.S.C. § 4208(a) is likewise unavailable to petitioners, since by its terms that provision is inapplicable to offenses for which a mandatory penalty is provided; and, in any event, a decision to grant early parole under that provision must be made '(u)pon entering a judgment of conviction,' which occurs before the end of the prosecution. Pp. 610—611.
455 F.2d 1181, affirmed.
William P. Homans, Jr., Boston, Mass., for petitioners.
Philip A. Lacovara, Deputy Sol. Gen., Dept. of Justice, Washington, D.C., for respondent.
Mr. Justice MARSHALL delivered the opinion of the Court.
1
In this case we must decide whether a District Judge may impose a sentence of less than five years, suspend the sentence, place the offender on probation, or specify that he be eligible for parole, where the offender was convicted of a federal narcotics offense that was committed before May 1, 1971, but where he was sentenced after that date. Petitioners were convicted of conspiring to violate 26 U.S.C. § 4705(a) (1964 ed.) by selling cocaine not in pursuance of a written order form, in violation of 26 U.S.C. § 7237(b) (1964 ed. and Supp. V). The conspiracy occurred in March 1971. At that time, persons convicted of such violations were subject to a mandatory minimum sentence of five years. The sentence could not be suspended, nor could probation be granted, and parole pursuant to 18 U.S.C. § 4202 was unavailable. 26 U.S.C. § 7237(d) (1964 ed.). These provisions were repealed by §§ 1101(b)(3)(A) and (b)(4)(A) of the Comprehensive Drug Abuse Prevention and Control Act of 1970, 84 Stat. 1292. The effective date of that Act was May 1, 1971, five days before petitioners were convicted.
2
Each petitioner was sentenced to a five-year term.1 On appeal to the Court of Appeals for the First Circuit, various points, not here relevant, were raised. Following affirmance of their convictions, petitioners moved that their sentences be vacated and their cases be remanded to the District Court for resentencing pursuant to Fed.Rule Crim.Proc. 35. In their motion they contended that the District Court should have considered 'certain sentencing alternatives, including probation, suspension of sentence and parole' which became available on May 1, 1971. The Court of Appeals considered this motion as an 'appendage' to the appeal. It held that the specific saving clause of the 1970 Act, § 1103(a), read against the background of the general saving provision, 1 U.S.C. § 109, required that 'narcotics offenses committed prior to May 1, 1971, are to be punished according to the law in force at the time of the offense,' and that 'under the mandate of § 109 the repealed statute, § 7237(d) is '(to) be treated as still remaining in force." 455 F.2d 1181, 1190, 1191. Accordingly, the Court of Appeals held that the trial judge lacked power to impose a lesser sentence.
3
We granted the petition for writ of certiorari, 407 U.S. 908, 92 S.Ct. 2438, 32 L.Ed.2d 682 (1972), in order to resolve the conflict between the First and Ninth Circuits, see United States v. Stephens, 449 F.2d 103 (CA9 1971).2
4
* At common law, the repeal of a criminal statute abated all prosecutions which had not reached final disposition in the highest court authorized to review them. See Bell v. Maryland, 378 U.S. 226, 230, 84 S.Ct. 1814, 1817, 12 L.Ed.2d 822 (1964); Norris v. Crocker, 13 How. 429, 14 L.Ed. 210 (1852). Abatement by repeal included a statute's repeal and re-enactment with different penalties. See 1 J. Sutherland, Statutes and Statutory Construction § 2031 n. 2 (3d ed. 1943). And the rule applied even when the penalty was reduced. See, e.g., The King v. M'Kenzie, 168 Eng.Rep. 881 (Cr.Cas.1820); Beard v. State, 74 Md. 130, 21 A. 700 (1891). To avoid such results, legislatures frequently indicated an intention not to abate pending prosecutions by including in the repealing statute a specific clause stating that prosecutions of offenses under the repealed statute were not to be abated. See generally Note, Today's Law and Yesterday's Crime: Retroactive Application of Ameliorative Criminal Legislation, 121 U.Pa.L.Rev. 120, 121—130 (1972).
5
Section 1103(a) of the Comprehensive Drug Abuse Prevention and Control Act of 1970 is such a saving clause. It provides:
6
'Prosecutions for any violation of law occurring prior to the effective date of (the Act) shall not be affected by the repeals or amendments made by (it) . . . or abated by reason thereof.'
7
Petitioners contend that the word 'prosecutions' in § 1103(a) must be given its everyday meaning. When people speak of prosecutions, they usually mean a proceeding that is under way in which guilt is to be determined. In ordinary usage, sentencing is not part of the prosecution, but occurs after the prosecution has concluded. In providing that '(p)rosecutions . . . shall not be affected,' § 1103(a) means only that a defendant may be found guilty of an offense which occurred before May 1, 1971. The repeal of the statute creating the offense does not, on this narrow interpretation of § 1103 prevent a finding of guilt. But § 1103(a) does nothing more, according to petitioners.
8
Although petitioners' argument has some force, we believe that their position is not consistent with Congress' intent. Rather than using terms in their everyday sense, '(t)he law uses familiar legal expressions in their familiar legal sense.' Henry v. United States, 251 U.S. 393, 395, 40 S.Ct. 185, 186, 64 L.Ed. 322 (1920). The term 'prosecution' clearly imports a beginning and an end. Cf. Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972); Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967).
9
In Berman v. United States, 302 U.S. 211, 58 S.Ct. 164, 82 L.Ed. 204 (1937), this Court said, 'Final judgment in a criminal case means sentence. The sentence is the judgment. Miller v. Aderhold, 288 U.S. 206, 210, 53 S.Ct. 325, 77 L.Ed. 702; Hill v. United States ex rel. Wample, 298 U.S. 460, 464, 56 S.Ct. 760, 762, 80 L.Ed. 1283.' Id., at 212, 58 S.Ct., at 166. In the legal sense, a prosecution terminates only when sentence is imposed. See also Korematsu v. United States, 319 U.S. 432, 63 S.Ct. 1124, 87 L.Ed. 1497 (1943); United States v. Murray, 275 U.S. 347, 48 S.Ct. 146, 72 L.Ed. 309 (1928); Affronti v. United States, 350 U.S. 79, 76 S.Ct. 171, 100 L.Ed. 62 (1955).3 So long as sentence has not been imposed, then, § 1103(a) is to leave the prosecution unaffected.4
10
We therefore conclude that the Court of Appeals properly rejected petitioners' motion to vacate sentence and remand for resentencing. The District Judge had no power to consider suspending petitioners' sentences or placing them on probation. Those decisions must ordinarily be made before the prosecution terminates, and § 1103(a) preserves the limitations of § 7237(d) on decisions made at that time.
II
11
The Courts of appeals that have dealt with this problem have failed, however, to consider fully the special problem of the parole eligibility of offenders convicted before May 1, 1971. The Seventh and Ninth Circuits hold that such offenders are eligible for parole.5 The First Circuit in this case stated that petitioners were 'ineligible for suspended sentences, parole, or probation.' 455 F.2d, at 1191 (emphasis added).
12
In the federal system, offenders may be made eligible for parole in two ways. Any federal prisoner 'whose record shows that he has observed the rules of the institution in which he is confined, may be released on parole after serving one-third of' his sentence. 18 U.S.C. § 4202. Alternatively, the District Judge, '(u)pon entering a judgment of conviction . . . may (1) designate in the sentence of imprisonment imposed a minimum term, at the expiration of which the prisoner shall become eligible for parole, which term may be less than, but shall not be more than one-third of the maximum sentence imposed by the court, or (2) the court may fix the maximum sentence of imprisonment to be served, in which event the court may specify that the prisoner may become eligible for parole at such time as the board of parole may determine.' 18 U.S.C. § 4208(a).
13
Section 1103(a) clearly makes parole unavailable under the latter provision. As we have said, sentencing is part of the prosecution. The mandatory minimum sentence of five years must therefore be imposed on offenders who violated the law before May 1, 1971. And Congress specifically provided that § 4208(a) does not apply to any offense 'for which there is provided a mandatory penalty.' Pub.L. 85—752, § 7, 72 Stat. 847. In any event, the decision to make early parole available under § 4208(a) must be made '(u)pon entering a judgment of conviction,' which occurs before the prosecution has ended. Section 1103(a) thus means that the District Judge cannot specify at the time of sentencing that the offender may be eligible for early parole.
14
That was the only question before the Court of Appeals, and it is therefore the only question before us. Petitioners' motion, on which the Court of Appeals ruled, requested a remand so that the District Judge could consider the sentencing alternatives available to him under the Comprehensive Drug Abuse Prevention and Control Act of 1970. That Act, however, did not expand the choices open to the District Judge in this case, and the Court of Appeals correctly denied the motion to remand. The availability of parole under the general parole statute, 18 U.S.C. § 4202, is a rather different matter,6 on which we express no opinion.
15
Affirmed.
16
Mr. Justice BRENNAN and Mr. Justice WHITE join Part I of the Court's opinion and would affirm for the reasons there expressed. They are also of the view that s 1103(a) forecloses the availability of parole under both 18 U.S.C. § 4202 and 18 U.S.C. § 4208(a), and that even if this were debatable as to § 4202, the general saving statute, 1 U.S.C. § 109 clearly mandates that conclusion as to that section. They therefore do not join Part II of the Court's opinion.
17
Mr. Justice DOUGLAS, dissenting.
18
The correct interpretation of the word 'prosecutions' as used in § 1103(a) of the 1970 Act was, in my view, the one given by the Court of Appeals of the Ninth Circuit in United States v. Stephens, 449 F.2d 103, 105:
19
'Prosecution ends with judgment. The purpose of the section has been served when judgment under the old Act has been entered and abatement of proceedings had been avoided. At that point litigation has ended and appeal is available. Korematsu v. United States, 319 U.S. 432, 63 S.Ct. 1124, 87 L.Ed. 1497 (1943). What occurs thereafter—the manner in which judgment is carried out, executed or satisfied, and whether or not it is suspended—in no way affects the prosecution of the case.'
20
The problem of ambiguities in statutory language is not peculiar to legislation dealing with criminal matters. And the question as to how those ambiguities should be resolved is not often rationalized. The most dramatic illustration, at least in modern times, is illustrated by Rosenberg v. United States, 346 U.S. 273, 73 S.Ct. 1152, 97 L.Ed. 1607, where a divided Court resolved an ambiguity in a statutory scheme against life, not in its favor. The instant case is not of that proportion, but it does entail the resolution of unspoken assumptions—those favoring the status quo of prison systems as opposed to those who see real rehabilitation as the only cure of the present prison crises. As Mr. Justice Holmes said, 'judges do and must legislate, but they can do so only interstitutially; they are confined from molar to molecular motions.' Southern Pacific Co. v. Jensen, 244 U.S. 205, 221, ,37 S.Ct. 524, 531, 61 L.Ed. 1086 (dissenting opinion).*
21
Judges do not make legislative policies. But in construing an ambiguous word in a criminal Code, I would try to give it a meaning that would help reverse the long trend in this Nation not to consider a prisoner a 'person' in the constitutional sense. Fay Stender, writing the introduction to Maximum Security, p. X, has described some of the 'tremendously sophisticated defenses against the least increase in the enforceable human rights available to the prisoner.' (E. Pell ed., Bantam Books 1973.)
22
A less strict and rigid meaning of the present Act would be only a minor start in the other direction. But it is one I would take.
1
Petitioners Bradley, Helliesen, and Odell were found guilty also of unlawfully carrying a firearm during the commission of a felony, in violation of 18 U.S.C. § 924(c)(2). Each was sentenced to one year in prison; the sentences were suspended, and each was placed on probation for three years on these counts.
2
See also United States v. McGarr, 461 F.2d 1 (CA7 1972); United States v. Fiotto, 454 F.2d 252 (CA2 1972).
3
These cases involve determining whether a judgment in a criminal case is final for the purpose of appeal and determining whether the function of the trial judge has been concluded so that he may not alter the sentence previously imposed to include probation. The precise issues are, of course, different from the issue in this case. But these cases do show the point at which a prosecution terminates, and that is the issue here.
4
Petitioners also argue that imposition of sentence precedes the suspension of sentence and the grant of probation. But the actions of the District Judge in imposing sentence and then ordering that it be suspended are usually so close in time that it would be unrealistic to hold that Congress intended so to fragment what is essentially a single proceeding.
5
See n. 2, supra. We were informed at oral argument that 'the Board of Parole is now considering as eligible for parole only defendants who have been sentenced in the Seventh and Ninth Circuits for narcotics offenses.' Tr. of Oral Arg. 23. Our disposition of this case has no bearing on the power of the Board of Parole to consider parole eligibility for petitioners under 18 U.S.C. § 4202. See infra, at 611.
6
The decision to grant parole under § 4202 lies with the Board of Parole, not with the District Judge, and must be made long after sentence has been entered and the prosecution terminated. Whether § 1103(a) or the general saving statute, 1 U.S.C. § 109, limits that decision is a question we cannot consider in this case.
*
Mr. Justice Holmes also said:
'(I)n substance the growth of the law is legislative. And this in a deeper sense than that that which the courts declare to have always been the law is in fact new. It is legislative in its grounds. The very considerations which the courts most rarely mention, and always with an apology, are the secret root from which the law draws all the juices of life. We mean, of course, considerations of what is expedient for the community concerned. Every important principle which is developed by litigation is in fact and at bottom the result of more or less definitely understood views of public policy; most generally, to be sure, under our practice and traditions, the unconscious result of instinctive preferences and inarticulate convictions, but none the less traceable to public policy in the last analysis. And as the law is administered by able and experienced men, who know too much to sacrifice good sense to a syllogism, it will be found that when ancient rules maintain themselves in this way, new reasons more fitted to the time have been found for them, and that they gradually receive a new content and at last a new form from the grounds to which they have been transplanted. The importance of tracing the process lies in the Fact that it is unconscious, and involves the attempt to follow precedents, as well as to give a good reason for them, and that hence, if it can be shown that one half of the effort has failed, we are at liberty to consider the question of policy with a freedom that was not possible before.' Common Carriers and the Common Law, 13 Am.L.Rev. 609, 630—631 (1879).
| 01
|
410 U.S. 623
93 S.Ct. 1186
35 L.Ed.2d 545
UNITED AIR LINES, INC., Appellant,v.George E. MAHIN et al.
No. 71—862.
Argued Nov. 8, 1972.
Decided March 5, 1973.
Syllabus
The Illinois use tax was applied to appellant's aviation fuel stored in the State and loaded aboard its aircraft there and consumed in interstate flights, the tax authorities having revised their previous 'burn off' interpretation of a statutory exemption for temporary storage. Under the 'burn off' interpretation only fuel consumed in flight over Illinois was used to measure the tax imposed for storage before loading, but under the reinterpretation all fuel loaded was deemed to measure the tax on the 'use' of storage or withdrawal from storage. The Illinois Supreme Court upheld the statute against appellant's contention that the tax as reinterpreted impermissibly burdened interstate commerce. Held:
1. The statute as authoritatively construed by the State's highest court to tax storage and not consumption does not place an unconstitutional burden on interstate commerce. Edelman v. Boeing Air Transport, Inc., 289 U.S. 249, 53 S.Ct. 591, 77 L.Ed. 1155; Nashville, Chattanooga & St. Louis R. Co. v. Wallace, 288 U.S. 249, 53 S.Ct. 345, 77 L.Ed. 730. Cases allowing the taxation of storage of fuel before loading have not outlived their usefulness. Pp. 626—630.
2. The 'burn off' rule is not unconstitutional, being distinguishable from a tax imposed on consumption such as was invalidated in Helson v. Com. of Kentucky, 279 U.S. 245, 49 S.Ct. 279, 73 L.Ed. 683. Since some of the Illinois Supreme Court majority were under the mistaken impression that Helson precluded use of the 'burn off' interpretation, the case is remanded to enable that court to construe the temporary-storage provision under state law free from any constraint that such interpretation would not be constitutionally permissible. Pp. 630—632.
49 Ill.2d 45, 273 N.E.2d 585, vacated and remanded.
Mark H. Berens, Chicago, Ill., for appellant.
Robert J. O'Rourke, Chicago, Ill., for appellees.
Mr. Justice BLACKMUN delivered the opinion of the Court.
1
United Air Lines, Inc., challenged the constitutionality of the Illinois general revenue use tax as applied to aviation fuel stored in Illinois and then loaded aboard aircraft there and consumed in interstate flights. The Supreme Court of Illinois upheld the state tax as currently applied, concluding that it did not impose an unconstitutional burden on interstate commerce. 49 Ill.2d 45, 273 N.E.2d 585 (1971). We noted probable jurisdiction. 405 U.S. 989, 92 S.Ct. 1249, 31 L.Ed.2d 452 (1972). We now affirm that holding, but we vacate the judgment and remand the case for consideration of an issue under state law.
2
Since 1953, United has purchased aviation fuel from a supplier for delivery from the supplier's Indiana facilities. This fuel is utilized by United in its extensive operations out of O'Hare and Midway airports in the Chicago area of Illinois. Although the method of delivery varies for different types of fuel and for the two airports,1 all fuel is delivered by common carrier and is held for periods ranging from two to 12 days in ground storage facilities maintained in Illinois by United.2 Fuel for both interstate and intrastate operations is delivered in the same manner.3 United voluntarily has paid the tax on fuel consumed in purely intrastate operations. Only the tax as applied to fuel used in interstate flights is in issue.
