MILESTONES IN THE LAW:
Volume 11: B ROWN to KELO
GALE ENCYCLOPEDIA OF AMERICAN LAW 3RD EDITION
GALE ENCYCLOPEDIA OF AMERICAN LAW 3RD EDITION
V OLUME 11 M ILESTONES IN THE LAW B ROWN TO K ELO
Gale Encyclopedia of American Law, 3rd Edition
© 2010 Gale, Cengage Learning
Project Editor: Donna Batten
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DEDICATION
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Contents
VOLUME 1
VOLUME 5
Preface . . . . . . . . . . . . . . . . . . . . . . . . . ix
Preface . . . . . . . . . . . . . . . . . . . . . . . . . ix
How to Use this Book . . . . . . . . . . . . . xiii
How to Use this Book . . . . . . . . . . . . . xiii
Contributors . . . . . . . . . . . . . . . . . . . . xv
Contributors . . . . . . . . . . . . . . . . . . . . xv
A–Ba. . . . . . . . . . . . . . . . . . . . . . . . . . 1
Fri–I . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Abbreviations . . . . . . . . . . . . . . . . . . 539
Abbreviations . . . . . . . . . . . . . . . . . . 531
VOLUME 2
VOLUME 6
Preface . . . . . . . . . . . . . . . . . . . . . . . . . ix
Preface . . . . . . . . . . . . . . . . . . . . . . . . . ix
How to Use this Book . . . . . . . . . . . . . xiii
How to Use this Book . . . . . . . . . . . . . xiii
Contributors . . . . . . . . . . . . . . . . . . . . xv
Contributors . . . . . . . . . . . . . . . . . . . . xv
Be–Col . . . . . . . . . . . . . . . . . . . . . . . . 1
J–Ma . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Abbreviations . . . . . . . . . . . . . . . . . . 539
Abbreviations . . . . . . . . . . . . . . . . . . 507
VOLUME 3
VOLUME 7
Preface . . . . . . . . . . . . . . . . . . . . . . . . . ix
Preface . . . . . . . . . . . . . . . . . . . . . . . . . ix
How to Use this Book . . . . . . . . . . . . . xiii
How to Use this Book . . . . . . . . . . . . . xiii
Contributors . . . . . . . . . . . . . . . . . . . . xv
Contributors . . . . . . . . . . . . . . . . . . . . xv
Com–Dor . . . . . . . . . . . . . . . . . . . . . . 1
Mc–Pl . . . . . . . . . . . . . . . . . . . . . . . . . 1
Abbreviations . . . . . . . . . . . . . . . . . . 539
Abbreviations . . . . . . . . . . . . . . . . . . 521
VOLUME 4
VOLUME 8
Preface . . . . . . . . . . . . . . . . . . . . . . . . . ix
Preface . . . . . . . . . . . . . . . . . . . . . . . . . ix
How to Use this Book . . . . . . . . . . . . . xiii
How to Use this Book . . . . . . . . . . . . . xiii
Contributors . . . . . . . . . . . . . . . . . . . . xv
Contributors . . . . . . . . . . . . . . . . . . . . xv
DOT–Fre. . . . . . . . . . . . . . . . . . . . . . . 1
Po–San . . . . . . . . . . . . . . . . . . . . . . . . 1
Abbreviations . . . . . . . . . . . . . . . . . . 555
Abbreviations . . . . . . . . . . . . . . . . . . 495
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CONTENTS
VOLUME 9
VOLUME 12
Preface . . . . . . . . . . . . . . . . . . . . . . . . . ix
Milestones in the Law
How to Use this Book . . . . . . . . . . . . . xiii
Lawrence v. Texas . . . . . . . . . . . . . . . . . 1
Contributors . . . . . . . . . . . . . . . . . . . . xv
Mapp v. Ohio . . . . . . . . . . . . . . . . . . . 95
Sar–Ten . . . . . . . . . . . . . . . . . . . . . . . 1
Marbury v. Madison . . . . . . . . . . . . . 139
Abbreviations . . . . . . . . . . . . . . . . . . 511
Miranda v. Arizona . . . . . . . . . . . . . . 161 New York Times v. Sullivan . . . . . . . . 261
VOLUME 10
Preface . . . . . . . . . . . . . . . . . . . . . . . . . ix How to Use this Book . . . . . . . . . . . . . xiii
Roe v. Wade . . . . . . . . . . . . . . . . . . . 407 VOLUME 13
Contributors . . . . . . . . . . . . . . . . . . . . xv
Primary Documents
Ter–Z . . . . . . . . . . . . . . . . . . . . . . . . . 1
Foundations of U.S. Law . . . . . . . . . . . . 1
Abbreviations . . . . . . . . . . . . . . . . . . 499
Civil Rights . . . . . . . . . . . . . . . . . . . 139 Reflections on Law and Society . . . . . . . . . . . . . . . . . . . . . 501
VOLUME 11
Milestones in the Law
Legal Miscellany . . . . . . . . . . . . . . . . 597
Brown v. Board of Education of Topeka, Kansas . . . . . . . . . . . . . . . . . 1 District of Columbia v. Heller . . . . . . . 167 Gideon v. Wainwright . . . . . . . . . . . . 305
VOLUME 14
Dictionary of Legal Terms . . . . . . . . . . 1
Kelo v. City of New London . . . . . . . . 353
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he U.S. legal system is admired around the world for the freedoms it allows the individual and the fairness with which it attempts to treat all persons. On the surface, it may seem simple, yet those who have delved into it know that this system of federal and state constitutions, statutes, regulations, and common-law decisions is elaborate and complex. It derives from the English common law, but includes principles older than England, along with some principles from other lands. The U.S. legal system, like many others, has a language all its own, but too often it is an unfamiliar language: many concepts are still phrased in Latin. The third edition of Gale Encyclopedia of American Law (GEAL), formerly West’s Encyclopedia of American Law, explains legal terms and concepts in everyday language. It covers a wide variety of persons, entities, and events that have shaped the U.S. legal system and influenced public perceptions of it.
the entry and is italicized. The Dictionary of Legal Terms volume is a glossary containing all the definitions from GEAL. Further Readings
To facilitate further research, a list of Further Readings is included at the end of a majority of the main entries. Cross-References
GEAL provides two types of cross-references, within and following entries. Within the entries, terms are set in small capital letters—for example, LIEN—to indicate that they have their own entry in the Encyclopedia. At the end of the entries, related entries the reader may wish to explore are listed alphabetically by title. Blind cross-reference entries are also included to direct the user to other entries throughout the set. In Focus Essays
MAIN FEATURES OF THIS SET
This Encyclopedia contains nearly 5,000 entries devoted to terms, concepts, events, movements, cases, and persons significant to U.S. law. Entries on legal terms contain a definition of the term, followed by explanatory text if necessary. Entries are arranged alphabetically in standard encyclopedia format for ease of use. A wide variety of additional features provide interesting background and supplemental information.
In Focus essays accompany related entries and provide additional facts, details, and arguments on particularly interesting, important, or controversial issues raised by those entries. The subjects covered include hotly contested issues, such as abortion, capital punishment, and gay rights; detailed processes, such as the Food and Drug Administration’s approval process for new drugs; and important historical or social issues, such as debates over the formation of the U.S. Constitution.
Definitions
Sidebars
Every entry on a legal term is followed by a definition, which appears at the beginning of
Sidebars provide brief highlights of some interesting facet of accompanying entries. They
Entries
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complement regular entries and In Focus essays by adding informative details. Sidebar topics include trying juveniles as adults, the Tea Party Movement, and the branches of the U.S. armed services. Sidebars appear at the top of a text page and are set in a box.
documents, laws, manuscripts, and forms fundamental to and characteristic of U.S. law. Milestone Cases in the Law
Special Appendix volumes entitled Milestones in the Law, allows readers to take a close look at landmark cases in U.S. law. Readers can explore the reasoning of the judges and the arguments of the attorneys that produced major decisions on important legal and social issues. Included in each Milestone are the opinions of the lower courts; the briefs presented by the parties to the U.S. Supreme Court; and the decision of the Supreme Court, including the majority opinion and all concurring and dissenting opinions for each case.
Biographies
GEAL profiles a wide variety of interesting and influential people—including lawyers, judges, government and civic leaders, and historical and modern figures—who have played a part in creating or shaping U.S. law. Each biography includes a timeline, which shows important moments in the subject’s life as well as important historical events of the period. Biographies appear alphabetically by the subject’s last name.
Primary Documents
There is also an Appendix volume containing more than 60 primary documents, such as the English Bill of Rights, Martin Luther King Jr.’s Letter from Birmingham Jail, and several presidential speeches.
ADDITIONAL FEATURES OF THIS SET
Enhancements Throughout GEAL, readers will find a broad array of photographs, charts, graphs, manuscripts, legal forms, and other visual aids enhancing the ideas presented in the text.
Citations
Wherever possible, GEAL entries include citations for cases and statutes mentioned in the text. These allow readers wishing to do additional research to find the opinions and statutes cited. Two sample citations, with explanations of common citation terms, can be seen below and opposite.
Appendixes
Four appendix volumes are included with GEAL, containing hundreds of pages of
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed 2d 694 (1966) 1
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Case title. The title of the case is set in italics and indicates the names of the parties. The suit in this sample citation was between Ernesto A. Miranda and the state of Arizona. Reporter volume number. The number preceding the reporter name indicates the reporter volume containing the case. (The volume number appears on the spine of the reporter, along with the reporter name). Reporter name. The reporter name is abbreviated. The suit in the sample citation is from the reporter, or series of books, called U.S. Reports, which contains cases from the U.S. Supreme Court. (Numerous reporters publish cases from the federal and state courts.)
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Reporter page. The number following the reporter name indicates the reporter page on which the case begins.
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Additional reporter page. Many cases may be found in more than one reporter. The suit in the sample citation also appears in volume 86 of the Supreme Court Reporter, beginning on page 1602.
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Additional reporter citation. The suit in the sample citation is also reported in volume 16 of the Lawyer’s Edition, second series, beginning on page 694.
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Year of decision. The year the court issued its decision in the case appears in parentheses at the end of the citation.
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Brady Handgun Violence Prevention Act, Pub. L. No. 103–159, 107 Stat. 1536 (18 U.S.C.A. 1
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Statute title. Public law number. In the sample citation, the number 103 indicates this law was passed by the 103d Congress, and the number 159 indicates it was the 159th law passed by that Congress. Reporter volume number. The number preceding the reporter abbreviation indicates the reporter volume containing the statute. Reporter name. The reporter name is abbreviated. The statute in the sample citation is from Statutes at Large. Reporter page. The number following the reporter abbreviation indicates the reporter page on which the statute begins.
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Title number. Federal laws are divided into major sections with specific titles. The number preceding a reference to the U.S. Code stands for the section called Crimes and Criminal Procedure.
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Additional reporter. The statute in the sample citation may also be found in the U.S. Code Annotated.
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Contributors
Editorial Reviewers
Patricia B. Brecht Matthew C. Cordon Frederick K. Grittner Halle Butler Hara Scott D. Slick Contributing Authors
Richard Abowitz Paul Bard Joanne Bergum Michael Bernard Gregory A. Borchard Susan Buie James Cahoy Terry Carter Stacey Chamberlin Sally Chatelaine Joanne Smestad Claussen Matthew C. Cordon Richard J. Cretan Lynne Crist Paul D. Daggett Susan L. Dalhed Lisa M. DelFiacco Suzanne Paul Dell’Oro Heidi Denler Dan DeVoe Joanne Engelking Mark D. Engsberg Karl Finley
Sharon Fischlowitz Jonathan Flanders Lisa Florey Robert A. Frame John E. Gisselquist Russell L. Gray III Frederick K. Grittner Victoria L. Handler Halle Butler Hara Lauri R. Harding Heidi L. Headlee James Heidberg Clifford P. Hooker Marianne Ashley Jerpbak David R. Johnstone Andrew Kass Margaret Anderson Kelliher Christopher J. Kennedy Anne E. Kevlin John K. Krol Lauren Kushkin Ann T. Laughlin Laura Ledsworth-Wang Linda Lincoln Theresa J. Lippert Gregory Luce David Luiken Frances T. Lynch Jennifer Marsh George A. Milite Melodie Monahan
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Sandra M. Olson Anne Larsen Olstad William Ostrem Lauren Pacelli Randolph C. Park Gary Peter Michele A. Potts Reinhard Priester Christy Rain Brian Roberts Debra J. Rosenthal Mary Lahr Schier Mary Scarbrough Stephanie Schmitt Theresa L. Schulz John Scobey Kelle Sisung James Slavicek Scott D. Slick David Strom Linda Tashbook Wendy Tien M. Uri Toch Douglas Tueting Richard F. Tyson Christine Ver Ploeg George E. Warner Anne Welsbacher Eric P. Wind Lindy T. Yokanovich
Appendix: Milestone Contents Cases in the Law
BROWN V. BOARD OF EDUCATION OF TOPEKA, KANSAS (1954) . . . . . . . . 1 DISTRICT OF COLUMBIA V. HELLER (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . 167 GIDEON V. WAINWRIGHT (1963) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 305 KELO V. CITY OF NEW LONDON (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 353
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B r o w n v. B o a r d o f E d u c a t i o n of Topeka, Kansas
Opinion of U.S. District Court, D. Kansas, August 3, 1951 . . . . . . 3 Initial Briefs to the U.S. Supreme Court Brief for Appellants. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Appendix to Appellants’ Briefs . . . . . . . . . . . . . . . . . . . . . . . . 13 Brief for Appellees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 Memorandum Decision of the Supreme Court, June 8, 1953 . . . . 33 Briefs for the Parties on Reargument Brief for Appellants in Nos. 1, 2 and 4 and for Respondents in No. 10 on Reargument . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 Brief for the Board of Education, Topeka, Kansas, on Questions Propounded by the Court . . . . . . . . . . . . . . . . 130 Opinion of the Supreme Court, May 17, 1954. . . . . . . . . . . . . . 133 Briefs to the Court on Further Reargument Brief for Appellants in Nos. 1, 2 and 3 and for Respondents in No. 5 on Further Reargument . . . . . . . . . . . . . . . . . . . . . 139 Supplemental Brief for the Board of Education, Topeka, Kansas, on Questions 4 and 5 Propounded by the Court . . . . 152 Reply Brief for Appellants in Nos. 1, 2 and 3 and for Respondents in No. 5 on Further Reargument . . . . . . . . . . . 154 Opinion of the Supreme Court, May 31, 1955. . . . . . . . . . . . . . 162 1
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Brown v. Board of Education of Topeka, Kansas
ISSUE
THIS CASE IN HISTORY
Civil Rights
Brown versus Board of Education of Topeka, Kansas, or Brown as it is commonly known, is one of the most significant civil rights decisions of the twentieth century. With this decision, the Supreme Court declared that the practice of segregating children into separate schools based on race was unconstitutional under the Equal Protection Clause of the Fourteenth Amendment. Brown overruled the Court’s prior decision in Plessy v. Ferguson, which had upheld segregation of the races so long as the facilities provided to each race were separate but equal. As a number of opinions* and briefs* in Brown demonstrate, the Court struggled with the issues presented in the case. The Court even took the extraordinary step of asking the parties for additional argument—twice—on the power and the ability of the Court to resolve the issues before it. Even in the early twenty-first century, the existence of schools with disproportionate numbers of students of one race or another continues to pose difficulties for courts and legislatures under Brown.
MATERIALS
Opinion of U.S. District Court, D. Kansas, August, 3, 1951 Initial Briefs to the Supreme Court Memorandum Decision to the Supreme Court, June 8, 1953 Briefs to the parties on Reargument Opinion of the Supreme Court, May 17, 1954 Briefs to the Court of Further Reargument Opinion of the Supreme Court, May 31, 1955 HOW TO USE MILESTONES IN THE LAW
In the materials that follow, the reader is invited to review the judicial opinions and the briefs of the parties in this milestone in U.S. law. As you read this section, you may wish to consider the following questions: n How did the appellant’s description of the issues before the Court, or questions presented, differ from the appellee’s description? n How did the parties differ in describing the history relevant to this case? n What aspects of the conflict presented in Brown make it difficult for a court (as opposed to a legislature) to resolve? n Why might Brown apply, or not apply, to discrimination based on a criterion other than race?
*The Supreme Court granted review to several similar cases from different states, which it consolidated with the Brown case for review. In the interest of space, the district court opinions from the other states’ cases are omitted here. Also omitted are the opinion of the Supreme Court consolidating the cases and the briefs of the state of Kansas, which was asked by the Court to present its position on the issues.
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M I L E S T O N E S IN T H E L A W
BROWN V. BOARD OF EDUCATION
Brown v. Board of Education of Topeka CITES AS 98 F.SUPP. 707
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BROWN ET AL. V. BOARD OF EDUCATION OF TOPEKA, SHAWNEE COUNTY, KANSAS ET AL. CIV. NO. T-316. AUG. 3, 1951. United States District Court, D. Kansas. Aug. 3, 1951.
process of law, in absence of discrimination between colored and white schools in the matter of physical facilities, curricula, courses of study, qualifications and quality of teachers, and other educational facilities. G.S.1949, 72–1724; U.S.C.A.Const. Amend. 14. John Scott and Charles Scott, Topeka, Kan., Robert L. Carter, New York City, Jack Greenberg, New York City, and Charles Bledsoe, Topeka, Kan., for plaintiffs. George Brewster and Lester Topeka, Kan., for defendants.
Goodell,
Before HUXMAN, Circuit Judge, MELOTT, Chief Judge, and HILL, District Judge. HUXMAN, Circuit Judge.
Action by Oliver Brown and others against the Board of Education of Topeka, Shawnee County, Kansas, and others for a judgment declaring unconstitutional a state statute authorizing cities of the first class to maintain separate schools for white and colored children in the grades below high school and to enjoin enforcement of the statute. The United States District Court, Huxman, Circuit Judge, held that the statute. The United States District Court, Huxman, Circuit Judge, held that the statute and the maintenance thereunder of a segregated system of schools for the first six grades do not violate constitutional guarantee of due process of law in absence of discrimination in the maintenance of the segregated schools. Judgment for defendants. Where physical facilities, curricula, courses of study, qualifications and quality of teachers and other educational facilities provided in separate elementary schools for colored and white children were comparable, there was no willful, intentional or substantial discrimination in such respects between colored and white schools, though absolute equality in such respects was impossible of attainment and colored children were required to travel much greater distances to school than white children, were transported to and from school free of charge. G.S.1949, 72–1724; U.S.C.A.Const. Amend. 14. State statute authorizing cities of the first class to maintain separate schools for white and colored children in the grades below high school and the maintenance thereunder of a segregated system of elementary schools does not violate the constitutional guarantee of due G A L E
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Chapter 72–1724 of the General Statutes of Kansas, 1949, relating to public schools in cities of the first class, so far as material, authorizes such cities to organize and maintain separate schools for the education maintain separate schools for the education of white and colored children in the grades below the high school grades. Pursuant to this authority, the City of Topeka, Kansas, a city of the first class, has established and maintains a segregated system of schools for the first six grades. It has established and maintains in the Topeka School District eighteen schools for colored students. The adult plaintiffs instituted this action for themselves, their minor children plaintiffs, and all other persons similarly situated for an interlocutory injunction, a permanent injunction, restraining the enforcement, operation and execution of the state statute and the segregation instituted thereunder by the school authorities of the City of Topeka and for a declaratory judgment declaring unconstitutional the state statute and the segregation set up thereunder by the school authorities of the City of Topeka. As against the school district of Topeka they contend that the opportunities provided for the infant plaintiffs in the separate al Negro schools are inferior to those provided white children in the all white schools; that the respects in which these opportunities are inferior include the physical facilities, curricula, teaching resources, student personnel services as well as all other services. As against both the state and the school district, they contend that apart from all other factors segregation in itself constitutes an inferiority in educational opportunities offered to Negroes and that all of this is in violation of A M E R I C A N
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MILESTONES IN THE LAW
due process guaranteed them by the Fourteenth Amendment to the United States Constitution. In their answer both the state and the school district defend the constitutionality of the state law and in addition the school district defends the segregation in its schools instituted thereunder. [1] We have found as fact that the physical, facilities, the curricula, courses of study, qualification of and quality of teachers, as well as other educational facilities in the two sets of schools are comparable. It is obvious that absolute equality of physical facilities is impossible of attainment in buildings that are erected at different times. So also absolute equality of subjects taught is impossible of maintenance when teachers are permitted to select books of their own choosing to use in teaching in addition to the prescribed courses of study. It is without dispute that the prescribed courses of study are identical in all of the Topeka schools and that there is no discrimination in this respect. It is also clear in the record that the educational qualifications of the teachers in the colored schools are equal to those in the white schools and that in all other respects the educational facilities and services are comparable. It is obvious from the fact that there are only four colored schools as against eighteen white schools as against eighteen white schools in the Topeka School District, that colored children in many instances are required to travel much greater distances than they would be required to travel could they attend a white school, and are required to travel much greater distances than white children are required to travel. The evidence, however, establishes that the school district transports colored children to and from school free of charge. No such service is furnished to white children. We conclude that in the maintenance and operation of the schools there is no willful, intentional or substantial discrimination in the matters referred to above between the colored and white schools. In fact, while plaintiffs’ attorneys have not abandoned this contention, they did not give it great emphasis in their presentation before the court. They relied primarily upon the contention that segregation in and of itself without more violates their rights guaranteed by the Fourteenth Amendment. This contention poses a question not free from difficulty. As a subordinate court in the G A L E
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federal judicial system, we seek the answer to this constitutional question in the decisions of the Supreme Court when it has spoken on the subject and do not substitute our own views for the declared law by the Supreme Court. The difficult question as always is to analyze the decisions and seek to ascertain the trend as revealed by the later decisions. There are a great number of cases, both federal and state, that have dealt with the many phases of segregation. Since the question involves a construction and interpretation of the federal Constitution and the pronouncements of the Supreme Court. we will consider only those cases by the Supreme Court with respect to segregation in the schools. In the early case of Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138. 1140, 41 L.Ed. 256, the Supreme Court said: “The object of the amendment was undoubtedly to enforce the absolute equality of the two races before the law, but, in the nature of things, it could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political equality, or a commingling of the two races upon terms unsatisfactory to either. Laws permitting, and even requiring, their separation, in places where they are liable to be brought into contact, do not necessarily imply the inferiority of either race to the other, and have been generally, if not universally, recognized as within the competency of the state legislatures in the exercise of their police power. The most common instance of this is connected with the establishment of separate schools for white an colored children, which has been held to be a valid exercise of the legislative power even by courts of states where the political rights of the colored race have been longest and most earnestly enforced.” It is true as contended by plaintiffs that the Plessy case involved transportation and that the above quoted statement relating to schools was not essential to the decision of the question before the court and was therefore somewhat in the nature of dicta. But that the statement is considered more than dicta is evidenced by the treatment accorded it by those seeking to strike down segregation as well as by statements in subsequent decisions of the Supreme Court. On numerous occasions the Supreme Court has been asked to overrule the Plessy case. This is the Supreme Court has refused to do, on the A M E R I C A N
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sole ground that a decision of the question was not necessary to a disposal of the controversy presented. In the late case of Sweatt v. Painter, 339 U.S. 629, 70 S.Ct. 848, 851, 94 L.Ed. 1114, the Supreme Court again refused to review the Plessy case. The Court said: “Nor need we reach petitioner’s contention that Plessy v Ferguson should be reexamined in the light of contemporary knowledge respecting the purposes of the Fourteenth Amendment and the effects of racial segregation.” Gong Lum v. Rice, 275 U.S. 78, 48 S.Ct. 91, 93, 72 L.Ed. 172, was a grade school segregation case. It involved the segregation law of Mississippi. Gong Lum was a Chinese child and, because of color, was required to attend the separate schools provided for colored children. The opinion of the court assumes that the educational facilities in the colored schools were adequate and equal to those of the white schools. Thus the court said: “The question here is whether a Chinese citizen of the United States is denied equal protection of the laws when he is classed among the colored races and furnished facilities for education equal to that offered to all, whether white, brown, yellow, or black.” In addition to numerous state decisions on the subject, the Supreme Court in support of its conclusions cited Plessy v. Ferguson, supra. The Court also pointed out that the question was the same no matter what the color of the class that was required to attend separate schools. Thus the Court said: “Most of the cases cited arose, it is true, over the establishment of separate schools as between white pupils and black pupils; but we cannot think that the question is any different, or that any different result can be reached, assuming the cases above cited to be rightly decided, where the issue is as between white pupils and the pupils of the yellow races.” The court held that the question of segregation was within the discretion of the state in regulating it public schools and did not conflict with the Fourteenth Amendment. It is vigorously argued and not without some basis therefore that the later decisions of the Supreme Court in McLaurin v. Oklahoma, 339 U.S. 637, 70 S.Ct. 851, 84 L.Ed. 1149, and Sweatt v. Painter, 339 U.S. 629, 70 S.Ct. 848, 94 L.Ed. 1114, show a trend away from the Plessy and Lum cases. McLaurin v. Oklahoma arose under the segregation laws of Oklahoma. G A L E
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McLaurin, a colored student, applied for admission to the University of Oklahoma in order to pursue studies leading to a doctorate degree in education. He was denied admission solely because he was a Negro. After litigation in the courts, which need not be reviewed herein, the legislature amended the statute permitting the admissions of colored students to institutions of higher learning attended by white students, but providing that such instruction should be given on a segregated basis; that the instruction be given in separate class rooms or at separate times. In compliance with this statute McLaurin was admitted to the university but was required to sit at a separate desk in the ante room adjoining the class room; to sit at a designated desk on the mezzanine floor of the library and to sit at a designated table and eat at a different time from the other students in the school cafeteria. These restrictions were held to violate his rights under the federal Constitution. The Supreme Court held that such treatment handicapped the student in his pursuit of effective graduate instruction.1 In Sweatt v. Painter, 339 U.S. 629, 70 S.Ct. 848, 850, 94 L.Ed. 1114, petitioner, a colored student, filed an application for admission to the University of Texas Law School. His application was rejected solely on the ground that he was a Negro. In its opinion the Supreme Court stressed the educational benefits from commingling with white students. The court concluded by stating: “we cannot conclude that The court said: “Our society grows increasingly complex, and our need for trained leaders increases correspondingly. Appellant’s case represents, perhaps, the epitome of that need, for he is attempting to obtain an advanced degree in education, to become, by definition, a leader and trainer of others. Those who will come under his guidance and influence must be directly affected by the education he receives. Their own education and development will necessarily suffer to the extent that his training is unequal to that of his classmates. State-imposed restrictions which produce such inequalities cannot be sustained. “It may be argued that appellant will be in no better position when these restrictions are removed, for he may still be set apart by his fellow students. This we think irrelevant. There is a vast difference—a Constitutional difference—between restrictions imposed by the state which prohibit the intellectual commingling of students, and the refusal of individuals to commingle where the state presents no such bar. * * * having been admitted to a statedsupported graduate school, (he), must receive the same treatment at the hands of the state as students of other races.” [339 U.S. 637, 70 S.Ct. 853.] 1
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the education offered petitioner [in a separate school] is substantially equal to that which he would receive if admitted to the University of Texas Law School.” If segregation within a school as in the McLaurin case is a denial of due process, it is difficult to see why segregation in separate schools would not result in the same denial. Or if the denial of the right to commingle with the majority group in higher institutions of learning as in the Sweatt case and gain the educational advantages resulting therefrom, is lack of due process, it is difficult to see why such denial would not result in the same lack of due process if practiced in the lower grade. It must however be remembered that in both of these cases the Supreme Court made it
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clear that it was confining itself to answering the one specific question, namely: “To what extent does the Equal Protection Clause * * * limit the power of a state to distinguish between students of different races in professional and graduate education in a state university?”, and that the Supreme Court refused to review the Plessy case because that question was not essential to a decision of the controversy in the case. [2] We are accordingly of the view that the Plessy and Lum cases, supra, have not been overruled and that they still presently are authority for the maintenance of a segregated school system in the lower grades. The prayer for relief will be denied and judgment will be entered for defendants for costs.
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In the Supreme Court of the United States October Term, 1952
U.S. SUPREME COURT, OCTOBER 1952
Conclusion
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BRIEF FOR APPELLANTS
OPINION BELOW NO. 8 OLIVER BROWN, MRS. RICHARD LAWTON, MRS. SADIE EMMANUEL, ET AL., APPELLANTS, V. BOARD OF EDUCATION OF TOPEKA, SHAWNEE COUNTY, KANSAS, ET AL.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS BRIEF FOR APPELLANTS WILLIAM T. COLEMAN JR., GEORGE E. C. HAYES, GEORGE M. JOHNSON,
JAMES M. NABRIT JR., FRANK D. REEVES, JOHN SCOTT,
The judgment of the court below was entered on August 3, 1951 (R. 247). On October 1, 1951, appellants filed a petition for appeal (R. 248), and an order allowing the appeal was entered (R. 250). Probable jurisdiction was noted on June 9, 1952 (R. 254). Jurisdiction of this Court rests on Title 28, United States Code, §§ 1253 and 2201(b).
2. Whether the finding of the court below— that racial segregation in public elementary schools has the detrimental effect of retarding the mental and educational development of colored children and connotes governmental acceptance of the conception of racial inferio rity—compels the conclusion that appellants here are deprived of their rights to share equally in educational opportunities in violation of the equal protection clause of the Fourteenth Amendment.
JACK B. WEINSTEIN, OF COUNSEL. ROBERT L. CARTER, THURGOOD MARSHALL, SPOTTSWOOD W. ROBINSON III, CHARLES S. SCOTT, Counsel for Appellants.
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TABLE OF CONTENTS
Opinion Below Jurisdiction Questions Presented
THE LAW OF KANSAS AND THE STATUTE INVOLVED
The Law of Kansas and the Statute Involved Statement of the Case Specifications of Error Summary of Argument Argument I. The State of Kansas in affording opportunities for elementary education to its citizens has no power under the Constitution of the United States to impose racial restrictions and distinctions II. The court below, having found that appellants were denied equal educational opportunities by virtue of the segregated school system, erred in denying the relief prayed
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JURISDICTION
1. Whether the State of Kansas has power to enforce a state statute pursuant to which racially segregated public elementary schools are maintained.
CONSTANCE BAKER MOTLEY,
G A L E
The opinion of the statutory three-judgeDistrict Court for the District of Kansas (R. 238244) is reported at 98 F. Supp. 797.
QUESTIONS PRESENTED
WILLIAM R. MING JR.,
O F
All boards of education, superintendents of schools and school districts in the state are prohibited from using race as a factor in affording educational opportunities in the public schools within their respective jurisdictions unless expressly empowered to do so by statute. Knox v. Board of Education, 54 K. 152, 25 P. 616 (1891); Cartwright v. Board of Education, 73 K. 32, 84 P. 382 (1906); Rowles v. Board of Education, 76 K. 361, 91 P. 88 (1907); Woolridge, et al. v. Board of Education, 98 K. 397, 157 P. 1184 (1916); Thurman-Watts v. Board of A M E R I C A N
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Education, 115 K. 328, 222 P. 123 (1924); Webb v. School District, 167 K. 395, 206 P. 2d 1066 (1949). Segregated elementary schools in cities of the first class are maintained solely pursuant to authority of Chapter 72-1724 of the General Statutes of Kansas, 1949, which reads as follows: “Powers of board; separate schools for white and colored children; manual training. The board of education shall have power to elect their own officers, make all necessary rules for the government of the schools of such city under its charge and control and of the board, subject to the provisions of this act and the laws of this state; to organize and maintain separate schools for the education of white and colored children, including the high schools in Kansas City, Kans.; no discrimination on account of color shall be made in high schools except as provided herein; to exercise the sole control over the public schools and school property of such city; and shall have the power to establish a high school or high schools in connection with manual training and instruction or otherwise, and to maintain the same as a part of the public-school system of said city. (G. S. 1868, Ch. 18, § 75; L. 1879, Ch. 81, § 1; L. 1905, Ch. 414, § 1; Feb. 28; R. S. 1923, § 72-1724.)” STATEMENT OF THE CASE
For elementary school purposes, the City of Topeka is divided into 18 geographical divisions designated as territories (R. 24). In each of these territories one elementary school services white children exclusively (R. 24). In addition, four schools are maintained for the use of Negro children exclusively (R. 11, 12). These racial distinctions are enforced pursuant to the statute. In accordance with the terms of the E N C Y C L O P E D I A
On March 22, 1951, appellants instituted the instant action seeking to restrain the enforcement, operation and execution of the statute on the ground that it deprived them of equal educational opportunities within the meaning of the Fourteenth Amendment (R. 2-7). In their answer, appellees admitted that they acted pursuant to the statute, and that infant appellants were not eligible to attend any of the 18 white elementary schools solely because of their race and color (R. 12). The Attorney General of the State of Kansas filed a separate answer for the specific purpose of defending the constitutional validity of the statute in question (R. 14). Thereupon, the court below was convened in accordance with Title 28, United States Code, § 2284. On June 25-26, a trial on the merits took place (R. 63 et seq.). On August 3, 1951, the court below filed its opinion (R. 238-244), its findings of fact (R. 244-246), and conclusions of law (R. 246-247), and entered a final judgment and decree in appellees’ favor denying the injunctive relief sought (R. 247). SPECIFICATIONS OF ERROR
Appellants are of Negro origin and are citizens of the United States and of the State of Kansas (R. 3-4). Infant appellants are children eligible to attend and are now attending elementary schools in Topeka, Kansas, a city of the first class within the meaning of Chapter 72-1724, General Statutes of Kansas, 1949, hereinafter referred to as the statute. Adult appellants are parents of minor appellants and are required by law to send their respective children to public schools designated by appellees (R. 3-4). Appellees are state officers empowered by state law to maintain and operate the public schools of Topeka, Kansas.
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statute there is no segregation of Negro and white children in junior and senior high schools (R. 12).
O F
The District Court erred: 1. In refusing to grant appellants’ application for a permanent injunction to restrain appellees from acting pursuant to the statute under which they are maintaining separate public elementary schools for Negro children solely because of their race and color. 2. In refusing to hold that the State of Kansas is without authority to promulgate the statute because it enforces a classification based upon race and color which is violative of the Constitution of the United States. 3. In refusing to enter judgment in favor of appellants after finding that enforced attendance at racially segregated elementary schools was detrimental and deprived them of educational opportunities equal to those available to white children. SUMMARY OF ARGUMENT
The Fourteenth Amendment precludes a state from imposing distinctions or classifications based upon race and color alone. The State A M E R I C A N
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of Kansas has no power thereunder to use race as a factor in affording educational opportunities to its citizens. Racial segregation in public schools reduces the benefits of public education to one group solely on the basis of race and color and is a constitutionally proscribed distinction. Even assuming that the segregated schools attended by appellants are not inferior to other elementary schools in Topeka with respect to physical facilities, instruction and courses of study, unconstitutional inequality inheres in the retardation of intellectual development and distortion of personality which Negro children suffer as a result of enforced isolation in school from the general public school population. Such injury and inequality are established as facts on this appeal by the uncontested findings of the District Court. The District Court reasoned that it could not rectify the inequality that it had found because of this Court’s decisions in Plessy v. Ferguson, 163 U.S. 537 and Gong Lum v. Rice, 275 U.S. 78. This Court has already decided that the Plessy case is not in point. Reliance upon Gong Lum v. Rice is mistaken since the basic assumption of that case is the existence of equality while no such assumption can be made here in the face of the established facts. Moreover, more recent decisions of this Court, most notably Sweatt v. Painter, 339 U.S. 629 and McLaurin v. Board of Regents, 339 U.S. 637, clearly show that such hurtful consequences of segregated schools as appear here constitute a denial of equal educational opportunities in violation of the Fourteenth Amendment. Therefore, the court below erred in denying the relief prayed by appellants. ARGUMENT
I. The State of Kansas in affording opportunities for elementary education to its citizens has no power under the Constitution of the United States to impose racial restrictions and distinctions While the State of Kansas has undoubted power to confer benefits or impose disabilities upon selected groups of citizens in the normal execution of governmental functions, it must conform to constitutional standards in the exercise of this authority. These standards may be generally characterized as a requirement that the state’s action be reasonable. Reasonableness G A L E
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in a constitutional sense is determined by examining the action of the state to discover whether the distinctions or restrictions in issue are in fact based upon real differences pertinent to a lawful legislative objective. Bain Peanut Co. v. Pinson, 282 U.S. 499; Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61; Asbury Hospital v. Cass County, 326 U.S. 207; Metropolitan Casualty Insurance Co. v. Brownell, 294 U.S. 580; Dominion Hotel v. Arizona, 249 U.S. 265. When the distinctions imposed are based upon race and color alone, the state’s action is patently the epitome of that arbitrariness and capriciousness constitutionally impermissive under our system of government. Yick Wo v. Hopkins, 118 U.S. 356; Skinner v. Oklahoma, 316 U.S. 535. A racial criterion is a constitutional irrelevance, Edwards v. California, 314 U.S. 160, 184, and is not saved from condemnation even though dictated by a sincere desire to avoid the possibility of violence or race friction. Buchanan v. Warley, 245 U.S. 60; Morgan v. Virginia, 328 U.S. 373. Only because it was a war measure designed to cope with a grave national emergency was the federal government permitted to level restrictions against persons of enemy descent. Hirabayashi v. United States, 320 U.S. 81; Oyama v. California, 332 U.S. 633. This action, “odious,” Hirabayashi v. United States, supra, at page 100, and “suspect,” Korematsu v. United States, 323 U.S. 214, 216, even in times of national peril, must cease as soon as that peril is past. Ex Parte Endo, 323 U.S. 283. This Court has found violation of the equal protection clause in racial distinctions and restrictions imposed by the states in selection for jury service, Shepherd v. Florida, 341 U.S. 50; ownership and occupancy of real property, Shelley v. Kramer, 334 U.S. 1; Buchanan v. Warley, supra; gainful employment, Takahashi v. Fish and Game Commission, 334 U.S. 410; voting, Nixon v. Condon, 286 U.S. 73; and graduate and professional education. McLaurin v. Board of Regents, supra; Sweatt v. Painter, supra. The commerce clause in proscribing the imposition of racial distinctions and restrictions in the field of interstate travel is a further limitation of state power in this regard. Morgan v. Virginia, 328 U.S. 373. Since 1940, in an unbroken line of decisions, this Court has clearly enunciated the doctrine that the state may not validly impose distinctions and restrictions among its citizens A M E R I C A N
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based upon race or color alone in each field of governmental activity where question has been raised. Smith v. Allwright, 321 U.S. 649; Sipuel v. Board of Education, 332 U.S. 631; Sweatt v. Painter, supra; Pierre v. Louisiana, 306 U.S. 354; Hill v. Texas, 316 U.S. 400; Morgan v. Virginia, supra; McLaurin v. Board of Regents, supra; Oyama v. California, supra; Takahashi v. Fish and Game Commission, supra; Shelley v. Kraemer, supra; Shepherd v. Florida, supra; Cassell v. Texas, 339 U.S. 282. On the other hand, when the state has sought to protect its citizenry against racial discrimination and prejudice, its action has been consistently upheld, Railway Mail Association v. Corsi, 326 U.S. 88, even though taken in the field of foreign commerce. Bob-Lo Excursion Co. v. Michigan, 333 U.S. 28. It follows, therefore, that under this doctrine, the State of Kansas which by statutory sanctions seeks to subject appellants, in their pursuit of elementary education, to distinctions based upon race or color alone, is here attempting to exceed the constitutional limits to its authority. For that racial distinction which has been held arbitrary in so many other areas of governmental activity is no more appropriate and can be no more reasonable in public education.
society in which they live (R. 216); to develop citizenship skills; and to adjust themselves personally and socially in a setting comprising a cross-section of the dominant population (R. 132). The testimony further developed the fact that the enforcement of segregation under law denies to the Negro status, power and privilege (R. 176); interferes with his motivation for learning (R. 171); and instills in him a feeling of inferiority (R. 169) resulting in a personal insecurity, confusion and frustration that condemns him to an ineffective role as a citizen and member of society (R. 165). Moreover, it was demonstrated that racial segregation is supported by the myth of the Negro’s inferiority (R. 177), and where, as here, the state enforces segregation, the community at large is supported in or converted to the belief that this myth has substance in fact (R. 156, 169, 177). It was testified that because of the peculiar educational system in Kansas that requires segregation only in the lower grades, there is an additional injury in that segregation occurring at an early age is greater in its impact and more permanent in its effects (R. 172) even though there is a change to integrated schools at the upper levels.