3
In 1955, Illinois enacted a general tax on the 'privilege of using' tangible personal property in the State. Ill.Rev.Stat., c. 120, § 439.3 (1971). 'Use' was defined to include the 'exercise . . . of any right or power over tangible personal property incident to the ownership of that property.' § 439.2. Some exceptions from this inclusive definition were made. One of these exceptions, which the statute recites, § 439.3, is '(t)o prevent actual or likely multi-state taxation,' is the temporary-storage provision. This denies application of the tax to property brought from another State and stored temporarily in Illinois before use solely outside the State.4
4
Since this general use tax, apart from its exceptions, reached all tangible personal property, it applied by its terms to fuel stored for use in vehicles. From 1955 to 1963, the Illinois Department of Revenue allowed interstate common carriers to benefit from the temporary-storage provision to the extent that fuel, although loaded aboard in Illinois, was not consumed by the vehicle in that State. The amount of aviation fuel used over Illinois could be calculated because scheduled airline routes are precise and the rate of consumption by each type of aircraft is known. This 'burn off' interpretation was changed in 1963, however, when the Department announced by bulletin that it was reinterpreting the temporary-storage provision to mean that 'temporary storage ends and a taxable use occurs when the fuel is taken out of storage facilities and is placed into the tank of the airplane, railroad engine or truck.' Thus, as the Illinois court described it, 'all fuel loaded on United's planes at the two airports was deemed to measure the tax.' 49 Ill.2d, at 49, 273 N.E.2d, at 587.
5
United's suit attacked the new interpretation on both state and federal grounds. All justices of the Supreme Court of Illinois agreed that the new interpretation did not run afoul of the Federal Constitution, but the justices disagreed over the applicability and validity of the 'burn off' alternative discussed in the several opinions. 49 Ill.2d, at 50—53, 56, 57—59, 273 N.E.2d, at 587—589, 591—592.
6
* Two decisions of this Court were relied upon by the Illinois court in reaching its conclusion that the present application of the state tax was not offensive to the Federal Constitution. The cases are Edelman v. Boeing Air Transport, 289 U.S. 249, 53 S.Ct. 591, 77 L.Ed. 1155 (1933), and Nashville, Chattanooga & St. Louis R. Co. v. Wallace, 288 U.S. 249, 53 S.Ct. 345, 77 L.Ed. 730 (1933). We agree that these cases support the application of the Illinois tax to all fuel stored in Illinois and loaded aboard United's aircraft for in-flight consumption.
7
In Edelman, this Court upheld a state gasoline use tax, even when imposed on gasoline imported from outside the State, stored in tanks at an airport, and loaded aboard planes departing on interstate flights. The decision in Edelman followed the holding in Nashville that oil purchased by a railroad outside Tennessee but stored in Tennessee solely for the purpose of providing motive power for the railroad's interstate and intrastate operations could be subjected constitutionally to a Tennessee privilege tax. In Nashville, as in this case, none of the fuel stored was held as inventory for sale, and the tax was not one for the use of special services furnished by the State to the taxpayer railroad.
8
In Edelman, the Court accepted the State's determination that the taxable event was withdrawal from storage rather than consumption. 289 U.S., at 251, 53 S.Ct., at 591—592. The airline in Edelman contended, id., at 252, 53 S.Ct., at 592, that the state tax was invalid under Helson v. Com. of Kentucky, 279 U.S. 245, 49 S.Ct. 279, 73 L.Ed. 683 (1929). In Helson, the Court held that a Kentucky tax on the use of gasoline within the State fell too directly on interstate commerce when it was imposed on fuel loaded in Illinois but consumed in the course of an interstate ferry's trip through Kentucky. In Edelman, the Court distinguished Helson because storage, rather than consumption, was the taxable event. See Southern Pacific Co. v. Gallagher, 306 U.S. 167, 59 S.Ct. 389, 83 L.Ed. 586 (1939).
9
The Supreme Court of Illinois characterized the taxable 'use' under the Illinois statute as either storage or withdrawal from storage. United argued in the state court that the temporary-storage provision constituted a legislative waiver of the right to tax storage prior to loading. The Illinois court rejected this contention, noting that United stored fuel at the airport for general use. On these facts, the Supreme Court of Illinois concluded that the Illinois use tax applied to storage by United before loading and that this application was constitutional:
10
'Under the circumstances, the 'storage' becomes something more than a 'temporary storage' for safekeeping prior to its use solely outside of Illinois. Such storage, under the plain words of the statute, does not qualify under the temporary storage exemption and, as the authorities already discussed reveal, either the storage itself or the withdrawal therefrom are uses which may be taxed without offending the commerce clause of the Federal constitution.' 49 Ill.2d, at 55—56, 273 N.E.2d, at 590 (emphasis added).
11
The Illinois dissenters, too, treated the taxable event as storage or withdrawal. 49 Ill.2d, at 57, 273 N.E.2d, at 591.5
12
This Court usually has deferred to the interpretation placed on a state tax statute by the highest court of the State. Scripto, Inc. v. Carson, 362 U.S. 207, 210, 80 S.Ct. 619, 621, 4 L.Ed.2d 660 (1960); General Trading Co. v. State Tax Comm'n, 322 U.S. 335, 337, 64 S.Ct. 1028, 1029, 88 L.Ed. 1309 (1944). See Evco v. Jones, 409 U.S. 91, 93 S.Ct. 349, 34 L.Ed.2d 325 (1972). As in Edelman, we see no reason to ignore, or to disagree with, the state court's determination that the taxable event is storage rather than consumption.
13
We hold that Edelman and Nashville support the conclusion of the Supreme Court of Illinois that this tax, as applied to all fuel withdrawn from storage for consumption in an interstate vehicle, does not place an unconstitutional burden on interstate commerce. Further, we decline to hold that Edelman has outlived its usefulness.6 We must concede that for a long time this area of state tax law has been cloudy and complicated, primarily because the varied nature of interstate activities makes line drawing difficult. This Court has established some precedents, however, and Edelman and Nashville remain useful guidelines.
14
The line drawn between an impermissible tax on mere consumption of fuel, as in Helson, and a permissible tax on storage of fuel before loading, as in Edelman and Nashville, continues to serve rational purposes. Retaining the line at this point minimizes the danger of double taxation and yet provides a source of revenue having a relation to the event taxed. Double taxation is minimized because the fuel cannot be taxed by States through which it is transported, under Michigan-Wisconsin Pipe Line Co. v. Calvert, 347 U.S. 157, 74 S.Ct. 396, 98 L.Ed. 583 (1954), nor by the State in which it is merely consumed, under Helson. A fair result is achieved because a State in which preloading storage facilities are maintained is likely to provide substantial services to those facilities, including police protection and the maintenance of public access roads.7
15
Since no persuasive reason has been advanced for changing the established rule, we reaffirm Edelman and Nashville as precedents.
II
16
United contended in state court that the Illinois temporary-storage exemption should be interpreted, as a matter of state law, to encompass the 'burn off' rule which, as noted above, had received administrative sanction for eight years. 49 Ill.2d, at 49, 273 N.E.2d, at 587. Two justices of the Illinois court deemed themselves bound under Helson to regard the 'burn off' rule as invalid under the Federal Constitution. 49 Ill.2d, at 50, 273 N.E.2d, at 587. This basis for construing a state statute creates a federal question. Red Cross Line v. Atlantic Fruit Co., 264 U.S. 109, 120, 44 S.Ct. 274, 275—276, 68 L.Ed. 582 (1924). The possibility that the state court might have reached the same conclusion if it had decided the question purely as a matter of state law does not create an adequate and independent state ground that relieves this Court of the necessity of considering the federal question. Beecher v. Alabama, 389 U.S. 35, 37 n. 3, 88 S.Ct. 189, 190, 19 L.Ed.2d 35 (1967); see C. Wright, Federal Courts § 107, p. 488 (2d ed. 1970). Since the other justices of the Illinois court divided three to two on the state law issue, the votes of the two who felt bound by Helson could be determinative of the state issue. Under these circumstances, we proceed to consider the validity of the 'burn off' rule in the light of Helson, as United has urged us to do. See Perkins v. Benguet Consol. Mining Co., 342 U.S. 437, 441—443, 72 S.Ct. 413, 416—417, 96 L.Ed. 485 (1952).
17
The facts in Helson are different from the facts here. In Helson, the operators of the interstate ferry boat purchased and took delivery of fuel in Illinois. The office, the place of business, and the situs of all the taxpayer's property were in Illinois. The boat crossed the Ohio River into Kentucky on regular runs, and Kentucky sought to impose a tax on the use of gasoline consumed in Kentucky. The Court invalidated the tax 'computed and imposed upon the use of the gasoline thus consumed.' 279 U.S., at 248, 49 S.Ct., at 280.
18
In the present case, Illinois is the State of storage of United's fuel before loading. If Illinois imposed a tax on the basis of that storage but measured the tax only by the fuel consumed over Illinois, a lower tax would result. The dangers of multiple taxation and possible tax windfalls, already suggested as justifying the Helson decision, would not be present if the tax were imposed on storage prior to loading but were measured by consumption. Multiple taxation and tax windfalls are avoided because only one State—the State of storage before loading—has a local event upon which a tax is imposed. Under Helson, States over which the planes fly will be unable to impose a tax on mere consumption.8
19
The use of a method of tax measurement that is intimately related to interstate commerce is not automatically unconstitutional. Tolls on the use of facilities that aid interstate commerce have been upheld even when measured by passengers or by mileage traveled on the highways of a State. Evansville-Vanderburgh Airport Authority District v. Delta Airlines, Inc., 405 U.S. 707, 92 S.Ct. 1349, 31 L.Ed.2d 620 (1972); Interstate Busses Corp. v. Blodgett, 276 U.S. 245, 48 S.Ct. 230, 72 L.Ed. 551 (1928). Upon the facts before us,9 we see no constitutional barrier to the use of the 'burn off' rule by Illinois to measure the tax imposed for storage before loading.
20
Since we now determine that the federal compulsion felt by two justices of the Illinois court is not warranted, we remand the case to avoid the risk of 'an affirmance of a decision which might have been decided differently if the court below had felt free, under our decisions, to do so.' Perkins v. Benguet Consol. Mining Co., 342 U.S., at 443, 72 S.Ct., at 417. We, of course, express no opinion on the construction of the temporary-storage provision under state law.
21
The judgment of the Supreme Court of Illinois is vacated and the case is remanded to that court for further proceedings.
22
It is so ordered.
23
Judgment vacated and case remanded.
24
Mr. Justice DOUGLAS, with whom Mr. Justice STEWART and Mr. Justice WHITE concur, dissenting.
25
The Court today makes a break with the history of the Commerce Clause that has been largely responsible for creating in this Nation a great common market. One protective device this Court has used to keep the national channels of commerce open against hostile state legislation has been the constitutional ban on state taxation levied on interstate activities. In 1873, in Case of State Freight Tax, 15 Wall. 232, 21 L.Ed. 146, we held unconstitutional a state tax 'so far as it applies to articles . . . taken up in the State and carried out of it . . ..' Id., at 282. While there are ways in which interstate commerce can be required to pay its way, we have not until today abandoned the basic principle that a State may not tax interstate activities. That is what is done here, for the Illinois tax is levied on filling the fuel tanks of airplanes taking off for interstate or foreign journeys. If Illinois can tax that segment of the interstate activity, there is no reason why she may not tax the takeoff itself. The filling of fuel tanks to make an interstate or foreign journey is as indispensable a part and parcel of the interstate or foreign journey as using the runways for that purpose.
26
The Supreme Court of Illinois sustained the Illinois Use Tax1 on all aviation fuel loaded aboard United's interstate and foreign flights departing from Chicago. United purchases fuel outside Illinois and stores it in Illinois temporarily for its interstate and foreign operations. The use tax exempts from the tax property purchased outside Illinois, temporarily stored in the State, and used solely outside the State.2
27
Until 1963 the temporary storage exception was construed by the Illinois Department of Revenue so as to subject to the use tax only that fuel loaded on departing flights that was actually burned over Illinois. In 1963 the Department changed its prior ruling and announced:
28
'(T)emporary storage ends and a taxable use occurs when the fuel is taken out of storage facilities and is placed into the tank of the airplane, railroad engine or truck. At this point, the fuel is converted into its ultimate use, and, therefore, a taxable use occurs in Illinois.'
29
The Supreme Court of Illinois upheld that construction and application of the use tax against the claim that it violates the Commerce Clause, saying that United's storage becomes something more than temporary storage for safekeeping 'prior to its use solely outside of Illinois.' 49 Ill.2d 45, 55, 273 N.E.2d 585, 590.
30
The taxable event is the act of loading the fuel aboard United's aircraft in Illinois preparatory to their interstate or foreign journey. The majority states that the Supreme Court of Illinois concluded that either the storage of the gasoline itself or the withdrawal therefrom is a use which may be taxed without offending the Federal Constitution. But that statement of the Supreme Court of Illinois was made in its discussion of the exemption from the use tax which, as relevant here, provides: '(T)he temporary storage, in this State, of tangible personal property which is acquired outside this State and which, subsequent to being brought into this State and stored here temporarily, is used solely outside this State.' Ill.Rev.Stat., c. 120, § 439.3 (1971). That means that the temporary-storage exemption would extend, not merely to storage on the ground, but also to its loading aboard the transportation vehicles, such as trucks or railroad cars, and to its transportation from the State. It is thus obvious that, unless the means of removing the property from the State is included in the scope of the temporary storage, it would be a nullity, as appellant maintains. Since in this case, there is no tax if fuel is withdrawn from storage and taken from the State by other means, it is clear that neither the storage nor the removal from storage is what makes the fuel taxable. The majority properly notes that, as a matter of state law and the Illinois court's interpretation thereof, it is the 'consumption' wholly without the State that makes the exception operable. Conversely, I read the Illinois opinion to mean that, as a matter of state law, it is at least partial consumption within the State that brings the tax on all the fuel into play. That is so even if only a small portion of the fuel is consumed within the State, while the remainder is consumed out of State during an interstate or foreign flight. The inescapable conclusion from the state court's interpretation of this state law is that the act of loading the fuel into the fuel tanks of the interstate aircraft solely for use as the motive power is the taxable event.
31
If that event were used to tax fuel used on an intrastate flight, no problem under the Commerce Clause would arise. But loading is part of the interstate activity when planes prepare for an interstate journey, just as loading is a part of the shipment of goods by rail or water interstate (Puget Sound Stevedoring Co. v. Tax Comm'n of State of Wash., 302 U.S. 90, 92—94, 58 S.Ct. 72, 73—74, 82 L.Ed. 68; Joseph v. Carter & Weekes Stevedoring Co., 330 U.S. 422, 427, 433—434, 67 S.Ct. 815, 818, 821—822, 91 L.Ed. 993) and just as local pickups of parcels and local delivery of parcels in interstate movement are not permissible grounds 'for a state license, privilege or occupation tax.' Railway Express Agency v. Virginia, 347 U.S. 359, 368, 74 S.Ct. 558, 563, 98 L.Ed. 337.
32
In Richfield Oil Corp. v. State Board, 329 U.S. 69, 67 S.Ct. 156, 91 L.Ed. 80, we held invalid a state sales tax levied on the delivery of fuel oil into a ship for overseas carriage. We said '(t)he incident which gave rise to the accrual of the tax was a step in the export process.' Id., at 84, 67 S.Ct., at 164. A like result was reached in Michigan-Wisconsin Pipe Line Co. v. Calvert, 347 U.S. 157, 74 S.Ct. 396, 98 L.Ed. 583, where a State sought to impose a severance tax on the transfer of gas from a refinery pipeline to an interstate pipeline. We noted that the 'taxable incidence' was the taking of gas from a local plant 'for the purpose of immediate interstate transmission.' Id., at 161, 74 S.Ct., at 398. We, therefore, held it unconstitutional, since it was a tax 'on the exit of the gas from the State.' Id., at 167, 74 S.Ct., at 401.
33
The present tax is analogous to the tax on the privilege of carrying on an exclusively interstate business which we struck down in Spector Motor Service v. O'Connor, 340 U.S. 602, 608, 71 S.Ct. 508, 511, 95 L.Ed. 573. A tax upon an integral part of interstate commerce is a tax that no State by reason of the Commerce Clause is empowered to impose, unless authorized by Congress. Id., at 608, 71 S.Ct., at 511—512.
34
The fuel in United's planes propels the interstate flights; because it is the source of the motive power, it is essential to the interstate journey. It is, therefore, indisputably a part and parcel of the interstate movement. McCarroll v. Dixie Greyhound Lines, 309 U.S. 176, 60 S.Ct. 504, 84 L.Ed. 683, involved an Arkansas statute which prohibited any truck or automobile from entering the State with more than 20 gallons of gasoline in its tank unless an excise tax were paid on the gasoline. The Court held the tax unconstitutional because it imposed a tax on 'gasoline to be immediately transported over the roads of Arkansas for consumption beyond.' Id., at 180, 60 S.Ct., at 506 (emphasis added). Similarly, Illinois imposes its tax on all of the fuel loaded into airplane tanks, whether or not that fuel is consumed out of State. In Helson v. Kentucky, 279 U.S. 245, 49 S.Ct. 279, 73 L.Ed. 683, on which the Illinois Supreme Court relied in disapproving the earlier construction of the statute, a ferry boat operated between Illinois and Kentucky, having its office in Illinois and buying all its fuel there. Kentucky sought to tax that portion of the fuel used in Kentucky. This Court invalidated the tax, saying it was 'exacted as the price of the privilege of using an instrumentality of interstate commerce.' Id., at 252, 49 S.Ct., at 281. If that tax is invalid, it follows a fortiori that Illinois may not tax the movement of airplanes from Illinois to California, from Illinois to Europe, or from Illinois to any other out-of-state point.
35
It is now well settled that interstate commerce can be required to pay its way, Illinois Central R. Co. v. Minnesota, 309 U.S. 157, 60 S.Ct. 419, 84 L.Ed. 670; Western Live Stock v. Bureau of Revenue, 303 U.S. 250, 58 S.Ct. 546, 82 L.Ed. 823; Central Greyhound Lines v. Mealey, 334 U.S. 653, 68 S.Ct. 1260, 92 L.Ed. 1633; Northwestern States Portland Cement Co. v. Minnesota, 358 U.S. 450, 79 S.Ct. 357, 3 L.Ed.2d 421, a result commonly reached by formulae which allocate to the taxing State business derived from operations within the State. Railway Express Agency v. Virginia, 358 U.S. 434, 79 S.Ct. 411, 3 L.Ed.2d 450. Yet, when pieces or segments of an interstate business are taxed, our cases reveal discrimination in approving or disapproving taxes that may be imposed. A State may not exact a license tax for the privilege of carrying on interstate commerce. McGoldrick v. Berwind-White Coal Mining Co., 309 U.S. 33, 56—58, 60 S.Ct. 388, 397—399, 84 L.Ed. 565; Murdock v. Pennsylvania, 319 U.S. 105, 112—113, 63 S.Ct. 870, 874—875, 87 L.Ed. 1292. As stated in Berwind-White, taxes 'which are aimed at or discriminate against (interstate) commerce or impose a levy for the privilege of doing it, or tax interstate transportation or communication or their gross earnings, or levy an exaction on merchandise in the course of its interstate journey' are within the ban, since they may 'so readily be made the instrument of impeding or destroying interstate commerce.' 309 U.S., at 48, 60 S.Ct., at 393.
36
Sales within the State, however, are taxable, though the goods have reached the market by interstate channels. Magnano Co. v. Hamilton, 292 U.S. 40, 43, 54 S.Ct. 599, 601, 78 L.Ed. 1109; McGoldrick v. Berwind-White Co., supra, 309 U.S., at 58, 60 S.Ct., at 398—399. The sales tax in Berwind-White was on the 'transfer of title or possession, or both,' id., at 43, 60 S.Ct., at 390. And we sustained the tax because of 'a local activity' which we described as 'delivery of goods within the state upon their purchase for consumption,' id., at 58, 60 S.Ct., at 398. As a consequence, an out-of-state buyer who purchases goods in New York City and takes them with him pays the tax, while if he has them shipped to him, he pays no sales tax.
37
Although 'delivery of goods' within the State may be taxed, 'solicitation' within the State for out-of-state confirmation and shipment into the State may not be. Nippert v. Richmond, 327 U.S. 416, 422, 66 S.Ct. 586, 589—590, 90 L.Ed. 760; West Point Wholesale Grocery Co. v. Opelika, 354 U.S. 390, 77 S.Ct. 1096, 1 L.Ed.2d 1420. In Dunbar-Stanley Studios, Inc. v. Alabama, 393 U.S. 537, 89 S.Ct. 757, 21 L.Ed.2d 759, a tax was sustained on out-of-state photographers, since their activities were not soliciting orders for an out-of-state house but taking photographs within the State.
38
The use tax came into being to complement the sales tax, i.e., to fill in gaps where the States could not constitutionally tax interstate arrivals or departures. See Henneford v. Silas Mason Co., 300 U.S. 577, 581, 57 S.Ct. 524, 526, 81 L.Ed. 814. Thus, goods may be taxed at the end of their interstate journey, where the tax does not discriminate against interstate commerce. Id., at 582—583, 57 S.Ct., at 526—527; Felt & Tarrant Co. v. Gallagher, 306 U.S. 62, 59 S.Ct. 376, 83 L.Ed 488 (use tax on storage, use, or other consumption); Southern Pacific Co. v. Gallagher, 306 U.S. 167, 59 S.Ct. 389, 83 L.Ed. 586 (storage and use). Use taxes imposed on storage or withdrawal from storage have consistently been sustained. Eastern Air Transport v. South Carolina Tax Comm'n, 285 U.S. 147, 52 S.Ct. 340, 76 L.Ed. 673; Gregg Dyeing Co. v. Query, 286 U.S. 472, 52 S.Ct. 631, 76 L.Ed. 1232; Nashville, Chattanooga & St. Louis R. Co. v. Wallace, 288 U.S. 249, 53 S.Ct. 345, 77 L.Ed. 730; McGoldrick v. Berwind-White Co., supra, 309 U.S., at 49, 60 S.Ct., at 393—394.
39
Nice distinctions are often necessary because, although all taxes on interstate carriers 'in an ultimate sense, come out of interstate commerce' (Freeman v. Hewit, 329 U.S. 249, 256, 67 S.Ct. 274, 278, 91 L.Ed. 265), the constitutional ban relates only to 'a direct imposition on that very freedom of commercial flow which for more than a hundred and fifty years has been the ward of the Commerce Clause.' Id., at 256, 67 S.Ct., at 278.
40
For Illinois to tax the storage of fuel within its borders is, of course, constitutionally permissible, even though in time the fuel may be used in interstate or foreign commerce. In Edelman v. Boeing Air Transport, 289 U.S. 249, 251, 53 S.Ct. 591, 592, 77 L.Ed. 1155, the use tax was 'not levied upon the consumption of gasoline in furnishing motive power for respondent's interstate planes.' The tax was 'applied to the stored gasoline as it is withdrawn from the storage tanks at the airport and placed in the planes.' Ibid. 'It is at the time of withdrawal alone that 'use' is measured for the purposes of the tax.' Id., at 252, 53 S.Ct., at 592. (Italics added.) At that time, the gasoline was not irrevocably committed to interstate commerce, for it might be diverted to planes on intrastate journeys.
41
By contrast, the taxable event on which Illinois levies her tax is not storage for future use, or withdrawal from storage, but only loading in the tanks of planes preparing for interstate or foreign journeys. It is, therefore, inescapably a tax on the actual motive power for an interstate or foreign journey. Taxing the fuel loaded in a plane destined for an interstate or foreign journey is, in other words, taxing the privilege of using a facility in commerce, because the motive power3 represented by the fuel has become part and parcel of the facility. The decision today marks a break with our constitutional tradition, which, absent an Act of Congress, has led this Court consistently to hold that the free flow of interstate commerce is a ward of the Commerce Clause. Without that free flow of commerce we would not have the great common market we enjoy today.
42
I would reverse the judgment of the Supreme Court of Illinois.
43
Mr. Justice WHITE, dissenting.
44
The Illinois statute in question, Ill.Rev.Stat., c. 120, § 439.3 (1971), taxes the use of tangible personal property in Illinois, and 'use' is defined as being the 'exercise . . . of any right or power over tangible personal property incident to the ownership of that property . . ..' Id., § 439.2. The Illinois Supreme Court held that as applied in this case the statute taxed either the storage or the withdrawal therefrom of aviation fuel. But the statute itself goes on to exempt from tax property temporarily stored in the State, withdrawn from storage, loaded on transportation facilities and transported for use solely outside the State. Id., § 439.3(d). For the tax to apply, the property must not only be stored and subsequently withdrawn, but must also be further used or consumed in the State. It is this actual use or consumption in the State after storage and withdrawal that triggers the tax. Thus it was enough here to invoke the tax that the fuel was temporarily stored, withdrawn, loaded on interstate aircraft, and then partially used within the State. But Helson v. Kentucky, 279 U.S. 245, 49 S.Ct. 279, 73 L.Ed. 683 (1929), forbids taxing the use of gasoline consumed within the State on an interstate trip. And as for that portion of the fuel withdrawn from storage, loaded on an aircraft and consumed in another State, the exemption in the statute would seemingly cover it; but if the exemption itself is not to apply, Helson, a fortiori, bars the tax. Moreover, under the Due Process Clause of the Fourteenth Amendment, Illinois has no jurisdiction to tax the use of property occurring in another State. Norfolk & W.R. Co. v. Missouri State Tax Comm'n, 390 U.S. 317, 324—325, 88 S.Ct. 995, 1000—1001, 19 L.Ed.2d 1201 (1968), and cases there cited.
1
Turbine (jet) fuel for use at O'Hare is shipped by common carrier pipeline from the supplier's Indiana terminals to a 15-million-gallon storage facility at Des Plaines, Illinois. App. 168—169. Normally, three deliveries are made each month to this facility. App. 129. Smaller quantities of fuel are transferred by pipeline to facilities maintained by United at O'Hare.
Turbine fuel for use at Midway and aviation gasoline for both airports is transported from Indiana by common carrier tank truck to airport storage facilities. App. 159.
2
The parties have stipulated that the period of storage ranges from two to 12 days. App. 38. The Des Plaines storage facilities are not owned by United; it and another airline jointly lease the facilities. United shares in the cost of repairs, the risk of loss, and the employment of a managing agent. App. 132, 168.
3
App. 173—174. United uses fuel from the storage facilities for its intrastate training flights and for the intrastate leg of flights that stop at both Chicago and Moline, Illinois. 49 Ill.2d 45, 47—48, 273 N.E.2d 585, 586. United also engages in intrastate charter flights. App. 37 n. 6.
4
The temporary storage provision excepts
'(d) the temporary storage, in this State, of tangible personal property which is acquired outside this State and which, subsequent to being brought into this State and stored here temporarily, is used solely outside this State or physically attached to or incorporated into other tangible personal property that is used solely outside this State.' § 439.3.
5
The Illinois court's interpretation of the temporary-storage provision makes it clear that loading into the tanks of the airplane is a relevant event but is not the taxable event. The court indicated that the temporary storage exemption suspended the effect of otherwise taxable events:
'To put it another way, the legislature has stated that the temporary storage and the withdrawal therefrom are not taxable uses, if the property in question is to be used solely outside the State. It is clear that If United was to withdraw its fuel from storage at Des Plaines and the airports and transport it outside the State for use elsewhere, as for example at an airport in nearby Wisconsin, the exemption would apply and neither the storage, not the withdrawal, nor the transportation of the fuel outside the State would be uses subject to the tax.' 49 Ill.2d, at 55, 273 N.E.2d, at 590.
Under this view, all the fuel is 'used' and subject to Illinois tax when it is temporarily stored or withdrawn from storage. The taxable event is nullified, however, if the fuel is transported from the State for consumption elsewhere.
Although this use of a subsequent event to define the effect of a prior event may appear somewhat unusual, the result may be said to be compelled since fuel in transit may not be constitutionally taxed. See Michigan-Wisconsin Pipe Line Co. v. Calvert, 347 U.S. 157, 74 S.Ct. 396, 98 L.Ed. 583 (1954). A similar exemption for gasoline 'exported or sold for exportation from the State' was present in the Wyoming statute challenged in Edelman v. Boeing Air Transport, 289 U.S. 249, 250, 53 S.Ct. 591, 77 L.Ed. 1155 (1933).
6
Amici have urged reconsideration of Edelman, arguing that it represents 'a highwater mark in the Court's search in the early thirties for formulas that would assist states in finding additional sources of revenue.' Brief for American Airlines et al. 13.
7
Although this is a general state tax, rather than a toll on commerce, this Court has recognized that interstate commerce can be 'required to pay to nondiscriminatory share of the tax burden.' Braniff Airways v. Nebraska State Board of Equalization, 347 U.S. 590, 598, 74 S.Ct. 757, 762, 98 L.Ed. 967 (1954). In Helson v. Commonwealth of Kentucky, 279 U.S. 245, 49 S.Ct. 279, 73 L.Ed. 683 (1929), in contrast, the ferry boat was asked to bear more than its 'nondiscriminatory share' when it was taxed only for passing through Kentucky waters.
8
Those justices of the Illinois court who relied on Helson did not consider, apparently, any interpretation of Helson that would prevent multistate taxation. They suggested that an adoption of the 'burn off' rule would allow taxation by every State over which United's planes fly. 49 Ill.2d, at 51, 273 N.E.2d, at 588.
9
United successfully calculated and paid the state tax under the 'burn off' interpretation for eight years. App. 41. No suggestion has been made that the recordkeeping procedures were an intolerable burden on commerce or that special equipment must be installed to measured fuel consumption.
1
Ill.Rev.Stat., c. 120, § 439.1 et seq.
2
Id., § 439.3.
3
Edelman was distinguished in Southern Pacific Co. v. Gallagher, 306 U.S. 167, 59 S.Ct. 389, 83 L.Ed. 586, as involving a tax 'upon events prior to the commerce,' id., at 176, 59 S.Ct., at 393, the Court going on to say: 'The principle illustrated by the Helson case forbids a tax upon commerce or consumption in commerce.' Ibid.
| 78
|
410 U.S. 656
93 S.Ct. 1172
35 L.Ed.2d 572
Raymond N. ORTWEIN and Gwendolyn Faubionv.Herbert M. SCHWAB et al.
No. 72—5431.
March 5, 1973.
Rehearing Denied Apr. 2, 1973.
See 411 U.S. 922, 93 S.Ct. 1551.
PER CURIAM.
1
Appellants contend that Oregon's $25 appellate court filing fee, as applied in this case, violates the Due Process and Equal Protection Clauses of the Fourteenth Amendment and, also, the First Amendment as incorporated into the Fourteenth. The Supreme Court of Oregon decided otherwise. 262 Or. 375, 498 P.2d 757 (1972). We affirm that decision for reasons we found persuasive in United States v. Kras, 409 U.S. 434, 93 S.Ct. 631, 34 L.Ed.2d 626 (1973).
2
Appellant Ortwein (who also was receiving social security and an urban renewal allowance) sustained a reduction of approximately $39 per month in his Oregon old-age assistance when his county welfare agency determined that he shared shelter and expenses with another person in a manner that relieved him of some of the costs upon which his original award had been based. Ortwein appealed to the Oregon Public Welfare Division. The Division conducted a hearing and upheld the county agency's decision.1
3
Appellant Faubion claimed that certain expenses related to work training under a federal program should have been deducted in calculating her income.2 Most of these deductions were disallowed, after hearing, by the Public Welfare Division. The disallowance resulted in smaller welfare payments to Faubion over a five-month period.
4
Judicial review of these agency decisions is authorized under state law. Ore.Rev.Stat. § 183.480 (1971). In cases that are contested, as these were, jurisdiction for judicial review is conferred upon the Oregon Court of Appeals. § 183.480(2). All appellants in civil cases in Oregon pay a $25 filing fee in appellate courts. §§ 21.010 and 21.040 (1971). Each of the present appellants alleged that he was an indigent unable to pay the filing fee; each moved to proceed in forma pauperis in the Oregon Court of Appeals. The motions were denied without opinions. Appellants then petitioned the Supreme Court of Oregon for an alternative writ of mandamus ordering the Court of Appeals to accept appellants' cases without payment of fees. The Supreme Court of Oregon requested supplemental briefs and then issued its opinion denying the petition for mandamus. 262 Or. 375, 498 P.2d 757 (1972). From this denial the present appeal is taken.
5
* Relying on this Court's opinion in Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971), and on the remand-for-reconsideration order in Frederick v. Schwartz, 402 U.S. 937, 91 S.Ct. 1624, 29 L.Ed.2d 105 (1971),3 appellants contend that the Oregon appellate filing fee, when applied to indigents seeking to appeal an adverse welfare decision, violates the Due Process Clause of the Fourteenth Amendment. In United States v. Kras, 409 U.S. 434, 93 S.Ct. 631, 34 L.Ed.2d 626 (1973), this Court upheld statutorily imposed bankruptcy filing fees against a constitutional challenge based on Boddie. We emphasized the special nature of the marital relationship and its concomitant associational interests, and noted that they were not affected in that case and that the objective sought by appellant Kras could be obtained through alternative means that did not require a fee. Boddie, of course, was not concerned with post-hearing review. We now conclude that Kras, rather than Boddie, governs the present appeal, and we emphasize that Frederick was remanded, and not summarily reversed.
6
A. In Kras, we observed that one's interest in a bankruptcy discharge 'does not rise to the same constituional level' as one's inability to dissolve his marriage except through the courts. 409 U.S., at 445, 93 S.Ct., at 638. In this case, appellants seek increased welfare payments. This interest, like that of Kras, has far less constitutional significance than the interest of the Boddie appellants. Compare Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970), and Richardson v. Belcher, 404 U.S. 78, 92 S.Ct. 254, 30 L.Ed.2d 231 (1971), with Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967); Skinner v. Oklahoma, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942); Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965), and Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972). Each of the present appellants has received an agency hearing at which it was determined that the minimum level of payments authorized by law was being provided. As in Kras, we see 'no fundamental interest that is gained or lost depending on the availability' of the relief sought by appellants. 409 U.S., at 445, 93 S.Ct., at 638.
7
B. In Kras, the Court also stressed the existence of alternatives, not conditioned on the payment of the fees, to the judicial remedy. Id., at 446, 93 S.Ct., at 638. The Court has held that procedural due process requires that a welfare recipient be given a pretermination evidentiary hearing. Goldberg v. Kelly, 397 U.S. 254, 264, 266—271, 90 S.Ct. 1011, 1018, 1019, 1022, 25 L.Ed.2d 287 (1970). These appellants have had hearings.4 The hearings provide a procedure, not conditioned on payment of any fee, through which appellants have been able to seek redress. This Court has long recognized that, even in criminal cases, due process does not require a State to provide an appellate system. McKane v. Durston, 153 U.S. 684, 687, 14 S.Ct. 913, 914, 38 L.Ed. 867 (1894); see Griffin v. Illinois, 351 U.S. 12, 18, 76 S.Ct. 585, 590, 100 L.Ed. 891 (1956); District of Columbia v. Clawans, 300 U.S. 617, 627, 57 S.Ct. 660, 663, 81 L.Ed. 843 (1937); Lindsey v. Normet, 405 U.S. 56, 77, 92 S.Ct. 862, 876, 31 L.Ed.2d 36 (1972). Under the facts of this case, appellants were not denied due process.5
II
8
Appellants urge that the filing fee violates the Equal Protection Clause by unconstitutionally discriminating against the poor. As in Kras, this litigation, which deals with welfare payments, 'is in the area of economics and social welfare.' 409 U.S., at 446, 93 S.Ct., at 638; see Dandridge v. Williams, 397 U.S., at 485—486, 90 S.Ct., at 1161—1162. No suspect classification, such as race, nationality, or alienage, is present. See Graham v. Richardson, 403 U.S. 365, 372, 91 S.Ct. 1848, 1852, 29 L.Ed.2d 53 (1971). The applicable standard is that of rational justification. Kras v. United States, supra.
9
The purpose of the filing fee, as with the bankruptcy fees in Kras, is apparent. The Oregon court system incurs operating costs, and the fee produces some small revenue to assist in offsetting those expenses. Cf. Ore.Rev.Stat. § 21.590 (1971). Appellants do not contend that the fee is disproportionate or that it is not an effective means to accomplish the State's goal. The requirement of rationality is met.