II. The court below, appellants were denied opportunities by virtue school system, erred in prayed The court below finding of fact:
That these conclusions are the consensus of social scientists is evidenced by the appendix filed herewith. Indeed, the findings of the court that segregation constitutes discrimination are supported on the face of the statute itself where it states that: “* * * no discrimination on account of color shall be made in high schools except as provided herein * * *” (emphasis supplied).
having found that equal educational of the segregated denying the relief made the following
“Segregation of white and colored children in public schools has a detrimental effect upon the colored children. The impact is greater when it has the sanction of the law; for the policy of separating the races is usually interpreted as denoting the inferiority of the negro group. A sense of inferiority affects the motivation of a child to learn. Segregation with the sanction of law, therefore, has a tendency to retard the educational and mental development of negro children and to deprive them of some of the benefits they would receive in a racially integrated school system.”
This finding is based upon uncontradicted testimony that conclusively demonstrates that racial segregation injures infant appellants in denying them the opportunity available to all other racial groups to learn to live, work and cooperate with children representative of approximately 90% of the population of the G A L E
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Under the Fourteenth Amendment equality of educational opportunities necessitates an evaluation of all factors affecting the educational process. Sweatt v. Painter, supra; McLaurin v. Board of Regents, supra. Applying this yardstick, any restrictions or distinction based upon race or color that places the Negro at a disadvantage in relation to other racial groups in his pursuit of educational opportunities is violative of the equal protection clause. In the instant case, the court found as a fact that appellants were placed at such a disadvantage and were denied educational opportunities equal to those available to white students. It necessarily follows, therefore, that the court should have concluded as a matter of law that A M E R I C A N
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appellants were deprived of their right to equal educational opportunities in violation of the equal protection clause of the Fourteenth Amendment.
one “which has been many times decided to be within the constitutional power of the state” and, therefore, did not “call for very full argument and consideration.”
Under the mistaken notion that Plessy v. Ferguson and Gong Lum v. Rice were controlling with respect to the validity of racial distinctions in elementary education, the trial court refused to conclude that appellants were here denied equal educational opportunities in violation of their constitutional rights. Thus, notwithstanding that it had found inequality in educational opportunity as a fact, the court concluded as a matter of law that such inequality did not constitute a denial of constitutional rights, saying:
In short, she raised no issue with respect to the state’s power to enforce racial classifications, as do appellants here. Rather, her objection went only to her treatment under the classification. This case, therefore, cannot be pointed to as a controlling precedent covering the instant case in which the constitutionality of the system itself is the basis for attack and in which it is shown the inequality in fact exists.
“Plessy v. Ferguson, 163 U.S. 537, and Gong Lum v. Rice, 275 U.S. 78, uphold the constitutionality of a legally segregated school system in the lower grades and no denial of due process results from the maintenance of such a segregated system of schools absent discrimination in the maintenance of the segregated schools. We conclude that the above-cited cases have not been overruled by the later case of McLaurin v. Oklahoma, 339 U.S. 637, and Sweatt v. Painter, 339 U.S. 629.”
Plessy v. Ferguson is not applicable. Whatever doubts may once have existed in this respect were removed by this Court in Sweatt v. Painter, supra, at page 635, 636. Gong Lum v. Rice is irrelevant to the issues in this case. There, a child of Chinese parentage was denied admission to a school maintained exclusively for white children and was ordered to attend a school for Negro children. The power of the state to make racial distinctions in its school system was not in issue. Petitioner contended that she had a constitutional right to go to school with white children, and that in being compelled to attend school with Negroes, the state had deprived her of the equal protection of the laws. Further, there was no showing that her educational opportunities had been diminished as a result of the state’s compulsion, and it was assumed by the Court that equality in fact existed. There the petitioner was not inveighing against the system, but that its application resulted in her classification as a Negro rather than as a white person, and indeed by so much conceded the propriety of the system itself. Were this not true, this Court would not have found basis for holding that the issue raised was G A L E
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In any event the assumptions in the Gong Lum case have since been rejected by this Court. In the Gong Lum case, without “full argument and consideration,” the Court assumed the state had power to make racial distinctions in its public schools without violating the equal protection clause of the Fourteenth Amendment and assumed the state and lower federal court cases cited in support of this assumed state power had been correctly decided. Language in Plessy v. Ferguson was cited in support of these assumptions. These assumptions upon full argument and consideration were rejected in the McLaurin and Sweatt cases in relation to racial distinctions in state graduate and professional education. And, according to those cases, Plessy v. Ferguson is not controlling for the purpose of determining the state’s power to enforce racial segregation in public schools. Thus, the very basis of the decision in the Gong Lum case has been destroyed. We submit, therefore, that this Court has considered the basic issue involved here only in those cases dealing with racial distinctions in education at the graduate and professional levels. Missouri ex rel. Gaines v. Canada, 305 U.S. 337; Sipuel v. Board of Education, supra; Fisher v. Hurst, 333 U.S. 147; Sweatt v. Painter, supra; McLaurin v. Board of Regents, supra. In the McLaurin and Sweatt cases, this Court measured the effect of racial restrictions upon the educational development of the individual affected, and took into account the community’s actual evaluation of the schools involved. In the instant case, the court below found as a fact that racial segregation in elementary education denoted the inferiority of Negro children and retarded their educational and mental development. Thus the same factors A M E R I C A N
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which led to the result reached in the McLaurin and Sweatt cases are present. Their underlying principles, based upon sound analyses, control the instant case.
GEORGE E. C. HAYES, GEORGE M. JOHNSON, WILLIAM R. MING JR., CONSTANCE BAKER MOTLEY, JAMES M. NABRIT JR.,
CONCLUSION
FRANK D. REEVES,
In light of the foregoing, we respectfully submit that appellants have been denied their rights to equal educational opportunities within the meaning of the Fourteenth Amendment and that the judgment of the court below should be reversed.
JOHN SCOTT, JACK B. WEINSTEIN,
of Counsel.
ROBERT L. CARTER, THURGOOD MARSHALL, SPOTTSWOOD W. ROBINSON III, CHARLES S. SCOTT,
Counsel for Appellants.
WILLIAM T. COLEMAN JR., JACK GREENBERG,
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In the Supreme Court of the United States October Term, 1952 No. 8 OLIVER BROWN, MRS. RICHARD LAWTON, MRS. SADIE EMMANUEL, ET AL., APPELLANTS, VS. BOARD OF EDUCATION OF TOPEKA, SHAWNEE COUNTY, KANSAS, ET AL., APPELLEE
NO. 101 HARRY BRIGGS, JR., ET AL., APPELLANTS, VS. R. W. ELLIOTT, CHAIRMAN, J. D. CARSON, ET AL., MEMBERS OF BOARD OF TRUSTEES OF SCHOOL DISTRICT NO. 22, CLARENDON COUNTY, S.C., ET AL., APPELLEE
NO. 191
DOROTHY E. DAVIS, BERTHA M. DAVIS AND INEZ D. DAVIS, ETC., ET AL., APPELLANTS VS. COUNTY SCHOOL BOARD OF PRINCE EDWARD COUNTY, VIRGINIA, ET AL., APPELLEE Appendix to Appellants’ Briefs
THE EFFECTS OF SEGREGATION AND THE CONSEQUENCES OF DESEGREGATION: A SOCIAL SCIENCE STATEMENT STATEMENT OF COUNSEL
The following statement was drafted and signed by some of the foremost authorities in sociology, anthropology, psychology and psychiatry who have worked in the area of American race relations. It represents a consensus of social scientists with respect to the issue presented in these appeals. As a summary of the best available scientific evidence relative to the effects of racial segregation on the individual, we file it herewith as an appendix to our briefs. ROBERT L. CARTER, THURGOOD MARSHALL, SPOTTSWOOD W. ROBINSON III, COUNSEL FOR APPELLANTS.
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The problem of the segregation of racial and ethnic groups constitutes one of the major problems facing the American people today. It G A L E
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seems desirable, therefore, to summarize the contributions which contemporary social science can make toward its resolution. There are, of course, moral and legal issues involved with respect to which the signers of the present statement cannot speak with any special authority and which must be taken into account in the solution of the problem. There are, however, also factual issues involved with respect to which certain conclusions seem to be justified on the basis of the available scientific evidence. It is with these issues only that this paper is concerned. Some of the issues have to do with the consequences of segregation, some with the problems of changing from segregated to unsegregated practices. These two groups of issues will be dealt with in separate sections below. It is necessary, first, however, to define and delimit the problem to be discussed. Definitions For purposes of the present statement, segregation refers to that restriction of opportunities for different types of associations between the members of one racial, religious, nationalb or geographic origin, or linguistic group and those of other groups, which results from or is supported by the action of any official body or agency representing some branch of government. We are not here concerned with such segregation as arises from the free movements of individuals which are neither enforced nor supported by official bodies, nor with the segregation of criminals or of individuals with communicable diseases which aims at protecting society from those who might harm it. Where the action takes place in a social milieu in which the groups involved do not enjoy equal social status, the group that is of lesser social status will be referred to as the segregated group. In dealing with the question of the effects of segregation, it must be recognized that these effects do not take place in a vacuum, but in a social context. The segregation of Negroes and of other groups in the United States takes place in a social milieu in which “race” prejudice and discrimination exist. It is questionable in the view of some students of the problem whether it is possible to have segregation without substantial discrimination. Myrdal1 states: “Segregation * * * is financially possible and, indeed, a device of economy only as it is combined with
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Myrdal, G., An American Dilemma, 1944.
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substantial discrimination” (p. 629). The im bed ed ness of segregation in such a context makes it difficult to disentangle the effects of segregation per se from the effects of the context. Similarly, it is difficult to disentangle the effects of segregation from the effects of a pattern of social disorganization commonly associated with it and reflected in high disease and mortality rates, crime and delinquency, poor housing, disrupted family life and general substandard living conditions. We shall, however, return to this problem after consideration of the observable effects of the total social complex in which segregation is a major component. II
At the recent Mid-century White House Conference on Children and Youth, a factfinding report on the effects of prejudice, discrimination and segregation on the personality development of children was prepared as a basis for some of the deliberations.2 This report brought together the available social science and psychological studies which were related to the problem of how racial and religious prejudices influenced the development of a healthy personality. It highlighted the fact that segregation, prejudices and discriminations, and their social concomitants potentially damage the personality of all children—the children of the majority group in a somewhat different way than the more obviously damaged children of the minority group. The report indicates that as minority group children learn the inferior status to which they are assigned—as they observe the fact that they are almost always segregated and kept apart from others who are treated with more respect by the society as a whole—they often react with feelings of inferiority and a sense of personal humiliation. Many of them become confused about their own personal worth. On the one hand, like all other human beings they require a sense of personal dignity; on the other hand, almost nowhere in the larger society do they find their own dignity as human beings 2
Clark, K. B., Effect of Prejudice and Discrimination on Personality Development, Fact Finding Report Mid-century White House Conference on Children and Youth, Children’s Bureau, Federal Security Agency, 1950 (mimeographed).
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respected by others. Under these conditions, the minority group child is thrown into a conflict with regard to his feelings about himself and his group. He wonders whether his group and he himself are worthy of no more respect than they receive. This conflict and confusion leads to selfhatred and rejection of his own group. The report goes on to point out that these children must find ways with which to cope with this conflict. Not every child, of course, reacts with the same patterns of behavior. The particular pattern depends upon many interrelated factors, among which are: the stability and quality of his family relations; the social and economic class to which he belongs; the cultural and educational background of his parents; the particular minority group to which he belongs; his personal characteristics, intelligence, special talents, and personality pattern. Some children, usually of the lower socioeconomic classes, may react by overt aggressions and hostility directed toward their own group or members of the dominant group.3 Anti-social and delinquent behavior may often be interpreted as reactions to these racial frustrations. These reactions are self-destructive in that the larger society not only punishes those who commit them, but often interprets such aggressive and anti-social behavior as justification for continuing prejudice and segregation. Middle class and upper class minority group children are likely to react to their racial frustrations and conflicts by withdrawal and submissive behavior. Or, they may react with compensatory and rigid conformity to the prevailing middle class values and standards and an aggressive determination to succeed in these terms in spite of the handicap of their minority status. The report indicates that minority group children of all social and economic classes often react with a generally defeatist attitude and a lowering of personal ambitions. This, for 3
Brenman, M., The Relationship Between Minority Group Identification in A Group of Urban Middle Class Negro Girls, J. Soc. Psychol., 1940, 11, 171-197; Brenman, M., Minority Group Membership and Religious, Psychosexual and Social Patterns in A Group of Middle-Class Negro Girls, J. Soc. Psychol, 1940, 12, 179-196; Brenman, M., Urban Lower-Class Negro Girls, Psychiatry, 1943, 6, 307-324; Davis, A., The Socialization of the American Negro Child and Adolescent, J. Negro Educ., 1939, 8, 264-275.
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example, is reflected in a lowering of pupil morale and a depression of the educational aspiration level among minority group children in segregated schools. In producing such effects, segregated schools impair the ability of the child to profit from the educational opportunities provided him. Many minority group children of all classes also tend to be hypersensitive and anxious about their relations with the larger society. They tend to see hostility and rejection even in those areas where these might not actually exist. The report concludes that while the range of individual differences among members of a rejected minority group is as wide as among other peoples, the evidence suggests that all of these children are unnecessarily encumbered in some ways by segregation and its concomitants. With reference to the impact of segregation and its concomitants on children of the majority group, the report indicates that the effects are somewhat more obscure. Those children who learn the prejudices of our society are also being taught to gain personal status in an unrealistic and non-adaptive way. When comparing themselves to members of the minority group, they are not required to evaluate themselves in terms of the more basic standards of actual personal ability and achievement. The culture permits and, at times, encourages them to direct their feelings of hostility and aggression against whole groups of people the members of which are perceived as weaker than themselves. They often develop patterns of guilt feelings, rationalizations and other mechanisms which they must use in an attempt to protect themselves from recognizing the essential injustice of their unrealistic fears and hatreds of minority groups.4 The report indicates further that confusion, conflict, moral cynicism, and disrespect for authority may arise in majority group children as a consequence of being taught the moral, religious and democratic principles of the brotherhood of man and the importance of justice and fair play by the same persons and institutions who, in their support of racial segregation and related practices, seem to be acting in a prejudiced and discriminatory 4 Adorno, T. W.; Frenkel-Brunswik, E.; Levinson, D. J.; Sanford, R. N., The Authoritarian Personality, 1951.
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manner. Some individuals may attempt to resolve this conflict by intensifying their hostility toward the minority group. Others may react by guilt feelings which are not necessarily reflected in more humane attitudes toward the minority group. Still others react by developing an unwholesome, rigid, and uncritical idealization of all authority figures—their parents, strong political and economic leaders. As described in The Authoritarian Personality,5 they despise the weak, while they obsequiously and unquestioningly conform to the demands of the strong whom they also, paradoxically, subconsciously hate. With respect to the setting in which these difficulties develop, the report emphasized the role of the home, the school, and other social institutions. Studies6 have shown that from the earliest school years children are not only aware of the status differences among different groups in the society but begin to react with the patterns described above. Conclusions similar to those reached by the Mid-century White House Conference Report have been stated by other social scientists who have concerned themselves with this problem. The following are some examples of these conclusions: Segregation imposes upon individuals a distorted sense of social reality.7 Segregation leads to a blockage in the communications and interaction between the two groups. Such blockages tend to increase mutual suspicion, distrust and hostility.8 Segregation not only perpetuates rigid stereotypes and reinforces negative attitudes 5 Adorno, T. W.; Frenkel-Brunswik, E.; Levinson, D. J.; Sanford, R. N., The Authoritarian Personality, 1951. 6 Clark, K. B. & Clark, M. P., Emotional Factors in Racial Identification and Preference in Negro Children, J. Negro Educ., 1950, 19, 341-350; Clark, K. B. & Clark, M. P., Racial Identification and Preference in Negro Children, Readings in Social Psychology, Ed. by Newcomb & Hartley, 1947; Radke, M.; Trager, H.; Davis, H., Social Perceptions and Attitudes of Children, Genetic Psychol. Monog., 1949, 40, 327-447; Radke, M.; Trager, H.; Children’s Perceptions of the Social Role of Negroes and Whites, J. Psychol., 1950, 29, 3-33. 7 Reid, Ira, What Segregated Areas Mean; Brameld, T., Educational Cost, Discrimination and National Welfare, Ed. by MacIver, R. M., 1949. 8 Frazier, E., The Negro in the United States, 1949; Krech, D. & Crutchfield, R. S., Theory and Problems of Social Psychology, 1948; Newcomb, T., Social Psychology, 1950.
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toward members of the other group, but also leads to the development of a social climate within which violent outbreaks of racial tensions are likely to occur.9 We return now to the question, deferred earlier, of what it is about the total society complex of which segregation is one feature that produces the effects described above—or, more precisely, to the question of whether we can justifiably conclude that, as only one feature of a complex social setting, segregation is in fact a significantly contributing factor to these effects. To answer this question, it is necessary to bring to bear the general fund of psychological and sociological knowledge concerning the role of various environmental influences in producing feelings of inferiority, confusions in personal roles, various types of basic personality structures and the various forms of personal and social disorganization. On the basis of this general fund of knowledge, it seems likely that feelings of inferiority and doubts about personal worth are attributable to living in an underprivileged environment only insofar as the latter is itself perceived as an indicator of low social status and as a symbol of inferiority. In other words, one of the important determinants in producing such feelings is the awareness of social status difference. While there are many other factors that serve as reminders of the differences in social status, there can be little doubt that the fact of enforced segregation is a major factor.10 This seems to be true for the following reasons among others: (1) because enforced segregation results from the decision of the majority group without the consent of the segregated and is commonly so perceived; and (2) because historically segregation patterns in the United States were developed on the assumption of the inferiority of the segregated. In addition, enforced segregation gives official recognition and sanction to these other factors of the social complex, and thereby enhances the effects of the latter in creating the awareness of social status differences and feelings of inferiority.11 The child who, for
example, is compelled to attend a segregated school may be able to cope with ordinary expressions of prejudice by regarding the prejudiced person as evil or misguided; but he cannot readily cope with symbols of authority, the full force of the authority of the State—the school or the school board, in this instance—in the same manner. Given both the ordinary expression of prejudice and the school’s policy of segregation, the former takes on greater force and seemingly becomes an official expression of the latter. Not all of the psychological traits which are commonly observed in the social complex under discussion can be related so directly to the awareness of status differences—which in turn is, as we have already noted, materially contributed to by the practices of segregation. Thus, the low level of aspiration and defeatism so commonly observed in segregated groups is undoubtedly related to the level of self-evaluation; but it is also, in some measure, related among other things to one’s expectations with regard to opportunities for achievement and, having achieved, to the opportunities for making use of these achievements. Similarly, the hypersensitivity and anxiety displayed by many minority group children about their relations with the larger society probably reflects their awareness of status differences; but it may also be influenced by the relative absence of opportunities for equal status contact which would provide correctives for prevailing unrealistic stereotypes. The preceding view is consistent with the opinion stated by a large majority (90%) of social scientists who replied to a questionnaire concerning the probable effects of enforced segregation under conditions of equal facilities. This opinion was that, regardless of the facilities which are provided, enforced segregation is psychologically detrimental to the members of the segregated group.12 Similar considerations apply to the question of what features of the social complex of which segregation is a part contribute to the development of the traits which have been observed in majority group members. Some of these are probably quite closely related to the awareness
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Lee, A. McClung and Humphrey, N. D., Race Riot, 1943. Frazier, E., The Negro in the United States, 1949; Myrdal, G., An American Dilemma, 1944. 11 Reid, Ira, What Segregated Areas Mean, Discrimination and National Welfare, Ed. by MacIver, R. M., 1949. 10
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Deutscher, M. and Chein, I., The Psychological Effects of Enforced Segregation: A Survey of Social Science Opinion, J. Psychol., 1948, 26, 259-287.
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of status differences, to which, as has already been pointed out, segregation makes a material contribution. Others have a more complicated relationship to the total social setting. Thus, the acquisition of an unrealistic basis for selfevaluation as a consequence of majority group membership probably reflects fairly closely the awareness of status differences. On the other hand, unrealistic fears and hatreds of minority groups, as in the case of the converse phenomenon among minority group members, are probably significantly influenced as well by the lack of opportunities for equal status contact. With reference to the probable effects of segregation under conditions of equal facilities on majority group members, many of the social scientists who responded to the poll in the survey cited above felt that the evidence is less convincing than with regard to the probable effects of such segregation on minority group members, and the effects are possibly less widespread. Nonetheless, more than 80% stated it as their opinion that the effects of such segregation are psychologically detrimental to the majority group members.13 It may be noted that many of these social scientists supported their opinions on the effects of segregation on both majority and minority groups by reference to one or another or to several of the following four lines of published and unpublished evidence.14 First, studies of children throw light on the relative priority of the awareness of status differentials and related factors as compared to the awareness of differences in facilities. On this basis, it is possible to infer some of the consequences of segregation as distinct from the influence of inequalities of facilities. Second, clinical studies and depth interviews throw light on the genetic sources and causal sequences of various patterns of psychological reaction; and, again, certain inferences are possible with respect to the effects of segregation per se. Third, there actually are some relevant but relatively rare instances of segregation with equal or even superior facilities, as in the cases of certain Indian reservations. Fourth, since there are inequalities of
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Deutscher, M. and Chein, I., The Psychological Effects of Enforced Segregation: A Survey of Social Science Opinion, J. Psychol., 1948, 26, 259-287. 14 Chein, I., What Are the Psychological Effects of Segregation Under Conditions of Equal Facilities?, International J. Opinion and Attitude Res., 1949, 2, 229-234.
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facilities in racially and ethnically homogeneous groups, it is possible to infer the kinds of effects attributable to such inequalities in the absence of effects of segregation and, by a kind of subtraction to estimate the effects of segregation per se in situations where one finds both segregation and unequal facilities. III
Segregation is at present a social reality. Questions may be raised, therefore, as to what are the likely consequences of desegregation. One such question asks whether the inclusion of an intellectually inferior group may jeopardize the education of the more intelligent group by lowering educational standards or damage the less intelligent group by placing it in a situation where it is at a marked competitive disadvantage. Behind this question is the assumption, which is examined below, that the presently segregated groups actually are inferior intellectually. The available scientific evidence indicates that much, perhaps all, of the observable differences among various racial and national groups may be adequately explained in terms of environmental differences.15 It has been found, for instance, that the differences between the average intelligence test scores of Negro and white children decrease, and the overlap of the distributions increases, proportionately to the number of years that the Negro children have lived in the North.16 Related studies have shown that this change cannot be explained by the hypothesis of selective migration.17 It seems clear, therefore, that fears based on the assumption of innate racial differences in intelligence are not well founded. It may also be noted in passing that the argument regarding the intellectual inferiority of one group as compared to another is, as applied to schools, essentially an argument for homogeneous groupings of children by intelligence rather than by race. Since even those who believe that there are innate differences between Negroes and whites in America in average intelligence grant that considerable overlap 15 Klineberg, O., Characteristics of American Negro, 1945; Klineberg, O., Race Differences, 1936. 16 Klineberg, O., Negro Intelligence and Selective Migration, 1935. 17 Klineberg, O., Negro Intelligence and Selective Migration, 1935.
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between the two groups exists, it would follow that it may be expedient to group together the superior whites and Negroes, the average whites and Negroes, and so on. Actually, many educators have come to doubt the wisdom of class groupings made homogeneous solely on the basis of intelligence.18 Those who are opposed to such homogeneous grouping believe that this type of segregation, too, appears to create generalized feelings of inferiority in the child who attends a below average class, leads to undesirable emotional consequences in the education of the gifted child, and reduces learning opportunities which result from the interaction of individuals with varied gifts. A second problem that comes up in an evaluation of the possible consequences of desegregation involves the question of whether segregation prevents or stimulates interracial tension and conflict and the corollary question of whether desegregation has one or the other effect. The most direct evidence available on this problem comes from observations and systematic study of instances in which desegregation has occurred. Comprehensive reviews of such instances19 clearly establish the fact that desegregation has been carried out successfully in a variety of situations although outbreaks of violence had been commonly predicted. Extensive desegregation has taken place without major incidents in the armed services in both 18
Brooks, J. J., Interage Grouping on Trial-Continuous Learning, Bulletin #87, Association for Childhood Education, 1951; Lane, R. H., Teacher in Modern Elementary School, 1941; Educational Policies Commission of the National Education Association and the American Association of School Administration Report in Education For All Americans, published by the N. E. A. 1948. 19 Delano, W., Grade School Segregation: The Latest Attack on Racial Discrimination, Yale Law Journal, 1952, 61, 5, 730744; Rose, A., The Influence of Legislation on Prejudice; Chapter 53 in Race Prejudice and Discrimination, Ed. by Rose, A., 1951; Rose, A., Studies in Reduction of Prejudice, Amer. Council on Race Relations, 1948. 20 Kenworthy, E. W., The Case Against Army Segregation, Annals of the American Academy of Political and Social Science, 1951, 275, 27-33; Nelson, Lt. D. D., The Integration of the Negro in the U.S. Navy, 1951; Opinions About Negro Infantry Platoons in White Companies in Several Divisions, Information and Education Division, U.S. War Department, Report No. B-157, 1945. 21 Conover, R. D., Race Relations at Codornices Village, BerkeleyAlbany, California: A Report of the Attempt to Break Down the Segregated Pattern on A Directly Managed Housing Project, Housing and Home Finance Agency, Public Housing Administration, Region I, December 1947 (mimeographed); Deutsch,
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Northern and Southern installations and involving officers and enlisted men from all parts of the country, including the South.20 Similar changes have been noted in housing21 and industry.22 During the last war, many factories both in the North and South hired Negroes on a non-segregated, non-discriminatory basis. While a few strikes occurred, refusal by management and unions to yield quelled all strikes within a few days.23 Relevant to this general problem is a comprehensive study of urban race riots which found that race riots occurred in segregated neighborhoods, whereas there was no violence in sections of the city where the two races lived, worked and attended school together.24 Under certain circumstances desegregation not only proceeds without major difficulties, but has been observed to lead to the emergence of more favorable attitudes and friendlier relations between races. Relevant studies may be cited with respect to housing,25 employment,26 the armed services27 and merchant marine,28 recreation agency,29 and general community life.30 Much depends, however, on the circumstances under which members of previously segregated groups first come in contact with others in unsegregated situations. Available evidence suggests, first, that there is less likelihood of unfriendly relations when the M. and Collins, M. E., Interracial Housing, A Psychological Study of A Social Experiment, 1951; Rutledge, E., Integration of Racial Minorities in Public Housing Projects: A Guide for Local Housing Authorities on How to Do It, Public Housing Administration, New York Field Office (mimeographed). 22 Minard, R. D., The Pattern of Race Relationships in the Pocahontas Coal Field, J. Social Issues, 1952, 8, 29-44; Southall, S. E., Industry’s Unfinished Business, 1951; Weaver, G. L-P, Negro Labor, A National Problem, 1941. 23 Southall, S. E., Industry’s Unfinished Business, 1951; Weaver, G. L-P, Negro Labor, A National Problem, 1941. 24 Lee, A. McClung and Humphrey, N. D., Race Riot, 1943; Lee, A. McClung, Race Riots Aren’t Necessary, Public Affairs Pamphlet, 1945. 25 Deutsch, M. and Collins, M. E., Interracial Housing, A Psychological Study of A Social Experiment, 1951; Merton, R. K.; West, P. S.; Jahoda, M., Social Fictions and Social Facts: The Dynamics of Race Relations in Hilltown, Bureau of Applied Social Research Columbia, Univ., 1949 (mimeographed); Rutledge, E., Integration of Racial Minorities in Public Housing Projects; A Guide for Local Housing Authorities on How To Do It, Public Housing Administration, New York Field Office (mimeographed); Wilner, D. M.; Walkley, R. P.; and Cook, S. W., Intergroup Contact and Ethnic Attitudes in Public Housing Projects, J. Social Issues, 1952, 8, 45-69.
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change is simultaneously introduced into all units of a social institution to which it is applicable—e.g., all of the schools in a school system or all of the shops in a given factory.31 When factories introduced Negroes in only some shops but not in others the prejudiced workers tended to classify the desegregated shops as inferior, “Negro work.” Such objections were not raised when complete integration was introduced. The available evidence also suggests the importance of consistent and firm enforcement of the new policy by those in authority.32 It indicates also the importance of such factors as: the absence of competition for a limited number of facilities or benefits;33 the possibility of contacts which permit individuals to learn about one another as individuals;34 and the possibility of equivalence of positions and functions among all of the participants within the unsegregated situation.35 These conditions can generally be satisfied in a number of situations, as in the armed services, public housing developments, and public schools.
of evidence, and concerning the particular choice of words and placement of emphasis in the preceding statement. We are nonetheless in agreement that this statement is substantially correct and justified by the evidence, and the differences among us, if any, are of a relatively minor order and would not materially influence the preceding conclusions. FLOYD H. ALLPORT
Syracuse, New York GORDON W. ALLPORT Cambridge, Massachusetts CHARLOTTE BABCOCK, M.D.
Chicago, Illinois VIOLA W. BERNARD, M.D.
New York, New York JEROME S. BRUNER
Cambridge, Massachusetts HADLEY CANTRIL
Princeton, New Jersey ISIDOR CHEIN
New York, New York KENNETH B. CLARK
IV
The problem with which we have here attempted to deal is admittedly on the frontiers of scientific knowledge. Inevitably, there must be some differences of opinion among us concerning the conclusiveness of certain items 26
Harding, J., and Hogrefe, R., Attitudes of White Department Store Employees Toward Negro Co-workers, J. Social Issues, 1952, 8, 19-28; Southall, S. E., Industry’s Unfinished Business, 1951; Weaver, G. L-P., Negro Labor, A National Problem, 1941. 27 Kenworthy, E. W., The Case Against Army Segregation, Annals of the American Academy of Political and Social Science, 1951, 275, 27-33; Nelson, Lt. D. D., The Integration of the Negro in the U.S. Navy, 1951; Stouffer, S., et al., The American Soldier, Vol. I, Chap. 19, A Note on Negro Troops in Combat, 1949; Watson, G., Action for Unity, 1947; Opinions About Negro Infantry Platoons in White Companies in Several Divisions, Information and Education Division, U.S. War Department, Report No. B-157, 1945. 28 Brophy, I. N., The Luxury of Anti-Negro Prejudice, Public Opinion Quarterly, 1946, 9, 456-466 (Integration in Merchant Marine); Watson, G., Action for Unity, 1947. 29 Williams, D. H., The Effects of an Interracial Project Upon the Attitudes of Negro and White Girls Within the Young Women’s Christian Association, Unpublished M. A. thesis, Columbia University, 1934. 30 Dean, J. P., Situational Factors in Intergroup Relations: A Research Progress Report. Paper Presented to American Sociological Society, 12/28/49 (mimeographed); Irish, D.
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New York, New York MAMIE P. CLARK New York, New York STUART W. COOK
New York, New York BINGHAM DAI
P., Reactions of Residents of Boulder, Colorado, to the Introduction of Japanese Into the Community, J. Social Issues, 1952, 8, 10-17. 31 Minard, R. D., The Pattern of Race Relationships in the Pocahontas Coal Field, J. Social Issues, 1952, 8, 29-44; Rutledge, E., Integration of Racial Minorities in Public Housing Projects; A Guide for Local Housing Authorities on How to Do It, Public Housing Administration, New York Field Office (mimeographed). 32 Deutsch, M. and Collins, M. E., Interracial Housing, A Psychological Study of A Social Experiment, 1951; Feldman, H., The Technique of Introducing Negroes Into the Plant, Personnel, 1942, 19, 461-466; Rutledge, E., Integration of Racial Minorities in Public Housing Projects; A Guide for Local Housing Authorities on How to Do It, Public Housing Administration, New York Field Office (mimeographed); Southall, S. E., Industry’s Unfinished Business, 1951; Watson, G., Action for Unity, 1947. 33 Lee, A. McClung and Humphrey, N. D., Race Riot, 1943; Williams, R., Jr., The Reduction of Intergroup Tensions, Social Science Research Council, New York, 1947; Windner, A. E., White Attitudes Towards Negro-White Interaction In An Area of Changing Racial Composition. Paper Delivered at the Sixtieth Annual Meeting of the American Psychological Association, Washington, September 1952.
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Durham, North Carolina
GARDNER MURPHY
ALLISON DAVIS
Topeka, Kansas
Chicago, Illinois
THEODORE M. NEWCOMB
ELSE FRENKEL-BRUNSWIK
Ann Arbor, Michigan
Berkeley, California NOEL P. GIST Columbia, Missouri
ROBERT REDFIELD
Chicago, Illinois IRA DEA. REID
Haverford, Pennsylvania
DANIEL KATZ
Ann Arbor, Michigan
ARNOLD M. ROSE
Minneapolis, Minnesota
OTTO KLINEBERG
New York, New York
GERHART SAENGER
DAVID KRECH
New York, New York
Berkeley, California
R. NEVITT SANFORD
ALFRED MCCLUNG LEE
Poughkeepsie, New York
Brooklyn, New York
S. STANFIELD SARGENT
R. M. MACIVER
New York, New York ROBERT K. MERTON New York, New York 34
Wilner, D. M.; Walkley, R. P.; and Cook, S. W., Intergroup Contact and Ethnic Attitudes in Public Housing Projects, J. Social Issues, 1952, 8, 45-69. 35 35. Allport, G. W., and Kramer, B., Some Roots of Prejudice, J. Psychol., 1946, 22, 9-39; Watson, J., Some Social and Psychological Situations Related to Change in Attitude, Human Relations, 1950, 3, 1.
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New York, New York M. BREWSTER SMITH New York, New York SAMUEL A. STOUFFER Cambridge, Massachusetts WELLMAN WARNER
New York, New York ROBIN M. WILLIAMS
Ithaca, New York Dated: September 22, 1952.
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In the Supreme Court of the United States
U.S. SUPREME COURT, OCTOBER 1952
IX. Conclusion
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October Term, 1952
BRIEF FOR APPELLEES
I. PRELIMINARY STATEMENT OLIVER BROWN, MRS. RICHARD LAWTON, MRS. SADIE EMMANUEL, ET AL., APPELLANTS, VS. BOARD OF EDUCATION OF TOPEKA, SHAWNEE COUNTY, KANSAS, ET AL., APPELLEES.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS
BRIEF FOR APPELLEES HAROLD R. FATZER, Attorney General, PAUL E. WILSON, Asst. Attorney General, Counsel for the State of Kansas, State House, Topeka, Kansas, PETER F. CALDWELL, Counsel for the Board of Education of Topeka, Kansas. 512 Capitol Federal Bldg., Topeka, Kansas.
k TABLE OF CONTENTS
I. II. III. IV. V. VI. VII. VIII.
Preliminary Statement Opinion Below Jurisdiction Questions Presented The Statute
The issue presented by this case is whether the Fourteenth Amendment to the Constitution of the United States is violated by a statute which permits boards of education in designated cities to maintain separate elementary school facilities for the education of white and colored children. At the outset, counsel for the appellees desire to state that by appearing herein they do not propose to advocate the policy of segregation of any racial group within the public school system. We contend only that policy determinations are matters within the exclusive province of the legislature. We do not express an opinion as to whether the practice of having separate schools of equal facility for the white and colored races is economically expedient or sociologically desirable, or whether it is consistent with sound ethical or religious theory. We do not understand that these extra-legal questions are now before the Court. The only proposition that we desire to urge is that the Kansas statute which permits racial segregation in elementary public schools in certain cities of the state does not violate the Fourteenth Amendment to the Constitution of the United States as that amendment has been interpreted and applied by this Court.
Statement of the Case II. OPINION BELOW
Summary of Argument Argument
1. Does a statute which permits but does not require cities of more than 15,000 population to maintain separate school facilities for colored and white students violate the Fourteenth Amendment to the Constitution of the United States in a situation where a court has specifically found that there is no discrimination or distinction in physical facilities, educational qualifications of teachers, curricula or transportation facilities? 2. Background of Segregation in Kansas 3. The Kansas Decisions 4. The Controlling Principles 6. The District Court’s finding of Fact No. VIII is insufficient to establish appellants right to injunctive relief and to require reversal of the judgment below
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The opinion of the three-judge District Court below: (R-238-244) is reported at 98 Fed. Supp. 797. III. JURISDICTION
The judgment of the court below was entered on August 3, 1951 (R. 247). On October 1, 1951, appellants filed a petition for appeal (R. 248), and an order allowing the appeal was entered (R. 251). Probable jurisdiction was noted on June 9, 1952 (R. 254). Jurisdiction of this Court rests on Title 28 U. S. C. Sec. 1253 and 2201 (b). IV. QUESTIONS PRESENTED
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Amendment to the Constitution of the United States in a situation where a court has specifically found that there is no discrimination or distinction in physical facilities, educational qualifications of teachers, curricula or transportation facilities? 2. Is a general finding of the trial court that segregation is detrimental to colored children and deprives them of some benefits they would receive in a racial integrated school sufficient to entitle the individual colored plaintiffs to an injunction prohibiting the maintenance of an existing system of segregated schools, and to require reversal of a judgment denying such relief? V. THE STATUTE
The statute under attack in the present litigation is section 72-1724, General Statutes of Kansas of 1949, which is quoted hereafter: “Powers of board; separate schools for white and colored children; manual training. The board of education shall have power to elect their own officers, make all necessary rules for the government of the schools of such city under its charge and control and of the board, subject to the provisions of this act and the laws of this state; to organize and maintain separate schools for the education of white and colored children, including the high schools in Kansas City, Kansas; no discrimination on account of color shall be made in high schools, except as provided herein; to exercise the sole control over the public schools and school property of such city; and shall have the power to establish a high school or high schools in connection with manual training and instruction or otherwise, and to maintain the same as a part of the public school system of said city.” VI. STATEMENT OF THE CASE
The appellants here, who are plaintiffs below, are Negro citizens of the United States and the State of Kansas, who reside in Topeka, Shawnee County, Kansas. The infant plaintiffs are children of common school age. The defendants below and appellees herein are the duly constituted governing body and certain administrative officers of the public school system of Topeka, Kansas. The State of Kansas has intervened in the District Court to defend the constitutionality of the state statute under attack. Acting pursuant to the authority conferred by G. S. 1949, 72-1724, supra, the appellee, Board of Education, many years ago created within the city of Topeka, which is one school G A L E
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district, eighteen school areas, and now maintains in each of said areas a kindergarten and elementary school for white children only. (R. 24.) At the same time the present Board of Education of Topeka and prior boards of education, acting under same statutory authority, have established and operated in said city four elementary schools in the same grades for Negro children. Negro children may attend any one of said elementary schools that they or their parents may select. It was stipulated in the Court below that the Negro schools are located in neighborhoods in which the population is predominantly Negro. (R. 31.) The stipulation also indicates that at the time the action was brought, the enrollment in the eighteen white schools was 6,019, as compared to 658 students enrolled in the four Negro schools. (R. 37.) The administration of the entire Topeka school system is under the Board of Education, and the same administrative regulations govern both the white and Negro schools. The Court found specifically that there is no material difference in the physical facilities in colored and white schools; that the educational qualifications of the teachers and the quality of instruction in the colored schools are not inferior to, but are comparable with those in the white schools; and that the courses of study followed in the two groups of schools are identical, being that prescribed by state law. (R. 245.) Also, it was found that colored students are furnished transportation to the segregated schools without cost to the children or their parents. No such transportation is furnished to the white children in the segregated schools. (R. 246.) VII. SUMMARY OF ARGUMENT
1. The Kansas statute which permits cities of the first class to maintain separate grade school facilities for colored and white students does not per se violate the Fourteenth Amendment to the Constitution of the United States. The Court below found facilities provided for Negro children in the city of Topeka to be substantially equal to those furnished to white children. The appellants, in their specifications of error and in their brief, do not object to that finding. Under those circumstances and under authority of the decisions of the Supreme Court of the United States, the inferior federal courts, and the courts of last resort in numerous state jurisdictions, and particularly the decisions of the Kansas Supreme Court, the appellants A M E R I C A N
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herein are not denied equal protection of the laws by virtue of their being required to attend schools separate from those which white children are required to attend. The decision of the court below should be affirmed. 2. Irrespective of the question of the constitutionality of the Kansas statute, the trial court’s findings of fact are insufficient to establish appellants’ right to injunctive relief and to require reversal of the judgment below. The only finding of fact relied upon by appellants is Finding of Fact No. VIII. That finding is couched in general language and in effect simply shows that segregation in the public schools has a detrimental effect upon colored children and a tendency to retain or retard their educational and mental development and to deprive them of some of the benefits they would receive in a racially integrated school system. The finding does not specifically show that any of the appellants have actually and personally suffered by reason of segregation in the public schools of Topeka nor that the mental development of any of the appellants in this case has been retarded; and the finding does not even purport to show discrimination against the appellants and in favor of any other students in the Topeka school system. It no where discusses the effect of segregation upon children of any race other than colored children. Therefore, the District Court’s Finding of Fact No. VIII fails to show either that the appellants have suffered any personal harm, or that they are being deprived of benefits or subjected to detriments which do not equally apply to other students in the Topeka school system. Thus, the appellants have failed to secure findings of fact sufficient to entitle them to injunctive relief or to a reversal of the judgment below. VIII. ARGUMENT
1. Does a statute which permits but does not require cities of more than 15,000 population to maintain separate school facilities for colored and white students violate the Fourteenth Amendment to the Constitution of the United States in a situation where a court has specifically found that there is no discrimination or distinction in physical facilities, educational qualifications of teachers, curricula or transportation facilities? Appellees contend that only a negative answer to this question is possible. G A L E
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Background of segregation in Kansas A meaningful examination of any statute must necessarily be made in the light of its context. In Plessy v. Ferguson, 163 U.S. 357, the Court comments: “So far, then, as a conflict with the 14th Amendment is concerned, the case reduces itself to the question of whether the statute . . . is a reasonable regulation, and with respect to this, there must necessarily be a large discretion on the part of the legislature. In determining the question of reasonableness, it is at liberty to act with reference to the established usages, customs, and traditions of the people, and with a view to the promotion of their comfort, and the preservation of the public peace and good order.”