III
10
Relying on Lindsey v. Normet, supra, appellants contend that the fee is not required of certain classes of litigants, and that an appeal is thus 'capriciously and arbitrarily denied' to other appellants, such as themselves, also in violation of the Equal Protection Clause. See 405 U.S., at 77, 92 S.Ct. at 876. They assert that criminal appeals, habeas corpus petitions from state institutions or civil commitment proceedings, and appeals from terminations of parental rights may be filed in forma pauperis in the Oregon Court of Appeals. Jurisdictional Statement 23. We are not told just why these filings are permitted, but the opinion of the Supreme Court of Oregon makes it clear that in forma pauperis appeals are allowed only if supervening law requires a right to a free appeal. 262 Or., at 382—386, 498 P.2d, at 761—762.
11
If the Oregon courts have interpreted the applicable law to give special rights in the criminal area, in civil cases that result in loss of liberty, and in cases terminating parental rights, we cannot say that this categorization is capricious or arbitrary.
12
Affirmed.
13
Mr. Justice STEWART dissents, believing that the doctrine of Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971), requires reversal of this judgment. See United States v. Kras, 409 U.S. 434, 451, 93 S.Ct. 631, 34 L.Ed.2d 626 (1973) (dissenting opinion). He is convinced, however, that the Court is so resolutely firm in its contrary view that it would serve no useful purpose to set this case for oral argument.
14
Mr. Justice DOUGLAS, dissenting.
15
The majority today broadens and fortifies the 'private preserve for the affluent.' Meltzer v. C. Buck Le Craw & Co., 402 U.S. 954, 961, 91 S.Ct. 1624, 1627, 29 L.Ed.2d 124 (opinion of Douglas, J.). The Court upholds a scheme of judicial review whereby justice remains a luxury for the wealthy.
16
* Appellants, welfare recipients whose benefits were reduced after adverse determinations by the Oregon Public Welfare Division, were denied access to the Oregon courts for review of those decisions solely on the grounds that they were unable to pay a $25 filing fee. Judicial review of administrative decisions is not otherwise available under Oregon law. I continue to believe that this invidious discrimination against the poverty-stricken—a classification based upon wealth—is proscribed by the Equal Protection Clause of the Fourteenth Amendment. Meltzer, supra; Boddie v. Connecticut, 401 U.S. 371, 383, 91 S.Ct. 780, 788, 28 L.Ed.2d 113 (Douglas, J., concurring in result); cf. United States v. Kras, 409 U.S. 434, 457, 93 S.Ct. 631, 644, 34 L.Ed.2d 626 (opinion of Douglas and Brennan, JJ.).
17
There is an additional consideration relevant here. The majority properly notes that '(t)his Court has long recognized that, even in criminal cases, due process does not require a State to provide an appellate system.' We are concerned in this case not with appellate review of a judicial determination, but with initial access to the courts for review of an adverse administrative determination. By analogizing these two situations, the majority sub silentio answers a question this Court studiously has avoided—whether there is a due process right to judicial review. See 4 K. Davis, Administrative Law Treatise § 28.18. Access to the courts before a person is deprived of valuable interests, at least with respect to questions of law, seems to me to be the essence of due process. Cf. Lindsey v. Normet, 405 U.S. 56, 84, 92 S.Ct. 862, 880, 31 L.Ed.2d 36 (Douglas, J., dissenting in part). We have recognized that token access cannot satisfy the requirements of due process. See, e.g., Mullane v. Central Hanover Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865. Certainly, no access at all cannot stand in better stead. Appellant Ortwein contends that the order of the Public Welfare Division is not supported by substantial evidence; appellant Faubion contends that the order applicable to her conflicts with federal provisions. Moreover, each contends that the administrative hearing was deficient under Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287, because questions of law were not considered. The majority affirms the judgment without discussing its bearing on appellants' contention that the Oregon scheme of judicial review discriminates against the poor with respect to an exercise of a fundamental right.
18
Accordingly, I cannot agree that a 'rational justification' will support the Oregon statute as it affects the poor. The primary justification by the State and fixed upon by the majority is the State's interest in offsetting the expenses of its court system. This interest falls far short of the 'compelling interest' required to justify a suspect classification or discrimination which infringes on fundamental rights. See Boddie v. Connecticut, supra, at 382, 91 S.Ct. 780; Shapiro v. Thompson, 394 U.S. 618, 633, 89 S.Ct. 1322, 1330, 22 L.Ed.2d 600.
II
19
The majority affirms the judgment below without the benefit of briefs or argument, relying on United States v. Kras, supra. Although I did not join the Court's opinion in Boddie v. Connecticut, supra, I am compelled to comment on the propriety of disposing of this case summarily in view of the decision in that case. However one views the merits of Kras, it seems to me that this case falls far closer to Boddie than Kras.
20
The majority distinguished Kras from Boddie on three grounds. It is only proper that this case be compared on the same basis.
21
(1) The majority in Kras concluded that a debtor's desire to obtain a discharge in bankruptcy does not implicate a 'fundamental interest.' While it is true that our decisions attach less constitutional significance to welfare payments than the interests of the Boddie appellants, we have never decided that there is no constitutional right to judicial review of an adverse administrative determination. The majority also noted in Kras that '(g)aining or not gaining a discharge (in bankruptcy) will effect no change with respect to basic necessities.' 409 U.S., at 445, 93 S.Ct., at 638. It is clear in this case, however, that appellants suffered an inroad on their ability to subsist.
22
(2) Unlike Kras, who had a theoretical opportunity to seek relief from his creditors in a nonjudicial accommodation, appellants' only avenue of relief lies in the courts.
23
(3) Unlike Kras, who was afforded the opportunity to pay the bankruptcy filing fee in installments over six months, appellants must file their fee in a lump sum.
24
Mr. Justice BRENNAN, dissenting.
25
Although I am in substantial agreement with my Brothers DOUGLAS and MARSHALL that this case is distinguishable from our recent decision in United States v. Kras, 409 U.S. 434, 93 S.Ct. 631, 34 L.Ed.2d 626 (1973), I see no reason to set this case for argument in light of the majority's firmly held view that Kras is controlling. On the merits, I would reverse for the reasons stated in my separate opinion in Boddie v. Connecticut, 401 U.S. 371, 386, 91 S.Ct. 780, 790, 28 L.Ed.2d 113 (1971) (concurring in part). See also United States v. Kras, supra, 409 U.S., at 457, 93 S.Ct., at 644 (opinion of Douglas and Brennan, JJ.).
26
Mr. Justice MARSHALL, dissenting.
27
I adhere to my dissenting opinion in United States v. Kras, 409 U.S. 434, 458, 93 S.Ct. 631, 644, 34 L.Ed.2d 626 (1973), and would reverse the judgment on that basis. But even were I to accept the majority position in Kras, there are still important differences between that case and this one which, in my judgment, require that this case be set for argument.
28
In Kras, the majority correctly noted that '(t)here is no constitutional right to obtain a discharge of one's debts in bankruptcy.' Id., at 446, 93 S.Ct., at 638. Therefore, the only issue in the case was whether the Government could, on the basis of a de facto wealth classification, limit access to a remedy which it could concededly deny altogether.
29
The question here is quite different. Appellants seek a judicial remedy for the action of an administrative agency which deprived them of a pre-existing right. As my Brother DOUGLAS demonstrates, it is at very least doubtful that the Due Process Clause permits a State to shield an administrative agency from all judicial review when that agency acts to revoke a benefit previously granted.* I share the view of Mr. Justice Brandeis that '(t)he supremacy of law demands that there shall be opportunity to have some court decide whether an erroneous rule of law was applied and whether the proceeding in which facts were adjudicated was conducted regularly.' St. Joseph Stock Yards Co. v. United States, 298 U.S. 38, 84, 56 S.Ct. 720, 740, 80 L.Ed. 1033 (1936) (concurring opinion). Cf. Yakus v. United States, 321 U.S. 414, 64 S.Ct. 660, 88 L.Ed. 834 (1944); Crowell v. Benson, 285 U.S. 22, 52 S.Ct. 285, 76 L.Ed. 598 (1932).
30
That opportunity was denied in this case, and important benefits were thereby taken from appellants without affording them a chance to contest the legality of the taking in a court of law. Cf. Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972).
31
The extent to which the State may commit to administrative agencies the unreviewable authority to restrict preexisting rights is one of the great questions of constitutional law about which courts and commentators have debated for generations. See generally Hart, The Power of Congress to Limit the Jurisdiction of Federal Courts: An Exercise in Dialectic, 66 Harv.L.Rev. 1362 (1953); 4 K. Davis, Administrative Law Treatise § 28.18 (1958). Because I am not ready to decide that question summarily, sub silentio, and without the benefit of full briefing and oral argument, I must dissent from the Court's decision.
1
The Division found that the county agency 'acted within its discretion by determining that the claimant's living arrangement represented a living situation in which shelter and expenses are shared.' The agency's order explained that that reduction in the room and board allowance was proper because '(t)he eligibility of recipients who share shelter with non-recipients, and do not pay for room and board, shall be determined on a share/fraction basis at (Public Welfare Division) standards.' Record 9. In his petition for review, Ortwein contended that the order was not supported by 'reliable, provative and substantial evidence in the whole record.'
2
Faubion received an incentive training allowance of $120 per month for approximately five months from a program under the Manpower Development and Training Act of 1962, as amended, 76 Stat. 23, 42 U.S.C. §§ 2571—2574. Record 12. Faubion also was receiving over $210 per month through a state-administered AFDC program. Jurisdictional Statement 4; Record 11. States, in making their income calculations under AFDC, deduct from gross income all expenses 'reasonably attributable' to the earning of the income. 42 U.S.C. § 602(a)(7); 45 CFR § 233.20(a)(3)(iv) (Sept.1972). Faubion claimed that she had work-training expenses of $20 per month for essential clothing and grooming, of $20 per month for lunches on the job, of $30 per month for convenience foods for family use made necessary because of her job, of $5 per month for oil, tune-ups and repairs, and of $5 per month for miscellaneous school supplies. Record 13. Although the Division allowed some deductions, it determined that the remaining expenses were not 'reasonably attributable' to the training program. Record 12. On appeal, Faubion sought to challenge this finding.
3
See also Huffman v. Boersen, 406 U.S. 337, 92 S.Ct. 1598, 32 L.Ed.2d 107 (1972).
4
These evidentiary hearings, of course, must meet the minimal requirements of due process. Goldberg v. Kelly, 397 U.S. 254, 266—271, 90 S.Ct. 1011, 1019, 1022, 25 L.Ed.2d 287 (1970). Appellants have alleged that the hearings were deficient in several ways, Jurisdictional Statement 9—10, but neither the record nor the opinion of the Oregon court provides support for these contentions.
5
Appellants also claim a violation of their First Amendment right to petition for redress. Our discussion of the Due Process Clause, however, demonstrates that appellants' rights under the First Amendment have been fully satisfied.
*
The majority's statement that '(t)his Court has long recognized that, even in criminal cases, due process does not require a State to provide an appellate system,' ante, at 660, is thus true, but irrelevant and misleading. The cases cited by the majority all involve efforts to secure appellate review of a decision by a lower court. Here, in contrast, no court has ever examined appellants' claims on the merits. Appellants assert only that they must have some access to some court to contest the legality of administrative action adversely affecting them.
| 12
|
410 U.S. 578
93 S.Ct. 1157
35 L.Ed.2d 508
Felipe Juarez HURTADO et al., Petitioners,v.UNITED STATES.
No. 71—6742.
Argued Jan. 17, 1973.
Decided March 5, 1973.
Leave to File Petition for Rehearing
Denied May 7, 1973.
See 411 U.S. 978, 93 S.Ct. 2151.
Syllabus
1. A material witness who is incarcerated because unable to give bail is entitled under 28 U.S.C. § 1821 to the same $20 per diem compensation as is allowed a nonincarcerated witness during the trial or other proceeding at which he is in 'attendance,' i.e., has been summoned and is available to testify in a court in session, regardless of whether he is physically present in the courtroom. Pp. 582—587.
2. The $1 statutory per diem plus subsistence in kind for incarcerated witnesses before trial does not violate the Just Compensation Clause, as detention of a material witness is not a 'taking' under the Fifth Amendment; and the distinction between compensation for pretrial detention and for trial attendance is not so unreasonable as to violate the Due Process Clause of the Fifth Amendment, since Congress could determine that in view of the length of pretrial confinement and the costs necessarily borne by the Government, only minimal compensation for pretrial detention is justified, particularly since the witness has a public duty to testify. Pp. 588—591.
5 Cir., 452 F.2d 951, vacated and remanded to District Court.
Albert Armendariz, Sr., El Paso, Tex., for petitioners.
Sol. Gen., Erwin N. Griswold, for respondent.
Mr. Justice STEWART delivered the opinion of the Court.
1
The petitioners, citizens of Mexico, entered the United States illegally. To assure their presence as material witnesses at the federal criminal trials of those accused of illegally bringing them into this country, they were required to post bond pursuant to former Rule 46(b) of the Federal Rules of Criminal Procedure. Unable to make bail, they were incarcerated.1
2
The petitioners instituted the present class action in the United States District Court for the Western District of Texas on behalf of themselves and others similarly incarcerated as material witnesses. Their complaint alleged that they, and the other members of their class, had been paid only $1 for every day of their confinement; that the statute providing the compensation to be paid witnesses requires payment of a total of $21 per day to material witnesses in custody; and that, alternatively, if the statute be construed to require payment of only $1 per day to detained witnesses, it violates the Fifth Amendment guarantees of just compensation and due process. They did not attack the validity or length of their incarceration as such, but sought monetary damages under the Tucker Act, 28 U.S.C. § 1346(a)(2), for the lost compensation claimed, and equivalent declaratory and injunctive relief.
3
The statute in question, 28 U.S.C. § 1821, provides that a 'witness attending in any court of the United States . . . shall receive $20 for each day's attendance and for the time necessarily occupied in going to and returning from the same . . ..' A separate paragraph of the statute entitles 'a witness . . . detained in prison for want of security for his appearance, . . . in addition to his subsistence, to a compensation of $1 per day.'2
4
The petitioners' complaint was grounded upon the theory that they were 'attending in. . . court' throughout the period of their incarceration, since they were prevented from engaging in their normal occupations in order to be ready to testify. They argued that the $20 fee is compensation for the inconvenience and private loss suffered when a witness comes to testify, and that all of these burdens are borne by the incarcerated witness throughout his confinement. Urging that the compensation provisions should be applied as broadly as the problem they were designed to ameliorate, the petitioners argued that they were entitled to the $20 compensation for every day of confinement, in addition to the $1 a day that they viewed as a token payment for small necessities while in jail.
5
While they pressed this broad definition of 'attendance,' the petitioners also pointed to a narrower and more acute problem in administering the statute. Their amended complaint alleged that nonincarcerated witnesses are paid $20 for each day after they have been summoned to testify—even for those days they are not needed in court and simply wait in the relative comfort of their hotel rooms to be called. By contrast, witnesses in jail are paid only $1 a day when they are waiting to testify—even when the trial for which they have been detained is in progress. In short, the amended complaint alleged that the Government has construed the statute to mean that incarcerated witnesses must be physically present in the courtroom before they are eligible for the $20 daily compensation, but that nonincarcerated witnesses need not be similarly present to receive that amount.3
6
In its answer, the Government conceded that each witness detained in custody is paid only $1 for every day of incarceration, and that the witness fee of $20 is paid only when such a witness is actually in attendance in court. The Government defended this practice as required by the literal words of the statute, and argued that the statute, as so construed, is constitutional.
7
In an unreported order, the District Court granted the Government's motion for summary judgment, and the Court of Appeals for the Fifth Circuit affirmed. 452 F.2d 951. The Court of Appeals concluded that the $20 witness fee is properly payable only to those witnesses who are 'in attendance' or travelling to and from court, and not to those who are incarcerated to assure their attendance. So interpreted, the Court upheld the statute as constitutional. We granted certiorari, 409 U.S. 841, 93 S.Ct. 158, 34 L.Ed.2d 80, to consider a question of seeming importance in the administration of justice in the federal courts.
8
* Both the petitioners and the Government adhere to their own quite contrary interpretations of § 1821—the petitioners maintaining that they are entitled to a $20 witness fee for every day of incarceration and the Government seeking to limit such payment to those days on which a detained witness is physically 'in attendance' in court. We find both interpretations of the statute incorrect—the petitioners' too expansive, the Government's too restricted.4
9
The statute provides to a 'witness attending in any court of the United States' $20 'for each day's attendance.' This perforce means that a witness can be eligible for the $20 fee only when two requirements are satisfied—when there is a court in session that he is to attend, and when he is in necessary attendance on that court.
10
The petitioners' interpretation of 'attendance' as beginning with the first day of incarceration slights the statutory requirement that attendance be in court. A witness might be detained many days before the case in which he is to testify is called for trial. During that time, there is literally no court in session in which he could conceivably be considered to be in attendance. Over a century and a half ago Attorney General William Wirt rejected a similar construction of an almost identically worded law. He found that the then-current statute, which provided compensation to a witness 'for each day he shall attend in court,'5 could not be construed to provide payment to incarcerated witnesses for every day of their detention:
11
'There is no court, except it be a court in session. There are judges; but they do not constitute a court, except when they assemble to administer the law. . . . Now I cannot conceive with what propriety a witness can be said to be attending in court when there is no court, and will be no court for several months.
12
'To consider a witness who has been committed to jail because he cannot give security to attend a future court, to be actually attending the court from the time of his commitment, and this for five months before there is any court in existence, would seem to me to be rather a forced and unnatural construction.' 1 Op.Atty.Gen. 424, 427.