Therefore, we deem it proper to pause briefly to examine the origins and attitudes of the people of the State of Kansas. The birth of the State of Kansas was an incident of the intersectional struggle that culminated in the war between the states. Located midway between the north and the south, the territory of Kansas was coveted by both the pro-slavery and free-state elements. The Kansas-Nebraska Act which announced the principle of “squatter sovereignty” formally opened the territory for settlement and resulted in migration of large numbers of people from both the north and the south. In these early settlers were reflected the diverse attitudes and cultures of the regions from which they came. While the free-state elements from the north gained political ascendency, there remained in Kansas people who, in good faith, believed that the welfare of both the colored and the white races required that they live apart from one another. Migration following the war between the states followed the same pattern. While the greatest number came from Illinois, Ohio, Indiana and other northern states, a considerable segment of the population had its origin in Kentucky, Tennessee and Missouri. (Clark & Roberts, People of Kansas, 1936, p. 18.) The early legislatures were faced with the task of reconciling the divergent attitudes of the settlers from such varied cultural backgrounds. The Wyandotte Constitution, under which the State of Kansas was admitted to the Union, provided for a system of public education specifically requiring the legislature to “encourage the promotion of intellectual, moral, scientific and agricultural improvement, by A M E R I C A N
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establishing a uniform system of common schools and schools of a higher grade, embracing normal, preparatory, collegiate and university departments.” (Const., Art. 6, Sec. 1.) It is significant that an effort was made in the Wyandotte convention to obtain a constitutional requirement for the separate education of Negro children. The proposal was defeated, not because of objection to the intrinsic policy of segregation, but because the dominant faction in the constitutional convention believed that the power to govern the public schools and to classify students therein should rest with the legislature. At no time was doubt expressed that the constitutional provision adopted at Wyandotte would preclude classification of students on the basis of color (Wyandotte Constitutional Convention, Proceedings and Debates, 1859, pp. 171 to 174). As early as 1862 the power to classify students was exercised by the enactment of section 18, article 4, chapter 46, Compiled Laws of 1862, applying to cities of not less than 7,000 inhabitants. That statute provided: “The city council of any city under this act shall make provisions for the appropriation of all taxes for school purposes collected from black or mulatto persons, so that the children of such persons shall receive the benefit of all moneys collected by taxation for school purposes from such persons, in schools separate and apart from the schools hereby authorized for the children of white persons.”
Chapter 18, Laws of 1868, entitled “An Act to Incorporate Cities of the First Class” authorized the organization and maintenance of separate schools for the education of white and colored children in cities of over 15,000 population. In 1876 the laws of the state pertaining to the common schools were codified and embodied in one comprehensive statute. (Chapter 122.) Article X of this chapter related to the public schools and cities of the first class, and provided that all cities of more than 15,000 inhabitants shall be governed thereby. The provision of the law of 1868 authorizing the maintenance of separate schools for white and colored children was omitted from that section and was thus deemed to have been repealed by implication. However, in 1879 a statute was passed (Laws of 1879, Chapter 81) amending the law relating to cities of the first class and specifically authorizing the boards of education G A L E
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therein to organize and maintain separate elementary schools for the education of white and colored children. The section was again amended by Laws of 1905, Chapter 414, and now appears without further change in G. S. 1949, 72-1724, quoted above. Two features of the Kansas statute should be emphasized. In the first place, we invite the court’s attention to the fact that the statute is permissive only and does not, as may be inferred from appellants’ brief, require any board of education to maintain separate schools for colored children. In the second place, it is again pointed out that the statute applies only to cities of the first class. Cities of the first class in Kansas include those cities having a population of more than 15,000 persons. Presently there are 12 cities in the state so classified. The special provision affecting only these communities may be accounted for by reference to the fact that the Negro population of Kansas is largely urban. According to the 1950 census, less than four percent of the total population of Kansas belongs to the Negro race. However, more than ninety percent of this colored population lives in cities classified as urban. Sixty percent of the total colored population live in the three largest cities of Kansas City, Wichita and Topeka, and at least thirty-five percent of this total live in Kansas City alone. Thus, in enacting a school segregation statute applicable only to cities of the first class the Kansas legislature has simply recognized that there are situations where Negroes live in sufficient numbers to create special school problems and has sought to provide a law sufficiently elastic to enable Boards of Education in such communities to handle such problems as they may, in the exercise of their discretion and best judgment, deem most advantageous to their local school system under their local conditions. The Kansas decisions The Supreme Court of Kansas has uniformly held that the governing bodies of school districts in the state may maintain separate schools for colored children only when expressly authorized by statute. (Board of Education v. Tinnon, 26 Kan. 1 (1881); Knox v. Board of Education, 45 Kan. 152, 25 Pac. 616 (1891); Cartwright v. Board of Education, 73 Kan. 302, 84 Pac. 382 (1906); Rowles v. Board of Education, 76 Kan. 361, 91 A M E R I C A N
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Pac. 88 (1907); Woolridge, et al., v. Board of Education, 98 Kan. 397, 157 Pac. 1184 (1916); Thurman-Watts v. Board of Education, 115 Kan. 328, 22 Pac. 123 (1924); Webb v. School District, 167 Kan. 395, 206 Pac. 2d 1066 (1949). The rationale of each of these cases is expressed in Thurman-Watts v. Board of Education, supra, as follows: “The power and duty of the school board are derived exclusively from the statutes. The school board has no greater power than is conferred on it by the statutes.”
It is significant that in each of the cases cited above, the court expressly recognized or conceded that the legislature has power to classify students in the public schools on the basis of color. Illustrative of this attitude is the following statement from Board of Education v. Tinnon, supra, appearing on p. 16 of the reported decision: “For the purpose of this case we shall assume that the legislature has the power to authorize the board of education of any city or the officers of any school district to establish separate schools for the education of white and colored children, and to exclude the colored children from the white schools notwithstanding the Fourteenth Amendment to the Constitution of the United States;”
In each of the subsequent cases where the power to segregate was denied by reason of the absence of statutory authority, the court specifically recognized that the legislature had such authority to confer. (See cases above cited.) The question of the constitutionality of a statute, antecedent to but substantially like the one here under attack, was squarely presented to the Supreme Court of Kansas in the case of Reynolds v. Board of Education, 66 Kan. 672, 72 Pac. 274. That was a proceeding in the nature of mandamus brought against the board of education of the city of Topeka by a colored resident. In the action he sought to compel the board of education to admit his child to a school maintained for white children only. In an exhaustive opinion the court found that the statute which permitted the policy of racial segregation to be valid and not in violation of the Fourteenth Amendment to the Constitution of the United States. The court relied specifically on the decision of the Supreme Court of the United States in the case of Plessy v. Ferguson, supra, and held that where facilities are equal, G A L E
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the mere fact of separation of races within a school system does not constitute a violation of the Fourteenth Amendment to the Constitution of the United States. Quoting with approval from the New York case of People, ex rel., Cisco v. School Board, 161 N. Y. 598, 56 N. E. 81, 48 L. R. A. 115, the Court said: “The most that the constitution requires the legislature to do is to furnish a system of common schools where each and every child may be educated; not that all must be educated in any one school, but that it shall provide or furnish a school or schools where each and all may have the advantages guaranteed by that instrument. If the legislature determined that it was wise for one class of pupils to be educated by themselves, there is nothing in the constitution to deprive it of the right to so provide. It was the facilities for and the advantages of an education that it was required to furnish to all the children, and not that it should provide for them any particular class of associates while such education was being obtained.”
And the court found merit in the quoted portion of the decision in the Massachusetts case of Roberts v. City of Boston, 5 Cush. 198: “It is urged that this maintenance of separate schools tends to deepen and perpetuate the odious distinction of caste, founded in a deep-rooted prejudice in public opinion. This prejudice, if it exists, is not created by law, and probably cannot be changed by law. Whether this distinction and prejudice, existing in the opinion and feelings of the community, would not be as effectually fostered by compeling colored and white children to associate together in the same schools, may well be doubted; at all events, it is a fair and proper question for the committee to consider and decide upon, having in view the best interests of both classes of children placed under thier superintendence, and we cannot say, that their decision upon it is not founded on just grounds of reason and experience, and in the results of a discriminating and honest judgment.”
Consistent with its finding that the statute did not violate the equal protection guarantee of the Fourteenth Amendment, the Court said on page 689: “The design of the common-school system of this state is to instruct the citizen, and where for this purpose they have placed within his reach equal means of acquiring an education with other persons, they have discharged their duty to him, and he has received all that he is A M E R I C A N
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entitled to ask of the government with respect to such privileges.” Finally on page 292 the court holds:
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“The act of the legislature of 1879 providing for the education of white and colored children in separate schools in cities of the first class except in the high school is, therefore, in all respects constitutional and valid.”
At the same time the Kansas court has always insisted that facilities must be equal for all groups. Particularly significant is the case of Williams v. Parsons, 79 Kan. 202, decided in 1908. There objection was made that the school provided for colored children was located in such close proximity to the railroad tracks that such location produced an undue hazard to the children attending the school. The court stated, at page 209: “Having power to maintain separate schools in cities of the first class, the duty rests upon the board of education therein to give equal educational facilities to both white and colored children in such schools. This requirement must have a practical interpretation so that it may be reasonably applied to varying circumstances . . . . Where the location of a school is such as to substantially deprive some of the children of the district of any educational facilities, it is manifest that this equality is not maintained and the refusal to furnish such privileges, where it is practicable to do so, is an abuse of discretion for which the courts will afford a remedy.”
A later expression of the Supreme Court of Kansas is found in Graham v. Board of Education, 153 Kan. 840, decided in 1941. There the court said on page 842: “The authorities are clear that separate schools may be maintained for the white and colored races if the educational facilities provided for each are equal, unless such separation is in contravention of a specific state law.”
Again on p. 846 the court comments with reference to the rule expressed in Reynolds v. Board of Education, supra:
without the scope of the prohibitions imposed on the legislature by the Fourteenth Amendment to the Constitution of the United States. The controlling principles The position taken by the Supreme Court of Kansas in the cases cited, supra, is sustained by the weight of the decisions of this Court in Plessy v. Ferguson, supra, and Gong Lum v. Rice, 275 U.S. 78; and in numerous decisions of the inferior federal courts and the appellate courts in other states. Appellants suggest that the Plessy case is not applicable to the situation before us. Admittedly, the question presented in the Plessy case arose out of segregation of white and colored races in railroad cars and not segregation in the public schools. However, the decision of the Court rises above the specific facts in issue and announces a doctrine applicable to any social situation wherein the two races are brought into contact. In commenting upon the purpose and the limitations of the Fourteenth Amendment the Court makes the following statement: “The object of the Amendment was undoubtedly to enforce the absolute equality of the two races before the law, but in the nature of things it could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political equality, or a commingling of the two races upon terms unsatisfactory to either. Laws permitting and even requiring their separation in places where they are liable to be brought into contact do not necessarily imply the inferiority of either race to the other, and have been generally, if not universally, recognized as within the competency of the state legislatures in the exercise of their police power. The most common instance of this is connected with the establishment of separate schools for white and colored children which has been held to be a valid exercise of the legislative power even by courts of States where the political rights of the colored race have been longest and most earnestly enforced.” (p. 554.)
Certainly this language refutes appellants’ contention that the Plessy case has no application to these facts.
“The defendants cite the case of Reynolds v. Board of Education, 66 Kan. 672, 72 Pac. 274. The rules of law set out in that case are sound and are applied in this case.”
Appellants further state that Gong Lum v. Rice “is irrelevant to the issues in this case.” This statement appears to justify a brief examination of the facts in the Gong case. Those facts may be summarized as follows:
These cases demonstrate that the Supreme Court of Kansas has never doubted that G. S. 1949, 72-1724, and its antecedent statutes is
The Constitution and statutes of the State of Mississippi provided for two school systems in each county. One system was for “white”
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children and the other system for “colored” children. Plaintiff sought to have his child who was a citizen of Chinese extraction admitted to the school maintained for white students in the county where she lived. She was refused admission by the school authorities. The Supreme Court of the United States unanimously affirmed the decision of the Supreme Court of Mississippi, refusing to grant a Writ of Mandamus to compel the school authorities to admit the Chinese-American citizen to the white school. The opinion by Chief Justice Taft includes the following statement (pp. 85-86): “The question here is whether a Chinese citizen of the United States is denied equal protection of the laws when he is classed among the colored races and furnished facilities for education equal to that offered to all, whether white, brown, yellow or black. Were this a new question it would call for very full argument and consideration but we think that it is the same question which has been many times decided to be within the constitutional power of the state legislature to settle without intervention of the federal courts under the Federal Constitution.” To support this proposition the Court cites sixteen cases decided by federal courts and state courts of last resort, including Plessy v. Ferguson, supra. We do not believe that appellants suggest that the rights of the Negro citizens differ from the rights of the Mongolian citizen, Martha Lum. If such an idea is advanced herein, this Court should have no more difficulty in disposing of that contention than it did of that phase of the Gong case where it seemed to be contended that a yellow child had different rights than a Negro child. The Court simply held that children of all races have equal rights but that those rights are not infringed upon when the state provides that the different races shall be educated in separate schools of equal facility. Appellants further contend that whatever force the Plessy and Gong-Lum cases may have had has been overcome by the recent decisions of Sweatt v. Painter, 339 U.S. 629, and McLaurin v. Oklahoma, 339 U.S. 637. Appellees concede that if there has been any change in the attitude of this Court as to the constitutionality of the separate but equal doctrines as it affects segregation, it must be found in these two cases. Thus, we have examined them carefully. But we find no G A L E
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statement therein that would cause us to believe the Court intended to reverse or modify its earlier decisions. In the Sweatt case, the Court held that a Negro prospective law student could not be denied admission to the renowned University of Texas Law School—“one of the nation’s ranking law schools” (p. 663), and be compelled to accept instruction in a new school of perhaps questionable worth, inferior as to faculty, plant and student body. The McLaurin case only found that a Negro graduate student, who had successfully compelled his admission to the University of Oklahoma to do graduate work in education, was still being denied equal rights when he was segregated inside the university as to his seat in class, in the library and in the dining hall. Unquestionably, these cases sustain the position that equal facilities must be provided. However, that point is not at issue in this case. We think the Sweatt case has no greater significance than the following expression of the Court’s attitude indicates: “This case and McLaurin v. Oklahoma State Regents . . . present different aspects of this general question: To what extent does the Equal Protection Clause of the Fourteenth Amendment limit the power of a state to distinguish between students of different races in professional and graduate education in a state university? Broader issues have been urged for our consideration, but we adhere to the principle of deciding constitutional questions only in the context of the particular case before the court.” (p. 631.)
Squarely in point is the following statement: “We cannot, therefore, agree with respondents that the doctrine of Plessy v. Ferguson, 1896, 163 U.S. 537, 16 S. Ct. 1138, 41 L. Ed. 256, requires affirmance of the judgment below. Nor need we reach the petitioner’s contention that Plessy v. Ferguson should be re-examined in the light of contemporary knowledge respecting the purposes of the Fourteenth Amendment and the effects of racial segregation. See, supra, pg. 631.” (pp. 635-636.)
And in the McLaurin case the significance of the special situation is noted by the Court: “Our society grows increasingly complex, and our need for trained leaders increases correspondingly. Appellant’s case represents, perhaps, the epitome of that need, for he is attempting to obtain an advanced degree in education, to become, by definition, a leader and trainer of others. Those who will come under his guidance and influence must be A M E R I C A N
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directly affected by the education he receives. Their own education and development will necessarily suffer to the extent that his training is unequal to that of his classmates. State-imposed restrictions which produce such inequalities cannot be sustained. “It may be argued that appellant will be in no better position when these restrictions are removed, for he may still be set apart by his fellow students. This we think is irrelevant. There is a vast difference—a constitutional difference between restrictions imposed by the state which prohibit the intellectual commingling of students, and the refusal of individuals to commingle where the state presents no such bar . . . Appellant having been admitted to a statesupported graduate school, he must receive the same treatment at the hands of the state as students of other races.” (pp. 641, 642.)
In the Sweatt and McLaurin cases the Court specifically refused to consider the issue of constitutionality of racial separation in schools of equal facility in view of contemporary knowledge and held only that where the State did not furnish equal facilities for one race, the students of that race were being denied equal protection of the laws. Appellees contend that this refusal by the Court to review the Plessy and Gong-Lum doctrines in its later decisions can only be interpreted to support the view that those cases still stand as expressions of the rule established by the Supreme Court upon the question of racial segregation within the public schools. Notable among decisions since the Sweatt and McLaurin cases are Carr v. Corning, 182 F. 2d 14; Briggs v. Elliott, 98 F. Supp. 529; and Davis v. County School Board, 103 F. Supp. 337, the latter two cases now pending before this Court on appeal. Carr v. Corning involved the public school system of the District of Columbia. There the Court noted a fact that we deem most significant with respect to the original meaning and intent of the Fourteenth Amendment. It was pointed out that in the same year that Congress proposed the amendment, federal legislation was enacted providing for segregation of the races in the public schools in the District of Columbia. “We are not unmindful of the debates which occurred in Congress relative to the Civil Rights Act of April 9, 1866, the Fourteenth Amendment, and the Civil Rights Act of March 1, 1875. But the actions of Congress, the discussion in the Civil Rights Cases, and G A L E
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the fact that in 1862, 1864, 1866 and 1874 Congress, as we shall point out in a moment, enacted legislation which specifically provided for separation of the races in the schools of the District of Columbia, conclusively support our view of the Amendment and its effect.” (p. 17.)
Here we note the parallel situation in the State of Kansas. There the State, through its Legislature, ratified the Fourteenth Amendment in 1867, and only one year later legislation providing for separation of the races in the public schools of first class cities was enacted. (L. 1868, ch. 18.) An examination of all the cases in American jurisdictions supporting the appellants’ position would become repetitious and tedious. Thus, we refrain from an exhaustive survey. We believe the comment of Circuit Judge Parker in Briggs v. Elliott, supra, aptly summarizes the law and its justification: “One of the great virtues of our constitutional system is that, while the federal government protects the fundamental rights of the individual, it leaves to the several states the solution of local problems. In a country with a great expanse of territory with peoples of widely differing customs and ideas, local self government in local matters is essential to the peace and happiness of the people in the several communities as well as to the strength and unity of the country as a whole. It is universally held, therefore, that each state shall determine for itself, subject to the observance of the fundamental rights and liberties guaranteed by the federal Constitution, how it shall exercise the police power, i.e., the power to legislate with respect to the safety, morals, health and general welfare. And in no field is this right of the several states more clearly recognized than in that of public education.” (p. 532.)
Justice Holmes has expressed the following view: “I must add one general consideration. There is nothing that I more deprecate than the use of the Fourteenth Amendment beyond the absolute compulsion of its words to prevent the making of social experiments that an important part of the community desires, in the insulated chambers afforded by the several states, even though the experiments may seem futile or even noxious to me and to those whose judgment I most respect. (Holmes, J., dissenting opinion, Truax v. Corrigan, 257 U.S. 312, p. 344, 42 S. Ct. 124, 66 L. Ed. 254, 27 A. L. R. 375.)” A M E R I C A N
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It is undoubtedly true that the separate but equal doctrine is susceptible of abuse. In many instances it has resulted in a separate and unequal rule in practice. However, it is the impossibility of equality under such a doctrine, and not the difficulty of administering and applying the same with equality, that would make such a doctrine unconstitutional per se. The situation in Topeka is one where substantial equality has been reached. Such was the finding of the Court below (R. 245) and such is apparently conceded by the appellants (Appellants’ Brief, p. 5). These facts, under authority of decisions heretofore reviewed, compel an inescapable conclusion: Neither the statute of Kansas nor the action of the appellee, Board of Education, offends the Fourteenth Amendment to the Federal Constitution. The prospect At the outset we suggested that the Kansas statute is permissive and that any Board of Education included in the statute may adopt a policy consistent with local conditions and local attitudes. We believe it is significant that under this statute by a process of evolution the people in Kansas communities are arriving at their own solutions to this problem. Under the statute 12 cities are authorized to maintain separate schools for colored students. The files of the State Superintendent of Public Instruction indicate that at the present time, only nine cities exercise the power conferred by statute. Wichita, the largest city in the state, has abandoned segregation only recently. The city of Pittsburg abandoned the policy of segregation only two years ago. Lawrence, seat of the state university, is now in the process of ending the operation of segregated schools. This account of events not in the record is related to illustrate the wisdom which underlies the Kansas statute. Only those cities where local conditions produce special problems making segregation desirable need adopt the expedient of segregation. In the orderly progress of the community, these special problems are either solved or vanish, and when the need for segregation disappears, its practice may be discontinued. This was the method provided by the legislature of the State of Kansas to achieve the goal of an integrated school system where segregation is not needed. We respectfully suggest to the court that this evolutionary process permitting an autonomous solution in the community is consistent with the purpose and intent of the Fourteenth Amendment. G A L E
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2. The District Court’s finding of Fact No. VIII is insufficient to establish appellants’ right to injunctive relief and to require reversal of the judgment below A. Counsel for Appellants have overstated their case. Appellant has raised and preserved this issue by its third Assignment of Error, to wit: “The District Court erred: “... ... .... “3. In refusing to enter judgment in favor of plaintiffs, after the court found that plaintiffs suffered serious harm and detriment in being required to attend segregated elementary schools in the City of Topeka, and were deprived thereby of benefits they would have received in a racially integrated school system.” (R. 250.)
And by adopting its Assignment of Errors in its Statement of Points to Be Relied Upon (R. 253). The District Court’s Findings of Fact and Conclusions of Law appear at pp. 244 to 247 of the Transcript of the Record. There is no Finding of Fact which literally and specifically corresponds to the finding mentioned in Appellants’ third Assignment of Error. At page 2 of the Brief for Appellants under the heading Questions Presented, appellants state the second issue, as follows: “Whether the finding of the court below—that racial segregation in public elementary schools has the detrimental effect of retarding the mental and educational development of colored children and connotes governmental acceptance of the conception of racial inferiority—compels the conclusion that appellants here are deprived of their rights to share equally in educational opportunities in violation of the equal protection clause of the Fourteenth Amendment.” There is no Finding of Fact which literally and specifically corresponds to the finding mentioned in appellants’ statement of the second issue. At page 10 of the Brief for Appellant, counsel state: “Applying this yardstick, any restrictions or distinction based upon race or color that places the Negro at a disadvantage in relation to other racial groups in his pursuit of educational opportunities is violative of the equal protection clause.
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“In the instant case, the court found as a fact that appellants were placed at such a disadvantage and were denied educational opportunities equal to those available to white students. “... ... ... ... .... “Thus, notwithstanding that it had found inequality in educational opportunity as a fact, the court concluded as a matter of law that such inequality did not constitute a denial of constitutional rights, saying: . . . ”
There is no such finding of fact in the Record in this case. With all respect due to able counsel for appellants we believe that in their zeal for their cause, they have overstated their case. The only existing Finding of Fact which is relied upon by appellants and the only one quoted in their brief is the District Court’s Finding of Fact No. VIII, which we quote accurately: “Segregation of white and colored children in public schools has a detrimental effect upon the colored children. The impact is greater when it has the sanction of the law; for the policy of separating the races is usually interpreted as denoting the inferiority of the Negro group. A sense of inferiority affects the motivation of a child to learn. Segregation with the sanction of law, therefore, has a tendency to retain the educational and mental development of Negro children and to deprive them of some of the benefits they would receive in a racial integrated school system.”
We call attention to the fact that the foregoing Finding is couched only in broad and general language; it makes no specific or particular reference to any of the appellants, nor to the grade schools in Topeka, nor to racial groups other than Negroes, nor to inequality of educational opportunities between Negroes and other racial groups. The substance of the finding can be summarized in the following statement: “Generally speaking, segregation is detrimental to colored children, and deprives them of some benefits they would receive in a racial integrated school system.” The Finding of Fact No. VIII cannot be stretched, as counsel for appellants apparently would like to stretch it, into a finding that the appellants in this case have “suffered serious harm in being required to attend segregated elementary schools in Topeka” and that “appellants were placed at such a disadvantage (in relation to other racial groups in [their] pursuit of educational opportunities) and were denied G A L E
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educational opportunities equal to those available to white students.” B. Elements necessary to entitle appellants to injunctive relief and to a reversal of the judgment in this case. To establish appellants’ right to injunctive relief and to reversal of the judgment in this case, the Findings of Fact No. VIII would have to show: (1) That the appellants have actually suffered personal harm as the result of attending segregated schools in Topeka; and, (2) Either that appellants are being deprived of benefits which other students in the Topeka school system enjoy, or that appellants are being subjected to detriments to which other students in the Topeka school system are not being subjected, by reason of maintenance of a segregated school system.
The mere showing that appellants may be members of a class which is being discriminated against by reason of a statute is not sufficient to entitle them to injunctive relief, unless appellants can also show that they personally are suffering harm. The Fourteenth Amendment protects only personal and individual rights. The mere showing that appellants can show that they are being deprived of benefits they would receive under a different system of schools is not sufficient to show that they are being deprived of equal protection of the law, unless appellants can also show that under the existing segregate school system there are others who are not deprived of such benefits. And finally, the mere showing that segregation is detrimental to appellants is not sufficient to show that they are being deprived of equal protection of the laws, unless they also show that segregation is not similarly detrimental to others in the Topeka school system. McCabe v. A. T. & S. F. Ry. Co., 235 U.S. 151, 59 Law Ed. 149: “There is, however, an insuperable obstacle to the granting of the relief sought by this bill. It was filed, as we have seen, by five persons against five railroad corporations to restrain them from complying with the state statute. The suit had been brought before the law went into effect, and this amended bill was filed very shortly after. It contains some general allegations as to discriminations in the supply of facilities and as to the hardships which will ensue. It states that there will be ‘A multiplicity of suits,’ there being at least ‘fifty thousand persons of the Negro race in the state of Oklahoma’ who will be injured A M E R I C A N
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and deprived of their civil rights. But we are dealing here with the case of the complainants, and nothing is shown to entitle them to an injunction. It is an elementary principle that, in order to justify the granting of this extraordinary relief, the complainant’s need of it, and the absence of an adequate remedy at law, must clearly appear. The complainant cannot succeed because someone else may be hurt. Nor does it make any difference that other persons who may be injured are persons of the same race or occupation. It is the fact, clearly established, of injury to the complainant—not to others—which justifies judicial intervention.” (p. 162.)
Turpin v. Lemon, 187 U.S. 51, 47 Law Ed. 70: “This is an effort to test the constitutionality of the law, without showing that the plaintiff had been injured by its application, and, in this particular, the case falls without ruling in Tyler v. Registration Court Judges, 179 U.S. 405, 45 L. ed. 252, 21 Sup. Ct. Rep. 206, wherein we held that the plaintiff was bound to show he had personally suffered an injury before he could institute a bill for relief. In short, the case made by the plaintiff is purely academic.” (pp. 60, 61.)
Thomas Cusack Co. v. Chicago, 242 U.S. 526, 61 Law Ed. 472: “He who is not injured by the operation of a law or ordinance cannot be said to be deprived by it of either constitutional right or of property.” (p. 530.)
Mallinckrodt Chemical Works v. Missouri ex rel. Jones, 238 U.S. 41, 59 L. ed. 1192: “As has been often pointed out, one who seeks to set aside a state statute as repugnant to the Federal Constitution must show that he is within the class with respect to whom the act is unconstitutional, and that the alleged unconstitutional feature injures him.” (p. 54.)
C. Finding of Fact No. VIII fails to disclose that any of the appellants have been actually and personally harmed by segregation in the Topeka Schools. Finding of Fact No. VIII makes no specific reference to the individual appellants. It expresses only in broad generalities the effect of segregation in the public schools upon colored children as a class. There is no specific finding that segregation has had a personal detrimental effect upon any of the appellants. There is no specific finding that any of the appellants personally has interpreted segregation as denoting inferiority of the Negro group, or that the motivation to learn of any of G A L E
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the appellants has been affected by a sense of inferiority. There is no finding that the educational and mental development of any of the appellants has actually been retained or retarded by reason of segregation in the Topeka schools. In short there is no finding that any of the appellants individually and actually has been harmed by segregation in the Topeka school system. D. Finding of Fact No. VIII fails to disclose that appellants are being deprived of equal protection of the laws, or that they are being discriminated against by segregation in the Topeka Schools. Denial of equal protection of the laws, or discrimination, logically and necessarily involves at least two persons who are being treated differently. Denial of equal protection must mean denial of protection or opportunity equal to that afforded to someone else. There can be no such thing as “unilateral discrimination.” Since the Finding of Fact No. VIII is limited solely to a statement of the effect of segregation on colored children as a group, and nowhere mentions the effect of segregation upon any other race or group, it cannot reasonably or logically show discrimination or a denial of equal protection of the laws. Nowhere in the finding has the court disclosed any facts upon which it can be claimed to show discrimination in favor of white children over colored in segregated schools. It is idle on this appeal to speculate upon what the trial court might have found had it been requested to make additional findings. No request for additional findings was made in the trial court. We therefore refrain from speculating as to whether the court would also have found that segregation was detrimental to white children and impaired their educational and mental development. E. The District Court did not intend nor consider its Finding of Fact No. VIII to be a finding of discrimination against appellants. The last sentence in Finding of Fact No. VIII summarizes the entire finding. We quote: “Segregation with the sanction of law, therefore, has a tendency to retain the educational and mental development of Negro children and to deprive them of some of the benefits they would receive in a racial integrated school system.” A M E R I C A N
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We believe the court intended the finding to mean simply that colored children would be better off in integrated schools than they are in segregated schools. Conceding that that is the meaning of the finding, it does not amount to a finding of actual discrimination against colored children and in favor of white children upon the facts in this case. White children are not permitted to attend integrated schools in Topeka. The mere fact, if it be a fact, that the Topeka school system could be improved so far as education of colored children is concerned, does not prove discrimination against them. In the opinion of the District Court (R. 238 to 244), 98 F. Supp. 797, no mention is made of Finding of Fact No. VIII. It is clear the District Court did not consider or intend to attach to that finding the same significance which appellants seek to place upon it. We do not question that if the Finding of Fact No. VIII means everything appellants claim it means, they would be entitled to an injunction and reversal of the judgment, if this court should overrule the “separate but equal doctrine.”
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However, it is clear that the District Court did not intend or consider the finding to mean all the things appellants claim for it. As stated in the Decree of the District Court: “The Court has heretofore filed its Findings of Fact and Conclusions of Law together with an opinion and has held as a matter of law that the plaintiffs have failed to prove they are entitled to the relief demanded.” IX. CONCLUSION
In view of the authorities heretofore cited, appellees respectfully submit that the judgment of the court below should be affirmed. HAROLD R. FATZER,
Attorney General, PAUL E. WILSON,
Asst. Attorney General, Counsel for the State of Kansas, State House, Topeka, Kansas, PETER F. CALDWELL,
Counsel for the Board of Education of Topeka, Kansas. 512 Capitol Federal Bldg., Topeka, Kansas.
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“3. On the assumption that the answers to questions 2(a) and (b) do not dispose of the issue, is it within the judicial power, in construing the Amendment, to abolish segregation in public schools?
Brown v. Board of Eucation of Topeka
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“4. Assuming it is decided that segregation in public schools violates the Fourteenth Amendment
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Oliver Brown, Mrs. Richard Lawton, Mrs. Sadie Emmanuel, et al., appellants, v. Board of Education of Topeka, Shawnee County, Kansas, et al. No. 8, 345 U.S. 972. Former decision, 72 S.Ct. 1070; 344 U.S. 1, 73 S.Ct. 1; 344 U.S. 141, 73 S.Ct. 124. Facts and opinion, 98 F.Supp. 797. June 8, 1953. Case ordered restored to the docket and is assigned for reargument on Monday, October 12, next. In their briefs and on oral argument counsel are requested to discuss particularly the following questions insofar as they are relevant to the respective cases: “1. What evidence is there that the Congress which submitted and the State legislatures and conventions which ratified the Fourteenth Amendment contemplated or did not contemplate, understood or did not understand, that it would abolish segregation in public schools? “2. If neither the Congress in submitting nor the States in ratifying the Fourteenth Amendment understood that compliance with it would require the immediate abolition of segregation in public schools, was it nevertheless the understanding of the framers of the Amendment “(a) that future Congresses might, in the exercise of their power under section 5 of the Amendment, abolish such segregation, or “(b) that it would be within the judicial power, in light of future conditions, to construe the Amendment as abolishing such segregation of its own force?
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“(a) would a decree necessarily follow providing that, within the limits set by normal geographic school districting, Negro children should forthwith be admitted to schools of their choice, or “(b) may this Court, in the exercise of its equity powers, permit an effective gradual adjustment to be brought about from existing segregated systems to a system not based on color distinctions? “5. On the assumption on which questions 4(a) and (b) are based, and assuming further that this Court will exercise its equity powers to the end described in question 4(b), “(a) should this Court formulate detailed decrees in this case; “(b) if so what specific issues should the decrees reach; “(c) should this Court appoint a special master to hear evidence with a view to recommending specific terms for such decree; “(d) should this Court remand to the courts of first instance with directions to frame decrees in this case and if so what general directions should the decrees of this Court include and what procedures should the courts of first instance follow in arriving at the specific terms of more detailed decrees? “The Attorney General of the United States in invited to take part in the oral argument and to file an additional brief if he so desires.”
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In the Supreme Court of the United States October Term, 1953
THURGOOD MARSHALL, LOUIS L. REDDING, SPOTTSWOOD W. ROBINSON, III, CHARLES S. SCOTT, Attorneys for Appellants in Nos. 1, 2, 4 and for Respondents in No. 10.
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NO. 1 OLIVER BROWN, ET AL., APPELLANTS, VS. BOARD OF EDUCATION OF TOPEKA, ET AL., APPELLEES.
TABLE OF CONTENTS
Explanatory Statement No. 1
NO. 2
Opinion Below
HARRY BRIGGS, JR., ET AL., APPELLANTS. VS. R. W. ELLIOTT, ET AL., APPELLEES.
Jurisdiction Statement of the Case Specification of Errors No. 2
NO. 4 DOROTHY E. DAVIS, ET AL., APPELLANTS, VS. COUNTY SCHOOL BOARD OF PRINCE EDWARDS COUNTY, APPELLEES.
Jurisdiction Statement of the Case Specification of Errors No. 4
NO. 10
Opinion Below
FRANCIS B. GEBHART, ET AL., PETITIONBERS, VS. ETHEL LOUISE BELTON, ET AL., RESPONDENTS.
Jurisdiction Statement of the Case Specification of Errors
APPEALS FROM THE UNITED STATES DISTRICT COURT FORTHE DISTRICT OF KANSAS, THE EASTERN DISTRICT OF SOUTH CAROLINA AND THE EASTERN DISTRICT OF VIRGINIA, AND ON PETITION FOR A WRIT OF CERTIORARI TO THE SUPREME COURT OF DELAWARE, RESPECTIVELY BRIEF FOR APPELLANTS IN NOS. 1, 2 AND 4 AND FOR RESPONDENTS IN NO. 10 ON REARGUMENT CHARLES L. BLACK JR., ELWOOD H. CHISOLM, WILLIAM T. COLEMAN JR. CHARLES T. DUNCAN, GEORGE E. C. HAYES, WILLIAM R. MING JR., CONSTANCE BAKER MOTLEY, JAMES M. NABRIT JR., DAVID E. PINSKY, FRANK D. REEVES, JOHN SCOTT, JACK B. WEINSTEIN, of Counsel. HAROLD BOULWARE, ROBERT L. CARTER, JACK GREENBERG, OLIVER W. HILL,
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No. 10 Opinion Below Jurisdiction Statement of the Case This Court’s Order Summary of Argument Argument Part One I.
Normal exercise of the judicial function calls for a declaration that the state is without power to enforce distinctions based upon race or color in affording educational opportunities in the public schools II. The statutory and constitutional provisions involved in these cases cannot be validated under separate but equal concept A. Racial segregation cannot be squared with the rationale of the early cases interpreting the reach of the Fourteenth Amendment B. The first time the question came before the Court, racial segre- gation in transportation was specifically disapproved C. The separate but equal doctrine marked an unwarranted departure from the main stream of constitutional development and
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C. The principle of absolute and complete equality began to be translated into federal law as early as 1862 D. From the beginning the thirty-ninth Congress was determined to eliminate race distinctions from American law
permits the frustration of the very purposes of the Fourteenth Amendment as defined by this Court D. The separate but equal doctrine was conceived in error 1. The dissenting opinion of Justice Harlan in Plessy v. Ferguson
The framers of the Fourteenth Amendment
2. Custom, usage and tradition rooted in the slave tradition cannot be the constitutional yardstick for measuring state action under the Fourteenth Amendment 3. Preservation of public peace cannot justify deprivation of constitutional rights 4. The separate but equal doctrine deprives Negroes of that protection which the Fourteenth Amendment accords under the general classification test E. The separate but equal doctrine has not received unqualified approval in this Court F. The necessary consequence of the Sweatt and McLaurin decisions is repudiation of the separate but equal doctrine III. Viewed in the light of history the separate but equal doctrine has been an instrumentality of defiant nullification of the Fourteenth Amendment A. The status of the Negro, slave and free, prior to the Civil War B. The post war struggle C. The Compromise of 1877 and the abandonment of Reconstruction D. Consequences of the 1877 Compromise E. Nullification of the rights guaranteed by the Fourteenth Amendment and the reestablishment of the Negro’s pre–Civil War inferior status fully realized
Conclusion to Part I Part Two I.
The Fourteenth Amendment was intended to destroy all caste and color legislation in the United States, including racial segregation A. The era prior to the Civil War was marked by determined efforts to secure recognition of the principle of complete and real equality for all men within the existing constitutional framework of our government Equality under law B. The movement for complete equality reached its successful culmination in the Civil War and the Fourteenth Amendment
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E. The Fourteenth Amendment was intended to write into the organic law of the United States the principle of absolute and complete equality in broad constitutional language F. The Republican majority in the 39th Congress was determined to prevent future Congresses from diminishing federal protection of these rights G. Congress understood that while the Fourteenth Amendment would give authority to Congress to enforce its provisions, the amendment in and of itself would invalidate all class legislation by the states Congress intended to destroy all class distinction in law H. The treatment of public education or segregation in public schools during the 39th Congress must be considered in the light of the status of public education at that time During the congressional debates on proposed legislation which culminated in the Civil Rights Act of 1875 veterans of the thirty-ninth Congress adhered to their conviction that the Fourteenth Amendment had proscribed segregation in public schools
II. There is convincing evidence that the State Legislatures and conventions which ratified the Fourteenth Amendment contemplated and understood that it prohibited State legislation which would require racial segregation in public schools A. The eleven states seeking readmission understood that the Fourteenth Amendment stripped them of power to maintain segregated schools Arkansas North Carolina, South Carolina, Louisiana, Georgia, Alabama, and Florida Texas Virginia Mississippi Tennessee B. The majority of the twenty-two Union States ratifying the 14th Amendment understood that it forbade compulsory segregation in public schools West Virginia and Missouri The New England States The Middle Atlantic States A M E R I C A N
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The Western Reserve States The Western States C. The non-ratifying states understood that the Fourteenth Amendment forbade enforced segregation in public schools Maryland Kentucky California
Statement of the case
Conclusion to Part II Part Three 1. This Court should declare invalid the constitutional and statutory provisions here involved requiring segregation in public schools. After careful consideration of all of the factors involved in transition from segregated school systems to unsegregated school systems, appellants know of no reasons or considerations which would warrant postponement of the enforcement of appellants’ rights by this Court in the exercise of its equity powers A. The Fourteenth Amendment requires that a decree be entered directing that appellants be admitted forthwith to public schools without distinction as to race or color B. There is no equitable justification for postponement of appellants’ enjoyment of their rights C. Appellants are unable, in good faith, to suggest terms for a decree which will secure effective gradual adjustment because no such decree will protect appellants’ rights
Conclusion Supplement
k EXPLANATORY STATEMENT
One brief is being filed in these four cases. They fundamentally involve the same questions and issues. As an aid to the Court, we are restating below a full history of each case. NO. 1 Opinion below
The opinion of the statutory three-judge District Court for the District of Kansas (R. 238–244) is reported at 98 F. Supp. 797. Jurisdiction
The judgment of the court below was entered on August 3, 1951 (R. 247). On October G A L E
1, 1951, appellants filed a petition for appeal (R. 248), and an order allowing the appeal was entered (R. 250). Probable jurisdiction was noted on June 9, 1952 (R. 254). Jurisdiction of this Court rests on Title 28, United States Code, §§ 1253 and 2101(b).
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Appellants are Negro students eligible to attend and attending elementary schools in Topeka, Kansas, and their parents (R. 3–4). Appellees are state officers empowered to maintain and operate the public schools of Topeka, Kansas (R. 4–5). On March 22, 1951, appellants commenced this class action against appellees to restrain them from enforcing and executing that part of Chapter 72–1724, General Statutes of Kansas, 1949, which permitted racial segregation in public elementary schools, on the ground that it violated the Fourteenth Amendment by depriving the infant appellants of equal educational opportunities (R. 2–7), and for a judgment declaring that the practice of appellees under said statute of maintaining and operating racially segregated elementary schools is in violation of the Fourteenth Amendment. Appellees admitted in their answer that they acted pursuant to the statute and that, solely because of their color, the infant appellants were not eligible to attend any of the elementary schools maintained exclusively for white students (R. 12). The Attorney General of the State of Kansas filed a separate answer specifically to defend the constitutional validity of the statute (R. 14). The court below was convened in accordance with Title 28, United States Code, § 2284, and, on June 25–26, a trial on the merits was held (R. 63 et seq.). On August 3, 1951, the court below filed its opinion (R. 238–244), findings of fact (R. 244–246) and conclusions of law (R. 246–247) and entered a final judgment denying the injunctive relief sought (R. 247). Specification of errors
The court below erred: 1. In refusing to grant appellants’ application for a permanent injunction to restrain appellees from acting pursuant to the statute under which they are maintaining separate A M E R I C A N
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public elementary schools for Negro children, solely because of their race and color. 2. In refusing to hold that the State of Kansas is without authority to promulgate the statute because it enforces a classification based upon race and color which is violative of the Constitution of the United States. 3. In refusing to enter judgment in favor of appellants after finding that enforced attendance at racially segregated elementary schools was detrimental and deprived them of educational opportunities equal to those available to white children. NO. 2 Opinions below
The majority and dissenting opinions of the statutory three-judge District Court for the Eastern District of South Carolina on the first hearing (R. 176–209) are reported in 98 F. Supp. 529–548. The opinion on the second hearing (R. 301–306) is reported in 103 F. Supp. 920–923. Jurisdiction
The judgment of the court below was entered on March 13, 1952 (R. 306). A petition for appeal was filed below and allowed on May 10, 1952 (R. 309). Probable jurisdiction was noted on June 9, 1952 (R. 316). Jurisdiction of this Court rests on Title 28, United States Code, §§ 1253 and 2101(b). Statement of the case
Appellants are Negro children who reside in and are eligible to attend the public schools of School District No. 22, Clarendon County, South Carolina, and their respective parents and guardians (R. 4–5). Appellees are the public school officials of said district who, as officers of the state, maintain and operate the public schools of that district (R. 5–6). On December 22, 1950, appellants commenced this class action against appellees to enjoin enforcement of Article XI, Section 7, of the Constitution of South Carolina and Section 5377 of the Code of Laws of South Carolina of 1942, which require the segregation of races in public schools, on the ground that they deny to appellants the equal protection of the laws secured by the Fourteenth Amendment, and for a judgment declaring that said laws violate the Fourteenth Amendment and are invalid (R. 2–11). G A L E
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Appellees in their answer admitted adherence to the said constitutional and statutory provisions requiring racial segregation in public schools and asserted that such provisions were a reasonable exercise of the police powers of the state and, therefore, were valid (R. 13–17). A three-judge District Court was convened, pursuant to Title 28, United States Code, §§ 2284, and on July 25, 1951, a trial on the merits was held (R. 30 et seq.). On June 23, 1951, the court below filed its opinion (R. 176) and entered a final decree (R. 209): (1) upholding the constitutional validity of the contested state constitutional and statutory provisions; (2) denying the injunctive relief which was sought; (3) requiring appellees to furnish to appellants educational facilities equal to those furnished to white students; and (4) requiring appellees within six months to file a report of action taken toward that end. An appeal from this judgment was allowed by this Court on July 20, 1951. The report required by the decree of the court below was filed on December 21, 1951, and subsequently forwarded to this Court. On January 28, 1952, this Court vacated the judgment of the court below and remanded the case for the purpose of obtaining the views of the court below on the additional facts in the record and to give it the opportunity to take such action as it might deem appropriate in light of the report. 342 U.S. 350. Mr. Justice Black and Mr. Justice Douglas dissented on the ground that the additional facts in the report were “wholly irrelevant to the constitutional questions presented by the appeal to this Court”. 342 U.S. 350. Pursuant to the mandate of this Court, a second trial was held in the court below on March 3, 1953 (R. 271), at which time the appellees filed an additional report showing progress made since the filing of the original report (R. 273). On March 13, 1952, the court below filed its opinion (R. 301) and entered a final decree (R. 306) again upholding the validity of the contested constitutional and statutory provisions, denying the injunctive relief requested and requiring appellees to afford to appellants educational facilities equal to those afforded to white students. Specification of errors
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segregation in the public schools of Clarendon County on the ground that these laws violate rights secured under the equal protection clause of the Fourteenth Amendment. 2. In refusing to grant to appellants immediate and effective relief against the unconstitutional practice of excluding appellants from an opportunity to share the public school facilities of Clarendon County on an equal basis with other students without regard to race or color. 3. In predicating its decision on the doctrine of Plessy v. Ferguson and in disregarding the rationale of Sweatt v. Painter and McLaurin v. Painter.
sought a judgment declaratory of the invalidity of said laws as a denial of rights secured by the due process and equal protection clauses of the Fourteenth Amendment, and an injunction restraining said appellees from enforcing said laws and from making any distinction based on race or color among children attending the secondary schools of the County.
NO. 4
On March 7, 1952, a three-judge District Court found the Negro school inferior in plant, facilities, curricula and means of transportation (R. 622–623) and ordered appellees forthwith to provide “substantially” equal curricula and transportation facilities and to “proceed with all reasonable diligence and dispatch to remove” the existing inequality “by building, furnishing and providing a high school building and facilities for Negro students” (R. 624). It refused to enjoin enforcement of the constitutional and statutory segregation provisions on the grounds: (1) that appellants’ evidence as to the effects of educational segregation did not overbalance appellees’, and that it accepted as “apt and able precedent” Briggs v. Elliott, 98 F. Supp. 529 (E. D. S. C. 1951) and Carr v. Corning, 182 F. 2d 14 (C. A. D. C. 1950) which “refused to decree that segregation be abolished incontinently” (R. 619); (2) that nullification of the segregation provisions was unwarranted in view of evidence that racial segregation was not based on prejudice or caprice but, rather, was “one of the ways of life in Virginia” (R. 620); (3) that segregation has begotten greater opportunities for the Negro (R. 621); (4) that elimination of segregation would lessen interest in and financial support of public schools (R. 621); and (5) that, finding “no hurt or harm to either race,” it was not for the court “to adjudge the policy as right or wrong” (R. 621–622).
Opinion below
The opinion of the statutory three-judge District Court for the Eastern District of Virginia (R. 617–623) is reported at 103 F. Supp. 337–341. Jurisdiction
The judgment of the court below was entered on March 7, 1952 (R. 623). A petition for appeal was filed below and allowed on May 5, 1952 (R. 625, 630, 683). Probable jurisdiction was noted on October 8, 1952. ___U.S. ___, 97 L. ed. (Advance p. 27). Jurisdiction of this Court rests on Title 28, United States Code, §§ 1253 and 2101(b). Statement of the case
Appellants, high school students residing in Prince Edward County, Virginia, and their parents and guardians, brought a class action against appellees, the County School Board and the Division Superintendent of Schools on May 23, 1951. The complaint (R. 5–30) alleged that said appellees maintained separate public secondary schools for Negro and white children pursuant to Article IX, Section 140 of the Constitution of Virginia, and Title 22, Chapter 12, Article 1, section 22–221, of the Code of Virginia of 1950; that the Negro school was inferior and unequal to the white schools; and that it was impossible for the infant appellants to secure educational opportunities or facilities equal to those afforded white children similarly situated as long as said appellees enforce said laws or pursued a policy of racial segregation. It G A L E
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Appellees admitted maintenance of said schools, enforcement of said laws, and inequalities as to physical plant and equipment, but denied that the segregation violated the Constitution (R. 32–36). Appellee, the Commonwealth of Virginia, intervened (R. 37) and made the same admissions and defense (R. 37–39).
Specification of errors
The court below erred: 1. In refusing to enjoin the enforcement of the laws of South Carolina requiring racial A M E R I C A N
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segregation in the public schools of Clarendon County on the ground that these laws violate rights secured under the equal protection clause of the Fourteenth Amendment. In refusing to enjoin the enforcement of Article IX, Section 140 of the Constitution of Virginia, and Title 22, Chapter 12, Article 1, Section 22–221, of the Code of Virginia of 1950, upon the grounds that these laws violate rights secured by the due process and equal protection clauses of the Fourteenth Amendment to the Constitution of the United States. 2. In refusing to enjoin the enforcement of the laws of South Carolina requiring racial segregation in the public schools of Clarendon County on the ground that these laws violate rights secured under the equal protection clause of the Fourteenth Amendment. In refusing to forthwith restrain appellees from using race as a factor in determining the assignment of public secondary educational facilities in Prince Edward County, Virginia, after it had found that appellants are denied equality of buildings, facilities, curricula and means of transportation in violation of the due process and equal protection clauses of the Fourteenth Amendment. 3. In refusing to enjoin the enforcement of the laws of South Carolina requiring racial segregation in the public schools of Clarendon County on the ground that these laws violate rights secured under the equal protection clause of the Fourteenth Amendment. In refusing to hold that appellants are entitled to equality in all aspects of the public secondary educational process, in addition to equality in physical facilities and curricula. 4. In refusing to enjoin the enforcement of the laws of South Carolina requiring racial segregation in the public schools of Clarendon County on the ground that these laws violate rights secured under the equal protection clause of the Fourteenth Amendment. In issuing a decree ordering appellees to equalize secondary school facilities in the County where such decree cannot be effectively enforced without involving the court in the daily operation and supervision of schools. G A L E
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NO. 10
U.S. SUPREME COURT, OCTOBER 1953
Opinions below
The opinion of the Chancellor of the State of Delaware (A. 338) is reported at 87 A. (2d) 862. The opinion of the Supreme Court of Delaware (R. 37) is reported at 91 A. (2d) 137.* Jurisdiction
The judgment of the court below was entered on August 28, 1952 (R. 37). On November 13, 1952 petition for writ of certiorari was filed herein. On November 20, 1952, respondents waived the filing of a brief in opposition to the petition for writ of certiorari and moved that, if certiorari were granted, the argument be advanced and heard immediately following argument in Nos. 8, 101 and 191. On November 24, 1952, the petition for writ of certiorari and motion to advance were granted. ___U.S. ___; 97 L. ed. (Advance, p. 124). Jurisdiction of this Court rests upon Title 28, United States Code, § 1257(3). Statement of the case
No. 10 arises from two separate class actions filed in the Court of Chancery of the State of Delaware by Negro school children and their guardians seeking admittance of the children to two public schools maintained by petitioners exclusively for white children in New Castle County, Delaware. In the courts below, plaintiffs prevailed, and they and members of their class are now attending the schools to which they sought admission, an application for stay of final order having been denied. (Brief of Respondents, No. 448, October Term, 1952, pp. 25–27). Thus, in this case, unlike the other school segregation cases now under consideration, plaintiffs are respondents in this Court. *The record in this case consists of five separate parts: appendix to petitioners’ brief in the court below, the supplement thereto, appendix to respondents’ brief in the court below, the supplement thereto, and the record of proceedings in the Supreme Court of Delaware. These will be referred to in respondents’ brief as follows: Appendix to petitioners’ brief below will be indicated by A; the supplement to the petitioners’ appendix below will be referred to as SA; respondents’ appendix below will be referred to as RA; the supplement to respondents’ appendix below will be referred to as RSA; the record of proceedings in the Supreme Court of Delaware will be referred to as R. (NOTE: this footnote appears on page 393 of WEAL, the first footnote in this file.)
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Nevertheless, they file their brief at this time along with appellants in Numbers 1, 2 and 4, because, on the fundamental issues, they take the same position as do those appellants, and because they believe that by so filing they will facilitate the Court’s consideration of the matters at bar. The complaint (A 3–13) in one of the two cases from which No. 10 arises, alleged that respondents residing in the Claymont Special School District were refused admittance to the Claymont High School maintained by petitioner-members of the State Board of Education and members of the Board of Education of the Claymont Special School District solely because of respondents’ color. Because of this, these respondents were compelled to attend Howard High School (RA 47), a public school for Negroes only, in Wilmington, Delaware. Howard High School is operated and controlled by the Corporate Board of Public Education in Wilmington, not a party to this case (A 314–15, 352; R 57, RA 203). The second complaint (A 14–30) out of which No. 448 arises alleged that respondent was excluded from Hockessin School No. 29, a public elementary school maintained for white children only, by petitioner-members of the State Board of Education and petitioner-members of the Board of School Trustees of Hockessin School No. 29. Respondent and the class she represented at the time of the complaint, attended Hockessin School No. 107, maintained solely for Negroes by the State Board of Education. Respondents in both complaints asserted that the aforesaid stateimposed racial segregation required by Par. 2631, Revised Code of Delaware, 1935, and Article X, Section 1 of the Constitution of Delaware: (1) compelled them to attend schools substantially inferior to those for white children to which admittance was sought; and (2) injured their mental health, impeded their mental and personality development and made inferior their educational opportunity as compared with that offered by the state to white children similarly situated. Such treatment, respondents asserted, is prohibited by the equal protection clause of the Fourteenth Amendment to the Constitution of the United States. Petitioners’ answers (A 31–33, A 34–37) defended the exclusion: (1) upon mandatory constitutional and statutory provisions of the State of Delaware which require separate public G A L E
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schools for white and colored children; and (2) upon the fact that the educational opportunities offered respondents were equal to those offered white children similarly situated. The two cases were consolidated and tried before the Chancellor. In an opinion (A 348– 356; 87 A. (2d) 862) filed on April 1, 1952, the Chancellor found as a fact that in “our Delaware society” segregation in education practiced by petitioners “itself results in Negro children, as a class, receiving educational opportunities which are substantially inferior to those available to white children otherwise similarly situated.” However, the Chancellor denied respondents’ prayers for a judgment on this ground and refused to declare that the Delaware constitutional and statutory provisions violated respondents’ right to equal protection. But the Chancellor did award respondents the relief which they requested because other inequalities were found to exist. These included, in the high school, teacher training, pupil-teacher ratio, extra-curricular activities, physical plant and esthetic considerations, and time and distance involved in travel. As to the elementary schools in question, the court found the Negro facilities inferior in building and site, esthetic considerations, teacher preparation and transportation facilities. A more detailed exposition of the facts upon which these findings were based is set forth in respondents’ Brief in No. 448, October Term, 1952, pp. 27–44. The Chancellor, as stated above, ordered that respondents be granted immediate relief in the only way that it was then available, that is, by admission to the superior facilities. On August 28, 1952, the Supreme Court of Delaware affirmed. 91 A. (2d) 137. Its findings on some of the facts were somewhat different than the Chancellor’s but, on the whole, it agreed with him. Upholding the Chancellor’s determination that the requested relief could not be granted because of the harmful psychological effect of racial segregation, it did not otherwise review his factual findings in this regard. Denying petitioners’ plea for time to equalize the facilities in question, the Supreme Court held that in the high school case: (1) a decree ordering petitioners to equalize the facilities in question could have no effect on the legal entity having control of the Wilmington public schools which was not a party to the cause; and (2) that the court did not see how it could supervise and control the expenditure of A M E R I C A N
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state funds in a matter committed to the administrative discretion of school authorities. Finally, the court held that it could not issue a decree which would, in effect, deny to plaintiffs what it had held they rightfully deserved. As to the elementary school, the court also noted that defendants had not assumed the burden of showing to what extent remedial legislation had improved or could improve conditions in the future. Alluding to its antecedent discussion of the question of relief for high school respondents, it affirmed the Chancellor’s finding on this issue also. Stay of the order was denied by the Chancellor and by the Supreme Court of Delaware (Brief of Respondents, No. 448, October Term, 1952, pp. 25–27) and respondents and members of their class are now enjoying their second year of equal educational opportunities under the decree. This court’s order
These four cases were argued and submitted to the Court on December 9–11, 1952. Thereafter, on June 8, 1953, this Court entered its order for reargument, as follows, ___U.S. ___; 97 L. ed. (Advance p. 956): “Each of these cases is ordered restored to the docket and is assigned for reargument on Monday, October 12, next. In their briefs and on oral argument counsel are requested to discuss particularly the following questions insofar as they are relevant to the respective cases: “1. What evidence is there that the Congress which submitted and the State legislatures and conventions which ratified the Fourteenth Amendment contemplated or did not contemplate, understood or did not understand, that it would abolish segregation in public schools? “2. If neither the Congress in submitting nor the States in ratifying the Fourteenth Amendment understood that compliance with it would require the immediate abolition of segregation in public schools, was it nevertheless the understanding of the framers of the Amendment “(a) that future Congresses might, in the exercise of their power under Sec. 5 of the Amendment, abolish such segregation, or “(b) that it would be within the judicial power, in light of future conditions, to construe the Amendment as abolishing such segregation of its own force? G A L E
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“3. On the assumption that the answers to questions 2(a) and (b) do not dispose of the issue, is it within the judicial power, in construing the Amendment, to abolish segregation in public schools? “4. Assuming it is decided that segregation in public schools violates the Fourteenth Amendment
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“(a) would a decree necessarily follow providing that, within the limits set by normal geographic school districting, Negro children should forthwith be admitted to schools of their choice, or “(b) may this Court, in the exercise of its equity powers, permit an effective gradual adjustment to be brought about from existing segregated systems to a system not based on color distinctions? “5. On the assumption on which questions 4 (a) and (b) are based, and assuming further that this Court will exercise its equity powers to the end described in question 4(b), “(a) should this Court formulate detailed decrees in these cases; “(b) if so what specific issues should the decrees reach; “(c) should this Court appoint a special master to hear evidence with a view to recommending specific terms for such decrees; “(d) should this Court remand to the courts of first instance with directions to frame decrees in these cases, and if so, what general directions should the decrees of this Court include and what procedures should the courts of first instance follow in arriving at the specific terms of more detailed decrees? “The Attorney General of the United States is invited to take part in the oral argument and to file an additional brief if he so desires.”
On August 4, 1953, upon motion of the Attorney General of the United States and without objection by the parties, this Court entered its order postponing the date assigned for reargument of these cases until December 7, 1953. SUMMARY OF ARGUMENT
These cases consolidated for argument before this Court present in different factual contexts essentially the same ultimate legal questions. The substantive question common to all is whether a state can, consistently with the A M E R I C A N
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Constitution, exclude children, solely on the ground that they are Negroes, from public schools which otherwise they would be qualified to attend. It is the thesis of this brief, submitted on behalf of the excluded children, that the answer to the question is in the negative: the Fourteenth Amendment prevents states from according differential treatment to American children on the basis of their color or race. Both the legal precedents and the judicial theories, discussed in Part I hereof, and the evidence concerning the intent of the framers of the Fourteenth Amendment and the understanding of the Congress and the ratifying states, developed in Part II hereof, support this proposition. Denying this thesis, the school authorities, relying in part on language originating in this Court’s opinion in Plessy v. Ferguson, 163 U.S. 537, urge that exclusion of Negroes, qua Negroes, from designated public schools is permissible when the excluded children are afforded admittance to other schools especially reserved for Negroes, qua Negroes, if such schools are equal. The procedural question common to all the cases is the role to be played, and the time-table to be followed, by this Court and the lower courts in directing an end to the challenged exclusion, in the event that this Court determines, with respect to the substantive question, that exclusion of Negroes, qua Negroes, from public schools contravenes the Constitution. The importance to our American democracy of the substantive question can hardly be overstated. The question is whether a nation founded on the proposition that “all men are created equal” is honoring its commitments to grant “due process of law” and “the equal protection of the laws” to all within its borders when it, or one of its constituent states, confers or denies benefits on the basis of color or race. 1. Distinctions drawn by state authorities on the basis of color or race violate the Fourteenth Amendment. Shelley v. Kraemer, 334 U.S. 1; Buchanan v. Warley, 245 U.S. 60. This has been held to be true even as to the conduct of public educational institutions. Sweatt v. Painter, 339 U.S. 629; McLaurin v. Oklahoma State Regents, 339 U.S. 637. Whatever other purposes the Fourteenth Amendment may have had, it is indisputable that its primary purpose was to complete the emancipation provided by the G A L E
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Thirteenth Amendment by ensuring to the Negro equality before the law. The SlaughterHouse Cases, 16 Wall. 36; Strauder v. West Virginia, 100 U.S. 303. 2. Even if the Fourteenth Amendment did not per se invalidate racial distinctions as a matter of law, the racial segregation challenged in the instant cases would run afoul of the conventional test established for application of the equal protection clause because the racial classifications here have no reasonable relation to any valid legislative purpose. See Quaker City Cab Co. v. Pennsylvania, 277 U.S. 389; Truax v. Raich, 239 U.S. 33; Smith v. Cahoon, 283 U.S. 553; Mayflower Farms v. Ten Eyck, 297 U.S. 266; Skinner v. Oklahoma, 316 U.S. 535. See also Tunstall v. Brotherhood of Locomotive Firemen, 323 U.S. 192; Steele v. Louisville & Nashville R. R. Co., 323 U.S. 192. 3. Appraisal of the facts requires rejection of the contention of the school authorities. The educational detriment involved in racially constricting a student’s associations has already been recognized by this Court. Sweatt v. Painter, 339 U.S. 629; McLaurin v. Oklahoma State Regents, 339 U.S. 637. 4. The argument that the requirements of the Fourteenth Amendment are met by providing alternative schools rests, finally, on reiteration of the separate but equal doctrine enunciated in Plessy v. Ferguson. Were these ordinary cases, it might be enough to say that the Plessy case can be distinguished—that it involved only segregation in transportation. But these are not ordinary cases, and in deference to their importance it seems more fitting to meet the Plessy doctrine head-on and to declare that doctrine erroneous. Candor requires recognition that the plain purpose and effect of segregated education is to perpetuate an inferior status for Negroes which is America’s sorry heritage from slavery. But the primary purpose of the Fourteenth Amendment was to deprive the states of all power to perpetuate such a caste system. 5. The first and second of the five questions propounded by this Court requested enlightment as to whether the Congress which submitted, and the state legislatures and conventions which ratified, the Fourteenth Amendment contemplated or understood that it would prohibit segregation in public schools, either of A M E R I C A N
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its own force or through subsequent legislative or judicial action. The evidence, both in Congress and in the legislatures of the ratifying states, reflects the substantial intent of the Amendment’s proponents and the substantial understanding of its opponents that the Fourteenth Amendment would, of its own force, proscribe all forms of state-imposed racial distinctions, thus necessarily including all racial segregation in public education. The Fourteenth Amendment was actually the culmination of the determined efforts of the Radical Republican majority in Congress to incorporate into our fundamental law the welldefined equalitarian principle of complete equality for all without regard to race or color. The debates in the 39th Congress and succeeding Congresses clearly reveal the intention that the Fourteenth Amendment would work a revolutionary change in our state-federal relationship by denying to the states the power to distinguish on the basis of race. The Civil Rights Bill of 1866, as originally proposed, possessed scope sufficiently broad in the opinion of many Congressmen to entirely destroy all state legislation based on race. A great majority of the Republican Radicals—who later formulated the Fourteenth Amendment— understood and intended that the Bill would prohibit segregated schools. Opponents of the measure shared this understanding. The scope of this legislation was narrowed because it was known that the Fourteenth Amendment was in process of preparation and would itself have scope exceeding that of the original draft of the Civil Rights Bill. 6. The evidence makes clear that it was the intent of the proponents of the Fourteenth Amendment, and the substantial understanding of its opponents, that it would, of its own force, prohibit all state action predicated upon race or color. The intention of the framers with respect to any specific example of caste state action—in the instant cases, segregated education—cannot be determined solely on the basis of a tabulation of contemporaneous statements mentioning the specific practice. The framers were formulating a constitutional provision setting broad standards for determination of the relationship of the state to the individual. In the nature of things they could not list all the specific categories of existing and prospective state activity which were to come within the constitutional prohibitions. The G A L E
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broad general purpose of the Amendment— obliteration of race and color distinctions—is clearly established by the evidence. So far as there was consideration of the Amendment’s impact upon the undeveloped educational systems then existing, both proponents and opponents of the Amendment understood that it would proscribe all racial segregation in public education. 7. While the Amendment conferred upon Congress the power to enforce its prohibitions, members of the 39th Congress and those of subsequent Congresses made it clear that the framers understood and intended that the Fourteenth Amendment was self-executing and particularly pointed out that the federal judiciary had authority to enforce its prohibitions without Congressional implementation. 8. The evidence as to the understanding of the states is equally convincing. Each of the eleven states that had seceded from the Union ratified the Amendment, and concurrently eliminated racial distinctions from its laws, and adopted a constitution free of requirement or specific authorization of segregated schools. Many rejected proposals for segregated schools, and none enacted a school segregation law until after readmission. The significance of these facts is manifest from the consideration that ten of these states, which were required, as a condition of readmission, to ratify the Amendment and to modify their constitutions and laws in conformity therewith, considered that the Amendment required them to remove all racial distinctions from their existing and prospective laws, including those pertaining to public education. Twenty-two of the twenty-six Union states also ratified the Amendment. Although unfettered by congressional surveillance, the overwhelming majority of the Union states acted with an understanding that it prohibited racially segregated schools and necessitated conformity of their school laws to secure consistency with that understanding. 9. In short, the historical evidence fully sustains this Court’s conclusion in the Slaughter House Cases, 16 Wall. 61, 81, that the Fourteenth Amendment was designed to take from the states all power to enforce caste or class distinctions. 10. The Court in its fourth and fifth questions assumes that segregation is declared A M E R I C A N
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unconstitutional and inquires as to whether relief should be granted immediately or gradually. Appellants, recognizing the possibility of delay of a purely administrative character, do not ask for the impossible. No cogent reasons justifying further exercise of equitable discretion, however, have as yet been produced. It has been indirectly suggested in the briefs and oral argument of appellees that some such reasons exist. Two plans were suggested by the United States in its Brief as Amicus Curiae. We have analyzed each of these plans as well as appellees’ briefs and oral argument and find nothing there of sufficient merit on which this Court, in the exercise of its equity power, could predicate a decree permitting an effective gradual adjustment from segregated to nonsegregated school systems. Nor have we been able to find any other reasons or plans sufficient to warrant the exercise of such equitable discretion in these cases. Therefore, in the present posture of these cases, appellants are unable to suggest any compelling reasons for this Court to postpone relief. ARGUMENT PART ONE
The question of judicial power to abolish segregated schools is basic to the issues involved in these cases and for that reason we have undertaken to analyze it at the outset before dealing with the other matters raised by the Court, although formally this means that the first section of this brief comprehends Question No. 3: On the assumption that the answers to question 2(a) and (b) do not dispose of the issue, is it within the judicial power, in construing the Amendment, to abolish segregation in public schools? I. NORMAL EXERCISE OF THE JUDICIAL FUNCTION CALLS FOR A DECLARATION THAT THE STATE IS WITHOUT POWER TO ENFORCE DISTINCTIONS BASED UPON RACE OR COLOR IN AFFORDING EDUCATIONAL OPPORTUNITIES IN THE PUBLIC SCHOOLS
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has been exercised in such a way as to deprive a Negro of a right which he would have freely enjoyed if he had been white, then that state’s action violated the Fourteenth Amendment. In Shelley v. Kraemer, 334 U.S. 1, for example, an unanimous Court held that States of Missouri and Michigan had violated the 14th Amendment when their courts ruled that a Negro could not own real property whose ownership it was admitted the state law would have protected him in, had he been white. This, despite the fact that the state court was doing no more than enforcing a private agreement running with the land. The sole basis for the decision, then, was that the Fourteenth Amendment compels the states to be color blind in exercising their power and authority. Buchanan v. Warley, 245 U.S. 60, was an earlier decision to the same effect. There, this Court invalidated a Louisville, Kentucky ordinance which required racial residential segregation. Though it applied to Negro and white alike, the Court rightly recognized that the ordinance was an exercise of the state’s power based on race and race alone. This, the Court ruled, was a violation of the Fourteenth Amendment. To the same effect is Barrows v. Jackson, ___U.S. ___, 97 (L. Ed. Advance p. 261). And see Oyama v. California, 332 U.S. 633. This Court has applied the same rigorous requirement to the exercise of the state’s power in providing public education. Beginning with Missouri ex rel. Gaines v. Canada, 305 U.S. 337, this Court has uniformly ruled that the Fourteenth Amendment prohibits a state from using race or color as the determinant of the quantum, quality or type of education and the place at which education is to be afforded. Most recently, this Court in McLaurin v. Oklahoma State Regents, 339 U.S. 637, held that rules which made distinctions among students in the same school solely on the basis of color were forbidden by the Fourteenth Amendment. Thus, this Court has made it plain that no state may use color or race as the axis upon which the state’s power turns, and the conduct of the public education system has not been excepted from this ban. This judicial recognition that race is an irrational basis for governmental action under our Constitution has been manifested in many decisions and opinions of this Court. In Yick Wo v. Hopkins, 118 U.S. 356, this Court struck A M E R I C A N
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down local administrative action which differentiated between whites and Chinese. In Hirabayashi v. United States, 320 U.S. 81, 100, Chief Justice Stone, in a majority opinion, characterized racial distinctions as “odious to a free people”. In Korematsu v. United States, 323 U.S. 214, 216, the Court viewed racial restrictions as “immediately suspect”. Mr. Justice Jackson, concurring in Edwards v. California, 314 U.S. 180, 185, referred to race and color as “constitutionally an irrelevance”. Mr. Justice Douglas, dissenting in South v. Peters, 339 U.S. 276, 278, considered discriminations based upon race, creed, or color “beyond the pale”. In an unanimous opinion in Henderson v. United States, 339 U.S. 816, 825, the Court, while not reaching the constitutional question raised, described signs, partitions and curtains segregating Negroes in railroad dining cars as emphasizing “the artificiality of a difference in treatment which serves only to call attention to a racial classification of passengers holding identical tickets and using the same public dining facility”. Every member of the present Court has from time to time subscribed to this view of race as an irrational premise for government action. The restrictions placed upon persons of Japanese origin on the West Coast during World War II were sustained in Hirabayashi v. United States, supra, and in Korematsu v. United States, supra, as emergency war measures taken by the national government in a dire national peril of the gravest nature. The military decision was upheld as within an implied war power, and the Court was unwilling to interfere with measures considered necessary to the safety of the nation by those primarily responsible for its security. Yet, in upholding these orders, the Court made some of the most sweeping condemnations of governmentally imposed racial and color distinctions ever announced by our judiciary. And while departure from accepted standards of governmental conduct was sustained in order to remove persons of Japanese origin from areas where sabotage and espionage might have worked havoc with the national war effort, once this removal was accomplished and individual loyalty determined, further restrictions based upon race or color could no longer be countenanced. Ex Parte Endo, 323 U.S. 283. Tunstall v. Brotherhood of Locomotive Firemen & Enginemen, 323 U.S. 210, and Steele v. G A L E
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Louisville & Nashville R. R. Co., 323 U.S. 192, while not deciding the constitutional question, left no doubt that the Fifth Amendment had stripped the national government of power to enforce the racial discrimination assailed. These decisions serve to underscore the constitutional prohibition against Congressional action grounded upon color except in so far as it may have temporary justification to meet an overwhelming national emergency such as that which led to decisions in the Hirabayashi and Korematsu cases. The power of states is even more rigidly circumscribed. For there is grave doubt that their acts can be sustained under the exception made in the Hirabayashi and Korematsu cases with respect to the national government. See Oyama v. California, 332 U.S. 633. The Fourteenth Amendment has been defined as a broad prohibition against state enforcement of differentiations and discrimination based upon race or color. State action restricting the right of Negroes to vote has been struck down as a violation of the Fourteenth Amendment. Nixon v. Condon, 286 U.S. 73. Similarly, the Court has refused to sanction the systematic exclusion of Negroes from the petit or grand jury, Hill v. Texas, 316 U.S. 400; Pierre v. Louisiana, 306 U.S. 354; their representation on juries on a token or proportional basis, Cassell v. Texas, 339 U.S. 282; Shepherd v. Florida, 341 U.S. 50; or any method in the selection of juries susceptible of racial discrimination in practice. Avery v. Georgia, 345 U.S. 559. Legislation depriving persons of particular races of an opportunity to pursue a gainful occupation has been held a denial of equal protection. Truax v. Raich, 239 U.S. 33; Takahashi v. Fish and Games Commission, 334 U.S. 410. It is now well settled that a state may not make racial differences among its employees the basis for salary differentiations. Alston v. School Board, 112 F. 2d 992 (CA 4th 1940), cert. denied, 311 U.S. 693. Indeed, abhorrence of race as a premise for governmental action pervades a wide realm of judicial opinion dealing with other constitutional provisions. Sweeping decisions have enforced the right of Negroes to make effective use of the electoral process consistent with the requirements of the Fifteenth Amendment. Guinn v. United States, 238 U.S. 347; Lane v. A M E R I C A N
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Wilson, 307 U.S. 268; Smith v. Allwright, 321 U.S. 649; Terry v. Adams, 345 U.S. 461. It should be added parenthetically that these decisions are not mere pro forma applications of the self-evident requirements of the Fifteenth Amendment. On the contrary, the concept of state action has been utilized in a dynamic and expanding fashion as the Court has sought to reach any method or subterfuge with which the state has attempted to avoid its obligation under that constitutional amendment. Smith v. Allwright, supra; Terry v. Adams, supra. See Rice v. Elmore, 165 F. 2d 387 (CA 4th 1947), cert. denied, 333 U.S. 875 and Baskin v. Brown, 174 F. 2d 391 (CA 4th 1949), cases holding state nonaction violative of the Fifteenth Amendment the principle of which was expressly approved in Terry v. Adams. State laws requiring racial segregation in interstate commerce have been declared an invalid invasion of commerce power reserved to the Congress. Morgan v. Virginia, 328 U.S. 373. But where a state sought to enforce against a carrier engaged in foreign commerce its local non-segregation policy, the state law was upheld. The Court considered it inconceivable that the Congress in the exercise of its plenary power over commerce would take any action in conflict with the local nondiscriminatory regulations imposed. Bob-Lo Excursion Co. v. Michigan, 333 U.S. 28. These two cases considered together strikingly exemplify this Court’s position that fundamental national policy is offended by a requirement of segregation, but implemented by its prohibition. The contention by a labor union that a state civil rights law which prohibited racial discrimination in union membership offended the Fourteenth Amendment was dismissed because such a position “would be a distortion of the policy manifested in that amendment which was adopted to prevent state legislation designed to perpetuate discrimination on the basis of race and color.” Railway Mail Association v. Corsi, 326 U.S. 88, 94. Thus, the Court has all but universally made short shrift of attempts to use governmental power to enforce racial distinctions. Yet, where such power has prohibited racial discrimination, it has been sustained even where it has been urged that the state is acting in derogation of other constitutional rights or protected interests. G A L E
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At the graduate and professional school level, closest to the cases here, racial distinctions as applied have been struck down. McLaurin v. Oklahoma State Regents, 339 U.S. 637; Sweatt v. Painter, 339 U.S. 629. In those cases the educational process was viewed as a totality. The faculty of the school, the prestige of the institution, the fact that segregation deprived the Negro applicant of the benefits which he might secure in attending school with representatives of the state’s dominant racial majority, the value judgment of the community with respect to the segregated school, and the impact of segregation on the individual were among the factors considered by the Court in determining that equal educational opportunities were not available. Those cases, we submit, control disposition of the cases here. Since segregation was found to impair and inhibit an adult’s ability to study in the McLaurin case, it seems clear that such segregation has even more far reaching adverse consequences on the mental development of the children involved here. Sweatt’s isolation from the dominant racial majority in a segregated law school was held to deprive him of an effective opportunity to learn the law. The basic function of the public school is to instruct each succeeding generation in the fundamental traditions of our democracy. The child can best come to believe in and respect these traditions by learning them in a setting in which they are in practical operation. But to be taught that our society is founded upon a concept of equality in a public school from which those racial groups are excluded which hold pre-eminence in every field in his community makes it all but impossible for such teachings to take root. Segregation here is detrimental to the Negro child in his effort to develop into a useful and productive citizen in a democracy. The Sweatt and McLaurin cases teach that the Court will consider the educational process in its entirety, including, apart from the measurable physical facilities, whatever factors have been shown to have educational significance. This rule cannot be peculiar to any level of public education. Public elementary and high school education is no less a governmental function than graduate and professional education in state institutions. Moreover, just as Sweatt and McLaurin were denied certain A M E R I C A N
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benefits characteristic of graduate and professional education, it is apparent from the records of these cases that Negroes are denied educational benefits which the state itself asserts are the fundamental objectives of public elementary and high school education. South Carolina, like the other states in this country, has accepted the obligation of furnishing the extensive benefits of public education. Article XI, section 5, of the Constitution of South Carolina, declares: “The General Assembly shall provide for a liberal system of free public schools for all children between the ages of six and twenty-one years”. Some 410 pages of the Code of Laws of South Carolina deal with “education”. Title 31, Chapters 122–23, S. C. Code, pp. 387–795 (1935). Provision is made for the entire state-supported system of public schools, its administration and organization, from the kindergarten through the university. Pupils and teachers, school buildings, minimum standards of school construction, and specifications requiring certain general courses of instruction are dealt with in detail. In addition to requiring that the three “R’s” must be taught, the law compels instruction in “morals and good behaviour” and in the “principles” and “essentials of the United States Constitution, including the study of and devotion to American institutions”. Title 31, Chapter 122, sections 5321, 5323, 5325, S. C. Code (1935). The other states involved here are attempting to promote the same objectives. These states thus recognize the accepted broad purposes of general public education in a democratic society. There is no question that furnishing public education is now an accepted governmental function. There are compelling reasons for a democratic government’s assuming the burden of educating its children, of increasing its citizens’ usefulness, efficiency and ability to govern. In a democracy citizens from every group, no matter what their social or economic status or their religious or ethnic origins, are expected to participate widely in the making of important public decisions. The public school, even more than the family, the church, business institutions, political and social groups and other institutions, has become an effective agency for giving to all people that broad background of attitudes and skills required to enable them to function effectively as participants in a democracy. Thus, “education” comprehends the entire G A L E
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process of developing and training the mental, physical and moral powers and capabilities of human beings. See Weyl v. Comm. of Int. Rev., 48 F. 2d 811, 812 (CA 2d 1931); Jones v. Better Business Bureau, 123 F. 2d 767, 769 (CA 10th 1941). The records in instant cases emphasize the extent to which the state has deprived Negroes of these fundamental educational benefits by separating them from the rest of the school population. In the case of Briggs v. Elliott (No. 101), expert witnesses testified that compulsory racial segregation in elementary and high schools inflicts considerable personal injury on the Negro pupils which endures as long as these students remain in the segregated school. These witnesses testified that compulsory racial segregation in the public schools of South Carolina injures the Negro students by: (1) impairing their ability to learn (R. 140, 161); (2) deterring the development of their personalities (R. 86, 89); (3) depriving them of equal status in the school community (R. 89, 141, 145); (4) destroying their self-respect (R. 140, 148); (5) denying them full opportunity for democratic social development (R. 98, 99, 103); (6) subjecting them to the prejudices of others (R. 133) and stamping them with a badge of inferiority (R. 148). Similar testimony was introduced in each of the other three cases here involved, and that testimony was undisputed in the case of Briggs v. Elliott (No. 101); Brown v. Board of Education of Topeka, et al. (No. 8); Gebhart v. Belton (No. 448). In Davis v. County School Board (No. 191), while witnesses for the appellees disputed portions of the testimony of appellants’ expert witnesses, four of appellees’ witnesses admitted that racial segregation has harmful effects and another recognized that such segregation could be injurious. In the Gebhart case (No. 448) the Chancellor filed an opinion in which he set forth a finding of fact, based on the undisputed oral testimony of experts in education, sociology, psychology, psychiatry and anthropology (A. 340–341) that in “our Delaware society”, segregation in education practiced by petitioners as agents of the state “itself results in the Negro children, as a class, receiving educational opportunities which are substantially inferior to those available to white children otherwise similarly situated”. A M E R I C A N
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And the court below in the Brown case (No. 8) made the following Finding of Fact (R. 245–246): “Segregation of white and colored children in public schools has a detrimental effect upon the colored children. The impact is greater when it has the sanction of the law; for the policy of separating the races is usually interpreted as denoting the inferiority of the negro group. A sense of inferiority affects the motivation of a child to learn. Segregation with the sanction of law, therefore, has a tendency to retard the educational and mental development of negro children and to deprive them of some of the benefits they would receive in a racially integrated school system.”