13
The Government, on the other hand, would place a restrictive gloss on the statute's requirement of necessary attendance; it maintains that the $20 compensation need be paid only for the days a witness is in actual physical attendance in court, and it concludes that a witness confined during the trial need only be paid for those days on which he is actually brought into the courtroom. But § 1821 does not speak in terms of 'physical' or 'actual' attendance, and we decline to engraft such a restriction upon the statute. Rather, the statute reaches those witnesses who have been summoned and are in necessary attendance on the court, in readiness to testify. There is nothing magic about the four walls of a courtroom. Once a witness has been summoned to testify, whether he waits in a witness room, a prosecutor's office, a hotel room, or the jail, he is still available to testify, and it is that availability that the statute compensates. Nonincarcerated witnesses are compensated under the statute for days on which they have made themselves available to testify but on which their physical presence in the courtroom is not required—for example, where the trial is adjourned or where their testimony is only needed on a later day.6 We cannot accept the anomalous conclusion that the same statutory language imposes a requirement of physical presence in the courtroom on witnesses who have been confined. Attorney General Wirt concluded that language similar to that at issue here, did not require any such physical presence:
14
'But it was by no means my intention to authorize the inference .. . that, in order to entitle a witness to his per diem allowance under the act of Congress, it was necessary that he should be every day corporeally present within the walls of the court-room, and that the court must be every day in actual session. Such a puerility never entered my mind. My opinion simply was, and is, that before compensation could begin to run, the court must have commenced its session; the session must be legally subsisting, and the witness attending on the court—not necessarily in the court-room, but within its power, whenever it may require his attendance. . . . I consider a witness as attending on court to the purpose of earning his compensation, so long as he is in the power of the court whensoever it may become necessary to call for his evidence, although he may not have entered the court-room until such call shall have been made; and I consider the court in session from the moment of its commencement until its adjournment sine die, notwithstanding its intermediate adjournments de die in diem.' 1 Op.Atty.Gen., at 426—427.
15
We conclude that a material witness who has been incarcerated is entitled to the $20 compensation for every day of confinement during the trial or other proceeding for which he has been detained.7 On each of those days, the two requirements of the statute are satisfied—there is a court in session and the witness is in necessary attendance. He is in the same position as a nonincarcerated witness who is summoned to appear on the first day of trial, but on arrival is told by the prosecutor that he is to hold himself ready to testify on a later day in the trial. The Government pays such a witness for every day he is in attendance on the court, and the statute requires it to pay the same per diem compensation to the incarcerated witness. Because the Court of Appeals upheld a construction of the statute that would allow the $20 to be paid to incarcerated witnesses only for those days they actually appear in the courtroom, its judgment must be set aside.8
II
16
The petitioners argue that if § 1821 provides incarcerated witnesses only a dollar a day for the period before the trial begins, then the statute is unconstitutional. We cannot agree.
17
As noted at the outset, the petitioners do not attack the constitutionality of incarcerating material witnesses, or the length of such incarceration in any particular case.9 Rather, they say that when the Government incarcerates material witnesses, it has 'taken' their property, and that one dollar a day is not just compensation for this 'taking' under the Fifth Amendment. Alternatively, they argue that payment of only one dollar a day before trial, when contrasted with the $20 a day paid to witnesses attending a trial, is a denial of due process of law.
18
But the Fifth Amendment does not require that the Government pay for the performance of a public duty it is already owed. See Monongahela Bridge Co. v. United States, 216 U.S. 177, 193, 30 S.Ct. 356, 360, 54 L.Ed. 435 (modification of bridge obstructing river); United States v. Hobbs, 10 Cir., 450 F.2d 935 (Selective Service Act); United States v. Dillon, 9 Cir., 346 F.2d 633, 635 (representation of indigents by court-appointed attorney); Roodenko v. United States, 10 Cir., 147 F.2d 752, 754 (alternative service for conscientious objectors); cf. Kunhardt & Co. v. United States, 266 U.S. 537, 540, 45 S.Ct. 158, 160, 69 L.Ed. 428. It is beyond dispute that there is in fact a public obligation to provide evidence, see United States v. Bryan, 339 U.S. 323, 331, 70 S.Ct. 724, 730, 94 L.Ed. 884; Blackmer v. United States, 284 U.S. 421, 438, 52 S.Ct. 252, 255, 76 L.Ed. 375 and that this obligation persists no matter how financially burdensome it may be.10 The financial losses suffered during pretrial detention are an extension of the burdens borne by every witness who testifies. The detention of a material witness, in short, is simply not a 'taking' under the Fifth Amendment, and the level of his compensation, therefore, does not, as such, present a constitutional question. '(I)t is clearly recognized that the giving of testimony and the attendance upon court or grand jury in order to testify are public duties which every person within the jurisdiction of the Government is bound to perform upon being properly summoned, and for performance of which he is entitled to no further compensation than that which the statutes provide. The personal sacrifice involved is a part of the necessary contribution of the individual to the welfare of the public.' Blair v. United States, 250 U.S. 273, 281, 39 S.Ct. 468, 471, 63 L.Ed. 979.11
19
Similarly, we are unpersuaded that the classifications drawn by § 1821 as we have construed it are so irrational as to violate the Due Process Clause of the Fifth Amendment. Cf. Bolling v. Sharpe, 347 U.S. 497, 499, 74 S.Ct. 693, 694, 98 L.Ed. 884. The statute provides $20 per diem compensation to a witness who is in necessary attendance on a court, but that fee is payable to any witness, incarcerated or not. During the period that elapses before his attendance on a court, a witness who is not incarcerated gets no compensation whatever from the Government. An incarcerated witness, on the other hand, gets one dollar a day during that period, in addition to subsistence in kind.
20
We cannot say that there is no reasonable basis for distinguishing the compensation paid for pretrial detention from the fees paid for attendance at trial. Pretrial confinement will frequently be longer than the period of attendance on the court, and throughout that period of confinement the Government must bear the cost of food, lodging, and security for detained witnesses. Congress could thus reasonably determine that while some compensation should be provided during the pretrial detention period, a minimal amount was justified, particularly in view of the fact that the witness has a public obligation to testify. As the Court of Appeals correctly observed, '(G) overnmental recognition of its interest in having persons appear in court by paying them for that participation in judicial proceedings, does not require that it make payment of the same nature and extent to persons who are held available for participation in judicial proceedings should it prove to be necessary. That the government pays for one stage does not require that it pay in like manner for all stages.' 452 F.2d, at 955.
21
We do not pass upon the wisdom or ultimate fairness of the compensation Congress has provided for the pretrial detention of material witnesses. We do not decide 'that a more just and humane system could not be devised.' Dandridge v. Williams, 397 U.S. 471, 487, 90 S.Ct. 1153, 1162, 25 L.Ed.2d 491. Indeed, even though it opposed granting the petition for certiorari in the present case, the Government found it 'obvious' that 'the situation is not a satisfactory one,' and we were informed at oral argument that a legislative proposal to increase the per diem payment to detained witnesses will shortly be submitted by the Department of Justice to the Office of Management and Budget for review. But no matter how unwise or unsatisfactory the present rates might be, the Constitution provides no license to impose the levels of compensation we might think fair and just. That task belongs to Congress, not to us.
22
The judgment of the Court of Appeals is vacated, and the case is remanded to the District Court for further proceedings consistent with this opinion.
23
It is so ordered.
24
Mr. Justice BRENNAN, concurring in part and dissenting in part.
25
I am in full agreement with much of the majority's opinion. Construing 28 U.S.C. § 1821, which authorizes compensation at the rate of $20 per day to '(a) witness attending in any court of the United States . . .,' the Court holds today that a person held in jail as a material witness1 is 'attending in . . . court' each day that the pertinent judicial proceeding is underway, even if the witness is not physically present in the courtroom. But the majority also holds that a jailed witness is not 'attending in' court prior to the inception of the judicial proceeding, even though he is held in custody for no other purpose than to insure his appearance to give testimony at trial. I reject that conclusion because, in my view, it works an obvious and severe hardship on an incarcerated witness, because it is compelled neither by the language nor the purposes of the statute, and because the statute so construed would be unconstitutional under the Due Process Clause of the Fifth Amendment.
26
* In addition to providing compensation of $20 per day for 'each day's attendance and for the time necessarily occupied in going to and returning from' the court where the witness is to testify, the statute also authorizes, in certain cases, an 'additional allowance of $16 per day for expenses of subsistence.' 28 U.S.C. § 1821. And the same statute states that '(w)hen a witness is detained in prison for want of security for his appearance, he shall be entitled, in addition to his subsistence, to a compensation of $1 per day.'
27
In construing these statutory provisions, petitioners (citizens of Mexico who entered the United States illegally), respondent, and the Court agree on two points: first, that a jailed material witness is entitled to compensation of $1 per day for each day that he spends in confinement; and second, that a jailed material witness is entitled to the additional compensation of $20 per day for each day that a trial is in progress and that the witness is physically present in the courtroom. The point in contention is whether or not the jailed witness should receive the additional compensation of $20 per day during the time after he is taken into custody, but before he is physically present in court. Petitioners contend that he should. Respondent contends that he should not. The Court holds that he should receive the compensation for each day that the trial is in progress (whether or not he actually appears in court), but that he should not receive it for the days spent in custody before the trial is under way.
28
The Court predicates its conclusion on a superficially plausible reading of the literal terms of the statute:
29
'The petitioners' interpretation of 'attendance' as beginning with the first day of incarceration slights the statutory requirement that attendance be in court. A witness might be detained many days before the case in which he is to testify is called for trial. During that time there is literally no court in session in which he could conceivably be considered to be in attendance.' Ante, at 583.
30
The Court holds, in other words, that if the court is not in session, then a jailed material witness cannot be said to be 'attending in . . . court.' (Emphasis added.) But the correct interpretation of the phrase, 'in court,' is not as obvious as it would at first appear. Read literally, the phrase would appear to require that the witness spend the day within the four walls of the courtroom, or, at the very least, the courthouse. Yet the Court recognizes, and the Government concedes, that a witness can be 'in court' even if he is in a hotel room or a restaurant. I share the view that physical presence in the courtroom is not required to bring a witness within the reach of the statute. But I cannot accept the Court's conclusion that a witness is 'in court' or not 'in court,' depending on whether or not the judicial proceeding is technically under way.
31
Unfortunately, the Government has not described its practice in compensating witnesses under § 1821 with the kind of specificity that would simplify our analysis. It would seem plausible, however, to assume that the practice might be as follows: A witness subpoenaed to appear on Tuesday morning may spend all of Monday en route to the courthouse, only to learn on Tuesday that the case will not be called as early as expected. If the witness waits in the witness room all day each day until the case is finally called on Friday, it would seem reasonable to assume that he is entitled to compensation for his attendance on Tuesday, Wednesday, and Thursday, even though the proceeding did not begin until Friday. Whatever the Government's practice in such a case, I would hold that the payment of compensation for those three days would be permitted, if not required, by the terms of the statute. Yet under the Court's rigid analysis of the phrase, 'in court,' it would be unlawful for the Government to compensate the witness, except for the days spent traveling to and from the courthouse, for any day except Friday. The Court is apparently bound to hold that notwithstanding the physical presence of the witness in the courthouse, he was not 'in court' because the court was not yet in session.
32
The obvious shortcoming of the Court's analysis is its disregard, in construing the critical statutory phrase, of the purposes of the statute. The statute is grounded on the view that a subpoena to appear and give testimony will often entail substantial disruption of one's affairs, a loss of income, and considerable inconvenience. These dislocations, for which Congress has authorized compensation,2 will exist whether a witness is required to wait in a witness room, a prosecutor's office, a courtroom, or a hotel room. For that reason, the Court is correct in its conclusion that a witness may be 'in court' for the purposes of the statute even though he is not, in fact, in the courthouse. But that same purposive analysis refutes the Court's suggestion that the pendency of a judicial proceeding is a precondition to the payment of witness fees. Surely the fact that the court is not yet in session is small comfort to the witness who is required to appear and wait for the calling of his case. His daily loss of income does not mysteriously increase as soon as the judge appears behind the bench. Nor, if he is unlucky enough to be held in custody for want of bail, does the infringement on his liberty become less burdensome or the assault on his dignity less severe. Whatever the status of the judicial proceeding, it remains clear that the witness is held in jail for a single purpose: to serve the interests of the court. And it is the unquestioned purpose of the statute to insure that witnesses who are inconvenienced to serve the interests of the court are compensated, at least in part, for the service they have given. I cannot ascribe to Congress the essentially irrational view that a day spent in attendance on a pending trial is inherently a day more worthy of compensation than a day spent in attendance on a trial that is not yet under way. Nothing should or was intended to turn on whether a trial is actually in progress.
II
33
My conclusion that the majority has misconstrued the statute is fortified by the conviction that the statute, as interpreted by the Court, would be invalid under the Due Process Clause of the Fith Amendment. Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884 (1954). The majority discerns a
34
'reasonable basis for distinguishing the compensation paid for pretrial detention from the fees paid for attendance at trial. Pretrial confinement will frequently be longer than the period of attendance on the court, and throughout that period of confinement the Government must bear the cost of food, lodging, and security for detained witnesses. Congress could thus reasonably determine that while some compensation should be provided during the pretrial detention period, a minimal amount was justified, particularly in view of the fact that the witness has a public obligation to testify.' Ante, at 590.
35
In my view, that assertion is inadequate to the task of justifying this discriminatory classification scheme. First, as construed by the Court, the scheme clearly does not treat jailed material witnesses in a manner which is in any sense equivalent to the treatment of subpoenaed witnesses. Rather, the Court establishes two distinct classes of inconvenienced witnesses: those who are burdened by a subpoena to appear, and who receive compensation for each day of dislocation; and those who are burdened by a term in jail, but who are compensated only for the days of dislocation which follow the inception of trial. The Court apparently denies this inequality, asserting that '(d)uring the period that elapses before his attendance on a court, a witness who is not incarcerated gets no compensation whatever from the Government. An incarcerated witness, on the other hand, gets one dollar a day during that period, in addition to subsistence in kind.' Ante, at 590. But the appropriate point of comparison is not the treatment of incarcerated witnesses before trial with the treatment of nonincarcerated witnesses before trial. The statement that a subpoenaed witness receives no compensation for the period which precedes the onset of trial is true but irrelevant. Naturally the witness receives no compensation; he has sustained no injury. By hypothesis, the subpoena directs the witness to appear at a time when trial is at least scheduled to begin. In practical effect, therefore, the subpoenaed witness is compensated in full for each day of inconvenience, while the jailed witness may endure the 'inconvenience' of a lengthy term in jail and receive significant compensation only for the days of confinement which happen to coincide with trial.
36
Moreover, this discrimination against jailed witnesses cannot be justified by reference to the fact—again, true but irrelevant that the 'witness has a public obligation to testify.' Ante, at 590. The identical 'public obligation' is imposed on the subpoenaed witness, and the existence of the obligation does not rationalize the heavier burden placed on the jailed witness in seeking compensation for his days of dislocation. And since the jailed witness carries the same obligation to testify both before and after trial has begun, its existence does not explain a scheme that provides significant compensation only for days of confinement during trial.
37
If the statutory scheme is to be upheld, it can only be on the theory that Congress has made a rational attempt to impose some limits on the amount of money which will be paid out to any given witness under the scheme. I can assume that the imposition of such a ceiling on expenditures is, in itself, a permissible goal. And since witness fees could, in some instances, reach staggering amounts, I can assume that Congress has the power to impose an across-the-board cutoff—e.g., $1,000 per witness—on the fees allowable under the act. But these assumptions do not relieve us of the obligation to determine whether the particular approach Congress has used in imposing a cutoff is sufficiently rational to withstand constituional attack. Cf. Dandridge v. Williams, 397 U.S. 471, 483—487, 90 S.Ct. 1153, 1160—1163, 25 L.Ed.2d 491 (1970). I conclude that it is not.
38
As the Court construes the statutory scheme, a material witness who is held in jail for four months in anticipation of a one-day trial will receive in compensation $141—$1 per day for each of 120 days, and $21 for the day of trial. By contrast, a witness who is subpoenaed to appear on the first day of trial but who, as a result of preliminary motions, adjournment, and miscellaneous delays, is not called to appear until two weeks have passed, will receive $280 in compensation, plus a subsistence allowance. However legitimate the governmental interest in imposing some limit on the expenditure of money to witnesses, the mere assertion of that interest cannot save a classification scheme that pays to a witness who spends two weeks in a hotel a sum of money greatly in excess of the amount made available to one who spends four months in the less congenial atmosphere of a courthouse jail. I can see no rational basis for this appalling difference in treatment.3
39
The classification scheme we uphold today cannot be considered a rational attempt to preserve the Government's financial resources.4 Regrettably, it seems to me little more than an attempt to punish those who are unable to give bail as a guarantee of their appearance at trial, and who, almost by definition, lack the power and resources to remedy their unfortunate plight. As my Brother Douglas points out, '(w)e cannot allow the Government's insistent reference to these Mexican citizens as 'deportable aliens' to obscure the fact that they come before us as innocent persons who have not been charged with a crime or incarcerated in anticipation of a criminal prosecution.' Post, at 604. They have been held in custody only to insure their presence at trial. I would not impute to Congress an intent to penalize these petitioners by holding the injury they have suffered less worthy of compensation than the inconvenience to a witness who is subpoenaed to appear at trial. I would hold, consistently with a fair reading of the statute in light of its purposes, that petitioners are entitled to compensation at the rate of $21 per day for each day they spend in custody while awaiting the call to appear in court.
40
Mr. Justice DOUGLAS, dissenting.
41
In my view, petitioners, all indigents, have been subject to discrimination 'so unjustifiable as to be violative of due process.' Bolling v. Sharpe, 347 U.S. 497, 499, 74 S.Ct. 693, 694, 98 L.Ed. 884.