The testimony of the expert witnesses in the cases now under consideration, the Opinion of the Chancellor in the Delaware case and the Finding of Fact by the lower court in the Kansas case are amply supported by scientific studies of recognized experts. A compilation of these materials was assembled and filed as an Appendix to the briefs in these cases on the first hearing. The observation of Mr. Justice Jackson in West Virginia State Board of Education v. Barnette, 319 U.S. 624, 636 that public school children, being educated for citizenship, must be scrupulously protected in their constitutional rights, “if we are not to strangle the free mind at its source and teach youth to discount important principles of our government as mere platitudes”, while made in somewhat different context, appropriately describes the high public interest which these cases involve. In sum, the statutes and constitutional provisions assailed in these cases must fall because they are contrary to this Court’s basic premise that, as a matter of law, race is not an allowable basis of differentiation in governmental action; they are inconsistent with the broad prohibition of the Fifth and Fourteenth Amendments as defined by this Court; they are clearly within that category of racism in state action specifically prohibited by the McLaurin and Sweatt decisions. II. THE STATUTORY AND CONSTITUTIONAL PROVISIONS INVOLVED IN THESE CASES CANNOT BE VALIDATED UNDER ANY SEPARATE BUT EQUAL CONCEPT
The basic principles referred to in Point I above, we submit, control these cases, and except for the mistaken belief that the doctrine G A L E
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of Plessy v. Ferguson, 163 U.S. 537, is a correct expression of the meaning of the Fourteenth Amendment, these cases would present no difficult problem. This Court announced the separate but equal doctrine in a transportation case, and proponents of segregation have relied upon it repeatedly as a justification for racial segregation as if “separate but equal” had become in haec verba an amendment to the Fourteenth Amendment, itself. Under that anomalous doctrine, it is said that racial differentiations in the enjoyment of rights protected by the Fourteenth Amendment are permitted as long as the segregated facilities provided for Negroes are substantially equal to those provided for other racial groups. In each case in this Court where a state scheme of racism has been deemed susceptible of rationalization under the separate but equal formula, it has been urged as a defense. A careful reading of the cases, however, reveals that this doctrine has received only very limited and restricted application in the actual decisions of this Court, and even that support has been eroded by more recent decisions. See particularly McLaurin v. Oklahoma State Regents; Sweatt v. Painter. Whatever appeal the separate but equal doctrine might have had, it stands mirrored today as the faulty conception of an era dominated by provincialism, by intense emotionalism in race relations caused by local and temporary conditions and by the preaching of a doctrine of racial superiority that contradicted the basic concept upon which our society was founded. Twentieth century America, fighting racism at home and abroad, has rejected the race views of Plessy v. Ferguson because we have come to the realization that such views obviously tend to preserve not the strength but the weaknesses of our heritage. A. Racial segregation cannot be squared with the rationale of the early cases interpreting the reach of the Fourteenth Amendment
In the Slaughter House Cases, 16 Wall. 36— the first case decided under the Fourteenth Amendment—the Court, drawing on its knowledge of an almost contemporaneous event, recognized that the Fourteenth Amendment secured to Negroes full citizenship rights and prohibited any state action discriminating against them as a class on account of their race. A M E R I C A N
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Thus, addressing itself to the intent of the Thirteenth, Fourteenth and Fifteenth Amendments, the Court said at pages 71 and 72: “We repeat, then, in the light of this recapitulation of events, almost too recent to be called history, but which are familiar to us all; and on the most casual examination of the language of these amendments, no one can fail to be impressed with the one pervading purpose found in them all, lying at the foundation of each, and without which none of them would have been even suggested; we mean the freedom of the slave race, the security and firm establishment of that freedom, and the protection of the newly made freeman and citizen from the oppressions of those who had formerly exercised unlimited dominion over him. It is true that only the 15th Amendment, in terms, mentions the negro by speaking of his color and his slavery. But it is just as true that each of the other articles was addressed to the grievances of that race, and designed to remedy them as the fifteenth.”
The real purpose of the equal protection clause was discussed in these terms at page 81: “In the light of the history of these amendments, and the pervading purpose of them, which we have already discussed, it is not difficult to give a meaning to this clause. The existence of laws in the states where the newly emancipated negroes resided, which discriminated with gross injustice and hardship against them as a class, was the evil to be remedied by this clause, and by it such laws are forbidden.” (Emphasis supplied.)
So convinced was the Court that the overriding purpose of the Fourteenth Amendment was to protect the Negro against discrimination that it declared further at page 81: “We doubt very much whether any action of a state not directed by way of discrimination against the negroes as a class, or on account of their race, will ever be held to come within the purview of this provision. It is so clearly a provision for that race and that emergency, that a strong case would be necessary for its application to any other.”
In Strauder v. West Virginia, 100 U.S. 303, the Court, on page 306, viewed the Fourteenth Amendment in the same light and stated that its enactment was aimed to secure for the Negro all the civil rights enjoyed by white persons: “It was in view of these considerations the 14th Amendment was framed and adopted. It was designed to assure to the colored race the enjoyment of all the civil rights that under the G A L E
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law are enjoyed by white persons, and to give to that race the protection of the General Government, in that enjoyment, whenever it should be denied by the States. It not only gave citizenship and the privileges of citizenship to persons of color, but it denied to any State the power to withhold from them the equal protection of the laws, and authorized Congress to enforce its provisions by appropriate legislation.” (Emphasis supplied).
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Clearly recognizing the need to construe the Amendment liberally in order to protect the Negro, the Court noted at page 307: “If this is the spirit and meaning of the Amendment, whether it means more or not, it is to be construed liberally, to carry out the purposes of its framers. It ordains that no State shall make or enforce any laws which shall abridge the privileges or immunities of citizens of the United States (evidently referring to the newly made citizens, who, being citizens of the United States, are declared to be also citizens of the State in which they reside).”
It was explicitly stated at pages 307, 308 that the Amendment prevented laws from distinguishing between colored and white persons: “What is this but declaring that the law in the States shall be the same for the black as for the white; that all persons, whether colored or white, shall stand equal before the laws of the States and, in regard to the colored race, for whose protection the Amendment was primarily designed, that no discrimination shall be made against them by law because of their color? The words of the Amendment, it is true, are prohibitory, but they contain a necessary implication of a positive immunity, or right, most valuable to the colored race— the right to exemption from unfriendly legislation against them distinctly as colored; exemption from legal discriminations, implying inferiority in civil society, lessening the security of their enjoyment of the rights which others enjoy, and discriminations which are steps towards reducing them to the condition of a subject race.” (Emphasis supplied).
Any distinction based upon race was understood as constituting a badge of inferiority, at page 308: “The very fact that colored people are singled out and expressly denied by a statute all right to participate in the administration of the law, as jurors, because of their color, though they are citizens and may be in other respects fully qualified, is practically a brand upon them, affixed by the law; an assertion of their
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inferiority, and a stimulant to that race prejudice which is an impediment to securing to individuals of the race that equal justice which the law aims to secure to all others.”
There was no doubt that this new constitutional provision had changed the relationship between the federal government and the states so that the federal courts could and should now protect these new rights. At page 309 the Court said: “The framers of the constitutional Amendment must have known full well the existence of such prejudice and its likelihood to continue against the manumitted slaves and their race, and that knowledge was, doubtless, a motive that led to the Amendment. By their manumission and citizenship the colored race became entitled to the equal protection of the laws of the States in which they resided; and the apprehension that, through prejudice, they might be denied that equal protection, that is, that there might be discrimination against them, was the inducement to bestow upon the National Government the power to enforce the provision that no State shall deny to them the equal protection of the laws. Without the apprehended existence of prejudice that portion of the Amendment would have been unnecessary, and it might have been left to the States to extend equality of protection.”
That law must not distinguish between colored and white persons was the thesis of all the early cases. United States v. Cruikshank, 92 U.S. 542, 554, 555; Virginia v. Rives, 100 U.S. 313; Ex Parte Virginia, 100 U.S. 339; Neal v. Delaware, 103 U.S. 370, 386; Bush v. Kentucky, 107 U.S. 110; Civil Rights Cases, 109 U.S. 3, 36, 43. As early as Yick Wo v. Hopkins, 118 U.S. 356, it became settled doctrine that the Fourteenth Amendment was a broad prohibition against state enforcement of racial differentiations or discrimination—a prohibition totally at war with any separate but equal notion. There can be no doubt, we submit, that, had the state regulation approved in Plessy v. Ferguson been before the Court that rendered the initial interpretations of the Fourteenth Amendment, the regulation would have been held a violation of the Federal Constitution. B. The first time the question came before the Court, racial segregation in transportation was specifically disapproved
In Railroad Co. v. Brown, 17 Wall. 445, the first case involving the validity of segregation to reach this Court after the adoption of the G A L E
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Fourteenth Amendment, segregation was struck down as an unlawful discrimination. While the Fourteenth Amendment was not before the Court, the decision in the Brown case was in line with the spirit of the new status that the Negro had gained under the Thirteenth, Fourteenth and Fifteenth Amendments. The problem before the Court concerned the validity of the carrier’s rules and regulations that sought to segregate its passengers because of race. The pertinent facts are described by the Court as follows at page 451: “In the enforcement of this regulation, the defendant in error, a person of color, having entered a car appropriated to white ladies, was requested to leave it and take a seat in another car used for colored persons. This she refused to do, and this refusal resulted in her ejectment by force and with insult from the car she had first entered.”
The Court characterized the railroad’s defense that its practice of providing separate accommodations for Negroes was valid, as an ingenious attempt at evasion, at page 452: “The plaintiff in error contends that it has literally obeyed the direction, because it has never excluded this class of persons from the cars, but on the contrary, has always provided accommodations for them.
“This is an ingenious attempt to evade a compliance with the obvious meaning of the requirement. It is true the words taken literally might bear the interpretation put upon them by the plaintiff in error, but evidently Congress did not use them in any such limited sense. There was no occasion, in legislating for a railroad corporation, to annex a condition to a grant of power, that the company should allow colored persons to ride in its cars. This right had never been refused, nor could there have been in the mind of anyone an apprehension that such a state of things would ever occur, for self-interest would clearly induce the carrier—South as well as North—to transport, if paid for it, all persons whether white or black, who should desire transportation.” The Court stressed with particularity the fact that the discrimination prohibited was discrimination in the use of the cars, at pages 452–453: “It was the discrimination in the use of the cars on account of color, where slavery obtained, which was the subject of discussion at the time, and not the fact that the colored A M E R I C A N
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race could not ride in the cars at all. Congress, in the belief that this discrimination was unjust, acted. It told this company, in substance, that it could extend its road in the District as desired, but that this discrimination must cease, and the colored and white race, in the use of the cars, be placed on an equality. This condition it had the right to impose, and in the temper of Congress at the time, it is manifest the grant could not have been made without it.”
The regulation that was struck down in the Brown case sought to accomplish exactly what was achieved under a state statute upheld subsequently in Plessy v. Ferguson—the segregation of Negro and white passengers. It is clear, therefore, that in this earlier decision the Court considered segregation per se discrimination and a denial of equality. C. The separate but equal doctrine marked an unwarranted departure from the main stream of constitutional development and permits the frustration of the very purposes of the Fourteenth Amendment as defined by this Court
In Plessy v. Ferguson, this Court for the first time gave approval to state imposed racial distinctions as consistent with the purposes and meaning of the Fourteenth Amendment. The Court described the aims and purposes of the Fourteenth Amendment in the same manner as had the earlier cases, at page 543: “ . . . its main purpose was to establish the citizenship of the negro; to give definitions of citizenship of the United States and of the states, and to protect from the hostile legislation of the states the privileges and immunities of citizens of the United States, as distinguished from those of citizens of the states.”
But these defined aims and purposes were now considered consistent with the imposition of legal distinctions based upon race. The Court said at 544, 551–552: “The object of the amendment was undoubtedly to enforce the absolute equality of the two races before the law, but in the nature of things it could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political, equality, or a commingling of the two races upon terms unsatisfactory to either.
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do so can only result in accentuating the difficulties of the present situation. If the civil and political rights of both races be equal, one cannot be inferior to the other civilly or politically. If one race be inferior to the other socially, the Constitution of the United States cannot put them upon the same plane.”
And reasonableness of the regulation was found in established social usage, custom and tradition, at page 550: “So far, then, as a conflict with the 14th Amendment is concerned, the case reduces itself to the question whether the statute of Louisiana is a reasonable regulation and with respect to this there must necessarily be a large discretion on the part of the legislature. In determining the question of reasonableness it is at liberty to act with reference to the established usages, customs, and traditions of the people, and with a view to the promotion of their comfort, and the preservation of the public peace and good order.”
In Plessy, through distortion of the concept of “social” rights as distinguished from “civil” rights, the right to civil equality as one of the purposes of the Fourteenth Amendment was given a restricted meaning wholly at variance with that of the earlier cases and the intent of the framers as defined by this Court. Indeed, civil rights, as defined by that Court, seem merely to encompass those rights attendant upon use of the legal process and protection against complete exclusion pursuant to state mandate. Race for the first time since the adoption of the Fourteenth Amendment was sanctioned as a constitutionally valid basis for state action, and reasonableness for the racial distinctions approved was found in the social customs, usages and traditions of a people only thirty-one years removed from a slave society. Under this rationale the Court sought to square its approval of racial segregation with the Slaughter House Cases, Strauder v. West Virginia and the other precedents. It is clear, however, that the early cases interpreted the Fourteenth Amendment as encompassing that same category of rights which were involved in Plessy v. West Virginia—the right to be free of a racial differentiation imposed by the state in the exercise of any civil right. And the Court’s attempt to distinguish Railroad Co. v. Brown, as a case of exclusion, was the very argument that has been specifically rejected in the Brown case as a sophisticated effort to avoid the obvious implications of the Congressional requirement. A M E R I C A N
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Thus, the separate but equal doctrine is a rejection of the precedents and constitutes a break in the development of constitutional law under which the Fourteenth Amendment has been interpreted as a fundamental interdiction against state imposed differentiations and discriminations based upon color. D. The separate but equal doctrine was conceived in error
The separate but equal doctrine of Plessy v. Ferguson, we submit, has aided and supported efforts to nullify the Fourteenth Amendment’s undoubted purpose—equal status for Negroes— as defined again and again by this Court. The fallacious and pernicious implications of the doctrine were evident to Justice Harlan and are set out in his dissenting opinion. It is clear today that the fact that racial segregation accords with custom and usage or is considered needful for the preservation of public peace and good order does not suffice to give constitutional validity to the state’s action. What the doctrine has in fact accomplished is to deprive Negroes of the protection of the approved test of reasonable classifications which is available to everyone else who challenges legislative categories or distinctions of whatever kind. 1. The dissenting opinion of Justice Harlan in Plessy v. Ferguson. Justice Harlan recognized and set down for history the purpose of segregation and the implications of the separate but equal doctrine and evidenced prophetic insight concerning the inevitable consequences of the Court’s approval of racial segregation. He said at page 557: “The thing to accomplish was, under the guise of giving equal accommodations for whites and blacks to compel the latter to keep to themselves while traveling in railroad passenger coaches.” He realized at page 560, moreover, that the approved regulations supported the inferior caste thesis of Scott v. Sandford, 19 How. 393, supposedly eradicated by the Civil War Amendments: “But it seems that we have yet, in some of the states, a dominant race, a superior class of citizens, which assumes to regulate the enjoyment of civil rights, common to all citizens, on the basis of race.” And at page 562: “We boast of the freedom enjoyed by our people above all other people. But it is difficult to reconcile that boast with a state of the law which, practically, puts the brand of servitude and degradation G A L E
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upon a large class of our fellow citizens, our equals before the law.” While the majority opinion sought to rationalize its holding on the basis of the state’s judgment that separation of races was conducive to public peace and order, Justice Harlan knew all too well that the seeds for continuing racial animosities had been planted. He said at pages 560–561: “The sure guaranty of peace and security of each race is the clear, distinct, unconditional recognition by our governments, national and state, of every right that inheres in civil freedom, and of equality before the law of all citizens of the United States without regard to race. State enactments, regulating the enjoyment of civil rights, upon the basis of race, and cunningly devised to defeat legitimate results of the war, under the pretense of recognizing equality of rights, can have no other result than to render permanent peace impossible and to keep alive a conflict of races, the continuance of which must do harm to all concerned.”
“Our Constitution”, said Justice Harlan at 559, “is color-blind, and neither knows nor tolerates classes among citizens.” It is the dissenting opinion of Justice Harlan, rather than the majority opinion in Plessy v. Ferguson, that is in keeping with the scope and meaning of the Fourteenth Amendment as consistently defined by this Court both before and after Plessy v. Ferguson. 2. Custom, usage and tradition rooted in the slave tradition cannot be the constitutional yardstick for measuring state action under the Fourteenth Amendment. The analysis by Justice Harlan of the bases for the majority opinion in Plessy v. Ferguson was adopted by this Court in Chiles v. Chesapeake & Ohio Railroad Company, 218 U.S. 71, 77, 78. There this Court cited Plessy v. Ferguson as authority for sustaining the validity of legislative distinctions based upon race and color alone. The importance of this case is its clear recognition and understanding that in Plessy v. Ferguson this Court approved the enforcement of racial distinctions as reasonable because they are in accordance with established social usage, custom and tradition. The Court said at pages 77, 78: “It is true the power of a legislature to recognize a racial distinction was the subject considered, but if the test of reasonableness in legislation be, as it was declared to be, ‘the A M E R I C A N
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established usages, customs and traditions of the people,’ and the ‘promotion of their comfort and the preservation of the public peace and good order,’ this must also be the test of reasonableness of the regulations of a carrier, made for like purposes and to secure like results.”
But the very purpose of the Thirteenth, Fourteenth and Fifteenth Amendments was to effectuate a complete break with governmental action based on the established usages, customs and traditions of the slave era, to revolutionize the legal relationship between Negroes and whites, to destroy the inferior status of the Negro and to place him upon a plane of complete equality with the white man. As we will demonstrate, post Civil War reestablishment of ante-bellum custom and usage, climaxed by the decision in Plessy v. Ferguson, reflected a constant effort to return the Negro to his preThirteenth, Fourteenth Amendment inferior status. When the Court employed the old usages, customs and traditions as the basis for determining the reasonableness of segregation statutes designed to resubjugate the Negro to an inferior status, it nullified the acknowledged intention of the framers of the Amendment, and made a travesty of the equal protection clause of the Fourteenth Amendment. Here, again, the Plessy v. Ferguson decision is out of line with the modern holdings of this Court, for in a variety of cases involving the rights of Negroes it has constantly refused to regard custom and usage, however widespread, as determinative of reasonableness. This was true in Smith v. Allwright, of a deeply entrenched custom and usage of excluding Negroes from voting in the primaries. It was true in Shelley v. Kraemer, of a long standing custom excluding Negroes from the use and ownership of real property on the basis of race. In Henderson v. United States, a discriminatory practice of many years was held to violate the Interstate Commerce Act. In the Sweatt and McLaurin decisions, the Court broke a southern tradition of state-enforced racial distinctions in graduate and professional education—a custom almost as old as graduate and professional education, itself. In each instance the custom and usage had persisted for generations and its durability was cited as grounds for its validity. If this were the only test, ours indeed would become a stagnant society. Even if there be some situations in G A L E
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which custom, usage and tradition may be considered in testing the reasonableness of governmental action, customs, traditions and usages rooted in slavery cannot be worthy of the constitutional sanction of this Court. 3. Preservation of public peace cannot justify deprivation of constitutional rights. The fallacy underlying Plessy v. Ferguson of justifying racially-discriminatory statutes as essential to the public peace and good order has been completely exposed by Frederick W. Lehmann, a former Solicitor General of the United States, and Wells H. Blodgett in their Brief as amici curiae in Buchanan v. Warley, 245 U.S. 60. Their statements warrant repetition here: “The implication of the title of the ordinance is, that unless the white and colored people live in separate blocks, ill feeling will be engendered between them and conflicts will result and so it is assumed that a segregation of the races is necessary for the preservation of the public peace and the promotion of the general welfare. There is evidence in the record that prior to the enactment of the ordinance there were instances of colored people moving into white blocks and efforts by the white people to drive them out by violence. So to preserve the peace, the ordinance was enacted not to repress the lawless violence, but to give the sanction of the law to the motives which inspired it and to make the purpose of it lawful. “The population of Louisville numbers two hundred and fifty thousand, of whom about one-fifth are colored. The ordinance, almost upon its face, and clearly by the evidence submitted and the arguments offered in support of it is a discriminating enactment by the dominant majority against a minority who are held to be an inferior people. It cannot be justified by the recitals of the title, even if they are true. Many things may rouse a man’s prejudice or stir him to anger, but he is not always to be humored in his wrath. The question may arise, ‘Dost thou well to be angry?’” (Brief Amici Curiae, pp. 2 and 3).
Accepting this view, the Court in Buchanan v. Warley rejected the argument that a state could deny constitutional rights with impunity in its efforts to maintain the public peace: “It is urged that this proposed segregation will promote the public peace by preventing race conflicts. Desirable as this is, and important as is the preservation of the public peace, this aim cannot be accomplished by A M E R I C A N
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laws or ordinances which deny rights created or protected by the Federal Constitution” (245 U.S. 60, 81).
Accord, Morgan v. Virginia, supra; Monk v. City of Birmingham, 185 F. 2d 859 (CA 5th 1950), cert. denied, 341 U.S. 940. Thus, the bases upon which the separate but equal doctrine was approved in the Plessy v. Ferguson case have all been uprooted by subsequent decisions of this Court. All that remains is the naked doctrine itself, unsupported by reason, contrary to the intent of the framers, and out of tune with present notions of constitutional rights. Repudiation of the doctrine itself, we submit, is long overdue. 4. The separate but equal doctrine deprives Negroes of that protection which the Fourteenth Amendment accords under the general classification test. One of the ironies of the separate but equal doctrine of Plessy v. Ferguson is that under it, the Fourteenth Amendment, the primary purpose of which was the protection of Negroes, is construed as encompassing a narrower area of protection for Negroes than for other persons under the general classification test. Early in its history, the Fourteenth Amendment was construed as reaching not only state action based upon race and color, but also as prohibiting all unreasonable classifications and distinctions even though not racial in character. Barbier v. Connolly, 113 U.S. 27, seems to be the earliest case to adopt this concept of the Amendment. There the Court said on page 31: “The Fourteenth Amendment . . . undoubtedly intended, not only that there should be no arbitrary deprivation of life or liberty or arbitrary spoliation of property but that equal protection and security should be given to all under like circumstances in the enjoyment of their personal and civil rights.”
Accord: Minneapolis & St. Louis Ry. Co. v. Beckwith, 129 U.S. 26, 28, 29; Bell’s Gap R. R. Co. v. Pennsylvania, 134 U.S. 232, 237; McPherson v. Blacker, 146 U.S. 1, 39; Yesler v. Board of Harbor Line Commissioners, 146 U.S. 646, 655; Giozza v. Tiernan, 148 U.S. 657, 662; Marchant v. Pennsylvania R. Co., 153 U.S. 380, 390; Moore v. Missouri, 159 U.S. 673, 678. In effectuating the protection afforded by this secondary purpose, the Court has required the classification or distinction used be based upon some real or substantial difference G A L E
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pertinent to a valid legislative objective. E.g., Quaker City Cab Co. v. Pennsylvania, 277 U.S. 389; Truax v. Raich, 239 U.S. 33; Smith v. Cahoon, 283 U.S. 553; Mayflower Farms v. Ten Eyck, 297 U.S. 266; Skinner v. Oklahoma, 316 U. S. 535. See also Cities Service Gas Co. v. Peerless Oil & Gas Co., 340 U.S. 179, 186. Justice Holmes in Nixon v. Herndon, 273 U.S. 536, 541, recognized and restated a long established and well settled judicial proposition when he described the Fourteenth Amendment’s prohibition against unreasonable legislative classification as less rigidly proscriptive of state action than the Amendment’s prohibition of color differentiation. There he concluded: “States may do a good deal of classifying that it is difficult to believe rational, but there are limits, and it is too clear for extended argument that color cannot be made the basis of a statutory classification affecting the right set up in this case.”
But the separate but equal doctrine substitutes race for reasonableness as the constitutional test of classification. We submit, it would be a distortion of the purposes and intendment of the Fourteenth Amendment to deny to those persons for whose benefit that provision was primarily intended the same measure of protection afforded by a rule of construction evolved to reach the Amendment’s subsidiary and secondary objectives. We urge this Court to examine the segregation statutes in these cases to determine whether the statutes seek to serve a permissible legislative objective; and, if any permissible objective is found, whether color differentiation has pertinence to it. So examined, the constitutional provisions and statutes involved here disclose unmistakably their constitutional infirmity. E. The separate but equal doctrine has not received unqualified approval in this Court
Even while the separate but equal doctrine was evolving, this Court imposed limitations upon its applications. In Buchanan v. Warley, the Court, after reviewing the limited acceptance which the doctrine had received, concluded that its extension to approve state enforced segregation in housing was not permissible. Ten years later in Gong Lum v. Rice, 275 U.S. 78, 85, 86, without any intervening development in the doctrine in this Court, sweeping A M E R I C A N
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language was used which gave the erroneous impression that this Court already had extended the application of the doctrine to the field of education. And in Missouri ex rel. Gaines v. Canada, 305 U.S. 337, the doctrine is mentioned in passing as if its application to public education were well established. But, what Justice Day was careful to point out in Buchanan v. Warley, was true then and is true now—the separate but equal doctrine has never been extended by this Court beyond the field of transportation in any case where such extension was contested. While the doctrine itself has not been specifically repudiated as a valid constitutional yardstick in the field of public education, in cases in which this Court has had to determine whether the state had performed its constitutional obligation to provide equal education opportunities—the question presented here— the separate but equal doctrine has never been used by this Court to sustain the validity of the state’s separate school laws. Missouri ex rel. Gaines v. Canada; Sipuel v. Board of Regents, 332 U.S. 631; Sweatt v. Painter; McLaurin v. Oklahoma State Regents. Earlier educational cases, not concerned with equality, did not apply the doctrine. In Cumming v. County Board of Education, 175 U.S. 528, the question was explicitly beyond the scope of the decision rendered. In Berea College v. Kentucky, 211 U.S. 45, the question was reserved. In Gong Lum v. Rice, the separate but equal doctrine was not put in issue. Instead of challenging the validity of the Mississippi school segregation laws, the Chinese child merely objected to being classified as a Negro for public school purposes. Even in the field of transportation, subsequent decisions have sapped the doctrine of vitality. Henderson v. United States, in effect overruled Chiles v. Chesapeake & Ohio Railway Co., 218 U.S. 71. See Chance v. Lambeth, 186 F. 2d 879 (CA 4th 1951), cert. denied, 341 U.S. 91. Morgan v. Virginia, places persons traveling in interstate commerce beyond the thrust of state segregation statutes. Thus, the reach of the separate but equal doctrine approved in the Plessy case has now been so severely restricted and narrowed in scope that, it may be appropriately said of Plessy v. Ferguson as it was said of Crowell v. Benson, 285 U.S. 22, “one had supposed that the doctrine had earned a G A L E
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deserved repose.” Estep v. United States, 327 U.S. 114, 142 (concurring opinion). F. The necessary consequence of the Sweatt and McLaurin decisions is repudiation of the separate but equal doctrine
While Sweatt v. Painter and McLaurin v. Oklahoma State Regents were not in terms rejections of the separate but equal doctrine, their application in effect destroyed the practice of segregation with respect to state graduate and professional schools. Wilson v. Board of Supervisors, 92 F. Supp. 986 (E. D. La. 1950), aff’d, 340 U.S. 909; Gray v. Board of Trustees of University of Tennessee, 342 U.S. 517; McKissick v. Carmichael, 187 F. 2d 949 (CA 4th 1951), cert. denied, 341 U.S. 951; Swanson v. University of Virginia, Civil Action #30 (W. D. Va. 1950) unreported; Payne v. Board of Supervisors, Civil Action #894 (E. D. La. 1952) unreported; Foister v. Board of Supervisors, Civil Action #937 (E. D. La. 1952) unreported; Mitchell v. Board of Regents of University of Maryland, Docket #16, Folio 126 (Baltimore City Court 1950) unreported.1 In the Sweatt case, the Court stated that, with members of the state’s dominant racial groups excluded from the segregated law school which the state sought to require Sweatt to attend, “we cannot conclude that the education offered petitioner is substantially equal to that he would receive if admitted to the University of Texas.” If this consideration is one of the controlling factors in determining substantial equality at the law school level, it is impossible for any segregated law school to be an equal law school. And pursuant to that decision one of the oldest and best state-supported segregated law schools in the country was found unequal and 1 Negroes are now attending state graduate and professional schools in West Virginia, Maryland, Arkansas, Delaware, Oklahoma, Kentucky, Texas, Missouri, North Carolina, Virginia, and Louisiana. See (Editorial Comment), THE COURTS AND RACIAL INTEGRATION IN EDUCATION, 21 J. NEG. EDUC. 3 (1952). Negroes are also now attending private universities and colleges in Missouri, Georgia, Kentucky, Louisiana, Texas, Maryland, West Virginia, North Carolina, District of Columbia, and Virginia. See THE COURTS AND RACIAL INTEGRATION IN EDUCATION, 21 J. NEG. EDUC. 3 (1952): SOME
PROGRESS IN ELIMINATION OF DISCRIMINATION IN HIGHER EDUCATION IN THE UNITED STATES,
19 J. NEG. EDUC. 4–5 (1950); LEE AND
KRAMER, RACIAL INCLUSION IN CHURCH-RELATED COLLEGES IN THE SOUTH,
22 J. NEG. EDUC. 22 (1953); 6 NEW SOUTH 1 (1951).
A NEW TREND IN PRIVATE
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Negro applicants were ordered admitted to the University of North Carolina. McKissick v. Carmichael. Thus, substantial equality in professional education is “substantially equal” only if there is no racial segregation. In the McLaurin case, the racial distinctions imposed in an effort to comply with the state’s segregation laws were held to impair and inhibit ability to study, to exchange views with other students and, in general, to learn one’s profession. The state, therefore, was required to remove all restrictions and to treat McLaurin the same way as other students are treated. Consequently these decisions are a repudiation of the separate but equal doctrine. III. VIEWED IN THE LIGHT OF HISTORY THE SEPARATE BUT EQUAL DOCTRINE HAS BEEN AN INSTRUMENTALITY OF DEFIANT NULLIFICATION OF THE FOURTEENTH AMENDMENT
The history of segregation laws reveals that their main purpose was to organize the community upon the basis of a superior white and an inferior Negro caste. These laws were conceived in a belief in the inherent inferiority of Negroes, a concept taken from slavery. Inevitably, segregation in its operation and effect has meant inequality consistent only with the belief that the people segregated are inferior and not worthy, or capable, of enjoying the facilities set apart for the dominant group. Segregation originated as a part of an effort to build a social order in which the Negro would be placed in a status as close as possible to that he had held before the Civil War. The separate but equal doctrine furnished a base from which those who sought to nullify the Thirteenth, Fourteenth and Fifteenth Amendments were permitted to operate in relative
security. While this must have been apparent at the end of the last century, the doctrine has become beclouded with so much fiction that it becomes important to consider the matter in historical context to restore a proper view of its meaning and import. A. The status of the Negro, slave and free, prior to the Civil War
One of the basic assumptions of the slave system was the Negro’s inherent inferiority.2 As the invention of the cotton gin rendered slavery essential to the maintenance of the plantation economy in the South, a body of pseudoscientific thought developed in passionate defense of slavery, premised on the Negro’s unfitness for freedom and equality.3 Thus, the Negro’s inferiority with respect to brain capacity, lung activity and countless other physiological attributes was purportedly established by some of the South’s most respected scientists.4 In all relationships between the two races the Negro’s place was that of an inferior, for it was claimed that any other relationship status would automatically degrade the white man.5 This concept of the Negro as an inferior fit only for slavery was complicated by the presence of several hundred thousand Negroes, who although not slaves, could not be described as free men.6 In order that they would not constitute a threat to the slave regime, free Negroes were denied the full rights and privileges of citizens. They enjoyed no equality in the courts, their right to assemble was denied, their movements were proscribed, and education was withheld.7 Their plight, in consequence of these proscriptions, invited the unfavorable comparison of them with slaves and confirmed the views of many that Negroes could not profit by freedom. They were regarded by the white society as the “very drones and pests of society,”
JOHNSON, THE IDEOLOGY OF WHITE SUPREMACY,
For an illuminating discussion of these assumptions, see 1876–1910, IN
PECULIARITIES OF THE NEGRO RACES, 9 DEBOW’S REVIEW 64–69 (1851); CARTWRIGHT, ESSAYS, BEING INDUCTIONS DRAWN FROM THE
ESSAYS IN SOUTHERN HISTORY PRESENTED TO JOSEPH GREGOIRE
BACONIAN PHILOSOPHY PROVING THE TRUTH OF THE BIBLE AND THE
DEROULHAC HAMILTON, GREEN ED., 124–156 (1949). 3 JENKINS, PRO-SLAVERY THOUGHT IN THE OLD SOUTH 243
JUSTICE AND BENEVOLENCE OF THE DECREE DOOMING CANAAN TO BE
2
(1935); JOHNSON, THE NEGRO IN AMERICAN CIVILIZATION 5–15 (1930). 4 See VAN EVRIE, NEGROES AND NEGRO SLAVERY 120 ff, 122 ff, 214 ff (1861); CARTWRIGHT, DISEASES AND PECULIARITIES OF THE NEGRO RACE, 2 DEBOW, THE INDUSTRIAL RESOURCES, ETC., OF THE SOUTHERN AND WESTERN STATES 315–329 (1852); NOTT, TWO
LECTURES ON THE NATURAL HISTORY OF THE CAUCASIAN AND NEGRO RACES
(1866);
VAN EVRIE, NEGROES AND NEGRO
“SLAVERY”;
THE
FIRST AN INFERIOR RACE—THE LATTER ITS NORMAL CONDITION
(1853);
VAN EVRIE, SUBGENATION: THE THEORY OF THE NORMAL
RELATION OF THE RACES
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(1864);
CARTWRIGHT, DISEASES AND
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A SERVANT OF SERVANTS (1843). 5 JENKINS, PRO-SLAVERY THOUGHT IN THE OLD SOUTH
242 ff (1935); especially HARPER’S MEMOIR ON SLAVERY, pp. 26–98; and SIMMS, THE MORALS OF SLAVERY, pp. 175–275 (1835); JOHNSON, THE IDEOLOGY OF WHITE SUPREMACY, op. cit. supra, n. 2 at 135. 6 See FRANKLIN, FROM SLAVERY TO FREEDOM: A HISTORY OF AMERICAN NEGROES 213–238 (1947). 7 FRANKLIN, THE FREE NEGRO IN NORTH CAROLINA, 1790–1860 59– 120 (1943). THE PRO-SLAVERY ARGUMENT,
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pariahs of the land, and an incubus on the body politic.8 Even this Court, in Scott v. Sandford, recognized this substantial body of opinion to the effect that free Negroes had no rights that a white man was bound to respect. The few privileges that free Negroes enjoyed were being constantly whittled away in the early nineteenth century. By 1836, free Negroes were denied the ballot in every southern state and in many states outside the South.9 In some states, they were denied residence on penalty of enslavement; and in some, they were banned from the mechanical trades because of the economic pressure upon the white artisans.10 Before the outbreak of the Civil War, the movement to reenslave free Negroes was under way in several states in the South.11 This ante-bellum view of the inferiority of the Negro persisted after the Civil War among those who already regarded the newly freed slaves as simply augmenting the group of free Negroes who had been regarded as “the most ignorant . . . vicious, impoverished, and degraded population of this country.”12 B. The post war struggle
The slave system had supported and sustained a plantation economy under which 1,000 families received approximately $50,000,000 a year with the remaining 600,000 families receiving about $60,000,000 per annum. The perfection of that economy meant the ruthless destruction of the small independent white farmer who was either bought out or driven back to the poorer lands—the slaveholders controlled the destiny of both the slave and the poor whites.13 Slaves were not only farmers 8
DEW, REVIEW OF THE DEBATES IN THE VIRGINIA LEGISLATURE OF 1831–1832, THE PRO-SLAVERY ARGUMENT, 422 ff (1853); JENKINS, op. cit. supra, n. 5, 246. 9 WEEKS, HISTORY OF NEGRO SUFFRAGE IN THE SOUTH, 9 POL. SCI. Q. 671–703 (1894); PORTER, A HISTORY OF SUFFRAGE IN THE UNITED STATES 87 ff (1918); SHUGG, NEGRO VOTING IN THE ANTE-BELLUM SOUTH, 21 J. NEG. HIST. 357–364 (1936). 10 VA. HOUSE J. 84 (1831–1832); VA. LAWS 1831. p. 107; CHANNING, HISTORY OF THE UNITED STATES 136–137 (1921); GREENE and WOODSON, THE NEGRO WAGE EARNER 15 ff (1930). 11 FRANKLIN, THE ENSLAVEMENT OF FREE-NEGROES IN NORTH CAROLINA, 29 J. NEG. HIST. 401–428 (1944). 12 See JENKINS, op. cit. supra, n. 5, 246. 13 WESTON, THE PROGRESS OF SLAVERY (1859); HELPER, THE IMPENDING CRISIS OF THE SOUTH (1863); JOHNSON, THE NEGRO IN AMERICAN CIVILIZATION, op. cit. supra, n. 2; PHILLIPS, AMERICAN NEGRO SLAVERY, DOCUMENTARY HISTORY OF AMERICAN INDUSTRIAL SOCIETY-PLANTATION AND FRONTIER DOCUMENTS (1910–11).