42
Petitioners, citizens of Mexico allegedly brought into the United States illegally, belong to that class of persons who as material witnesses can be subpoenaed to testify. Each must suffer at least limited invasion of his personal liberty to fulfill his public obligation to provide evidence. See United States v. Bryan, 339 U.S. 323, 331, 70 S.Ct. 724, 730, 94 L.Ed.2d 884; Blair v. United States, 250 U.S. 273, 281, 39 S.Ct. 468, 471, 63 L.Ed. 979. Petitioners, however, also belong to a discrete subclass—those whose presence it might be impractical to secure by subpoena and thus were subject to detention pursuant to former Fed.Rule Crim.Proc. 46(b)1 if they could not post bail. The deprivation they suffer is longer and more extensive than that of the witness merely subject to a subpoena. They may spend months in jail awaiting the few minutes or hours they will spend testifying. Unlike other witnesses, they are not free to come or go while the trial is not actually in progress. Nevertheless, the justification for infringing their liberty remains the same. Former Rule 46(b) was conceived as a tool2 to insure that the witness is available to testify, and any time spent incarcerated is spent as a direct result of the obligation that burdens all material witnesses. The comparison we are concerned with, then, is between the compensation paid to the incarcerated witness during the entire period his freedom to come or go is curtailed and the compensation paid to a nonincarcerated witness during the entire period he is subject to restraint. Although it is true, as the majority notes, that the nonincarcerated witness is paid nothing at all while court is not in session, the two classes are hardly comparably situated at the time, for the nonincarcerated witness is not subject to any substantial restraint as a result of his subpoena.
43
Congress has seen fit to compensate all material witnesses at the per diem rate of $20 for each day's attendance 'in any court' (as defined by the majority) and for the necessary travel time. 28 U.S.C. § 1821. Yet, Congress compensates those incarcerated pursuant to former Rule 46(b) at the per diem rate of only $1. Thus, not only are petitioners subject to more extensive deprivation of personal freedom, they also are denied equivalent compensation while waiting to testify.3 Because former Rule 46(b) provided that only witnesses who failed to post bail might be incarcerated, this discrimination in practice affected just the indigent and resulted, therefore, in a suspect classification based upon wealth. This invidious discrimination against the poverty-stricken cannot be supported by some speculative rational justification. Ortwein v. Schwab, 410 U.S. 656, 661, 93 S.Ct. 1172, 1175, 35 L.Ed.2d 572 (Douglas, J., dissenting); United States v. Kras, 409 U.S. 434, 457, 93 S.Ct. 631, 641, 34 L.Ed.2d 626 (opinion of Douglas and Brennan, JJ.); Boddie v. Connecticut, 401 U.S. 371, 383, 91 S.Ct. 780, 789, 28 L.Ed.2d 113 (Douglas, J., concurring in result). Surely, the Government's desire to avoid the costs of compensation in addition to the increased costs of food, lodging, and security does not rise above that level.4 See Boddie v. Connecticut, supra, at 382, 91 S.Ct. at 788; Shapiro v. Thompson, 394 U.S. 618, 633, 89 S.Ct. 1322, 1330, 22 L.Ed.2d 600.
44
The majority 'cannot say that there is no reasonable basis for distinguishing the compensation paid for pretrial detention from the fees paid for attendance at trial.' I am not certain I can agree even with that position. The magic transition period under the statute5 as construed by the majority is the beginning of trial. I find the distinction wholly arbitrary. I do not see how it bears any relevance to the quality of confinement; petitioners sacrifice their time waiting to testify whether or not court is in session.
45
Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891, held that an indigent defendant is denied equal protection of the laws if he is barred from appealing on equal terms with other defendants solely because of his indigence. In Bandy v. United States, 82 S.Ct. 11, 7 L.Ed.2d 9 (Douglas, J., in chambers), I concluded that 'no man should e denied release (pending trial or judicial review) because of indigence.' Id., at 13, 7 L.Ed.2d, at 11. This principle seems ever clearer and more forceful to me in circumstances where the imprisoned have not been charged with or convicted of a crime. We cannot allow the Government's insistent reference to these Mexican citizens as 'deportable aliens' to obscure the fact that they come before us as innocent persons who have not been charged with a crime or incarcerated in anticipation of a criminal prosecution. It is true, of course, that petitioners do not challenge the constitutionality of confining a material witness. But, in their prayer for relief, they seek to enjoin the Government 'from any further incarceration of any person under such rule under the present interpretation of 28 U.S.C. § 1821 at one dollar ($1.00) per day total payment.' I conclude that petitioners are entitled to this relief unless they are released on their personal recognizance.
1
Fed.Rule Crim.Proc. 46(b), at the time this case arose and before Rule 46 was amended to conform to the Bail Reform Act of 1966, provided:
'(b) Bail for Witness.
'If it appears by affidavit that the testimony of a person is material in any criminal proceeding and if it is shown that it may become impracticable to secure his presence by subpoena, the court or commissioner may require him to give bail for his appearance as a witness, in an amount fixed by the court or commissioner. If the person fails to give bail the court or commissioner may commit him to the custody of the marshal pending final disposition of the proceeding in which the testimony is needed, may order his release if he has been detained for an unreasonable length of time and may modify at any time the requirement as to bail.'
2
The statute provides in full:
§ 1821. Per diem and mileage generally; subsistence.
'A witness attending in any court of the United States, or before a United States commissioner, or before any person authorized to take his deposition pursuant to any rule or order of a court of the United States, shall receive $20 for each day's attendance and for the time necessarily occupied in going to and returning from the same, and 10 cents per mile for going from and returning to his place of residence. Regardless of the mode of travel employed by the witness, computation of mileage under this section shall be made on the basis of a uniform table of distances adopted by the Attorney General. Witnesses who are not salaried employees of the Government and who are not in custody and who attend at points so far removed from their respective residence as to prohibit return thereto from day to day shall be entitled to an additional allowance of $16 per day for expenses of subsistence including the time necessarily occupied in going to and returning from the place of attendance: Provided, That in lieu of the mileage allowance provided for herein, witnesses who are required to travel between the Territories and possessions, or to and from the continental United States, shall be entitled to the actual expenses of travel at the lowest first-class rate available at the time of reservation for passage, by means of transportation employed: Provided further, That this section shall not apply to Alaska.
'When a witness is detained in prison for want of security for his appearance, he shall be entitled, in addition to his subsistence, to a compensation of $1 per day.
'Witnesses in the district courts for the districts of Canal Zone, Guam, and the Virgin Islands shall receive the same fees and allowances provided in this section for witnesses in other district courts of the United States.'
3
By way of illustration, the witness who sets out on Monday in order to be available to testify on Tuesday; but who is not actually called to the court for testimony until Friday; and who returns home on Saturday, will receive $20 for every day from Monday through Saturday. But the material witness who is incarcerated on Monday, held until Friday when he testifies, and then released, will receive one dollar for every day and an additional $20 only for Friday—the day he actually testifies.
4
Both parties bolster their statutory interpretations with arguments based upon the statutory language. The petitioners point out that incarcerated witnesses are not specifically excluded from those entitled to receive the $20 fee for attending court, though they are excluded from those entitled to the $16-a-day subsistence allowance. Hence, they conclude that Congress intended that they be eligible for the $20-per-day fee. But that argument proves no more than that Congress intended a detained witness to be eligible for the $20 fee for every day he is 'attending' court; it does not indicate that Congress intended that every day of incarceration is the equivalent of a day attending court and compensable at the rate of $20 per day.
The Government supports its position by pointing out the statute allocates to a detained witness $1 per day 'in addition to his subsistence,' not $1 a day in addition both to subsistence and to a witness fee of $20. But it is difficult to give any weight to this argument, since the Government acknowledges that a detained witness is to be paid $20 a day at least for days of physical attendance in court. Therefore, according to the Government's own interpretation, the $1-a-day clause can hardly be exclusive.
5
'And be it further enacted, That the compensation to jurors and witnesses, in the courts of the United States, shall be as follows, to wit: to each grand and other juror, for each day he shall attend in court, one dollar and twenty-five cents; and for travelling, at the rate of five cents per mile, from their respective places of abode, to the place where the court is holden, and the like allowance for returning; to the witnesses summoned in any court of the United States, the same allowance as is above provided for jurors.' Act of Feb. 28, 1799, c. 19, § 6, 1 Stat. 626.
6
Cf., e.g., Hunter v. Russell, C.C.Mont., 59 F. 964, 967 968; Whipple v. Cumberland Cotton Mfg. Co., 29 Fed.Cas. 933 (No. 17,515); Hance v. McCormick, 11 Fed.Cas. 401 (No. 6,009).
The Department of Justice regulations repeat the statutory directive that a witness is to be paid $20 for 'each day's attendance.' Department of Justice, United States Marshal's Manual 340.14 (1971). There is no explicit requirement of physical presence in the courtroom.
7
The legislative history of the compensation provision is unenlightening. Though Congress early provided compensation for witnesses attending in the courts of the United States, no specific provision was made for incarcerated witnesses. See, e.g., Act of May 8, 1792, c. 36, § 3, 1 Stat. 277; Act of June 1, 1796, c. 48, § 2, 1 Stat. 492; Act of Feb. 28, 1799, c. 19, § 6, 1 Stat. 626. In 1853, Congress provided for payment to a witness of $1.50 a day while attending court, and specifically indicated that a detained witness was to be paid $1 a day over and above his subsistence. Act of Feb. 26, 1853, c. 80, § 3, 10 Stat. 167. In 1926, Congress eliminated the specific provision for compensation to detained witnesses and raised the per diem compensation for attendance in court. Act of Apr. 26, 1926, c. 183, §§ 1—3, 44 Stat. 323—324.
In the following two decades, Congress changed the levels of compensation but did not specifically provide for compensation to detained witnesses. See Act of June 30, 1932, c. 314, § 323, 47 Stat. 413; Act of Mar. 22, 1935, c. 39, § 3, 49 Stat. 105; Act of Dec. 24, 1942, c. 825, § 1, 56 Stat. 1088. When the Judicial Code was revised in 1948, the provision for per diem compensation to detained witness was again absent, Act of June 25, 1948, c. 646, § 1821, 62 Stat. 950, but was added the following year, Act of May 24, 1949, c. 139, § 94, 63 Stat. 103, with the explanation by the House Committee on the Judiciary that it had been 'inadvertently omitted.' H.R.Rep.No.352, 81st Cong., 1st Sess., 16. By a separate measure, witness fees were increased. Act of May 10, 1949, c. 96, 63 Stat. 65. While the per diem fee, the subsistence fee, and the travel allowance have all been increased, the $1 a day for incarcerated witnesses has remained constant. See Act of Aug. 1, 1956, c. 826, 70 Stat. 798; Act of Mar. 27, 1968, Pub.L. 90—274, § 102(b), 82 Stat. 62.
The petitioners urge that this history of steadily increasing fees at least indicates a congressional intent to compensate witnesses fully for their lost time and income, and that since they suffer these losses throughout the period of incarceration they ought to receive the $20 for every day of confinement. But Congress recognized that witness fees could not fully compensate witnesses for their lost time or imcome. See, e.g., S.Rep.No.891, 90th Cong., 1st Sess., 36; S.Rep.No.187, 81st Cong., 1st Sess., 2. The petitioners point to no hint in any of the reports on the various changes in compensation levels which could justify the conclusion that Congress intended to provide more than $1 a day to detained witnesses for the period of their pretrial confinement.
8
It was also error to affirm the summary judgment for the Government because there was a genuine issue of material fact whether the petitioners had ever been paid for the days that they actually attended court. See Fed.Rule Civ.Proc. 56(c); Arenas v. United States, 322 U.S. 419, 432—434, 64 S.Ct. 1090, 1095—1097, 88 L.Ed. 1363; Sartor v. Arkansas Natural Gas Corp., 321 U.S. 320, 623—629, 64 S.Ct. 724, 727—730, 88 L.Ed. 967. They alleged in their amended complaint that on many occasions they testified for the Government and were not paid $20 a day for such testimony. The Government agreed that they were entitled to that compensation, but contended in its answer that they had been so paid. No affidavits or other evidence was submitted to support that contention, and the Court of Appeals in affirming summary judgment for the Government did not comment on this clear factual dispute.
Since a remand is required, we also note that the District Court never explicitly ruled on the petitioners' motion to have this suit declared a class action under Fed.Rule Civ.Proc. 23, and the Court of Appeals did not discuss the issue. It will, of course, be appropriate on remand for the District Court to determine whether this suit was properly brought as a class action, and we accordingly express no view on that issue.
9
See Stein v. New York, 346 U.S. 156, 184, 73 S.Ct. 1077, 1092, 97 L.Ed. 1522 ('The duty to disclose knowledge of crime . . . is so vital that one known to be innocent may be detained, in the absence of bail, as a material witness'); Barry v. United States ex rel. Cunningham, 279 U.S. 597, 616—618, 49 S.Ct. 452, 456—457, 73 L.Ed. 867.
10
'(I)t may be a sacrifice of time and labor, and thus of ease, of profits, of livelihood. This contribution is not to be regarded as a gratuity, or a courtesy, or an ill-required favor. It is a duty not to be grudged or evaded. Whoever is impelled to evade or to resent it should retire from the society of organized and civilized communities, and become a hermit. He who will live by society must let society live by him, when it requires to.' 8 J. Wigmore Evidence § 2192, p. 72 (J. McNaughton rev. 1961).
11
There is likewise no substance to the petitioners' argument that the $1-a-day payment is so low as to impose involuntary servitude prohibited by the Thirteenth Amendment. Cf. Griffin v. Breckenridge, 403 U.S. 88, 104—105, 91 S.Ct. 1790, 1799 1800, 29 L.Ed.2d 338; Jones v. Alfred H. Mayer Co., 392 U.S. 409, 437—444, 88 S.Ct. 2186, 2202—2206, 20 L.Ed.2d 1189.
1
Fed.Rule Crim.Proc. 46(b), at the time this case arose, provided that where a witness' testimony was 'material' in any criminal proceeding and where it might become impracticable to secure the presence of the witness by subpoena, the court might require the witness to give bail for his appearance. If the witness failed to give bail, the court might order his incarceration pending final disposition of the proceeding in which his testimony was needed.
2
The Government argues at length that Congress did not intend to provide full compensation to a witness or to insure the witness against all lost earnings. See Brief for United States 16 24. The Government does not dispute, however, that the congressional purpose was to provide at least partial compensation for the expenses, dislocation, and income loss attributable to compelled attendance as a witness.
3
Of course, where the Government detains a material witness pending trial, its total financial burden is not limited to the payment of $1 per day under 28 U.S.C. § 1821. The Government also assumes the expense of feeding and housing the incarcerated witness. Nevertheless, I cannot conclude that this added expense affords a rational basis for imposing an arbitrary ceiling on the payment of witness fees to a jailed witness. First, the Government makes no attempt to justify the statute on this ground, and we are not advised of the marginal cost to the Federal Government of holding a material witness in an existing penal facility. Second, the legislative history of the scheme evidences no particular congressional concern for the costs of incarceration, nor any effort to limit the payment of witness fees because of this added expense. Third, even if the marginal costs of incarceration are substantial, that fact cannot explain the absence of any limits whatsoever on the witness fees that can be paid to a nonincarcerated witness. And since a nonincarcerated witness may be eligible for a subsistence allowance of $16 per day in addition to the $20 daily fee, the amount of money involved can be very large indeed. Finally, and most important, while the Government has an obvious interest in limiting its total expenditure on witnesses—including the payment of fees, subsistence allowances, and incarceration costs—that interest cannot explain the payment of higher per diem fees to nonincarcerated witnesses than to incarcerated witnesses. Even if the cost of keeping a witness in jail is $36 per day, which is the amount paid each day to a nonincarcerated witness, it does not follow that the payments are equivalent from the standpoint of the witnesses. The jailed witness is inconvenienced no less than the subpoenaed witness, yet his rate of compensation is dramstically, and inexplicably, less.
4
Nor can the scheme be justified on the theory that one who is too poor to give bail deserves only minimal compensation because he is unlikely to incur any great financial loss during the period of incarceration. The fact that a witness is unable to give bail is hardly an indication that he is unemployed. In any case, the statute is designed to compensate the witness not only for the loss of income, but also for the inconvenience and disruption of his personal affairs. Inconvenience is not the exclusive property of the rich. Moreover, the witness who cannot give bail is likely to be the one most in need of compensation to pay the expenses his family will inevitably incur while he waits in jail for the beginning of trial. As enacted by Congress, the scheme was thought to provide compensation in an amount that is 'more or less arbitrary, but considered to be reasonably fair to the average witness.' S.Rep.No.187, 81st Cong., 1st Sess., 2. There is no indication that Congress thought some witnesses were so poor that they could be deemed indifferent to compensation.
Thus, the Government's assertion that 'payment of $21 per day would serve as a chance bonus' for persons like petitioners who presumably earn less than that amount per day, Brief for United States 31, misses the point of the statutory scheme. By that reasoning, the scheme would offer the same 'chance bonus' to a witness who earns $50,000 per year, but who is not required to perform a daily service to earn that income. Wealth is not a guarantee that income loss is substantial, just as poverty is not a guarantee that the income loss is trivial.
1
Rule 46(b), at the time this case arose and before Rule 46 was amended to conform it to the Bail Reform Act of 1966, read:
'Bail for Witness.
'If it appears by affidavit that the testimony of a person is material in any criminal proceeding and if it is shown that it may become impracticable to secure his presence by subpoena, the court or commissioner may require him to give bail for his appearance as a witness, in an amount fixed by the court or commissioner. If the person fails to give bail the court or commissioner may commit him to the custody of the marshal pending final disposition of the proceeding in which the testimony is needed, may order his release if he has been detained for an unreasonable length of time and may modify at any time the requirement as to bail.'
2
Mr. Justice Black and Mr. Justice Frankfurther dissented from submission of the original Rules of Criminal Procedure. 323 U.S. 821.
Mr. Justice Black and I in 1966 opposed the submission of certain amendments to the Rules of Criminal Procedure to the Congress. Mr. Justice Black's statement is to be found at 383 U.S. 1032, mine at 383 U.S. 1089. We thought at the time that some of the amendments presented serious constitutional questions.
The fact that the Court approved the Rules without reading them or debating them or weighing their merits does not, of course, preclude a challenge to their constitutionality in a given case.
But the imprimatur of this Court is on the Rules, and that gives them mighty weight. It is possible to read former Rule 46(b) as permitting release on personal recognizance. But experience has shown that judges have not so read it. The result, as I indicate in this opinion, is that former Rule 46(b) has borne down heavily on indigents who would be good risks but could not put up the money to buy a bail bond. Former Rule 46(b) as so construed—and as applied in the present case—is therefore plainly unconstitutional. Filling of the jails of San Antonio with men whose only crime is the desire to find work and holding them there at the caprice of the prosecutor is chocking, to say the very least—and traceable to the easy, offhand way in which the Court has seemingly approved many Rules which touch not only matters of public security but individual liberties as well.