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and unskilled laborers but were trained by their masters as skilled artisans. Thus, slave labor was in formidable competition with white labor at every level, and the latter was the more expendable for it did not represent property and investment. Only a few white supervisory persons were needed to insure the successful operation of the plantation system. After the Civil War, the independent white farmer entered into cotton cultivation and took over the lands of the now impracticable large plantations. Within a few years the independent farmer was engaged in 40% of the cotton cultivation, and by 1910 this percentage had risen to 67%.14 To the poor white Southerner the new Negro, as a skilled farmer and artisan in a free competitive economy, loomed as an even greater economic menace than he had been under the slave system. They became firm advocates of the Negro’s subjugation to insure their own economic well being.15 The plantation aristocracy sought to regain their economic and political pre-eminence by rebuilding the prewar social structure on the philosophy of the Negro’s inferiority. This group found that they could build a new economic structure based upon a depressed labor market of poor whites and Negroes. Thus, to the aristocracy, too, the Negro’s subjugation was an economic advantage. The mutual concern of these two groups of white Southerners for the subjugation of the Negro gave them a common basis for unity in irreconcilable resistance to the revolutionary change in the Negro’s status which the Civil War Amendments were designed to effect. Their attitude towards the Fourteenth Amendment is best described by a Mississippi editor who said that the southern states were not prepared “to become parties to their own degradation.”16 There were white southerners, however, as there always had been, who sought to build a society which would respect and dignify the rights of the Freedmen. But this group was in the minority and southern sentiment in bitter opposition to Negro equality 14
VANCE, HUMAN FACTORS IN COTTON CULTIVATION
(1926);
SIMKINS, THE TILLMAN MOVEMENT IN SOUTH CAROLINA (1926). 15 For discussion of this whole development see JOHNSON, THE NEGRO IN AMERICAN CIVILIZATION (1930). 16 COULTER, THE SOUTH DURING RECONSTRUCTION
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prevailed. Accordingly, as a temporary expedient, even as an army of occupation has been necessary recently in Germany and Japan to prevent lawlessness by irreconcilables and the recrudescense of totalitarianism, so Union forces were needed during Reconstruction to maintain order and to make possible the development of a more democratic way of life in the states recently in rebellion. The Thirteenth, Fourteenth and Fifteenth Amendments and the Reconstruction effort, implemented by those in the South who were coming to accept the new concept of the Negro as a free man on full terms of equality, could have led to a society free of racism. The possibility of the extensive establishment and expansion of mixed schools was real at this stage. It was discussed in every southern state, and in most states serious consideration was given to the proposal to establish them.17 C. The Compromise of 1877 and the abandonment of Reconstruction
The return to power of the southern irreconcilables was finally made possible by rapproachement between northern and southern economic interests culminating in the compromise of 1877. In the North, control of the Republican Party passed to those who believed that the protection and expansion of 17 KNIGHT, PUBLIC EDUCATION IN THE SOUTH 320 (1922). See also Part II infra, at pages 142–157. There were interracial colleges, academies, and tributary grammar schools in the South established and maintained largely by philanthropic societies and individuals from the North. Although they were predominantly Negro institutions, in the Reconstruction period and later, institutions such as Fisk University in Nashville, Tennessee, and Talladega College in Alabama usually had some white students. In the last quarter of the nineteenth century most of the teachers in these institutions were white. For accounts of co-racial education at Joppa Institute and Nat School in Alabama, Piedmont College in Georgia, Saluda Institute in North Carolina and in other southern schools, see BROWNLEE, NEW DAY ASCENDING 98–110 (1946). The effect of these institutions in keeping alive the possibility of Negroes and whites living and learning together on the basis of complete equality was pointed out by one of the South’s most distinguished men of letters, George W. Cable. “In these institutions,” he said: “ . . . there is a complete ignoring of those race distinctions in the enjoyment of common public rights so religiously enforced on every side beyond their borders; and yet none of those unnamable disasters have come to or from them which the advocates of these onerous public distinctions and
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their economic power could best be served by political conciliation of the southern irreconcilables, rather than by unswerving insistence upon human equality and the rights guaranteed by the post war Amendments. In the 1870’s those forces that held fast to the notion of the Negro’s preordained inferiority returned to power in state after state, and it is significant that one of the first measures adopted was to require segregated schools on a permanent basis in disregard of the Fourteenth Amendment.18 In 1877, out of the exigencies of a close and contested election, came a bargain between the Republican Party and the southern leaders of the Democratic Party which assured President Hayes’ election, led to the withdrawal of federal troops from the non-redeemed states and left the South free to solve the Negro problem without apparent fear of federal intervention. This agreement preserved the pragmatic and material ends of Reconstruction at the expense of the enforcement of not only the Fourteenth Amendment but the Fifteenth Amendment as well.19 For it brought in its wake peonage and disfranchisement as well as segregation and other denials of equal protection. Although there is grave danger in oversimplification of the complexities of history, on reflection it seems clear that more profoundly than constitutional amendments and wordy statutes, the Compromise of 1877 shaped the future of four million separations predict and dread. On scores of Southern hilltops these schools stand out almost totally without companions or competitors in their peculiar field, so many refutations, visible and complete, of the idea that any interest requires the colored American citizen to be limited in any of the civil rights that would be his without question if the same man were white.” CABLE, THE NEGRO QUESTION 19 (1890). 18
Georgia, where the reconstruction government was especially short-lived, passed a law in 1870 making it mandatory for district school officials to “make all necessary arrangements for the instruction of the white and colored youth . . . in separate schools. They shall provide the same facilities for each . . . but the children of the white and colored races shall not be taught together in any sub-district of the state.” Ga. Laws 1870, p. 56. As soon as they were redeemed, the other southern states enacted similar legislation providing for segregated schools and gradually the states incorporated the provision into their constitutions. See, for example, Ark. Laws 1873, p. 423; THE JOURNAL OF THE TEXAS CONSTITUTIONAL CONVENTION 1875, pp. 608– 616; Miss. Laws 1878, p. 103; STEPHENSON, RACE DISTINCTIONS IN AMERICAN LAW 170–176 (1908). When South Carolina and Louisiana conservatives secured control of their governments in 1877, they immediately repealed the laws providing for mixed schools and established separate institutions for white and colored youth.
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freedmen and their progeny for generations to come. For the road to freedom and equality, which had seemed sure and open in 1868, was now to be securely blocked and barred by a maze of restrictions and limitations proclaimed as essential to a way of life. D. Consequences of the 1877 Compromise
Once the South was left to its own devices, the militant irreconcilables quickly seized or consolidated power. Laws and practices designed to achieve rigid segregation and the disfranchisement of the Negro came on in increasing numbers and harshness. The policy of the southern states was to destroy the political power of the Negro so that he could never seriously challenge the order that was being established. By the poll tax, the Grandfather Clause, the white primary, gerrymandering, the complicated election procedures, and by unabated intimidation and threats of violence, the Negro was stripped of effective political participation.20 The final blow to the political respectability of the Negro came with disfranchisement in the final decade of the Nineteenth Century and the early years of the present century when the discriminatory provisions were written into the state constitutions.21 That problem the Court dealt with during the next forty years from Guinn v. United States, 238 U.S. 347 to Terry v. Adams, 345 U.S. 461. 19
The explanation for this reversal of national policy in 1877 and the abandonment of an experiment that had enlisted national support and deeply aroused the emotions and hopes has been sought in many quarters. The most commonly accepted and often repeated story is that authorized spokesmen of Hayes met representatives of the Southern Democrats at the Wormley House in Washington in late February, 1877, and promised the withdrawal of troops and abandonment of the Negro in return for the support of southern Congressmen for Hayes against the Democratic candidate Samuel J. Tilden in the contested Presidential election. Recent investigation has demonstrated that the so-called “Wormley House Bargain”, though offered by southern participants as the explanation, is not the full relevation of the complex and elaborate maneuvering which finally led to the agreement. See WOODWARD, REUNION AND REACTION: THE COMPROMISE OF 1877 AND THE END OF RECONSTRUCTION (1951) for an elaborate and detailed explanation of the compromise agreement. 20 In 1890, Judge J. Chrisman of Mississippi could say that there had not been a full vote and a fair count in his state since 1875, that they had preserved the ascendancy of the whites by revolutionary methods. In plain words, he
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A movement to repeal the Fourteenth and Fifteenth Amendments shows the extremity to which the irreconcilables were willing to go to make certain that the Negro remained in an inferior position. At the Mississippi Constitutional Convention of 1890, a special committee studied the matter and concluded that “the white people only are capable of conducting and maintaining the government” and that the Negro race, “even if its people were educated, being wholly unequal to such responsibility,” should be excluded from the franchise. It, therefore, resolved that the “true and only efficient remedy for the great and important difficulties” that would ensue from Negro participation lay in the “repeal of the Fifteenth Amendment . . . whereby such restrictions and limitations may be put upon Negro suffrage as may be necessary and proper for the maintenance of good and stable government . . . ”22 A delegate to the Virginia Constitutional Convention of 1901–1902 submitted a resolution calling for a repeal of the Fifteenth Amendment because it is wrong, “in that it proceeds on the theory that the two races are equally competent of free government.”23 Senator Edward Carmack of Tennessee gave notice in 1903 that he would bring in a bill to repeal the Amendments.24 The movement, though unsuccessful, clearly illustrates the temper of the white South. Having consigned the Negro to a permanently inferior caste status, racist spokesmen, continued, “We have been stuffing the ballot boxes, committing perjury and here and there in the State carrying the elections by fraud and violence until the whole machinery for election was about to rot down.” Quoted in WOODWARD, ORIGINS OF THE NEW SOUTH 58 (1951). 21 KEY, SOUTHERN POLITICS IN STATE AND NATION 539–550 (1949); WOODWARD, ORIGINS OF THE NEW SOUTH 205, 263 (1951). 22 JOURNAL OF THE MISSISSIPPI CONSTITUTIONAL CONVENTION, 1890, 303–304. Tillman, Vardaman, and other Southern leaders frequently called for the repeal of the Amendments. Tillman believed “that such a formal declaration of surrender in the struggle to give the Negro political and civil equality would confirm the black man in his inferior position and pave the way for greater harmony between the races.” SIMKINS, PITCHFORK BEN TILLMAN 395 (1944). Vardaman called for repeal as a recognition that the Negro “was physically, mentally, morally, racially, and eternally inferior to the white man.” See KIRWAN, REVOLT OF THE REDNECKS (1951). 23 JOURNAL OF THE VIRGINIA CONSTITUTIONAL CONVENTION, 1901– 1902, pp. 47–48. 24 JOHNSON, THE IDEOLOGY OF WHITE SUPREMACY, op. cit. supra, n. 2, 136 ff.
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with unabashed boldness, set forth views regarding the Negro’s unassimilability and uneducability even more pernicious than those held by the old South. Ben Tillman, the leader of South Carolina, declared that a Negro should not have the same treatment as a white man, “for the simple reason that God Almighty made him colored and did not make him white.” He lamented the end of slavery which reversed the process of improving the Negro and “inoculated him with the virus of equality.”25 These views were expressed many times in the disfranchising conventions toward the end of the century.26 Nor were the politicians alone in uttering such views about the Negro. Drawing on the theory of evolution as expressed by Darwin and the theory of progress developed by Spencer, persons of scholarly pretension speeded the work of justifying an inferior status for the Negro.27 Alfred H. Stone, having the reputation of a widely respected scholar in Mississippi, declared that the “Negro was an inferior type of man with predominantly African customs and character traits whom no amount of education or improvement of environmental conditions could ever elevate to as high a scale in the human species as the white man.” As late as 1910, E. H. Randle in his Characteristics of the Southern Negro declared that “the first important thing to remember in judging the Negro was that his mental capacity was inferior to that of the white man.”28 Such was the real philosophy behind the late 19th Century segregation laws—an essential part of the whole racist complex. Controlling economic and political interests in the South 25
SIMKINS, PITCHFORK BEN TILLMAN 395, 399 (1944). Tillman’s Mississippi counterpart, J. K. Vardaman, was equally vigorous in denouncing the Negro. He described the Negro as an “industrial stumbling block, a political ulcer, a social scab, ‘a lazy, lying, lustful animal which no conceivable amount of training can transform into a tolerable citizen.’” Quoted in KIRWAN, op. cit. supra, n. 22, at 146. 26 See, for example, Alabama Constitutional Convention, 1901, Official Proceedings, Vol. I, p. 12, Vol. II, pp. 2710– 2711, 2713, 2719, 2782, 2785–2786, 2793; Journal of the South Carolina Convention, 1895, pp. 443–472; Journal of the Mississippi Constitutional Convention, 1890, pp. 10, 303, 701–702; Journal of the Louisiana Constitutional Convention, 1898, pp. 9–10. 27 See ROWLAND, A MISSISSIPPI VIEW OF RELATIONS IN THE SOUTH, A Paper (1903); HERBERT, et al., WHY THE SOLID SOUTH? OR RECONSTRUCTION AND ITS RESULTS (1890); BRUCE, THE PLANTATION NEGRO AS A FREEMAN: OBSERVATIONS ON HIS CHARACTER,
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were convinced that the Negro’s subjugation was essential to their survival, and the Court in Plessy v. Ferguson had ruled that such subjugation through public authority was sanctioned by the Constitution. This is the overriding vice of Plessy v. Ferguson. For without the sanction of Plessy v. Ferguson, archaic and provincial notions of racial superiority could not have injured and disfigured an entire region for so long a time. The full force and effect of the protection afforded by the Fourteenth Amendment was effectively blunted by the vigorous efforts of the proponents of the concept that the Negro was inferior. This nullification was effectuated in all aspects of Negro life in the South, particularly in the field of education, by the exercise of state power. As the invention of the cotton gin stilled the voices of Southern Abolitionists, Plessy v. Ferguson chilled the development in the South of opinion conducive to the acceptance of Negroes on the basis of equality because those of the white South desiring to afford Negroes the equalitarian status which the Civil War Amendments had hoped to achieve were barred by state law from acting in accordance with their beliefs. In this connection, it is significant that the Populist movement flourished for a short period during the 1890’s and threatened to take over political control of the South through a coalition of the poor Negro and poor white farmers.29 This movement was completely smashed and since Plessy v. Ferguson no similar phenomenon has taken hold. Without the “constitutional” sanction which Plessy v. Ferguson affords, racial segregation could not have become entrenched in the (1889); STONE, STUDIES (1908); CARROLL, THE NEGRO A BEAST (1908); CARROLL, THE TEMPTER OF EVE, OR THE CRIMINALITY OF MAN’S SOCIAL, POLITICAL, AND RELIGIOUS EQUALITY WITH THE NEGRO, AND THE AMALGAMATION TO WHICH THESE CRIMES INEVITABLY LEAD 286 ff (1902); PAGE, THE NEGRO: THE SOUTHERNER’S PROBLEM 126 ff (1904); RANDLE, CHARACTERISTICS OF THE SOUTHERN NEGRO 51 ff (1910). 28 Quoted in JOHNSON, IDEOLOGY OF WHITE SUPREMACY, op. cit., supra, n. 2, p. 151. That the South was not alone in these views is clearly shown by Logan’s study of the Northern press between 1877 and 1901. See LOGAN, THE NEGRO IN AMERICAN LIFE AND THOUGHT: THE NADIR 1877–1901, cc. 9–10 (unpub. ms., to be pub. early in 1954 by the Dial Press). 29 See CARLETON, THE CONSERVATIVE SOUTH—A POLITICAL MYTH, 22 Va. Q. Rev. 179–192 (1946); LEWINSON, RACE, CLASS AND PARTY (1932); MOON, THE BALANCE OF POWER—THE NEGRO VOTE, c. 4 (1948). CONDITION AND PROSPECTS IN VIRGINIA
IN THE AMERICAN RACE PROBLEM
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South, and individuals and local communities would have been free to maintain public school systems in conformity with the underlying purposes of the Fourteenth Amendment by providing education without racial distinctions. The doctrine of Plessy v. Ferguson was essential to the successful maintenance of a racial caste system in the United States. Efforts toward the elimination of race discrimination are jeopardized as long as the separate but equal doctrine endures. But for this doctrine we could more confidently assert that ours is a democratic society based upon a belief in individual equality. E. Nullification of the rights guaranteed by the Fourteenth Amendment and the reestablishment of the Negro’s pre–Civil War inferior status fully realized
Before the end of the century, even without repeal of the Fourteenth and Fifteenth Amendments, those forces committed to a perpetuation of the slave concept of the Negro had realized their goal. They had defied the federal government, threatened the white defenders of equal rights, had used intimidation and violence against the Negro and had effectively smashed a political movement designed to unite the Negro and the poor whites. Provisions requiring segregated schools were written into state constitutions and statutes. Negroes had been driven from participation in political affairs, and a veritable maze of Jim Crow laws had been erected to “keep the Negro in his place” (of inferiority), all with impunity. There was no longer any need to pretend either that Negroes were getting an education equal to the whites or were entitled to it. In the Constitutional Convention of Virginia, 1901–1902, Senator Carter Glass, in explaining a resolution requiring that state funds be used to maintain primary schools for four months before being used for establishment of higher grades, explained that “white people of the black sections of Virginia should be permitted to tax themselves, and after a certain point had been passed which would safeguard the poorer classes of those communities, divert that fund to the exclusive use of white children . . . .”30 30
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Senator Vardaman thought it was folly to make such pretenses. In Mississippi there were too many people to educate and not enough money to go around, he felt. The state, he insisted, should not spend as much on the education of Negroes as it was doing. “There is no use multiplying words about it,” he said in 1899, “the negro will not be permitted to rise above the station he now fills.” Money spent on his education was, therefore, a “positive unkindness” to him. “It simply renders him unfit for the work which the white man has prescribed and which he will be forced to perform.”31 Vardaman’s scholarly compatriot, Dunbar Rowland, seconded these views in 1902, when he said that “thoughtful men in the South were beginning to lose faith in the power of education which had been heretofore given to uplift the negro,” and to complain of the burden thus placed upon the people of the South in their poverty.32 The views of Tillman, Vardaman, Stone, Rowland, Glass and others were largely a justification for what had been done by the time they uttered them. The South had succeeded in setting up the machinery by which it was hoped to retain the Negro in an inferior status. Through separate, inferior schools, through an elaborate system of humiliating Jim Crow, and through effective disfranchisement of the Negro, the exclusive enjoyment of first-class citizenship had now become the sole possession of white persons. And, finally, the Negro was effectively restored to an inferior position through laws and through practices, now dignified as “custom 31
KIRWAN,
32
JOHNSON, IDEOLOGY OF WHITE SUPREMACY,
op. cit. supra, n. 22, at 145–146. op. cit. supra, n. 2, at 153. That this pattern is not an antiquated doctrine but a modern view may be seen in the current expenditure per pupil in average daily attendance 1949–1950: In Alabama, $130.09 was spent for whites against $92.69 for Negroes; in Arkansas $123.60 for whites and $73.03 for Negroes; in Florida $196.42 for whites, $136.71 for Negroes; in Georgia, $145.15 for whites and $79.73 for Negroes; in Maryland, $217.41 for whites and $198.76 for Negroes; in Mississippi, $122.93 for whites and $32.55 for Negroes; in North Carolina, $148.21 for whites and $122.90 for Negroes; in South Carolina, $154.62 for whites and $79.82 for Negroes; in the District of Columbia, $289.68 for whites and $220.74 for Negroes. BLOSE AND JARACZ, BIENNIAL SURVEY OF EDUCATION IN THE UNITED STATES, 1948–50, TABLE 43, “STATISTICS OF STATE SCHOOL SYSTEMS, 1949–50” (1952).
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and tradition.” Moreover, this relationship—of an inferior Negro and superior white status— established through laws, practice, custom and tradition, was even more rigidly enforced than in the ante-bellum era. As one historian has aptly stated: “Whether by state law or local law, or by the more pervasive coercion of sovereign white opinion, ‘the Negro’s place’ was gradually defined—in the courts, schools, and libraries, in parks, theaters, hotels, and residential districts, in hospitals, insane asylums—everywhere including on sidewalks and in cemeteries. When complete, the new codes of White Supremacy were vastly more complex than the antebellum slave codes or the Black Codes of 1865–1866, and, if anything, they were stronger and more rigidly enforced.”33
This is the historic background against which the validity of the separate but equal doctrine must be tested. History reveals it as a part of an overriding purpose to defeat the aims of the Thirteenth, Fourteenth and Fifteenth Amendments. Segregation was designed to insure inequality—to discriminate on account of race and color—and the separate but equal doctrine accommodated the Constitution to that purpose. Separate but equal is a legal fiction. There never was and never will be any separate equality. Our Constitution cannot be used to sustain ideologies and practices which we as a people abhor. That the Constitution is color blind is our dedicated belief. We submit that this Court cannot sustain these school segregation laws under any separate but equal concept unless it is willing to accept as truths the racist notions of the perpetuators of segregation and to repeat the tragic error of the Plessy court supporting those who would nullify the Fourteenth Amendment and the basic tenet of our way of life which it incorporates. We respectfully suggest that it is the obligation of this Court to correct that error by holding that these laws and constitutional provisions which seek to condition educational opportunities on the basis of race and color are historic aberrations and are inconsistent with the federal Constitution and cannot stand. The separate but equal doctrine of Plessy v. Ferguson should now be overruled. 33
WOODWARD, ORIGINS OF THE NEW SOUTH
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CONCLUSION TO PART ONE
In short, our answer to Question No. 3 proposed by the Court is that it is within the judicial power, whatever the evidence concerning Questions 2(a) and (b) may disclose, to hold that segregated schools violate the Fourteenth Amendment, and for the reasons hereinabove stated that such power should now be exercised. WHEREFORE, it is respectfully submitted that constitutional provisions and statutes involved in these cases are invalid and should be struck down. PART TWO
This portion of the brief is directed to questions one and two propounded by the Court: “1. What evidence is there that the Congress which submitted and the State legislatures and conventions which ratified the Fourteenth Amendment contemplated or did not contemplate, understood or did not understand, that it would abolish segregation in public schools? “2. If neither the Congress in submitting nor the States in ratifying the Fourteenth Amendment understood that compliance with it would require the immediate abolition of segregation in public schools, was it nevertheless the understanding of the framers of the Amendment “(a) that future Congresses might, in the exercise of their power under Sec. 5 of the Amendment, abolish such segregation, or “(b) that it would be within the judicial power, in light of future conditions, to construe the Amendment as abolishing such segregation of its own force?” I. THE FOURTEENTH AMENDMENT WAS INTENDED TO DESTROY ALL CASTE AND COLOR LEGISLATION IN THE UNITED STATES, INCLUDING RACIAL SEGREGATION
Research by political scientists and historians, specialists on the period between 1820 and 1900, and other experts in the field, as well as independent research by attorneys in these cases, convinces us that: (1) there is ample evidence that the Congress which submitted and the states which ratified the Fourteenth Amendment contemplated and understood that the Amendment would deprive the states of the power to impose any racial distinctions in A M E R I C A N
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determining when, where, and how its citizens would enjoy the various civil rights afforded by the states; (2) in so far as views of undeveloped public education in the 1860’s can be applied to universal compulsory education in the 1950’s, the right to public school education was one of the civil rights with respect to which the states were deprived of the power to impose racial distinctions; (3) while the framers of the Fourteenth Amendment clearly intended that Congress should have the power to enforce the provisions of the Amendment, they also clearly intended that the Amendment would be prohibitory on the states without Congressional action. The historic background of the Fourteenth Amendment and the legislative history of its adoption show clearly that the framers intended that the Amendment would deprive the states of power to make any racial distinction in the enjoyment of civil rights. It is also clear that the statutes involved in these cases impose racial distinctions which the framers of the Amendment and others concerned with its adoption understood to be beyond the power of a state to enforce. The framers of the Fourteenth Amendment were men who came to the 39th Congress with a well defined background of Abolitionist doctrine dedicated to the equalitarian principles of real and complete equality for all men. Congressional debates during this period must be read with an understanding of this background along with the actual legal and political status of the Negro at the end of the Civil War. This background gives an understanding of the determination of the framers of the Fourteenth Amendment to change the inferior legal and political status of Negroes and to give them the full protection of the Federal Government in the enjoyment of complete and real equality in all civil rights.34 A. The era prior to the Civil War was marked by determined efforts to secure recognition of the principle of complete and real equality for all men within the existing constitutional framework of our government
The men who wrote the Fourteenth Amendment were themselves products of a 34
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gigantic antislavery crusade which, in turn, was an expression of the great humanitarian reform movement of the Age of Enlightenment. This philosophy upon which the Abolitionists had taken their stand had been adequately summed up in Jefferson’s basic proposition “that all men are created equal” and “are endowed by their Creator with certain unalienable Rights.” To this philosophy they adhered with an almost fanatic devotion and an unswerving determination to obliterate any obstructions which stood in the way of its fulfillment. In their drive toward this goal, it may be that they thrust aside some then accepted notions of law and, indeed, that they attempted to give to the Declaration of Independence a substance which might have surprised its draftsmen. No matter, the crucial point is that their revolutionary drive was successful and that it was climaxed in the Amendment here under discussion. The first Section of the Fourteenth Amendment is the legal capstone of the revolutionary drive of the Abolitionists to reach the goal of true equality. It was in this spirit that they wrote the Fourteenth Amendment and it is in the light of this revolutionary idealism that the questions propounded by this Court can best be answered. In the beginning, the basic and immediate concern of the Abolitionists was necessarily slavery itself. The total question of removing all other discriminatory relationships after the abolition of slavery was at first a matter for the future. As a consequence, the philosophy of equality was in a state of continuous development from 1830 through the time of the passage of the Fourteenth Amendment. However, the ultimate objective was always clearly in mind— absolute and complete equality for all Americans. During the pre-Civil War decades, the antislavery movement here and there began to develop special meaning and significance in the legal concept of “privileges and immunities,” the concept of “due process” and the most important concept of all for these cases, “equal protection of the laws.” In the immediately succeeding sections, we shall show how the development of these ideas culminated in a firm intention to obliterate all class distinction as a part of the destruction of a caste society in America. The development of each of these conceptions was often ragged and uneven with much overlapping: what was “equal protection” to one A M E R I C A N
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was “due process” or “privilege and immunity” to another. However, regardless of the phrase used, the basic tenet of all was the uniform belief that Negroes were citizens and, as citizens, freedom from discrimination was their right. To them “discrimination” included all forms of racial distinctions. Equality under law One tool developed to secure full standing for Negroes was the concept of equal protection of the laws. It was one thing, and a very important one, to declare as a political abstraction that “all men are created equal,” and quite another to attach concrete rights to this state of equality. The Declaration of Independence did the former. The latter was Charles Sumner’s outstanding contribution to American law. The great abstraction of the Declaration of Independence was the central rallying point for the Abolitionists. When slavery was the evil to be attacked, no more was needed. But as some of the New England states became progressively more committed to abolition, the focus of interest shifted from slavery itself to the status and rights of the free Negro. In the Massachusetts legislature in the 1840’s, Henry Wilson, manufacturer, Abolitionist, and later United States Senator and Vice President, led the fight against discrimination, with “equality” as his rallying cry.35 One Wilson measure adopted by the Massachusetts Legislature in 1845 gave the right to recover damages to any person “unlawfully excluded” from the Massachusetts public schools.36
on the broader ground that segregation violated the Massachusetts Constitution which provided: “All men are created free and equal”, and it was from this base that he launched his attack. “Of Equality I shall speak, not as a sentiment, but as a principle. “ . . . ” Thus it is with all moral and political ideas. First appearing as a sentiment, they awake a noble impulse, filling the soul with generous sympathy, and encouraging to congenital effort. Slowly recognized, they finally pass into a formula, to be acted upon, to be applied, to be defended in the concerns of life, as principles.”37
“Equality before the law”38 was the formula he employed. He traced the equalitarian theory from the eighteenth century French philosophers through the French Revolution into the language of the French Revolutionary Constitution of 1791,39 the Constitution of February 1793,40 the Constitution of June 179341 and the Charter of Louis Phillipe.42 Equality before the law, i.e., equality of rights, was the real meaning of the Massachusetts constitutional provision. Before it “all . . . distinctions disappear”: “He may be poor, weak, humble, or black— he may be Caucasian, Jewish, Indian or Ethiopian race—he may be of French, German, English or Irish extraction; but before the Constitution of Massachusetts all these distinctions disappear. He is not poor, weak, humble, or black; nor is he French, German, English or Irish; he is a MAN, the equal of all his fellowmen.”43 Hence, he urged, separate schools are illegal.
Boston thereafter established a segregated school for Negro children, the legality of which was challenged in Roberts v. City of Boston, 5 Cush. (Mass.) 198 (1849). Charles Sumner, who later was to play such an important role in the Congress that formulated the Fourteenth Amendment, was counsel for Roberts. His oral argument, which the Abolitionists widely circulated, is one of the landmarks in the crystallization of the equalitarian concept.
The Massachusetts court rejected Sumner’s argument and refused to grant relief. Subsequent thereto, in 1853, the Legislature of Massachusetts, after careful consideration of the problem involving hearings and reports, amended the Wilson statute by providing, among other things, that in determining the qualifications of school children in public schools in Massachusetts “no distinction was
This case was technically an action for damages under the Wilson Act. However, Sumner attacked segregation in public schools
37
35 For an account of Wilson’s struggles against antimiscegenation laws, against jim-crow transportation and jim-crow education, see NASON, LIFE OF HENRY WILSON 48 et seq. (1876). 36 Massachusetts Act 1845, § 214.
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2 WORKS OF CHARLES SUMNER 330, 335–336 (1875). The entire argument is reprinted at 327 et seq. 38 Id. at 327, 330–331. 39 “Men are born and continue free and equal in their rights.” Id. at 337. 40 “The law ought to be equal for all.” Id. at 338. 41 “All men are equal by nature and before the law.” Id. at 339. 42 “Frenchmen are equal before the law . . . .” Ibid. 43 Id. at 341–342.
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to be made on account of the race, color or religious opinions of the appellant or scholar.”44 The Committee on Education of the House of Representatives in its report recommending adoption of this bill carefully considered the arguments for and against the measure and concluded: “Your committee believe, in the words of another, that ‘The only security we can have for a healthy and efficient system of public instruction rests in the deep interest and vigilant care with which the more intelligent watch over the welfare of the schools. This only will secure competent teachers, indefatigable exertion, and a high standard of excellence; and where the colored children are mingled up with the mass of their more favored fellows, they will partake of the advantages of this watchful oversight. Shut out and separated, they are sure to be neglected and to experience all the evils of an isolated and despised class. One of the great merits of our system of public instruction is the fusion of all classes which it produces. From a childhood which shares the same bench and sports there can hardly arise a manhood of aristocratic prejudice or separate castes and classes. Our commonschool system suits our institutions, promotes the feeling of brotherhood, and the habit of republican equality. To debar the colored race from these advantages, even if we still secured to them equal educational results, is a sore injustice and wrong, and is taking the surest means of perpetuating a prejudice that should be depreciated and discountenanced by all intelligent and Christian men.”45
Thus, the argument and theories advanced by Sumner, although rejected by the Supreme Court of Massachusetts, finally became incorporated into the law of the State of Massachusetts. More important, however, is the fact that the argument of Sumner was widely distributed throughout the country during the period immediately preceding the consideration of the Fourteenth Amendment.46 As a consequence 44
General Laws of Mass. c. 256. § 1 (1855). Report of Committee on Education to House of Representatives, Commonwealth of Massachusetts, March 17, 1855. 46 Among those active in distributing the argument was SALMON P. CHASE. DIARY AND CORRESPONDENCE OF SALMON P. CHASE, Chase to Sumner, Dec. 14, 1849, in 2 Ann. Rep. Am. Hist. Ass’n. 188 (1902). 45
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it became a fundamental article of faith among the Radical Republicans that from a constitutional standpoint racial segregation was incompatible with constitutional guarantees of equal protection.47 The analysis of the available materials covering the period from 1830 to 1860, while important to this point, is too voluminous to be included in the argument at this point. We have, therefore, placed this analysis in a supplement at the end of the brief. The analysis of these materials compels the following historical conclusions: 1. To the Abolitionists, equality was an absolute—not a relative—concept which comprehended that no legal recognition be given to racial distinctions of any kind. The notion that any state could require racial segregation was totally incompatible with this doctrine. 2. The phrases—“privileges and immunities,” “equal protection,” and “due process”— that were to appear in the Amendment had come to have a specific significance to opponents of slavery in the United States. Proponents of slavery knew and understood what that significance was, even as they disagreed with these theories. Members of the Congress that proposed the Amendment, shared this knowledge. 3. These radical Abolitionists, who had been in the minority prior to the Civil War, gained control of the Republican party in Congress during the course of the war and thus emerged in a dominant position in the Congress which was to write the Fourteenth Amendment. Ten of the members of the Joint Committee of Fifteen were men who had definite antislavery backgrounds and two others had likewise opposed slavery. 4. When the Joint Committee of Fifteen translated into constitutional provisions the equalitarian concepts held and widely bruited about in the struggle against slavery, it used the traditional phrases that had all become freighted with equalitarian meaning in its widest sense: “equal protection,” “privileges and immunities” and “due process.” 47
See, for example, Sumner resolution offered Congress on December 4, 1865 which called for “The organization of an educational system for the equal benefit of all without distinction of color or race.” Cong. Globe, 39th Cong., 1st Sess. 2 (1865–1866).
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In these respects history buttresses and gives particular content to the recent admonition of this Court that “[w]hatever else the framers sought to achieve, it is clear that the matter of primary concern was the establishment of equality in the enjoyment of basic civil and political rights and the preservation of those rights from discriminatory action on the part of the States based on considerations of race and color.” Shelley v. Kraemer, 334 U.S. 1, 23. Despite the high principles and dedication of the leaders of the Abolitionist movement, their program ran into repeated roadblocks from both individual groups and state machinery. The movement was not only blocked in so far as the abolition of slavery itself was concerned, but was met by an ever increasing tendency on the part of all the southern states and some northern states to gradually cut down on the rights of free Negroes and to bring their status nearer and nearer to that of slaves. This countermovement culminated in the decision of the Supreme Court in the Dred Scott case (Scott v. Sandford, 19 How. 393) that no person of the “African race, whether free or not” could enjoy, under the Constitution of the United States, any right or protection whatsoever. All Negroes were thereby left, by the principles of that case, to the absolute, unrestrained power of the several states. B. The movement for complete equality reached its successful culmination in the Civil War and the Fourteenth Amendment
The onset of the Civil War marked the turning point of the Abolitionists’ drive to achieve absolute equality for all Americans. The first great success came on January 1, 1863, when President Lincoln’s Emancipation Proclamation freed all slaves in those areas in insurrection against the United States. Obviously this was far from a complete victory. The doctrines enunciated by Chief Justice Taney in the Dred Scott case were still unqualified and remained as a part of the “constitutional law” of the time. In February, 1865, the Abolitionist-dominated 38th Congress adopted and submitted to the states what was to become the Thirteenth Amendment to the Constitution. However, the Radical Republicans in Congress were intensely aware that the abolition of slavery constituted only a partial attainment of their goal of complete G A L E
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political and legal equality for Negroes. They had already determined as early as the spring and summer of 1862 to strike at the objective of federal statutory and constitutional guarantees for Negro equality. As yet, however, their thinking had not succeeded in distilling clearly a series of specifically defined legal and political objectives which they proposed to write into federal law and Constitution. It should be observed in passing that their reason for this obviously was not necessarily pure Abolitionist idealism. They were in part motivated by hard practical considerations of Republican Party ascendency, and the fear that a restored South, in which Negroes were not given complete legal and political equality, would fall into the hands of a pre-war conservative white political leadership which would threaten the national political control of the Radical Republicans themselves. Thus their idealistic, social philosophy and their hard practical considerations of party interest dovetailed very nicely.48 It was to require the events of 1865–66, most notably the attempt to restore political rule in the South and the attempt to impose an inferior non-citizenship status upon the Negro in the restored southern states, to make clear to the Radical Republicans their new constitutional objectives and the means they would seek to obtain it. C. The principle of absolute and complete equality began to be translated into federal law as early as 1862
In 1862 Congress addressed itself to an immediate problem over which it had authority. In debating the bill which was to abolish slavery in the District of Columbia, Representative Bingham said: “The great privilege and immunity of an American citizen to be respected everywhere in this land, and especially in this District, is that they shall not be deprived of life, liberty, or property without due process of law.49” Representative Fessenden concluded: “If I do not mistake, it is quite apparent that when this bill shall be put on its final passage it will proclaim liberty to the slaves within this 48
tenBroek,
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117–119 (1951). Cong. Globe, 37th Cong., 2d Sess. 1639 (1862).
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District. These men—for God created them men, though man has used them as goods and chattels—slaves—these men and women and children will, when the President of the United States signs this bill, be translated . . . [to a] condition in which they are invested with the rights of freemen, upon which none can trespass with impunity; since over the person of the free black as well as the free white man there is thrown the broad shield of the nation’s majesty.”50 The bill was enacted into law.51 Simultaneously Congress discontinued the application of the Black Codes of Maryland and Virginia to the District of Columbia.52 Between the time of the Emancipation Proclamation in 1863 and the formulation of the Fourteenth Amendment, Congress took several forward steps to secure complete equality for the class so recently freed. These steps came in the form of particular solutions to particular problems. To this Congress (38th), the most immediate problem was one which fell under their glance daily, the problem of transportation in the District of Columbia. Congressional treatment of this problem is of significance because it reveals the early determination of the Radical Republicans to prohibit racial segregation. In 1863, Congress amended the charter of the Alexandria and Washington Railroad to eliminate the practice of putting white and Negro passengers in separate parts of the street cars.53 When, in 1864, the Washington and Georgetown street car company attempted to put colored passengers in cars separate from those of the white passengers, Senator Sumner denounced the practice in the Senate and set forth on his crusade to prohibit all racial distinctions by first eliminating street car segregation in the District.54 In 1865, he carried to passage a law applicable to all District carriers that “no person shall be excluded from any car on account of color.”55
50
Id. at 1642. 12 Stat. 376 (1862). 52 12 Stat. 407 (1862). 53 12 Stat. 805 (1863). 54 Cong. Globe, 38th Cong., 1st Sess. 553, 817 (1864). 55 13 Stat. 536, 537 (1865). 51
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The debate on the street car bill covered the entire issue of segregation in transportation. Those who supported prohibition of segregation did so on the ground that any such separation was a denial of equality itself. Senator Wilson denounced the “Jim Crow car,” declaring it to be “in defiance of decency.”56 Senator Sumner persuaded his brethren to accept the Massachusetts view, saying that in Massachusetts, “the rights of every colored person are placed on an equality with those of white persons. They have the same right with white persons to ride in every public conveyance in the Commonwealth.”57 Thus, when Congress in 1866 framed the Fourteenth Amendment, it did so against a background of Congressional determination that segregation in transportation was unequal, unjust, and was “in defiance of decency.” D. From the beginning the thirty-ninth Congress was determined to eliminate race distinctions from American law
The 39th Congress which was to propose the Fourteenth Amendment convened in December 1865 with the realization that, although slavery had been abolished, the overall objective, the complete legal and political equality for all men had not been realized. This was dramatically emphasized by the infamous Black Codes being enacted throughout the southern states. These Black Codes had the single purpose of providing additional legislative sanction to maintain the inferior status for all Negroes which had been judicially decreed in the opinion in the case of Scott v. Sandford, 19 How. 393. The Black Codes, while they grudgingly admitted that Negroes were no longer slaves, nonetheless used the states’ power to impose and maintain essentially the same inferior, servile position which Negroes had occupied prior to the abolition of slavery. These codes thus followed the legal pattern of the antebellum slave codes. Like their slavery forerunners, these codes compelled Negroes to work for arbitrarily limited pay; restricted their mobility; forbade them, among other things, to carry firearms; forbade their testimony in a court against any white man; and highly significant here, contained innumerable provisions for 56 57
Cong. Globe, 38th Cong., 1st Sess. 3132, 3133 (1864). Id. at 1158.
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segregation on carriers and in public places. In at least three states these codes prohibited Negroes from attending the public schools provided for white children.58
Representative Jehu Baker of Illinois introduced a similar resolution in the House of Representatives, which read in part as follows: “Whereas class rule and aristocratic principles of government have burdened well nigh all Europe with enormous public debts and standing armies, which press as a grievous incubus on the people, absorbing their substance, impeding their culture, and impairing their happiness; and whereas the class rule and aristocratic element of slaveholding which found a place in our Republic has proved itself, in like manner, hurtful to our people . . . Therefore, “Resolved, (as the sense of this House,) That once for all we should have done with class rule and aristocracy as a privileged power before the law in this nation, no matter where or in what form they may appear; and that, in restoring the normal relations of the States lately in rebellion, it is the high and sacred duty of the Representatives of the people to proceed upon the true, as distinguished from the false, democratic principle, and to realize and secure the largest attainable liberty to the whole people of the Republic, irrespective of class or race.”60
It was this inferior caste position which the Radical Republicans in Congress were determined to destroy. They were equally determined that by federal statutory or constitutional means, or both, Congress would not only invalidate the existing Black Codes but would proscribe any and all future attempts to enforce governmentally-imposed caste distinctions. Congress was well aware of the fact that to take this step involved a veritable revolution in federal-state relations. A number of Senators and Representatives in the 39th Congress, by speech and resolution, made it eminently clear that they aimed at nothing less than the total destruction of all hierarchy, oligarchy and class rule in the southern states. One of the more notable resolutions of this kind was that of Senator Charles Sumner, introduced on December 4, 1865, at the opening of the session. This resolution asserted that no state formerly declared to be in rebellion was to be allowed to resume its relation to the Union until “the complete reestablishment of loyalty . . . ” and: “The complete suppression of all oligarchical pretensions, and the complete enfranchisement of all citizens, so that there shall be no denial of rights on account of color or race; but justice shall be impartial, and all shall be equal before the law.”
Another requirement of Sumner’s resolution called for: “The organization of an educational system for the equal benefit of all without distinction of color or race.”59
Sumner thus recognized the close relationship between the destruction of the southern ruling class and the elimination of segregation in the educational system.
There were numerous other resolutions and speeches expressing similar sentiments. All of the resolutions were referred to the Joint Committee on Reconstruction and are a part of the background of that committee’s work in the framing of the Fourteenth Amendment. These expressions of principle were started toward statutory fruition by Senator Trumbull’s Bill to enlarge the powers of the Freedmen’s Bureau. The debates which followed the introduction of his Senate Bill No. 60 are of particular interest because they make it clear that a large number of the Radical Republicans regarded the destruction of segregation in the school districts of the southern states as a highly desirable legislative objective. What followed amounted to a forthright assault on the idea that there could be racial segregation in the public schools. Representative Hubbard of Connecticut expressed the broad pattern of thinking of which this bill was a part: “The words, caste, race, color, ever unknown to the Constitution, . . . are still potent for evil on the lips of men whose minds are swayed by prejudice or blinded by passion, and the freedmen need the protection of this bill.
58
See the summary in Senator Wilson’s speech before Congress, Cong. Globe, 39th Cong., 1st Sess. 39–40, 589 (1866); 1 FLEMING, DOCUMENTARY HISTORY OF RECONSTRUCTION 273–312 (1906); MCPHERSON, THE POLITICAL HISTORY OF THE UNITED STATES DURING THE PERIOD OF RECONSTRUCTION 29–44 (1880). 59 Cong. Globe, 39th Cong., 1st Sess. 2 (1865–1866).
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“The era is dawning when it will be a reproach to talk in scorn about the distinctions of race or color. Our country is, and must be, cosmopolitan. . . . “It is in vain that we talk about race, caste, or color . . . .”61
Likewise, Representative Rousseau of Kentucky stated: “ . . . Here are four school-houses taken possession of, and unless they mix up white children with black, the white children can have no chance in these schools for instruction. And so it is wherever this Freedmen’s Bureau operates.”62
Representative Dawson of Pennsylvania recognized that the supporters of the bill: “ . . . hold that the white and black race are equal . . . . Their children are to attend the same schools with white children, and to sit side by side with them . . . .”63
Of more importance was S.61 “A Bill to Protect All Persons in the United States in Their Civil Rights and Furnish the Means of Vindication.” This bill, though introduced through Senator Trumbull in his capacity as Chairman of the Judiciary Committee, was in fact a measure sponsored by the entire Radical Republican majority. The bill forbade any “discrimination in civil rights or immunities” among “the people of the United States on account of race, color, or previous condition of slavery.” It provided that all persons should have “full and equal benefits of all laws” for the security of their persons and their property.
Congress had the power under the Thirteenth Amendment to assure freedom of Negroes, denied that Congress had the power to endow Negroes with citizenship and civil rights. To sustain their position they pointed to the fact that Negroes who were freed prior to the Emancipation Proclamation were not treated as citizens and under the authority of the Dred Scott case could not be citizens.65 In reply, Trumbull advanced the additional constitutional argument that, once slavery was abolished, the naturalization clause of the Constitution provided Congress with the power to endow Negroes with the citizenship the Dred Scott case had held they could not otherwise enjoy. Trumbull thus adopted the position of Chief Justice Taney in the Dred Scott case that the power to confer citizenship was vested in the federal, not the state government. Another major area of controversy with respect to the bill was as to its scope. Time and again the Democrats and the more conservative Republicans in the Senate asserted that the bill would invalidate every state law which provided for racial segregation, or provided a different rule for persons of different races.66 For example, there was the charge of Senator Cowan, a Republican of Pennsylvania, who said: “Now, as I understand the meaning . . . of this bill, it is that there shall be no discrimination made between the inhabitants of the several States of this Union, none in any way. In Pennsylvania, for the greater convenience of the people, and for the greater convenience, I may say, of both classes of the people, in certain districts the Legislature has provided schools for colored children, has discriminated as between the two classes of children. We put the African children in this school-house and the white children over in that school-house, and educate them there as we best can. Is this amendment to the Constitution of the United States abolishing slavery to break up that system which Pennsylvania has adopted for the education of her white and colored children? Are the school directors who carry out that law and who make this distinction between these classes of children to be punished for a violation of this statute of the United States? To me it is monstrous.”67
In a lengthy speech, Senator Trumbull defended the wisdom and constitutionality of this bill in detail. The Thirteenth Amendment, he argued, made the bill both constitutional and necessary. “Then, sir, I take it that any statute which is not equal to all, and which deprives any citizen of civil rights which are secured to other citizens, is an unjust encroachment upon his liberty; and is, in fact, a badge of servitude which, by the Constitution, is prohibited.”64
Senator Trumbull’s argument precipitated a lengthy debate on the constitutional issues. Opponents of the measure, conceding that 61
Id. Id. 63 Id. 64 Id. 62
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Senator Howard in reply gave the Conservatives no comfort: “I do not understand the bill which is now before us to contemplate anything else but this, that in respect to all civil rights . . . there is to be hereafter no distinction between the white race and the black race. It is to secure to these men whom we have made free the ordinary rights of a freeman and nothing else . . . . There is no invasion of the legitimate rights of the States.”68
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But, perhaps the best answer of all to these assertions of the sweeping character of the bill was given by Senator Morrill of Vermont, a member of the Joint Committee of Fifteen: “The Senator from Kentucky tells us that the proposition [federal guarantee of civil rights] is revolutionary, . . . I admit that this species of legislation is absolutely revolutionary. But are we not in the midst of revolution? Is the Senator from Kentucky utterly oblivious to the grant results of four years of war?”69
It is highly significant that Senator Morrill was not only a member of the Joint Committee of Fifteen, even then engaged in drafting the Fourteenth Amendment, but that he later was to insist that the Fourteenth Amendment prohibited separate but equal provisions in state school legislation. After two full days of debate, the Senate passed the Trumbull bill by a vote of 33 to 12. The only rational inference to be drawn from the legislative history of the Trumbull bill in the Senate is that the great majority of that body was determined to bar the states from using their power to impose or maintain racial distinctions. The same majority was of the opinion that the federal government had constitutional authority so to delimit such action by the state.
be set apart for black persons, and certain schools shall be set apart for white persons. Now, if this Congress has a right, by such a bill as this, to enter the sovereign domain of a State . . . then, by parity of reasoning, it has a right to enter the domain of that State and inflict upon the people there, without their consent, the right of the negro to enjoy the elective franchise . . . .”70
In a somewhat disingenuous attempt to deal with the argument of the Conservatives, Representative Wilson of Iowa, chairman of the House Judiciary Committee, argued vaguely that the bill would not have the effect of destroying all legislation discriminating on the basis of race.71 Nevertheless Wilson broadly defined the term civil rights as used in the bill as being “the natural rights of man.” Moreover, he observed that “immunities” secured “to citizens of the United States equality in the exemptions of the law.”72 At this point, Representative Bingham of Ohio, who had become converted to the Conservatives’ constitutional power argument, made a notable address to the House. While admitting that perhaps Congress was at that time without constitutional authority to enact so sweeping a bill, he said it was nevertheless true that the bill as it stood was as sweeping as was charged by the Conservatives. Representative Bingham then made it preeminently clear that he entirely approved of the sweeping objectives of the bill as it came from the Senate. His willingness to accept any modification of the bill was solely on the grounds of an overwhelming present constitutional objection which he himself was even then in the process of curing with a proposal for a constitutional amendment. He said: “If civil rights has this extent, what, then, is proposed by the provision of the first section? Simply to strike down by congressional enactment every State constitution which makes a discrimination on account of race or color in any of the civil rights of the citizen. I might say here, without the least fear of contradiction, that there is scarcely a State in this Union which does not, by its Constitution or by its statute laws, make some discrimination on account of race or
In the House, the Conservatives pointed out forcefully that the text of the bill presented would destroy all limitations on federal power over state legislation and would likewise destroy all state legislative and judicial provisions making distinctions against Negroes. Representative Rogers observed: “In the State of Pennsylvania there is a discrimination made between the schools for white children and the schools for black. The laws there provide that certain schools shall 70
Id. at 1121. Id. at 1117. 72 Ibid.
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color between citizens of the United States in respect of civil rights.”73
“The law in every State should be just; it should be no respecter of persons. It is otherwise now, and it has been otherwise for many years in many of the States of the Union. I should remedy that not by an arbitrary assumption of power, but by amending the Constitution of the United States, expressly prohibiting the States from any such abuse of power in the future.”74
Bingham’s prestige as a leader of the Radical Republican majority obliged Wilson to accept the Ohioan’s interpretation. Consequently, the bill was returned to the Judiciary Committee and amended to eliminate the sweeping phrase “there shall be no discrimination in civil rights and immunities.” Wilson no doubt comforted himself with the fact that even as amended the language of the bill was still revolutionary. At any rate, the Conservatives were still convinced that the bill invalidated state racial segregation laws. With considerable force, they argued that the phrase “the inhabitants of every state” . . . shall have the rights to full and equal benefits of all laws and proceedings for the “security of persons and property . . . ” was properly to be broadly interpreted. In fact, Senator Davis of Kentucky had this to say: “ . . . [T]his measure proscribes all discriminations against negroes in favor of white persons that may be made anywhere in the United States by any ‘ordinance, regulation, or custom,’ as well as by ‘law or statute.’ . . . But there are civil rights, immunities, and privileges ‘which ordinances, regulations, and customs’ confer upon white persons everywhere in the United States, and withhold from negroes. On ships and steamboats the most comfortable and handsomely furnished cabins and state-rooms, the first tables, and other privileges; in public hotels the most luxuriously appointed parlors, chambers, and saloons, the most sumptuous tables, and baths; in churches not only the most softly cushioned pews, but the most eligible sections of the 73 74
Id. at 1291. Id. at 1294.
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edifices; on railroads, national, local, and street, not only seats, but whole cars, are assigned to white persons to the exclusion of negroes and mulattoes. All these discriminations in the entire society of the United States are established by ordinances, regulations, and customs. This bill proposes to break down and sweep them all away and to consummate their destruction, and bring the two races upon the same great plane of perfect equality, declares all persons who enforce those distinctions to be criminals against the United States, and subjects them to punishment by fine and imprisonment . . . .”75 Significantly, there was no attempt to reply to this interpretation of the amended bill.
Bingham then insisted that he believed that all discriminatory legislation should be wiped out by amending the Constitution.
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The bill in its amended form was adopted by Congress and vetoed by President Johnson. Representative Lawrence, who spoke in favor of overriding President Johnson’s veto said: “This section does not limit the enjoyment of privileges to such as may be accorded only to citizens of ‘some class,’ or ‘some race,’ or ‘of the least favored class,’ or ‘of the most favored class,’ or of a particular complexion, for these distinctions were never contemplated or recognized as possible in fundamental civil rights, which are alike necessary and important to all citizens, and to make inequalities in which is rank injustice.”76
He also said: “ . . . distinctions created by nature of sex, age, insanity, etc., are recognized as modifying conditions and privileges, but mere race or color, as among citizens never can [be].”77
Numerous newspapers also thought the bill destroyed all segregation in schools, theatres, churches, public vehicles and the like.78 Flack said of the bill: “Many [Congressmen] believed that the negro would be entitled to sit on juries, to attend the same schools, etc., since, if the 75
Id. at App. 183. Id. at 1836. 77 Id. at 1835. 78 New York Herald, March 29 and April 10, 1866: Commercial March 30, 1866; National Intelligencer, April 16, 1866 and May 16, 1866. There were a number of suits against local segregation laws banning Negroes from theatres, omnibuses, etc., McPherson’s Scrap Book, The Civil Rights Bill, pp. 110 ff. None of these suits appear to have involved school segregation laws. 76
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States undertook to legislate on those matters, it might be claimed that he was denied the equal rights and privileges accorded to white men. It does not appear that all of these contentions were specifically contradicted.
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2.
*** It would seem reasonable to suppose that if the bill should prove to be constitutional that these rights could not be legally denied them.”79
*** “ . . . many of the leading papers of the country, including some of the principal Republican papers, regarded the Civil Rights Bill as a limitation of the powers of the States, and as a step towards centralization, in that it interfered with the regulation of local affairs which had hitherto been regulated by state and local authorities or by custom. This opinion was held in the North as well as in the South. There also seems to have been a general impression among the press that negroes would, by the provisions of the bill, be admitted, on the same terms and conditions as the white people, to schools, theaters, hotels, churches, railway cars, steamboats, etc.”80
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*** “What the papers gave as their opinion must necessarily have been the opinion of large numbers of people. There is much evidence to substantiate this conclusion, for almost immediately after the passage of the bill over the President’s veto, efforts were made by the negroes to secure these rights.”81
The following generalizations are pertinent to the relationship of the Civil Rights Act (S. 61 as amended) to the problem of segregation in schools and the Fourteenth Amendment: 1. As originally drafted, the Act contained a phrase “there shall be no discrimination in civil rights and immunities among the inhabitants of any state . . . ” This was so broad in scope that most Senators and Representatives believed that it would have the effect of destroying entirely all state legislation which distinguished or classified in any manner on the basis of race. School segregation laws, statutes establishing 79
FLACK, THE (1908). 80 Id. at 45. 81 Ibid.
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unequal penalties in criminal codes, laws banning Negroes from juries, all alike would have become invalid as against the federal statute. A great majority of the Republicans—the men who formulated the Fourteenth Amendment—had no objection to a bill which went this far. Men like Rogers, Kerr and Cowan objected to the bill on the ground that it would end all caste legislation, including segregated schools, and this was the view of the Senate. None of the bill’s supporters in the House, except Wilson, denied that the bill had that effect. The Bingham amendment was finally adopted in the House which struck out the “no discrimination” clause, simply because a majority of the members of the House believed that so sweeping a measure could not be justified under the Constitution as it stood. They accepted Bingham’s argument that the proper remedy for removing racial distinctions and classifications in the states was a new amendment to the Constitution. The logic of the Bingham constitutional objections aside, the persuasiveness of his technical objection to the Trumbull bill was immeasurably enhanced by the fact that several days before his motion to amend the Civil Rights Bill, Bingham had in fact proposed to the House, on behalf of the Joint Committee, a constitutional amendment by the terms of which his constitutional objections to the Trumbull bill were obviated. That measure, H. R. 63, with some significant changes intended to underscore the prohibition on state governmental action with the addition of the citizenship clause became the Fourteenth Amendment.82 The law as finally enacted enumerated certain rights which Trumbull and other Radicals had felt were inseparably connected
“The Congress shall have power to make all laws which shall be necessary and proper to secure to the citizens of each state all privileges and immunities of citizens in the several states (Art. 4, Sec. 2); and to all persons in the several States equal protection in the rights of life, liberty and property (5th Amendment).” THE JOURNAL OF THE JOINT COMMITTEE OF FIFTEEN ON RECONSTRUCTION, 61 (Kendrick ed. 1914). 82
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with the status of freedom. However, there is no evidence that even after the modification of the bill, the enumeration in the bill was considered to exclude rights not mentioned. Kerr, Rogers, Cowan, Grimes and other conservatives still insisted that the bill, even in its final form, banned segregation laws. The phrase “the inhabitants of every race . . . shall have the right . . . to full and equal benefit of all laws and proceedings for the security of persons and property” still stood in the bill and was susceptible of broad interpretation. 6. Finally, it may be observed that a majority of both Houses of Congress were ready to go beyond the provisions of the Civil Rights Act. Congressmen as diverse in their views as John A. Bingham and Henry J. Raymond, a moderate Republican and editor of the New York Times, united in proposing a constitutional amendment which would remove doubts as to the ability of Congress to destroy all state legislation discriminating and segregating on the basis of race. The forthcoming amendment, at all odds, was to set at rest all doubts as to the power of Congress to abolish all state laws making any racial distinctions or classifications. The framers of the Fourteenth Amendment While Congress was engaged in the passage of the Civil Rights Act, a powerful congressional committee was even then wrestling with the problem of drafting a constitutional amendment which they hoped would definitely destroy all class and caste legislation in the United States. This committee was the now famous Joint Committee of Fifteen, which the two houses of Congress had established by Joint Resolution in December, 1865, to “inquire into the conditions of the states which formed the so-called Confederate States of America and report whether any or all of them were entitled to representation in Congress.” It is extremely important for the purpose of this brief to observe that the Joint Committee of Fifteen was altogether under the domination of a group of Radical Republicans who were products of the great Abolitionist tradition, the equalitarianism which has been set forth earlier in this brief. Section 1 of the Fourteenth Amendment, and particularly the equal protection clause, is G A L E
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peculiarly the product of this group, plus Senators Sumner, Wilson and Trumbull.83 Co-chairmen of the Committee were Representative Thaddeus Stevens of Pennsylvania and Senator William P. Fessenden of Maine. Stevens was virtually dictator of the House. It was his dedicated belief that the Negro must be immediately elevated to a position of unconditional, legal, economic, political and social equality; and to this end he was determined to destroy every legal and political barrier that stood in the way of his goal.84 Obviously, any constitutional amendment affecting the Negro would very heavily reflect his point of view. Stevens believed that the law could not permit any distinctions between men because of their race. It was his understanding of the first section of the Fourteenth Amendment that: “ . . . where any State makes a distinction in the same law between different classes of individuals, Congress shall have power to correct such discrimination and inequality . . . ”85 He believed that it was up to Congress to repudiate “ . . . the whole doctrine of the legal superiority of families or races,”85a and that under the Amendment, “ . . . no distinction would be tolerated in this purified Republic but what arose from merit and conduct.”86 Senator Fessenden undoubtedly held moderate views on the Reconstruction and, these views probably accounted for his selection as Co-chairman of the Joint Committee. Although Fessenden hoped that the Republican Party would work successfully with President Johnson, he broke with Johnson on the Civil Rights Act, which he supported with conviction. He 83
KELLY AND HARBISON, THE AMERICAN CONSTITUTION, ITS ORIGIN AND
460–463 (1948); BOUDIN, TRUTH AND FICTION ABOUT 16 N. Y. U. L. Q. REV. 19 (1938); FRANK AND MUNRO, THE ORIGINAL UNDERSTANDING OF “EQUAL PROTECTION OF THE LAWS”, 50 COL. L. REV. 131, 141 (1950). 84 See for example, Stevens’ speech attacking the “doctrine of the legal superiority of families or races” and denouncing the idea that “this is a white man’s government.” Cong. Globe, 39th Cong., 1st Sess. 75 (1865). “Sir,” he said on this occasion, “this doctrine of a white man’s Government is as atrocious as the infamous sentiment that damned the late Chief Justice to everlasting fame; and, I fear, to everlasting fire.” See also similar observations on Stevens in BOWERS, THE TRAGIC ERA (1929) and WOODBURN, THE LIFE OF THADDEUS STEVENS (1913). 85 Cong. Globe, 39th Cong., 1st Sess. 1063 (1866). 85a Id. at 74. 86 Id. at 3148. DEVELOPMENT
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was a staunch champion of the Fourteenth Amendment. Fessenden believed that all distinctions in civil rights based upon race must be swept away, and he was in favor of excluding the southern states from any representation in Congress until this end was assured.87
was, however, so closely allied to the insiders on the Committee who considered race and color an indefensible basis for making legal distinctions,96 that it is safe to conclude that he espoused, or at least acquiesced in, this viewpoint.
His son reports that the essence of his views was “all civil and political distinctions on account of race or color [would] be inoperative and void . . . .”88
Senator George H. Williams, an Oregon Republican and former Douglas Democrat, claimed authorship of the First Reconstruction Act of 1867, originally called the Military Reconstruction Bill, which he introduced in the Senate on February 4, 1867.97 In commenting upon this bill he said:
Senator James W. Grimes, Republican of Iowa, was a Moderate and a close friend of Fessenden.89 While he was governor of Iowa, prior to his election to the Senate the state constitution was revised to provide schools free and open to all children.90 He insisted upon free schools open to all,91 and Lewellen, who analyzed Grimes’ political ideas, concluded that— “Special legislation, whether for individual or class, was opposed by Grimes as contrary ‘to the true theory of a Republican government’ and as the ‘source of great corruption.’ Although he sympathized with the newly freed Negroes after the Civil War, he opposed any attempt to make them wards of the Federal government. They had been made citizens and had been given the right to vote; there was no reason in the world why a law should be passed ‘applicable to colored people’ and not to white people. While his ideas on the Negro question were colored by his radical opinions on the slavery question his opposition to race legislation would probably have been practically as firm upon any other subject.”92
Senator Ira Harris of New York, one of the least vocal members of the Committee of Fifteen, was a close friend of Charles Sumner,93 and “acted with the radicals in all matters pertaining to reconstruction.”94 His explicit views on segregation are unascertained.95 He 87
KENDRICK,
op. cit. supra n. 82, at 172–177; 6
“I will say that in preparing this bill, I had no desire to oppress or injure the people of the South, but my sole purpose was to provide a system by which all classes would be protected in life, liberty, and property . . . ”98
His views on segregation are also unascertained.99 It should be noted, however, that there is no record of his ever lending his voice or his votes to any law providing segregation based upon race or color. Senator Jacob H. Howard of Michigan was clearly in the vanguard of that group which worked to secure full equality for Negroes.100 He was clear and definite in his interpretation of the Civil Rights Act of 1866 and the Fourteenth Amendment. He said after the passage of the former that “in respect of all civil rights, there is to be hereafter no distinction between the white race and the black race.”101 In explaining the intention of the Joint Committee during discussion of the joint resolution to propose what was to become the Fourteenth Amendment, he said: “He desired to put this question of citizenship and the rights of citizens and freedmen under the civil rights bill beyond the legislative power of such gentlemen as [Senator Doolittle of Wisconsin] who would pull the whole system up by the roots and destroy it, and expose the freedmen again to the oppressions of their old masters.”102
DICTIONARY OF
AMERICAN BIOGRAPHY 349–350 (1931). 88 2 FESSENDEN, LIFE AND PUBLIC SERVICES OF WILLIAM PITT FESSENDEN 36 (1931). 89 KENDRICK, op. cit. supra n. 82, at 190–191. 90 DICTIONARY OF AMERICAN BIOGRAPHY 632 (1931). 91 Ibid.; SALTER, LIFE OF JAMES W. GRIMES, c. 3 (1876). 92 LEWELLEN, POLITICAL IDEAS OF JAMES W. GRIMES 42 IOWA HIST. POL. 93
8
96
&
339, 347 (1944). DICTIONARY OF AMERICAN BIOGRAPHY
310 (1932).
94
KENDRICK, op. cit. supra n. 82, at 195. 95 FRANK AND MUNRO, THE ORIGINAL UNDERSTANDING OF EQUAL PROTECTION OF THE LAWS,
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97
KENDRICK, op. cit. supra n. 82, at 191; Williams, Six Years in the United States Senate, Daily Oregonian, Dec. 3, 10, 1905. 98 CHRISTENSEN, THE GRAND OLD MAN OF OREGON: THE LIFE OF GEORGE H. WILLIAMS 26 (1939). 99 FRANK AND MUNRO, op. cit. supra n. 83, at 142. 100 KENDRICK, op. cit. supra n. 82, at 192. 101 FRANK AND MUNRO, op. cit. supra n. 83, at 140. 102 Cong. Globe, 39th Cong., 1st Sess. 2896 (1866).
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In another speech, while acting for Senator Fessenden as floor leader for the Amendment, Howard interpreted Section 1 as follows:
The evidence conclusively establishes that Howard’s interpretation of the equal protection clause precluded any use whatever of color as a basis for legal distinctions.104 Senator Reverdy Johnson, Democrat of Maryland, was attorney for the defense in Dred Scott v. Sandford.105 George I. Curtis, one of Scott’s attorneys, credited Johnson with being the major influence in shaping the decision.106 Where segregation was concerned, Johnson was not entirely consistent or predictable. In 1864 he supported the motion of Senator Charles Sumner that the Washington Railroad end the exclusion of persons of color.107 During the debate upon Sumner’s motion, Johnson said: “It may be convenient, because it meets with the public wish or with the public taste of both classes, the white and the black, that there should be cars in which the white men and ladies are to travel, designated for that purpose, and cars in which the black men and black women are to travel, designated for that purpose. But that is a matter to be decided as between these two classes. There is no more right to exclude a black man from a car designated for the transportation of white persons than there is a right to refuse to transport in a car designated for
103
Id. at 2766.
104
FRANK AND MUNRO,
op. cit. supra n. 83, at 142. 19 How. 393. 106 10 DICTIONARY OF AMERICAN BIOGRAPHY 113 (1933). 107 WILSON, HISTORY OF THE RISE AND FALL OF THE SLAVE POWER IN AMERICA 507 (1877). 105
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black persons white men; and I do not suppose that anybody will contend . . . that there exists any power in the company to exclude white men from a car because the company have appropriated that car for the general transportation of black passengers.”108
“The last two clauses of first section . . . disable a state from depriving . . . any person . . . of life, liberty or property without due process of law, or from denying to him the equal protection of the laws of the state. This abolishes all class legislation and does away with the injustice of subjecting one caste of persons to a code not applicable to another . . . Ought not the time to be now passed when one measure of justice is to be meted out to a member of one caste while another and a different measure is meted out to the member of another caste, both castes being alike citizens of the United States . . . ”103
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Two years later, Johnson said: “ . . . as slavery has been abolished in the several States, those who were before slaves are now citizens of the United States, standing . . . upon the same condition, therefore, with the white citizens. If there is an authority in the Constitution to provide for the black citizen, it cannot be because he is black; it must be because he is a citizen; and that reason [is] equally applicable to the white man as to the black man . . . .”109
Thus it appears that he understood that the granting of citizenship rights to Negroes meant that racial distinctions could no longer be imposed by law. Representative John A. Bingham of Ohio, a member of the committee who has been described as the “Madison of the first section of the Fourteenth Amendment”110 and undoubtedly its author, was a strong and fervent Abolitionist, classified with those whose views of equal protection “precluded any use whatsoever of color as a basis of legal distinctions.”111 While the Fourteenth Amendment was pending, Representative Bingham took the view that state constitutions which barred segregated schools were “in accordance with the spirit and letter of the Constitution of the United States . . . [if] the utterance of Jefferson ever meant anything . . . it meant precisely that when he declared for equal and exact justice . . . .”112 Representative George Boutwell of Massachusetts, was a hard, practical politician rather 108
Cong. Globe, 38th Cong., 1st Sess. 1156 (1864). Cong. Globe, 39th Cong., 1st Sess. 372–374 (1865–1866). 110 Dissent of Mr. Justice Black in Adamson v. California, 332 U.S. 46, 74. 111 FRANK AND MUNRO, THE ORIGINAL UNDERSTANDING OF EQUAL PROTECTION OF THE LAWS, 50 COL. L. REV. at 151. See GRAHAM, THE “CONSPIRACY THEORY” OF THE FOURTEENTH AMENDMENT, 47 YALE L. J. 371, 400–401 (1938); GRAHAM, THE EARLY ANTISLAVERY BACKGROUNDS OF THE FOURTEENTH AMENDMENT, 1950 WIS. L. REV. 479 at 492; Cong. Globe, 39th Cong., 1st Sess. 1291, 1293, 2461–2462 (1866). For other sketches of Bingham see 2 DICTIONARY OF AMERICAN BIOGRAPHY 278 (1929) and KENDRICK, op. cit. supra n. 82 at 183. 112 Cong. Globe, 40th Cong., 1st Sess. 2462 (1868). 109
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than an idealist. He was however, no less extreme in his demands for Negro civil rights and Negro suffrage than men like Stevens and Sumner. Indicative of his views is his vote on May 22, 1874 against the Sargent amendment to the Civil Rights Act of 1875, which would have permitted separate but equal schools.113 During Reconstruction Alabama was “flooded with the radical speeches of Morton and Boutwell in favor of mixed schools.”114 He was among those whose interpretation of “equal protection” would not admit color as a basis for legal distinctions.115 Representative Roscoe Conkling, a New York Republican, was thought to have taken his views on Reconstruction from Stevens.116 He was called by some a protege of Stevens; at any rate, they worked as partners on much reconstruction legislation.117 In 1868, when the readmission of Arkansas was being discussed, he voted against the Henderson Amendment to the bill which would have permitted the state to establish segregated schools.118 In 1872 he favored the supplementary civil rights bill and voted against the Thurman amendment which would have struck out a clause permitting colored persons to enter “any place of public amusement or entertainment.”119 He was in the Senate majority which on May 22, 1874, voted down the Sargent amendment to the Civil Rights Bill, an amendment which would have permitted separate but equal schools.120 Conkling must be classified as one of those who agreed to no legal classifications or distinctions based upon color.121 Representative Henry T. Blow, a Missouri Republican, first supported the views of Thaddeus Stevens in the Joint Committee and then in the second session gave his support to Bingham.122 In either case, he acted with those who favored a broad and sweeping denial of the right of the states to make legal classifications on the basis of race or color. Blow came to Congress with a strong antislavery background
and took the position that color discrimination could not be defended, as a matter of course.123 Representative Justin S. Morrill of Vermont is characterized as “an extreme radical,” one “regularly on the side of radicalism.” It is said of him that “the only part taken by him in Reconstruction was to attend the meetings of the Committee and cast his vote.”124 However, he was among those voting against the “white” clause in the Nebraska constitution when the bill to admit that state to the union was under consideration.125 He voted against the Henderson amendment to permit segregated schools in the bill to readmit Arkansas.126 He voted against the Sargent Amendment to allow separate but equal schools, during the debates on the bill that became the Civil Rights Act of 1875.127 Morrill thus belongs in the group of those who did not consider color a reasonable ground for legal distinctions.128 Representative Elihu Washburne of Illinois was a staunch member of the House Radical bloc, and a pronounced enemy of the more moderate Reconstruction policies of President Johnson. He supported both the Civil Rights Act and the Fourteenth Amendment and his remarks make it clear that he favored a revolution in the southern social order.129 The two Democratic members of the Joint Committee from the House were both enemies of the Civil Rights Act and the Fourteenth Amendment. Representative Henry Grider of Kentucky was without influence in the drafting of the Fourteenth Amendment by the Joint Committee.130 However, remarks of Representative Andrew Jackson Rogers of New Jersey, in opposition to these measures, are significant indication of contemporary understanding of their reach and thrust. Thus, in speaking of the Civil Rights Bill, Rogers said: “In the State of Pennsylvania there is a discrimination made between the schools for 123
FRANK AND MUNRO,
op. cit. supra n. 83, at 142. cit. supra n. 82, at 140, 193. 39th Cong., 1st Sess. 4275–4276 (1866). Cong. Globe, 40th Cong., 2nd Sess. 2748 (1868). 127 2 Cong. Rec. 4167 (1874). 128 FRANK AND MUNRO, op. cit. supra n. 83, at 142. 129 19 DICTIONARY OF AMERICAN BIOGRAPHY 504 (1936);, op. cit. supra n. 82, at 194. 130 KENDRICK, op. cit. supra n. 82, at 196. Grider is not even listed in the DICTIONARY OF AMERICAN BIOGRAPHY. He died before the second session of the 39th Congress. KENDRICK, op. cit. supra n. 82, at 197. 124
113
2 Cong. Rec. 4167 (1874). BOWERS, THE TRAGIC ERA 427 (1929). 115 FRANK AND MUNRO, op. cit. supra n. 83, at 142. 116 KENDRICK, op. cit. supra n. 82, at 186. 117 CHIDSEY, THE GENTLEMAN FROM NEW YORK 34–35 (1935). 118 Cong. Globe, 40th Cong., 2nd Sess. 2748 (1868). 119 CONKLING, LIFE AND LETTERS OF ROSCOE CONKLING 432 (1869). 120 2 Cong. Rec. 4167 (1874). 121 FRANK AND MUNRO, op. cit. supra n. 83, at 142. 122 KENDRICK, op. cit. supra n. 82, at 194. 114
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white children and the schools for black. The laws there provide that certain schools shall be set apart for black persons, and certain schools shall be set apart for white persons. Now, if this Congress has a right, by such a bill as this, to enter the sovereign domain of a State and interfere with these statutes . . . , then . . . it has a right to . . . , inflict upon the people . . . the right of the negro to [vote] . . . .”131
Similarly, in speaking of the proposed Section 1 of the Fourteenth Amendment on February 26, 1866, he said: “ . . . Under this amendment, Congress would have power to compel the State to provide for white children and black children to attend the same school, upon the principle that all the people . . . shall have equal protection in all the rights of life, liberty, and property, and all the privileges and immunities of citizens . . . .”132
Again, in denouncing the Amendment, he declared: “This section of the joint resolution is no more nor less than an attempt to embody in the Constitution of the United States that outrageous and miserable civil rights bill . . . .” “ . . . I hold [the amendment] will prevent any State from refusing to allow anything to anybody.”133 E. The Fourteenth Amendment was intended to write into the organic law of the United States the principle of absolute and complete equality in broad constitutional language
While the Civil Rights Act of 1866 was moving through the two Houses of Congress, the Joint Committee of Fifteen was engaged in the task of drafting a constitutional amendment as a part of a program for the “readmission” of the southern states to the Union. When the Committee began its meetings in January 1866, several of its members introduced proposals for constitutional amendments guaranteeing civil rights to the freedmen. After a series of drafting experiments, Representative Bingham on February 3 proposed the following: “The Congress shall have power to make all laws which shall be necessary and proper to secure to the citizens of each State all privileges and immunities of citizens in the 131
Cong. Globe., 39th Cong., 1st Sess. 1121 (1866). 132 Id. at App. 134 (1866). 133 Id. at 2538.
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several States (Art. 4, Sec. 2); and to all persons in the several States equal protection in the rights of life, liberty and property (5th Amendment).”134
The Joint Committee found this proposal satisfactory and accordingly on February 13th introduced it in the House as H. R. 63.135 By now the dedicated purpose of the Radical Republicans based in part upon the ante-war equalitarian principles as opposed to caste and class legislation had to be crystallized in a Fourteenth Amendment. Necessarily, the drafters of this amendment and those who participated in the debates on the amendment recognized that constitutional amendments are properly worded in the broadest and most comprehensive language possible. It must be borne in mind that Representative Bingham, and those who supported his position on the amendment to the Civil Rights Bill of 1866, had already demonstrated that the constitutional amendment under consideration would be at least as comprehensive in its scope and effect as the original sweeping language of the Trumbull Civil Rights Bill before it was amended in the House, and that it would be far broader than the scope of the bill as finally enacted into law. On this point, Bingham repeatedly made his intentions clear, both in his discussion on the power limitations on the Civil Rights Bill itself and in his defense of his early drafts of the proposed constitutional amendment. Representative Rogers immediately attacked the proposed constitutional amendment (H. R. 63) as “more dangerous to the liberties of the people and the foundations of the government” than any proposal for amending the Constitution heretofore advanced. This amendment, he said, would destroy all state legislation distinguishing Negroes on the basis of race. Laws against racial intermarriage, laws applying special punishments to Negroes for certain crimes, and laws imposing segregation, including school segregation laws, alike would become unconstitutional. He said: “Who gave the Senate the constitutional power to pass that bill guarantying equal 134 This proposal with some changes was destined to become eventually the second portion of Section 1 of the Fourteenth Amendment. KENDRICK, op. cit. supra n. 82, at 61. 135 Globe, 39th Cong., 1st Sess. 813 (1865–1866).
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rights to all, if it is necessary to amend the organic law in the manner proposed by this joint resolution? . . . It provides that all persons in the several States shall have equal protection in the right of life, liberty, and property. Now, it is claimed by gentlemen upon the other side of the House that Negroes are citizens of the United States. Suppose that in the State of New Jersey Negroes are citizens, as they are claimed to be by the other side of the House, and they change their residence to the State of South Carolina, if this amendment be passed Congress can pass under it a law compelling South Carolina to grant to Negroes every right accorded to white people there; and as white men there have the right to marry white women, Negroes, under this amendment, would be entitled to the same right; and thus miscegenation and mixture of the races could be authorized in any State, as all citizens under this amendment are entitled to the same privileges and immunities, and the same protection in life, liberty, and property.