3
The Solicitor General asserts that 'it is cerainly not unreasonable or irrational for Congress to authorize a minimal sum as payment to deportable aliens. There is no indication that illegal aliens, like petitioners, even if employed, would have earned wages averaging $20 or $21 per day for a period of 30 or 60 days or longer.' This prompts two comments. In explaining a predecessor of the current statute, the Senate Report stated:
'The amounts arrived at in this bill are considered to be more fair than presently existing amounts, although it is recognized that certain witnesses will not, under the proposed rates, be adequately compensated. In order to fairly compensate everyone appearing as a witness it would be necessary to have either a graduated scale of fees, or, leave the amount of such fees in the discretion of the judge. Neither was considered feasible, and therefore the amounts arrived at herein are more or less arbitrary, but considered to be reasonably fair to the average witness.' S.Rep.No.187, 81st Cong., 1st Sess., 2.
Also, if the statute is to be measured as it applies to aliens, it surely creates a suspect classification. See Takahashi v. Fish & Game Comm'n, 334 U.S. 410, 68 S.Ct. 1138, 92 L.Ed. 1478.
4
For each day the Government compensates a witness at the per diem rate of $20, it also pays the witness $16 to cover subsistence expenses. I cannot believe that it costs the Government more than $16 a day to feed an incarcerated witness. In any event, the witness should not be taxed when he is imprisoned for the convenience of the Government.
5
The majority tracks the legislative history of § 1821 and concludes that it is 'unenlightening.' When compensation was first paid to incarcerated witnesses in 1853, Act of Feb. 6, 1853, § 3, 10 Stat. 167, they were paid $1 per day, or 50¢ less than a witness merely attending court. No subsistence was paid, and we can assume that the differential related to this factor. Over the years, Congress has increased the compensation paid to material witnesses and added subsistence payments without increasing the compensation paid to incarcerated witnesses. Congress has not advanced any justification.
| 34
|
410 U.S. 690
93 S.Ct. 1203
35 L.Ed.2d 637
J. Edwin LaVALLEE, Superintendent of Clinton Correctional Facilityv.Pasquale DELLE ROSE.
No. 72—905.
Decided March 19, 1973.
PER CURIAM.
1
The State of New York petitions for certiorari to review the adverse determination of the Court of Appeals in this federal habeas corpus proceeding directing the release* of respondent Pasquale Delle Rose. Delle Rose was serving a life sentence for the premeditated murder of his wife in 1963. At his trial, occurring before Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), respondent was convicted by a jury which chose to credit has two confessions over his protestation of accidental involvement, and which presumably found them to be voluntary. On appeal, the New York appellate court directed the trial court to hold a special hearing to determine the voluntariness of his confessions in accordance with People v. Huntley, 15 N.Y.2d 72, 255 N.Y.S.2d 838, 204 N.E.2d 179 (1965), the State's procedural response to this Court's decision in Jackson v. Denno, supra.
2
On remand to the trial court, the State rested on the trial record, and the respondent, in addition to relying on the record, testified in his own behalf. After extensively summarizing the trial evidence and respondent's explanations of certain of his confession statements, the court concluded:
3
'On all evidence, both at the trial and at the hearing, and after considering the totality of the circumstances, including the omission to warn defendant of his right to counsel and his right against self-incrimination, I find and decide that the respective confessions to the police and district attorney were, in all respects, voluntary and legally admissible in evidence at the trial. . . .'
4
On this basis, respondent's conviction was affirmed by the New York appellate courts, 33 A.D.2d 657, 27 N.Y.2d 882, 317 N.Y.S.2d 358, 265 N.E.2d 770 (1970), and this Court denied certiorari, 402 U.S. 913, 91 S.Ct. 1395, 28 L.Ed.2d 656 (1971).
5
Respondent then petitioned the United States District Court for writ of habeas corpus alleging his confessions were involuntary. That court held that since the state trial judge had 'neglected to say how far he credited—and to what extent, if any, he discounted or rejected' respondent's testimony and the evidence before him, there was no 'adequate' determination within the meaning of 28 U.S.C. § 2254(d), which would have entitled the state court's findings to a presumption of correctness and placed on respondent the burden of establishing by convincing evidence that the state court's conclusion was erroneous. The District Court therefore held its own hearing, found both confessions involuntary, and ordered respondent discharged from custody unless retried, 342 F.Supp. 567. A divided panel of the Second Circuit affirmed, 468 F.2d 1288.
6
The Court of Appeals held that the state court's opinion did not meet the requisites of 28 U.S.C. § 2254(d) which provides in relevant part:
7
'(A) determination after a hearing on the merits of a factual issue, made by a State court of competent jurisdiction . . . evidenced by a written finding, written opinion, or other reliable and adequate written indicia, shall be presumed to be correct, unless the applicant shall establish or it shall otherwise appear, . . .—
8
'(1) that the merits of the factual dispute were not resolved in the State court hearing . . ..'
9
Although it is true that the state trial court did not specifically articulate its credibility findings, it can scarcely be doubted from its written opinion that respondent's factual contentions were resolved against him.
10
Respondent's wife was killed by a blast from a sawed-off shotgun device which had been set to shoot through the back of their front car seat. His confessions indicated that because of extreme jealousy, he rigged the device to go off when his wife pulled the car seat forward. For some reason it failed initially; so when he was seated with her in the car, he operated it by hand. At trial, he claimed his confessions were false and testified that he was seated in the car with his wife and he noticed a lump on the floor behind the front seat.
11
When he reached down to investigate, it shot her.
12
At trial, in support of his theory of relentless questioning and police coercion, respondent presented evidence to the effect that, at the time of his confessions,
13
'he had had a back injury, and therefore was in pain; that he was taken to the garage and asked to put his hand in the back seat where the blood of his wife was; that the police threatened to beat him up if he did not admit he killed her; that he was compelled to say by the police that he had killed his wife but that what he meant was that he had done so inadvertently, by placing his hand over the lump; and that, after telling the officer he wanted to see his wife, he did not remember what happened thereafter until 9:00 o'clock in the morning.'
14
In addition, as his 'Huntley' hearing, he testified that the officers told him they would beat him up if he did not talk to them; that one of the detectives told him to put his hands in the front seat hole where his wife's blood was and when he did not, the detective took his hands and put them there himself; and that he did not remember anything past the time when he asked to see his wife at the morgue, including the giving of the second statement. He also attempted to explain the reasons for his giving such detailed and factually accurate confession statements.
15
The trial court's summary of the State's evidence tended to show that although respondent had been taken to the station house about 5 p.m. on the day of the murder, he was not even a suspect as late as 9 p.m., and he was only giving information. He was taken to the morgue at his own request, a factor which triggered the first confession. Further, he had been allowed to sit with his family, was given coffee by his mother-in-law and police, and he admitted that his treatment by the police was good during the time of the questioning. There was also testimony that he had been offered food, but as he admitted, he was not hungry. Again at the 'Huntley' hearing, he acknowledged that the police had treated him 'nice.' It was 'on this evidence' that the state trial court made its finding and conclusion that the confessions were voluntary.
16
The Court of Appeals stated that it could not tell whether the state courts 'credited Delle Rose's story of the circumstances surrounding his confessions but still held these to have been voluntary, a conclusion to which we could not agree or based their holding of voluntariness on a partial or complete rejection of his testimony, in which event the district judge would have been bound to deny the petition.' 468 F.2d 1288, 1290. In Townsend v. Sain, 372 U.S. 293, 314—315, 315, 83 S.Ct. 745, 757—758, 9 L.Ed.2d 770 (1963), the precursor of 28 U.S.C. § 2254(d), this Court set forth general standards governing the holding of hearings on federal habeas petitions, stating:
17
'(T)he possibility of legal error may be eliminated in many situations if the fact finder has articulated the constitutional standards which he has applied. Furthermore, the coequal responsibilities of state and federal judges in the administration of federal constitutional law are such that he think the district judge may, in the ordinary case in which there has been no articulation, properly assume that the state trier of fact applied correct standards of federal law to the facts, in the absence of evidence . . . that there is reason to suspect that an incorrect standard was in fact applied. Thus, if third-degree methods of obtaining a confession are alleged and the state court refused to exclude the confession from evidence, the district judge may assume that the state trier found the facts against the petitioner, the law being, of course, that theird-degree methods necessarily produce a coerced confession.' Here, not only is there no evidence that the state trier utilized the wrong standard, but there is every indication he applied the correct standards. His determination was made on the 'totality of the circumstances' and, in this pre-Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), pre-Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), situation, the court also considered the facts that respondent was not warned of his rights to the assistance of counsel and against self-incrimination before confessing. And we quite agree with the District Court's statement that it could not go along with the state trial court's conclusion of voluntariness if it 'were to find the facts to have been as petitioner's (Delle Rose's) testimony portrayed them.' See, e.g., Spano v. New York, 360 U.S. 315, 79 S.Ct. 1202, 3 L.Ed.2d 1265 (1959); Watts v. Indiana, 338 U.S. 49, 69 S.Ct. 1347, 93 L.Ed. 1801 (1949). Under these circumstances, we think the District Court could have been reasonably certain that the state court would have granted relief if it had believed respondent's allegations. See Townsend v. Sain, supara, 372 U.S., at 315, 83 S.Ct., at 758.
18
We, therefore, hold that the opinion of the state trial court met the requirements of 28 U.S.C § 2254 (d)(1), and that the courts below incorrectly determined it did not. The burden was thus on respondent to establish in the District Court by convincing evidence that the state court's determination was erroneous. The motion of the respondent for leave to proceed in forma pauperis and the petition for certiorari are granted. The judgment of the Court of Appeals is reversed, and this cause is remanded for further proceedings consistent with this opinion.
19
Reversed and remanded.
20
Mr. Justice MARSHALL, with whom Mr. Justice DOUGLAS, Mr. Justice BRENNAN, and Mr. Justice STEWART concur, dissenting.
21
Although I am in complete disagreement with this Court's per curiam decision herein, I see no reason to set this case for oral argument in light of the majority's firmly held views.
22
I cannot accept the Court's holding that both the District Court and the Court of Appeals improperly concluded that the voluntariness of respondent's confessions was not adequately resolved by the state trial court, thereby relieving respondent of the obligation to establish 'by convincing evidence that the factual determination by the State court was erroneous,' 28 U.S.C. § 2254(d). The Court does not deny that the state trial court judge, after summarizing the record evidence and respondent's testimony on the question of voluntariness, utterly failed to explain the basis for his conclusion that 'considering the totality of circumstances . . . the respective confessions to the police and district attorney were, in all respects, voluntary and legally admissible in evidence at the trial . . ..' Despite this absence of any reasoned explanation for the state court's action, the Court now assures us that 'it can scarcely be doubted from its written opinion that respondent's factual contentions were resolved against him.' Ante, at 692. I could not disagree more, and therefore I must respectfully dissent.
23
Foremost, the Court's certainty as to the basis for the state court's action rests upon the fact that it is clear the state court 'applied' the correct legal standard in evaluating the voluntariness of respondent's confession. Without question, the state court in this case ritualistically recited the standard of 'totality of the circumstances' which governs the determination of voluntariness with respect to these 1963 confessions. See, e.g., Clewis v. Texas, 386 U.S. 707, 708, 87 S.Ct. 1338, 1339, 18 L.Ed.2d 423 (1967). But this recitation in itself provided the courts below with no guarantee that the state court had not erroneously applied this standard to the facts of this case, perhaps accepting respondent's version of the circumstances surrounding the confession, rather than rejecting respondent's version as incredible. Thus, the able District Judge noted that '(t)his court cannot be 'reasonably certain' what facts of possibly coercive or stressful impact the trial judge found from the disputed testimony' introduced before him. 342 F.Supp. 567, 570.
24
The Court, however, places heavy reliance upon our prior statement in Townsend v. Sain, 372 U.S. 293, 314—315, 83 S.Ct. 745, 758, 9 L.Ed.2d 770 (1963), the source of the test set forth in § 2254(d)(1), that 'the district judge may, in the ordinary case in which there has been no articulation, properly assume that the state trier of fact applied correct standards of federal law to the facts, in the absence of evidence . . . that there is reason to suspect that an incorrect standard was in fact applied. Thus, if third-degree methods of obtaining a confession are alleged and the state court refused to exclude the confession from evidence, the district judge may assume that the state trier found the facts against the petitioner, the law being, of course, that third-degree methods necessarily produce a coerced confession.'1 But this is hardly the limit of the inquiry—contemplated by Townsend and § 2254(d)— into whether a state court has adequately resolved the factual issues presented by the constitutional claim.
25
'(E)ven if it is clear that the state trier of fact utilized the proper standard, a hearing is sometimes required if his decision presents a situation in which the 'so-called facts and their constitutional significance (are) . . . so blended that they cannot be severed in consideration.' . . . Unless the district judge can be reasonably certain that the state trier would have granted relief if he had believed petitioner's allegations, he cannot be sure that the state trier in denying relief disbelieved these allegations. If any combination of the facts alleged would prove a violation of constitutional rights and the issue of law on those facts presents a difficult or novel problem for decision, any hypothesis as to the relevant factual determinations of the state trier involves the purest speculation. The federal court cannot exclude the possibility that the trial judge believed facts which showed a deprivation of constitutional rights and yet (erroneously) concluded that relief should be denied. Under these circumstances it is impossible for the federal court to reconstruct the facts, and a hearing must be held.' Townsend v. Sain, supra, at 315—316, 83 S.Ct., at 758 (emphasis added).
26
The precise problem encountered by the courts below in evaluating the state court's conclusion—a problem which the Court now effectively ignores—is that the issue of voluntariness in this case presents just the sort of 'difficult' mixed question of law and fact which Townsend recognized would make federal court speculation concerning the basis for unreasoned state court action wholly inappropriate. To be sure, where, for instance, a defendant alleges simply that a confession was extracted from him by means of a physical beating administered by the police, it is obvious that if the defendant's story is believed, the confession would be involuntary. Thus, even if a state court holds the defendant's confession to be voluntary without articulating any reasons, a federal district court may safely assume that in such an uncomplicated situation the state court's determination resulted from a rejection of the defendant's factual allegations. But it can hardly be argued that this case involves allegations of the type of straightforward police 'third-degree methods of obtaining a confession' which the Townsend Court suggested would entail little possibility of misapplication of the relevant legal standard so that a district court might, with reasonable confidence, assume that an unexplained state court finding of voluntariness rests upon a rejection of the defendant's version of the interrogation, not upon constitutional error. For a review of the state court's opinion following the 'Huntley' hearing reveals that here the state court was confronted, not with an allegation of a single coercive incident which, if believed, would clearly have resulted in a finding of involuntariness, but rather with allegations of a series of coercive police actions applied to a particularly susceptible suspect.
27
Respondent claimed that he was held and interrogated, apparently without rest, from 5 p.m. on the day of the murder until sometime early the next morning. Throughout this time, respondent purportedly was suffering pain due to a serious back ailment and was undoubtedly handicapped by his lack of facility with the English language. Meanwhile, without any warnings as to his constitutional rights, he was questioned repeatedly by police officers, questioning which allegedly included physical threats if he refused to confess. During this process, respondent was compelled by the police to reenact the alleged murder of his wife complete with his hand being forced by a police officer into the torn seat back which was wet with his wife's blood. Then the police offered to take respondent on what the District Court properly described as a 'macabre' visit to the morgue to see his dead wife's body. There the police obtained the first confession. Subsequently, further questioning by an assistant district attorney produced a second confession at about 6 a.m. A defense psychiatrist testified at trial that respondent was, in his opinion, so exhausted from his long ordeal at the hands of the police that 'he would say yes if you asked him if the moon were made of green cheese.'
28
It is possible, of course, that the state court rejected all of respondent's testimony as incredible and therefore properly held the confessions voluntary. On the other hand, if the state court had believed all of respondent's contentions, it would undoubtedly have found the confessions involuntary. There remains, however, the third possibility that the state court believed some of respondent's contentions and rejected others. It is this last possibility that makes for substantial uncertainty in a factually complex case such as this as to whether the the state court correctly applied the abstract legal standard and did not, instead, commit constitutional error. Due to the unrevealing nature of the state court's decision, it is impossible to say that that court may not have credited a sufficient portion of respondent's story to establish, under the controlling standard, the involuntariness of his confessions and nevertheless have reached an erroneous conclusion of voluntariness because the question may have been a close one on the facts that it accepted. It is this inherent uncertainty as to what the state court may have believed or disbelieved that justified the action of the District Court and the Court of Appeals in this case. To conclude otherwise, I believe, ignores the full import of this Court's reasoning in Townsend v. Sain, supra, concerning those limited situations in which a federal district court on habeas corpus may reasonably assume that an unexplained state court determination rests merely upon a rejection of testimony rather than upon constitutional error.
29
Consequently, in my view, the courts below properly held the State not entitled in this case to the presumption of correctness and the special burden of proof set forth in § 2254(d).2 As for the merits, I see no basis for this Court to set aside the District Court's finding of involuntariness, a finding sustained by the Court of Appeals as not 'clearly erroneous' under Fed.Rule Civ.Proc. 52(a). Cf. Neil v. Biggers, 409 U.S. 188, 201, 93 S.Ct. 375, 383, 34 L.Ed.2d 401 (1972) (opinion of Brennan, J.).
*
Respondent was ordered released unless retried within 60 days without the use of his confessions.
1
Insofar as the Court relies upon this language fromTownsend in interpreting § 2254(d)(1), the Court effectively ignores the discretionary character of the decision lodged with the district judge who is faced with a question as to the adequacy of unexplained state court findings. Townsend indicates that 'the district judge may, in the ordinary case in which there has been no articulation, properly assume' that the state court reached a constitutionally permissible conclusion. (Emphasis added.) Today, however, the Court effectively indicates that the district court often must assume in such cases that the proper standard was applied. Such a rigid standard seems to me wholly improper and unworkable where the question whether the defendant's testimony was simply rejected and the proper standard applied is essentially one of judgment dependent upon the facts of each particular case. These matters are properly left largely to the discretion of the district judge. And here, certainly, it cannot be said such discretion was abused.
2
The Court, of course, does not hold that the District Court erred in holding a de novo evidentiary hearing on the voluntariness of respondent's confession. That is a question distinct from the presumption of validity and the special burden of proof established by 28 U.S.C. § 2254(d). Section 2254(d) says nothing concerning when a district judge may hold an evidentiary hearing—as opposed to acting simply on the state court record—in considering a state prisoner's petition for federal habeas corpus. So far as I understand, the question whether such a hearing is appropriate on federal habeas corpus continues to be controlled exclusively by our decision in Townsend v. Sain even after the enactment of § 2254(d). See Developments in the Law—Federal Habeas Corpus, 83 Harv.L.Rev. 1038, 1141 (1970). And, Townsend explicitly recognizes that, apart from the six specific instances described in that opinion as mandating an evidentiary hearing '(i)n all other cases where the material facts are in dispute, the holding of . . . a hearing is in the discretion of the district judge. . . . In every case he has the power, constrained only by his sound discretion, to receive evidence bearing upon the applicant's constitutional claim.' 372 U.S., at 318, 83 S.Ct., at 760.
| 01
|
410 U.S. 667
93 S.Ct. 1197
35 L.Ed.2d 618
Barbara Susan PAPISHv.The BOARD OF CURATORS OF the UNIVERSITY OF MISSOURI et al.
No. 72—794.
Decided March 19, 1973.
PER CURIAM.
1
Petitioner, a graduate student in the University of Missouri School of Journalism, was expelled for distributing on campus a newspaper 'containing forms of indecent speech'1 in violation of a bylaw of the Board of Curators. The newspaper, the Free Press Underground, had been sold on this state university campus for more than four years pursuant to an authorization obtained from the University Business Office. The particular newspaper issue in question was found to be unacceptable for two reasons. First, on the front cover the publishers had reproduced a political cartoon previously printed in another newspaper depicting policemen raping the Statue of Liberty and the Goddess of Justice. The capition under the cartoon read: '. . . With Liberty and Justice for All.' Secondly, the issue contained an article entitled 'M——-f——- Acquitted,' which discussed the trial and acquittal on an assault charge of a New York City youth who was a member of an organization known as 'Up Against the Wall, M——-f——-.'
2
Following a hearing, the Student Conduct Commitee found that petitioner had violated Par. B of Art. V of the General Standards of Student Conduct which requires students 'to observe generally accepted standards of conduct' and specifically prohibits 'indecent conduct or speech.'2 Her expulsion, after affirmance first by the Chancellor of the University and then by its Board of Curators, was made effective in the middle of the spring semester. Although she was then permitted to remain on campus until the end of the semester, she was not given credit for the one course in which she made a passing grade.3
3
After exhausting her administrative review alternatives within the University, petitioner brought an action for declaratory and injunctive relief pursuant to 42 U.S.C. § 1983 in the United States District Court for the Western District of Missouri. She claimed that her expulsion was improperly premised on activities protected by the First Amendment. The District Court denied relief, 331 F.Supp. 1321, and the Court of Appeals affirmed, one judge dissenting. 464 F.2d 136. Rehearing en banc was denied by an equally divided vote of all the judges in the Eighth Circuit.
4
The District Court's opinion rests, in part,4 on the conclusion that the banned issue of the newspaper was obscene. The Court of Appeals found it unnecessary to decide that question. Instead, assuming that the newspaper was not obscene and that its distribution in the community at large would be protected by the First Amendment, the court held that on a university campus 'freedom of expression' could properly be 'subordinated to other interests such as, for example, the conventions of decency in the use and display of language and pictures.' Id., at 145. The court concluded that '(t)he Constitution does not compel the University . . . (to allow) such publications as the one in litigation to be publicly sold or distributed on its open campus.' Ibid.
5
This case was decided several days before we handed down Healy v. James, 408 U.S. 169, 92 S.Ct. 2338, 33 L.Ed.2d 266 (1972), in which, while recognizing a state university's undoubted prerogative to enforce reasonable rules governing student conduct, we reaffirmed that 'state colleges and universities are not enclaves immune from the sweep of the First Amendment.' Id., at 180, 92 S.Ct., at 2345. See Tinker v. Des Moines Independent School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969). We think Healy makes it clear that the mere dissemination of ideas—no matter how offensive to good taste—on a state university cammpus may not be shut off in the name alone of 'conventions of decency.' Other recent precedents of this Court make it equally clear that neither the political cartoon nor the headline story involved in this case can be labeled as constitutionally obscene or otherwise unprotected. E.g., Kois v. Wisconsin, 408 U.S. 229, 92 S.Ct. 2245, 33 L.Ed.2d 312 (1972); Gooding v. Wilson, 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972); Cohen v. California, 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971).5 There is language in the opinions below which suggests that the University's action here could be viewed as an exercise of its legitimate authority to enforce reasonable regulations as to the time, place, and manner of speech and its dissemination. While we have repeatedly approved such regulatory authority, e.g., Healy v. James, 408 U.S., at 192 193, 92 S.Ct., at 2351—2352, the facts set forth in the opinions below show clearly that petitioner was expelled because of the disapproved content of the newspaper rather than the time, place, or manner of its distribution.6
6
Since the First Amendment leaves no room for the operation of a dual standard in the academic community with respect to the content of speech, and because the state University's action here cannot be justified as a nondiscriminatory application of reasonable rules governing conduct, the judgments of the courts below must be reversed. Accordingly the petition for a writ of certiorari is granted, the case is remanded to the District Court, and that court is instructed to order the University to restore to petitioner any course credits she earned for the semester in question and, unless she is barred from reinstatement for valid academic reasons, to reinstate her as a student in the graduate program.
7
Reversed and remanded.
8
Mr. Chief Justice BURGER, dessenting.
9
I join the dissent of Justice REHNQUIST which follows and add a few additional observations.
10
The present case is clearly distinguishable from the Court's prior holdings in Cohen, Gooding and Rosenfeld, as erroneous as those holdings are.* Cohen, Gooding and Rosenfeld dealt with prosecutions under criminal statutes which allowed the imposition of severe penalties. Unlike such traditional First Amendment cases, we deal here with rules which govern conduct on the campus of a state university.
11
In theory, at least, a university is not merely an arena for the discussion of ideas by students and faculty; it is also an institution where individuals learn to express themselves in acceptable, civil terms. We provide that environment to the end that students may learn the self-restraint necessary to the functioning of a civilized society and understand the need for those external restraints to which we must all submit if group existence is to be tolerable.
12
I find it a curious—even bizarre—extension of Cohen, Gooding and Rosenfeld to say that a state university is impotent to deal with conduct such as that of the petitioner. Students are, of course, free to criticize the university, its faculty, or the Government in vigorous, or even harsh, terms. But it is not unreasonable or violative of the Constitution to subject to disciplinary action those individuals who distribute publications which are at the same time obscene and infantile. To preclude a state university or college from regulating the distribution of such obscene materials does not protect the values inherent in the First Amendment; rather, it demeans those values. The anomaly of the Court's holding today is suggested by its use of the now familiar 'code' abbreviation for the petitioner's foul language.
13
The judgment of the Court of Appeals was eminently correct. It should be affirmed.
14
Mr. Justice REHNQUIST, with whom THE CHIEF JUSTICE and Mr. Justice BLACKMUN join, dissenting.
15
We held in Healy v. James, 408 U.S. 169, 180, 92 S.Ct. 2338, 2345, 33 L.Ed.2d 266 (1972), that 'state colleges and universities are not enclaves immune from the sweep of the First Amendment.' But that general proposition does not decide the concrete case now before us. Healy held that the public university there involved had not afforded adequate notice and hearing of the action it proposed to take with respect to the students involved. Here the Court of Appeals found, and that finding is not questioned in this Court's opinion, that 'the issue arises in the context of a student dismissal, after service of written charges and after a full and fair hearing, for violation of a University rule of conduct.' 464 F.2d 136, 138.
16
Both because I do not believe proper exercise of our jurisdiction warrants summary reversal in a case dependent in part on assessment of the record and not squarely governed by one of our decisions, and because I have serious reservations about the result reached by the Court, I dissent from the summary disposition of this case.
17
* Petitioner Papish has for many years been a graduate student at the University of Missouri. Judge Stephenson, writing for the Court of Appeals in this case, summarized her record in these words:
18
'Miss Papish's academic record reveals that she was in no rush to complete the requirements for her graduate degree in Journalism. She posesses a 1958 academic degree from the University of Connecticut; she was admitted to graduate school at the University of Missouri in September in 1963; and although she attended school through the fall, winter and summer semesters, she was, after 6 years of work, making little, if any, significant progress toward the achievement of her stated academic objective. At the time of her dismissal, Miss Papish was enrolled in a one-hour course entitled 'Research Journalism' and in a three-hour course entitled 'Ceramics 4.' In the semester immediately preceding her dismissal, she was enrolled only in 'Ceramics 3." 464 F.2d, at 138 n. 2.
19
Whatever may have been her lack of ability or motivation in the academic area, petitioner had been active on other fronts. In the words of the Court of Appeals:
20
'3. On November 1, 1967, the Faculty Committee on Student Conduct, after notice of charges and a hearing, placed Miss Papish on disciplinary probation for the remainder of her student status at the University. The basis for her probation was her violation of the general standard of student conduct . . .. This action arose out of events which took place on October 14, 1967 at a time when the University was hosting high school seniors and their parents for the purpose of acquainting them with its educational programs and other aspects of campus life. She specifically was charged, inter alia, with openly distributing, on University grounds, without the permission of appropriate University personnel, two non-University publications of the Students for Democratic Society (SDS). It was alleged in the notice of charges, and apparently established at the ensuing hearing, that one of these publications, the New Left Notes, contained 'pornographic, indecent and obscene words, 'f—-,' 'bulls—-,' and 'sh—s." The notice of charges also recites that the other publication, The CIA at Clolege: Into Twilight and Back, contained 'a pornographic and indecent picture depicting two rats apparently fornicating on its cover . . ..'
21
'4. Some two weeks prior to the incident causing her dismissal, Miss Papish was placed on academic probation because of prolonged submarginal academic progress. It was a condition of this probation that she pursue satisfactory work on her thesis, and that such work be evidenced by the completion and presentation of several completed chapters to her thesis advisor by the end of the semester. By letter dated January 31, 1969, Miss Papish was notified that her failure to comply with this special condition within the time specified would result in the termination of her candidacy for a graduate degree.' Id., at 138—139, nn. 3, 4.
22
It was in the light of this background that respondents finally expelled petitioner for the incident described in the Court's opinion. The Court fails to note, however, two findings made by the District Court with respect to the circumstances under which petitioner hawked her newspaper near the memorial tower of the University:
23
'The Memorial Tower is the central unit of integrated structures dedicated to the memory of those students who died in the Armed Services in World Wars I and II. Other adjacent units include the Student Union and a Non-Sectarian chapel for prayer and meditation. Through the Memorial Arch pass parents of students, guests of the University, students, including many persons under 18 years of age and high school students.' 331 F.Supp. 1321, 1325 n. 4.
24
'The plaintiff knowingly and intentionally participated in distributing the publication to provoke a confrontation with the authorities by pandering the publication with crude, puerile, vulgar obscenities.' Id., at 1325.
II
25
I continue to adhere to the dissenting views expressed in Rosenfeld v. New Jersey, 408 U.S. 901, 92 S.Ct. 2479, 33 L.Ed.2d 321 (1972), that the public use of the word 'M——-f——-' is 'lewd and onscene' as those terms were used by the Court in Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942). There the Court said:
26
'There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which has never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous and the insulting or 'fighting' words—those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.' Id., at 571—572, 62 S.Ct., at 769.
27
But even were I convinced of the correctness of the Court's disposition of Rosenfeld, I would not think it should control the outcome of this case. It simply does not follow under any of our decision or from the language of the First Amendment itself that because petitioner could not be criminally prosecuted by the Missouri state courts for the conduct in question, she may not therefore be expelled from the University a state university is an establishment A state university is an establishment for the purpose of educating the State's young people, supported by the tax revenues of the State's citizens. The notion that the officials lawfully charged with the governance of the university have so little control over the environment for which they are responsible that they may not prevent the public distribution of a newspaper on campus which contained the language described in the Court's opinion is quite unacceptable to me and I would suspect would have been equally unacceptable to the Framers of the First Amendment. This is indeed a case where the observation of a unanimous Court in Chaplinsky that 'such utterances are no essentrial part of any exposition of ideas and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality' applies with compelling force.
III
28
The Court cautions that 'disenchantment with Miss Papish's performance, understandable as it may have been, is no justification for denial of constitutional rights.' Quite so. But a wooden insistence on equating, for constitutional purposes, the authority of the State to criminally punish with its authority to exercise even a modicum of control over the university which it operates, serves neither the Constitution nor public education well. There is reason to think that the 'disenchantment' of which the Court speaks may, after this decision, become widespread among taxpayers and legislators. The system of tax-supported public universities which has grown up in this country is one of its truly great accomplishments; if they are to continue to grow and thrive to serve an expanding population, they must have something more than the grudging support of taxpayers and legislators. But one can scarcely blame the latter if, told by the Court that their only function is to supply tax money for the operation of the university, the 'disenchantment' may reach such a point that they doubt the game is worth the candle.
1
This charge was contained in a letter from the University's Dean of Students, which is reprinted in the Court of Appeals' opinion. 464 F.2d 136, 139 (CA8 1972).
2
In pertinent part, the bylaw states: 'Students enrolling in the University assume an obligation and are expected by the University to conduct themselves in a manner compatible with the University's functions and missions as an educational institution. For that purpose students are required to observe generally accepted standards of conduct. . . . (I)ndecent conduct or speech . . . are examples of conduct which would contravene this standard. . . .' 464 F.2d, at 138.
3
Miss Papish, a 32-year-old graduate student, was admitted to the graduate school of the University in September 1963. Five and one-half years later, when the episode under consideration occurred, she was still pursuing her graduate degree. She was on 'academic probation' because of 'prolonged submarginal academic progress,' and since November 1, 1967, she also had been on disciplinary probation for disseminating Students for a Democratic Society literature found at a university hearing to have contained 'pornographic, indecent and obscene words.' This dissemination had occurred at a time when the University was host to high school seniors and their parents. 464 F.2d, at 139 nn. 3 and 4. But disenchantment with Miss Papish's performance, understandable as it may have been, is no justification for denial of constitutional rights.
4
Prefatorily, the District Court held that petitioner, who was a nonresident of Missouri, was powerless to complain of her dismissal because she enjoyed no 'federally protected or other right to attend a state university of a state of which she is not a domiciled resident.' 331 F.Supp. 1321, 1326. The Court of Appeals, because it affirmed on a different ground, deemed it 'unnecessary to comment' upon this rationale. 464 F.2d, at 141 n. 9. The District Court's reasoning is directly inconsistent with a long line of controlling decisions of this Court. See Perry v. Sindermann, 408 U.S. 593, 596—598, 92 S.Ct. 2694, 2697—2698, 33 L.Ed.2d 570 (1972), and the cases cited therein.
5
Under the authority of Gooding and Cohen, we have reversed or vacated and remanded a number of cases involving the same expletive used in this newspaper headline. Cason v. City of Columbus, 409 U.S. 1053, 93 S.Ct. 565, 34 L.Ed.2d 507 (1972); Rosenfeld v. New Jersey, 408 U.S. 901, 92 S.Ct. 2479, 33 L.Ed.2d 321 (1972); Lewis v. City of New Orleans, 408 U.S. 913, 92 S.Ct. 2499, 33 L.Ed.2d 321 (1972); Brown v. Oklahoma, 408 U.S. 914, 92 S.Ct. 2507, 33 L.Ed.2d 326 (1972). Cf. Keefe v. Geanakos, 418 F.2d 359, 361 and n. 7 (CA1 1969)
6
It is true, as Mr. Justice REHNQUIST'S dissent indicates, that the District Court emphasized that the newspaper was distributed near the University's memorial tower and concluded that petitioner was engaged in 'pandering.' The opinion makes clear, however, that the reference to 'pandering' was addressed to the content of the newspaper and to the organization on the front page of the cartoon and the headline, rather than to the manner in which the newspaper was disseminated. 331 F.Supp., at 1325, 1328, 1329, 1330, 1332. As the Court of Appeals opinion states, '(t)he facts are not in dispute.' 464 F.2d, at 138. The charge against petitioner was quite unrelated to either the place or manner of distribution. The Dean's charge stated that the 'forms of speech' contained in the newspaper were 'improper on the University campus.' Id., at 139. Moreover, the majority below quoted without disapproval petitioner's verified affidavit stating that 'no disruption of the University's functions occurred in connection with the distribution.' Id., at 139—140. Likewise, both the dissenting opinion in the Court of Appeals and the District Court opinion refer to this same uncontroverted fact. Id., at 145, 331 F.Supp., at 1328. Thus, in the absence of any disruption of campus order or interference with the rights of others, the sole issue was whether a state university could proscribe this form of expression.
*
Cohen v. California, 403 U.S. 15, 27, 91 S.Ct. 1780, 1789, 29 L.Ed.2d 284 (1971) (Blackmun, J., with whom Burger, C.J., and Black, J., joined, dissenting); Gooding v. Wilson, 405 U.S. 518, 528, 92 S.Ct. 1103, 1109, 31 L.Ed.2d 408 (1972) (Burger, C.J., dissenting), id., 534, 92 S.Ct. 1112 (Blackmun, J., dissenting); Rosenfeld v. New Jersey, 408 U.S. 901, 902, 92 S.Ct. 2483 (1972) (Burger, C.J., dissenting), id., 903, 92 S.Ct. 2479 (Powell, J., dissenting), id., 909, 92 S.Ct. 2484 (Rehnquist, J., dissenting).
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