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*** “In the State of Pennsylvania there are laws which make a distinction with regard to the schooling of white children and the schooling of black children. It is provided that certain schools shall be designated and set apart for white children, and certain other schools designated and set apart for black children. Under this amendment, Congress would have power to compel the State to provide for white children and black children to attend the same school, upon the principle that all the people . . . shall have equal protection in all the rights of life, liberty, and property, and all the privileges and immunities of citizens in the several States.”136
Representative Bingham, who was contemporaneously amending the original Trumbull Civil Rights Bill because its broad antidiscrimination provisions lacked constitutional foundation, naturally did not dispute Representative Rogers’ appraisal of the wide scope of H. R. 63. On the contrary, Representative Bingham two days later indicated his concurrence in that appraisal in the course of a colloquy with Representative Hale.
states protection of life, liberty and property, subject only to the qualification that the protection shall be equal.” And Representative Bingham replied, “I believe it does . . . ” In order to nail down the precise source of the proposed grant of power, Representative Hale then asked Representative Bingham to “point me to that clause or part . . . which contains the doctrine he here announces?” To which the answer was, “The words ‘equal protection’, contain it, and nothing else.”137 The House at the end of February was preoccupied with debating Reconstruction generally as well as the Civil Rights Bill, and it showed itself in no hurry to take up Bingham’s proposal, especially since it was obvious that a more comprehensive measure would soon be forthcoming from the Joint Committee. Following the debate on February 28, the House postponed further consideration of the proposed amendment until mid-April.138 In fact, “H. R. 63” was not to be heard from in that form again. Yet its protective scope presently passed into the more extensive proposal which the Joint Committee brought forward at the end of April and which became, after some changes, the amendment which Congress finally submitted to the states. During most of March and April, the Joint Committee paid little attention to the question of civil rights. It was concerned, for a time, with the question of the admission of Tennessee; then, for a time, it appears to have been inactive. Not until late April did it resume sessions looking forward to the drafting of a comprehensive constitutional amendment on Reconstruction. On April 21, Stevens offered to the committee a draft of a proposed constitutional amendment, covering civil rights, representation, Negro suffrage and the repudiation of the “rebel” debt. This proposal became the frame upon which the Fourteenth Amendment was constructed. Most significant from our point of view was section 1:
Representative Hale inquired of Representative Bingham whether his proposed constitutional amendment did not “confer upon Congress a general power of legislation for the purpose of securing to all persons in the several
“No discrimination shall be made by any state, nor by the United States, as to the civil rights of persons because of race, color, or previous condition of servitude.”139 137
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Section 2 provided that on and after July 4, 1876, no discrimination should be made between persons in the rights of suffrage on account of race, color, or previous condition of servitude. Section 3 provided that until that time, no class of persons against whom a state imposed suffrage discrimination because of race, color or previous condition of servitude should be included in the state’s basis of representation. Section 4 invalidated the “rebel” debt. Section 5, which passed substantially intact into the Fourteenth Amendment, provided that Congress was to have the power to enforce the provisions of the amendment by appropriate legislation.140 Section 1 was to pass through several critical changes in the next few days. Almost at once, Senator Bingham moved to have the following provision added to section 1: “ . . . nor shall any state deny to any person within its jurisdiction the equal protection of the laws, nor take private property for public use without just compensation.”141
It will be noticed that Bingham’s suggestion had within it the substance of the equal protection clause of the Fourteenth Amendment. After some discussion, the committee voted this suggestion down, seven to five. Other changes followed. After some further discussion, Bingham moved that the following be added as a new section of the amendment: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”142 This was substantially Bingham’s earlier amendment, submitted to Congress in February as H. R. 63 with the addition of the equal protection clause. One significant difference lay in the fact that Bingham’s new section did not confer power upon Congress to legislate; instead, it made privileges and immunities, due process and equal protection constitutional guarantees against state interference.
140
Ibid. Id. at 85. 142 Id. at 87. 141
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There were two rather obvious reasons for Senator Bingham’s last two amendments. First, a number of committee members had earlier expressed some concern over the phraseology of H. R. 63 because it allowed Congress to refuse to enforce the guarantees if it saw fit. The Radical Republicans were openly fearful lest later and more conservative Congresses destroy their work.143 But direct constitutional guarantees would be beyond the power of Congress to impair or destroy. Second, Bingham was acting with the knowledge that section 5 of the proposed amendment already granted Congress full power to legislate to enforce the guarantees of the amendment. In other words, the Radical Republicans had no thought of stripping Congress of the power to enforce the amendment by adequate legislation. They put the guarantees themselves beyond the reach of a hostile Congress.144 The Committee at once adopted Representative Bingham’s suggested addition by a vote of ten to two.145 Four days later, however, on April 25, the Committee on Williams’ motion, struck out Bingham’s latest suggested revision, only Stevens, Bingham, Morrill, Rogers and Blow voting to retain it.146 On April 28, in the final stages of committee discussion, Bingham moved to strike out section 1, reading “no discrimination shall be made . . . ” and insert his proposal of April 21 in its place. Although the Committee had voted only three days earlier to kill Bingham’s proposal entirely, it now passed his new motion.147 Thus, Bingham’s proposal ultimately became section 1 of the amendment which the Committee now submitted to Congress. As such, and with the addition of the citizenship clause adopted from the Civil Rights Act of 1866, it was to pass into the
143 See speeches of Representatives Garfield, Broomall, Eldridge, and Stevens and Senator Howard, Cong. Globe, 39th Cong., 1st Sess. 2459, 2462, 2498, 2506, 2896 (1865– 1866). 144 See for example Stevens’s explanations on the reasons for reenforcing the Civil Rights Act by constitutional guarantees. Id. at 2459. 145 KENDRICK, op. cit. supra n. 82, at 87. 146 Id. at 98. 147 Id. at 106.
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Fourteenth Amendment as finally accepted by Congress. On April 30, Representative Stevens introduced the text of the Committee’s proposed amendment in the House of Representatives. As presented, the amendment differed in two particulars from the Fourteenth Amendment as finally adopted: the first section as yet did not contain the citizenship clause; and the third section carried a clause for the complete disfranchisement of Confederate supporters until 1870. An accompanying resolution proposed to make successful ratification of the amendment, together with ratification by the several southern states, a condition precedent to the readmission of the southern states to representation in Congress.148 On May 8, Stevens opened debate in the House on the proposed amendment. In a sharp speech he emphasized the legislative power of Congress under the proposed amendment: “I can hardly believe that any person can be found who will not admit that every one of these provisions [in the first section] is just. They are all asserted, in some form or other, in our DECLARATION or organic law. But the Constitution limits only the action of Congress, and is not a limitation on the States. This amendment supplies that defect, and allows Congress to correct the unjust legislation of the States, so far that the law which operates upon one man shall operate equally upon all. Whatever law punishes a white man for a crime, shall punish the black man precisely in the same way and to the same degree. Whatever law protects the white man shall afford ‘equal’ protection to the black man.”149
The amendment, he added, was made necessary by the “oppressive codes” which had become law in the southern states. “Unless the Constitution should restrain them, those States will all, I fear, keep up this discrimination and crush to death the hated freedmen.”150 Finally, he stated that the purpose of section 1 was to place the Civil Rights Act beyond the reach of a hostile Congress: “Some answer, ‘Your civil rights bill secures the same things.’ That is partly true, but a law is repealable by a majority. And I need hardly say that the first time that the South 148
Cong. Globe, 39th Cong., 1st Sess. 2459 (1866). Ibid. (italics in original). 150 Ibid. 149
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with their copperhead allies obtain the command of Congress it will be repealed . . . This amendment once adopted cannot be annulled without two-thirds of Congress. That they will hardly get.”151
There was general agreement among subsequent speakers that one of the purposes of section 1 of the amendment was to reinforce the Civil Rights Act. Enemies of the proposed amendment charged that Radical Republicans, having forced through what was an unconstitutional statute, were now attempting to clear up the constitutional issue by writing the statute into the supreme law.152 The Radical Republicans refused to admit that they were attempting to cover up the passage of an unconstitutional statute. Instead, they insisted that one of the purposes of the present proposed amendment was to place the guarantees of the Civil Rights Act beyond attack by future Congresses unfriendly to the rights of the freedman. “The Civil Rights Bill is now part of the law of this land,” said Representative James A. Garfield of Ohio in defending the amendment. “But every gentleman knows it will cease to be a part of the law whenever the sad moment arrives when that gentleman’s party comes into power . . . For this reason, and not because I believe the civil rights bill to be unconstitutional, I am glad to see that first section here.”153 Representative John Broomall of Ohio, making the same point, said, “If we are already safe with the civil rights bill, it will do no harm to become the more effectually so, and to prevent a mere majority from repealing the law and thus thwarting the will of the loyal people.” Broomall pointed out, also, that no less a friend of the Negro than Representative John A. Bingham, 151
Ibid. Representative William Finck of Ohio asserted, for example, that “all I have to say about this section is, that if it is necessary to adopt it . . . then the civil rights bill, which the President vetoed, was passed without authority and was clearly unconstitutional.” Id. at 2461. Representative Benjamin Boyer of Pennsylvania, another enemy of the amendment, after observing that “the first section embodies the principles of the civil rights bill,” twitted the Republicans for seeking to rectify their own constitutional error and attacked the present amendment as “objectionable, also, in its phraseology, being open to ambiguity and admitting the conflicting constructions.” Id. at 2467. Representative Charles Eldridge of Wisconsin asked ironically, “What necessity is there, then, for this amendment if that bill was constitutional at the time of its passage?” Id. at 2506. 153 Id. at 2462. 152
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Probably other moderate Republicans agreed with Representative Henry J. Raymond of New York who had voted against the Civil Rights bill because he “regarded it as very doubtful, to say the least, whether Congress, under the existing Constitution had any power to enact such a law . . . .” But he nonetheless had heartily favored the principles and objectives of the bill, and because he still favored “securing an equality of rights to all citizens” he would vote “very cheerfully” for the present amendment.155 There was little discussion during the debate in the House of the scope of the civil rights which would be protected by the proposed amendment, apparently because both sides realized that debate on the original Civil Rights Bill had exhausted the issue. The indefatigable Rogers, fighting to the last against any attempt to guarantee rights for the Negro, repeatedly reminded Congress that the amendment would sweep the entire range of civil rights under the protection of the Federal Government and so work a revolution in the constitutional system.156
On May 10, the House passed the amendment without modification by a vote of 128 to 37. The measure then went to the Senate.158 On the same day, Senator Howard opened the debate in the Senate. Speaking for the Joint Committee because of Senator Fessenden’s illness, Howard gave a broad interpretation of the first section of the proposed amendment. He emphasized the scope of legislative power which Congress would possess in the enforcement of the Amendment. “How will it be done under the present amendment? As I have remarked, they are not [at present] powers granted to Congress, and therefore it is necessary, if they are to be effectuated and enforced, as they assuredly ought to be, that additional power be given to Congress to that end. This is done by the fifth section of this amendment which declares that ‘the Congress shall have power to enforce by appropriate legislation the provisions of this article.’ Here is a direct affirmative delegation of power to Congress to carry out all the principles of all these guarantees, a power not found in the Constitution.”159
Senator Howard’s interpretation of the legislative power of Congress under the proposed amendment makes it obvious that the Joint Committee, in separating the guarantees
154
157
155
158
Id. at 2498. Id. at 2502. 156 Id. at 2537.
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G. Congress understood that while the Fourteenth Amendment would give authority to Congress to enforce its provisions, the amendment in and of itself would invalidate all class legislation by the states
Although it was not necessary to answer Rogers, Bingham reminded Congress: “The necessity for the first section of this amendment to the Constitution, Mr. Speaker, is one of the lessons that have been taught to your committee and taught to all the people of this country by the history of the past four years of terrific conflict—that history in which God is, and in which He teaches the profoundest lessons to men and nations. There was a want hitherto, and there remains a want now, in the Constitution of our country, which the proposed amendment will supply. What is that? It is the power in the people, the whole people of the United States, by express authority of the Constitution to do that by congressional enactment which hitherto they have not had the power to do, and have never even
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attempted to do; that is, to protect by national law the privileges and immunities of all the citizens of the Republic and the inborn rights of every person within its jurisdiction whenever the same shall be abridged or denied by the unconstitutional acts of any State. Allow me, Mr. Speaker, in passing, to say that this amendment takes from no State any right that ever pertained to it. No State ever had the right, under the forms of law or otherwise, to deny to any freeman the equal protection of the laws or to abridge the privileges or immunities of any citizen of the Republic, although many of them have assumed and exercised the power, and that without remedy.”157
had entertained grave doubts as to the constitutionality of the measure, and thought a constitutional amendment necessary. He disagreed, Broomall said, with Bingham’s doubts, but he was not so sure of himself that he felt justified “in refusing to place the power to enact the law unmistakably in the Constitution.”154
Id. at 2542. Id. at 2545. 159 Id. at 2766.
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of civil rights from the congressional power to legislate thereon, had not at all intended to weaken the legislative capacity of Congress to enforce the rights conferred by the amendment. The guarantees, however, no longer depended upon congressional fiat alone for their effectiveness as they had in Bingham’s proposed civil rights amendment of January (H. R. 63). But in Howard’s view and that of the Committee, this meant merely that future Congresses could not destroy the rights conferred. Senator Howard then passed to an equally expansive interpretation of the due process and equal protection clauses of the amendment: “The last two clauses of the first section of the amendment disabled a State from depriving not merely a citizen of the United States, but any person, whoever he may be, of life, liberty, or property without due process of law or from denying to him the equal protection of the laws of the State. This abolishes all class legislation in the States and does away with the injustice of subjecting one caste of persons to a code not applicable to another. It prohibits the hanging of a black man for a crime for which the white man is not to be hanged. It protects the black man in his fundamental rights as a citizen with the same shield which it throws over the white man.”160 (Italics added.)
The only class of rights, Howard added, which were not conferred by the first section of the amendment was “the right of suffrage.” Howard concluded this analysis by asserting that the entire first section, taken in conjunction with the legislative power of Congress conferred in section five, was of epoch-making importance: “I look upon the first section, taken in connection with the fifth, as very important. It will, if adopted by the States, forever disable everyone of them from passing laws trenching upon those fundamental rights and privileges which pertain to citizens of the United States, and to all persons who may happen to be within their jurisdiction. It establishes equality before the law, and it gives to the humblest, the poorest, the most despised of the race the same rights and the same protection before the law as it gives to the most powerful, the most wealthy, or the most haughty. That, sir, is republican government, as I understand it, and the only
one which can claim the praise of a just Government.”161
Thus, Senator Howard understood that due process and equal protection would sweep away entirely “all class legislation” in the states. By implication, he subscribed to a “substantive interpretation” of due process of law, thus making due process a limitation upon state governments to subvert civil liberties. No Senator thereafter challenged these sweeping claims for the efficacy of the civil rights portion of Section 1. Howard’s allies subscribed enthusiastically to his interpretation. Senator Luke Poland of Vermont, a staunch Radical Republican, regarded the amendment as necessary to set to rest all questions of congressional competence in enacting the civil rights bill: “Congress has already shown its desire and intention to uproot and destroy all such partial State legislation in the passage of what is called the civil rights bill. The power of Congress to do this has been doubted and denied by persons entitled to high consideration. It certainly seems desirable that no doubt should be left existing as to the power of Congress to enforce principles lying at the very foundation of all republican government if they be denied or violated by the States . . . .”162
Certainly the Conservatives in the Senate agreed altogether with Senator Howard and the other Senate Republicans about the sweeping impact which the prospective amendment would have upon state caste legislation. Senator Thomas Hendricks of Indiana, in condemning the legislative power to enforce the amendment which Congress would acquire from the operation of section 5, said that these words had “ . . . such force and scope of meaning as that Congress might invade the jurisdiction of the States, rob them of their reserved rights, and crown the Federal Government with absolute and despotic power. As construed this provision is most dangerous.”163
The prospective amendment moved forward rapidly in the Senate, with comparatively little debate. The Radical Republicans were confident of their objectives. The conservative Republicans and Democrats despaired of arresting the tide of events. One significant change occurred on May 161
Id. at 2766. Id. at 2961. 163 Id. at 2940. 162
160
Id. at 2766.
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30 when Howard brought forward the citizenship clause of the Civil Rights Act and successfully moved it as an amendment to section 1. Few Republicans doubted that Congress already had the power to legislate upon the question of citizenship. However, the new provision cleared up a serious hiatus in the original Constitution by settling in unequivocal fashion the definition of national and state citizenship. Needless to say, the new provision, like its predecessor in the Civil Rights Act, specifically endowed Negroes with citizenship and reversed the dictum of the Dred Scott case that no Negro could be a citizen of the United States. The Radical Republicans were well aware that by endowing the Negro with citizenship, they strengthened his claim to the entire scope of civil rights. Bingham had mentioned as much in debate in the House, while Representative Raymond of New York had added that once the Negro became a citizen, it would not be possible in a republican government to deny him any right or to impose upon him any restriction, even including that of suffrage. The force of this stratagem did not escape the Conservatives in the Senate. Senator Garrett Davis of Kentucky had this to say of the citizenship provision of the amendment: “The real and only object of the first provision of this section, which the Senate has added to it, is to make Negroes citizens, to prop the civil rights bill, and give them a more plausible, if not a valid, claim to its provisions, and to press them forward to a full community of civil and political rights with the white race, for which its authors are struggling and mean to continue to struggle.”164
The Senate passed the amendment in June, 33 to 11. Congress formally proposed the amendment on June 13 and it was submitted to the states. Congress intended to destroy all class distinctions in law What, then, may one conclude concerning the intent of Congress with regard to segregation in the framing of the amendment? Both Senator Howard and Representative Stevens made it definitely clear that the scope of the rights guaranteed by the amendment was much greater than that embraced in the Civil Rights Act. 164
Id. at App. 240.
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It is evident that the members of the Joint Committee intended to place all civil rights within the protection of the Federal Government and to deny the states any power to interfere with those rights on the basis of color. The scope of the concept of liberties entertained by the Committee was very broad. The breadth of this concept was recognized by this Court in all of its decisions up to Plessy v. Ferguson. In adopting the Civil Rights Act of 1866, Congress had enumerated the rights protected. This was done because Bingham and others doubted that Congress had the power to take all civil liberties under federal protection. Unrestricted by this consideration in drafting a constitutional provision, Congress used broad comprehensive language to define the standards necessary to guarantee complete federal protection. This was promptly recognized by this Court in one of the earliest decisions construing the Amendment when it was held: “The 14th Amendment makes no effort to enumerate the rights it designs to protect. It speaks in general terms, and those are as comprehensive as possible.” Strauder v. West Virginia, 100 U.S. 303, 310. Did Congress specifically intend to ban state laws imposing segregation by race? And more specifically, did it intend to prohibit segregation in school systems, even where a state provided a separate but equal system for Negroes? To begin with it must be recognized that the “separate but equal” doctrine was yet to be born. The whole tenor of the dominant argument in Congress was at odds with any governmentally enforced racial segregation as a constitutionally permissible state practice. Senator Howard, among others, asserted categorically that the effect of the due process and equal protection clauses of the Fourteenth Amendment would be to sweep away entirely all caste legislation in the United States. Certainly a number of Conservatives, notably Representative Rogers of New Jersey, a member of the Joint Committee and Senator Davis of Kentucky, were convinced that the effect of the amendment would be to prohibit entirely all laws classifying or segregating on the basis of race. They believed, and stated, that school laws providing separate systems for whites and Negroes of the kind which existed in Pennsylvania, Ohio and in several of the JohnsonReconstructed southern states would be made illegal by the amendment. A M E R I C A N
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It is notable that while there were some assurances extended by Radical Republicans to the Moderates and Conservatives as to the scope of the Civil Rights Act of 1866 in this regard, there were no such assurances in the debates on the Fourteenth Amendment. The Republican majority realized full well that it could not envisage all possible future applications of the amendment to protect civil rights. By separating section 1 of the amendment, which provides an absolute federal constitutional guarantee for those rights, from section 5, which endows Congress with legislative capacity to protect such rights, the framers of the amendment assured continued protection of these rights, by making it possible to win enforcement of them in the courts and eliminated the power of Congress alone to diminish them. H. The treatment of public education or segregation in public schools during the 39th Congress must be considered in the light of the status of public education at that time
1830–1860 was one of marked educational advancement. It has commonly been termed as the era of the Common School Revival, a movement to extend and improve facilities for general education. This movement flourished in New England under the leadership of Horace Mann, Henry Barnard and others. There was a definite tendency throughout the country to shift from private to public support of education and this trend extended to normal schools and facilities for secondary and higher education. Many states, urged on by educational leaders, publicists and statesmen, began making legislative provisions for public education. On the other hand, these gains have been commonly exaggerated and in some respects misinterpreted. The laws were by no means always carried into effect and the recommendations of the reformers were, in most instances, accepted with great hesitancy.166 Another authority after appraising public education during the period just prior to the Civil War made the following generalizations: “Practically all the states were making substantial progress in the development of systems of public education. (2) At the close of the period no single state can be said to have been providing any large percentage of its children and youth with schools well-supported and well-taught. (3) The facilities for secondary education were by no means as extensive as has commonly been reported. (4) Regional differences in educational development have been exaggerated; and (5) where sectional differences in school support and attendance did exist they appear to have been due more to differentials in urban and rural development than to differences in social attitudes and philosophies.”167
Although today, compulsory free public education is universally regarded as a basic, appropriate governmental function, there was no such unanimity existing at the time the Fourteenth Amendment was adopted. Arrayed against those who then visualized education as vital to effective government, there were many who still regarded education as a purely private function. While it has already been shown that the conception of equal protection of the laws and due process of law, developed by the Abolitionists before the Civil War, was so broad that it would necessarily cover such educational segregation as is now before this Court, compulsory public education at that time was the exception rather than the rule. The conception of universal compulsory free education was not established throughout the states in 1866. The struggle for such education went on through most of the 19th century and, even where accepted in principle in some of the states, it sometimes was not fully put into practice. Prior to the first quarter of the nineteenth century childhood education was considered an individual private responsibility.165 The period
In general, it should be noted that in New England and in New York the main problem during this period was to improve the educational systems which had already been established and to secure additional support for them. In the Middle Atlantic states the major problem was to establish systems of public schools and to provide effective public education. In the West, the prevailing political and social philosophy required that at least some degree of education be provided to as large an element of the population as possible. 166
EDWARDS AND RICHEY, THE SCHOOL IN THE SOCIAL ORDER
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CUBBERLY, A BRIEF HISTORY OF EDUCATION,
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Public education was much slower in getting under way in the South. In most of the southern states, despite some promising beginnings, an educational system was not created until after the close of the Civil War. One historian concluded: “ . . . although the ‘common school awakening’ which took place in the Northern States after Horace Mann began his work in Massachusetts (1837) was felt in some of the Southern States as well, and although some very commendable beginnings had been made in a few of these States before 1860, the establishment of state educational systems in the South was in reality the work of the period following the close of the Civil War. The coming of this conflict, evident for a decade before the storm broke, tended to postpone further educational development.”168
Public education in the South made progress only after it became acceptable as being compatible with its ideal of a white aristocracy.169 Among the factors responsible for this condition were the aristocratic attitude which held that it was not necessary to educate the masses, the reluctance of the people to tax themselves for educational purposes, the marked individualism of the people, born of isolation, and the imperfect state of social and political institutions. Most southerners saw little or no relation between education and life. Consequently, the view prevailed that those who could afford education could indulge themselves in securing it and those who could not afford it lost little, if anything. This southern attitude was aptly summed up fifteen years after the close of the war by the statement of Virginia’s Governor F. W. M. Holliday that public schools were “a luxury . . . to be paid for like any other luxury, by the people who wish their benefits.”170 Education in the South was not so much a process of individual and community improvement as it was an experience that carried with it a presumption of social equality for those who shared it, a view hardly compatible with any notion of universal education which included persons of diverse social and ethnic backgrounds. 168
CUBBERLY, PUBLIC EDUCATION IN THE UNITED STATES
Between 1840 and 1860, public education began to advance in the South but its benefits were denied Negroes. It is significant that racist and other types of intolerant legislation increased markedly during this period. While education could be extended to all whites who, for political purposes, belonged to one big happy family, there was nothing in such a conception that suggested that Negroes should be included.171 The editor of the authoritative antebellum organ of southern opinion, DeBow’s Review, summed up the matter of education for Negroes during slavery as follows: “Under the institution of slavery we used to teach them everything nearly except to read.”172 The framers of the Fourteenth Amendment were familiar with public education, therefore, only as a developing concept. We have already demonstrated that they were determined to eliminate all governmentally imposed racial distinctions—sophisticated as well as simple minded—and expressed their views in the broadest and most conclusive terms. The intentions they expressed were definitely broad enough to proscribe state imposed racial distinctions in public education as they knew it, and the language which they used in the Fourteenth Amendment was broad enough to forever bar racial distinctions in whatever public educational system the states might later develop. Furthermore, the framers intended that Congress would have the power under section 5 to provide additional sanctions, civil and criminal, against persons who attempted to enforce states statutes made invalid by section 1 of the Amendment. As stated above, Representative Bingham purposely revised an earlier draft of the Amendment so that the prohibitions of section 1 would be self-executing against state statutes repugnant thereto and would be beyond the threat of hostile Congressional action seeking to repeal civil rights legislation. In other words, the judicial power to enforce the prohibitory effect of section 1 was not made dependent upon Congressional action. Thus, the exercise of this Court’s judicial power does not await precise Congressional
251
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169
SLAVEHOLDER 3–12 (1860). 172 REPORT OF THE JOINT COMMITTEE ON RECONSTRUCTION,
EDWARDS AND RICHEY, op. cit. supra n. 166, at 434. 170 Quoted in WOODWARD, ORIGINS OF THE NEW SOUTH
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legislation. This Court has repeatedly declared invalid state statutes which conflicted with section 1 of the Fourteenth Amendment, even though Congress had not acted.173 For example, there is no federal statute to the effect that a state which permits released time for religious instructions is acting in a way prohibited by the Fourteenth Amendment. This Court, nevertheless, held that such state action conflicted with section 1 of the Fourteenth Amendment and directed the trial court to enjoin the continuance of the proscribed state action. Illinois ex rel. McCollum v. Board of Education, 333 U.S. 203. Similarly, this Court has acted to redress violations of constitutional rights, even in the absence of specific Congressional statute, in a long series of cases involving the rights of freedom of expression and freedom of worship under the Fourteenth Amendment. See e.g., De Jonge v. Oregon, 299 U.S. 353. And this Court has often vindicated the constitutional rights of members of minority groups in the area of public education in the absence of any Congressional statute. Sweatt v. Painter, supra. Indeed, this rule has been applied in all areas in which the prohibitory effect of section 1 has been employed by the Court. E.g., Miller v. Schoene, 276 U.S. 272; McCardle v. Indianapolis Water Co., 272 U.S. 400. To now hold Congressional action a condition precedent to judicial action would be to stultify the provisions in the Federal Constitution protecting the rights of minorities. In effect, this Court would be holding that action by a state against an unpopular minority which the Constitution prohibits cannot be judicially restrained unless the unpopular minority convinces a large majority (the whole country as represented in Congress) that a forum in which to ask relief 173 Of course, Title 8 provides a remedy in law or equity against any person acting under color of State law who deprives anyone within the jurisdiction of the United States of rights secured by the Federal Constitution or laws. It provides: “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.” 8 U.S.C. § 43.
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should be provided for the precise protection they seek. I. During the congressional debates on proposed legislation which culminated in the Civil Rights Act of 1875 veterans of the thirty-ninth Congress adhered to their conviction that the Fourteenth Amendment had proscribed segregation in public schools
At various times during the 1870’s, Congress considered bills for implementing the Fourteenth Amendment as well as the Civil Rights Act of 1866. Debate on these measures was on occasion extremely significant, since it gave members of Congress an opportunity to express themselves as to the meaning and scope of the Amendment. These observations were the more significant in that perhaps two-fifths of the members of both Houses in the early seventies were veterans of the Thirty-ninth Congress which had formulated the Amendment. Moreover, the impact of the Amendment upon segregated schools had by this time moved into the public consciousness so that Congressmen now had an opportunity to say specifically what they thought about the validity under the Amendment of state statutes imposing segregation upon public school systems. The second session of the Forty-second Congress, which convened in December, 1871, soon found itself involved in a fairly extended discussion of the effect of the Fourteenth Amendment upon racial segregation, particularly in school systems. Early in the session the Senate took under consideration an amnesty bill to restore the political rights of ex-Confederate officials in accordance with the provisions of section 3 of the Amendment. On December 20, Senator Sumner of Massachusetts, now a veteran champion of the rights of the Negro, moved the following as an amendment to the measure under consideration: “Section—That all citizens of the United States, without distinction of race, color, or previous condition of servitude, are entitled to the equal and impartial enjoyment of any accommodation, advantage, facility, or privilege furnished by common carriers, whether on land or water; by inn-keepers; by licensed owners, managers, or lessees of theaters or other places of public amusement; by trustees, commissioners, superintendents, teachers, or other officers of common schools and other public institutions of learning, the same being supported or authorized by law . . . and this right shall not be denied or
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abridged on any pretense of race, color, or previous condition of servitude.”174
Here was a provision, which if adopted would commit Congress to the proposition that under the Fourteenth Amendment it could do away entirely with state school statutes providing for segregated school systems. Sumner attacked school segregation at length. The public school, he asserted, “must be open to all or its designation is a misnomer and a mockery. It is not a school for whites or a school for blacks, but a school for all; in other words a common school for all.” Segregation he called an “odius discrimination” and an “ill-disguised violation of the principle of Equality.”175 In the debate that followed, it was apparent that a large majority of the Republicans in the Senate were convinced that Congress quite appropriately might enact such legislation in accordance with section 5 of the Fourteenth Amendment. Senator Carpenter of Wisconsin, one of the best constitutional lawyers in the Upper House, was doubtful of the constitutionality of Sumner’s measure insofar as it applied to churches. But he had no doubt on the authority of Congress to guarantee the right of all persons, regardless of race or color, to attend public schools, to use transportation facilities, and the like, and he offered a resolution of his own to this end.176 Even the conservative Kentuckian Garrett Davis admitted that there was no question of congressional competence under the Amendment to guarantee these rights as against state action, though he challenged the validity of any statute protecting rights against private discrimination.177 And Senator Stevenson of Kentucky, another strong enemy of mixed schools, confined his attack to discussion of the evil involved in an attempt to “coerce social equality between the races in public schools, in hotels, in theatres . . . .”; he spoke not at all of constitutional objections.178 The real objection to Sumner’s measure, however, was not the constitutionality of the measure itself, but the incongruity of its attachment as a rider to an amnesty bill, which
required a two-thirds majority of both Houses of Congress. Nonetheless, the Senate, after extended debate, adopted Sumner’s amendment, including the provision banning segregated schools, by a vote of 28–28, the ballot of the Vice President breaking the tie.179 The amnesty measure itself later failed to obtain the necessary two-thirds majority of the Senate. The impressive Senate support in favor of a bill which would have banned segregation in state school systems alarmed Conservatives in both Houses, who now began to advance, very deliberately, the idea that “separate but equal” facilities would be constitutional under the limitations of the equal protection clause of the Fourteenth Amendment. In the House, a few days after the defeat of the amnesty bill, Representative Frank Hereford of West Virginia offered the following resolution as an expression of conservative sentiment: “Be it resolved, That it would be contrary to the Constitution and a tyrannical usurpation of power for Congress to force mixed schools upon the States, and equally unconstitutional and tyrannical for Congress to pass any law interfering with churches, public carriers, or inn-keepers, such subjects of legislation belonging of right to the States respectively.”
There was no debate on the Hereford resolution, which was put to an immediate vote and defeated, 85 to 61, 94 not voting.180 Later in the session, there was still further debate in the Senate concerning segregated schools. With a second amnesty bill up for consideration, Sumner on May 8 again moved an amendment providing: “That no citizen of the United States shall, by reason of race, color, or previous condition of servitude, be excepted or excluded from the full and equal enjoyment of any accommodation, advantage, facility, or privilege furnished by inn-keepers; by common carriers . . . or . . . by trustees, commissioners, superintendents, teachers, and other officers of common schools and other public institutions of learning, the same being supported by moneys derived from general taxation, or authorized by law . . . .”181
This proposal led to sharp debate and decided differences of opinion among the
174
Cong. Globe, 42nd Cong., 2nd Sess. 244 (1871). Id. at 383–384. 176 Id. at 760. 177 Id. at 764. 178 Id. at 913. 175
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Id. at 919. The Senate vote on the amnesty bill was 33 to 19 in favor of the measure. Id. at 929. 180 Id. at 1582. 181 Id. at 3181.
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Republican majority. Senator Trumbull of Illinois, who was the author of the Civil Rights Act of 1866 and who had become decidedly more conservative in his political outlook since the early Reconstruction era, now insisted that the right to attend public schools was in any event not a civil right, so that Congress could not legislate on the subject under the Fourteenth Amendment. But Senator George Edmunds of Vermont, already known as a distinguished constitutional lawyer and who had entered the Senate in 1866 in time to participate in the debates on the Fourteenth Amendment, dissented sharply, insisting that the right to attend tax-supported public schools was a civil right and therefore subject to regulation by Congress.182 Senator Morton taking the same view, insisted that “if the right to participate in these schools is to be governed by color, I say that it is a fraud upon those who pay the taxes.” And he added that where there are public schools supported by common taxation upon everybody, white and black, then there is a civil right that there shall be equal participation in those schools.
out entirely the provisions of the Sumner amendment which related to public school systems. This motion the Senate defeated 26 to 25.184 Senator Francis P. Blair of Missouri then offered another amendment to allow “local option” elections within the states on the question of mixed versus segregated schools. Sumner, Edmunds and Howe all strongly condemned this proposal, which the border and southern Senators as strongly commended. The Blair amendment in turn met defeat, 23 to 30.185 Finally, an amendment to strike out the first five sections of the Sumner measure, thereby completely destroying its effect, was defeated 29 to 29, with the Vice President casting a deciding negative vote.186 The Senate then formally adopted the Sumner amendment to the amnesty bill, 28 to 28, with the Vice President voting in the affirmative.187
Observing that the Ohio Supreme Court had but lately held constitutional a state statute providing for segregation in public schools, he argued that Congress was entirely competent under the Fourteenth Amendment to prohibit segregated schools.
The authority of the judiciary to act in this field was specifically recognized and not disputed.188A significant number of the Senators in question, among them Edmunds, Howe, Sumner, Conkling, and Morrill, had been in Congress during the debates on the adoption of the Amendment, while Conkling and Morrill had been members of the Joint Committee. And Vice President Henry Wilson, who several times cast a deciding vote in favor of prohibiting segregated schools not only had been in Congress during the debates on the Amendment but had also authored one of the early civil rights bills of the Thirty-ninth Congress.
Senator Arthur Boreman of West Virginia also took it as a matter of course that Congress had the power under the amendment to prohibit separate but equal facilities in school systems; he thought that Congress ought not to force the issue at present: “The time will come when . . . these distinctions will pass away in all the States, when school laws will be passed without this question appearing upon the face of those laws; but it is not so now, and for the present I am willing to allow the laws of the State to remain as they are where they provide schools for both classes.”183
At the close of the debate, the proponents of segregated school systems tried unsuccessfully to modify the Sumner measure to eliminate the requirement for mixed school systems. Senator Orris Ferry of Connecticut first moved to strike 182
Id. at 3190. Id. at 3195.
183
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The conclusion seems inescapable that as of 1872 a substantial majority of the Republican Senators and perhaps half of the Senate at large believed that the prohibitions of the Fourteenth Amendment extended to segregated schools.
The first session of the Forty-third Congress, which opened in December, 1873, saw extended discussion of the issue of segregated schools in both Houses. On December 18, Representative Benjamin F. Butler of Massachusetts, chairman of the House Judiciary 184
Id. at 3256, 3258. Id. at 3262. 186 Id. at 3264–3265. 187 Id. at 3268. The amnesty bill itself subsequently received a favorable vote of 32 to 22, thereby failing to receive the necessary two-thirds majority. Id. at 3270. 188 Id. at 3192. 185
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Committee and long one of the most outspoken leaders of the Radical faction of the Republican party, introduced the following measure from his committee: “ . . . whoever, being a corporation or natural person and owner, or in charge of any public inn, or of any place of public amusement or entertainment for which a license from any legal authority is required, or of any line of stage-coaches, railroad, or other means of public carriage of passengers or freight, or of any cemetery or other benevolent institution, or any public school supported in whole or in part at public expense or by endowment for public use, shall make any distinction as to admission or accommodation therein of any citizen of the United States because of race, color, or previous condition of servitude, shall, on conviction thereof, be fined not less than $100 nor more than $5000 for each offense . . . .”189
This measure inspired a somewhat bitter two-day debate early in January, 1874, during which the power of Congress to prohibit segregated schools received more attention than any other single issue involved. The most extended defense of the constitutionality of Butler’s measure was made by Representative William Lawrence of Ohio, who began with the flat assertion that “Congress has the constitutional power to pass this bill.” Denying that civil rights were any longer in the exclusive care of the states, he asserted that since the passage of the Fourteenth Amendment, “if a state permits any inequality in rights to be created or meted out by citizens or corporations enjoying its protection, it denied the equal protection of laws.” He then launched into an extended historical analysis of the debates in the Thirtyninth Congress before and during the passage of the Amendment. He recalled Bingham’s statement in opposition to the original extreme language of the Civil Rights bill, in which the Ohioan had said that the proper remedy for state violation of civil rights was to be achieved not by an “arbitrary assumption of power,” but “by amending the Constitution of the United States expressly prohibiting the States from any such abuse of power in the future.” He quoted Stevens’ and Howard’s speeches introducing the Amendment in Congress to show the broad purpose which they had represented to be the objectives of the Joint Committee. In some irony, he quoted various conservatives in the 189
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House, among them Finck, Boyer and Shanklin, who had asserted again and again that the Amendment would place all civil rights within the protective custody of the federal government.190 Lawrence’s speech was the more impressive in that he was a veteran of the Thirty-ninth Congress who had actively supported both the Civil Rights Act and the passage of the Fourteenth Amendment. Moreover, he was held in great respect in Congress as an able jurist and constitutional lawyer.191 The most extended argument in opposition to Lawrence was advanced by Representative Roger Q. Mills of Texas, who presented the contention that civil rights, in spite of the Fourteenth Amendment, were still entrusted entirely to the care of the states. Congress, he thought, had no right to touch the public school system of the several states. “The States,” he said, “have . . . [an] unquestioned right . . . to establish universities, colleges, academies, and common schools, and govern them according to their own pleasure.” He relied upon the narrow interpretation of the “privileges or immunities” clause of the Fourteenth Amendment recently advanced by the Supreme Court in the Slaughter House Cases as a new argument in support of his contention. And he finished with the warning, not entirely unheard in the twentieth century, that if Congress passed any such measure as the Butler bill, “the Legislatures of every State where the white people have control will repeal the commonschool laws.”192 At the end of debate, Butler’s bill was recommitted on the motion of its sponsor, and was not heard of again during the session. More significant events were occurring in the Senate. On December 2, Sumner had once more presented his now well-known civil rights measure, this time as an independent Senate bill instead of a proposed amendment to an amnesty resolution.193 This bill finally came up for debate in late April and May, although Sumner himself had died in March. Conkling of New York, Boutwell of Massachusetts, Howe of Wisconsin, Edmunds of Vermont, and 190
Id. at 412 ff. 11 DICTIONARY, op. cit. supra n. 129, at 52. He was later the author of the statute creating the Department of Justice. 192 2 Cong. Rec. 383 ff. (1873–1874). 193 Id. at 2. 191
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Frelinghuysen of New Jersey all gave it very effective support in debate.194 In a strong speech, Senator Frelinghuysen pointed out that a variety of conflicting state decisions had introduced some confusion into the question of whether or not state statutes setting up segregated school systems were constitutional under the Amendment. The present measure, he thought, would destroy “injurious agitation” on that subject. There could be no question of the constitutional power of Congress to enact the bill; the “privileges or immunities” and “the equal protection” clauses, in particular, were especially germane to congressional power. And he pointed out that if the present bill became law, it would still be possible to pursue an informal voluntary segregation by the consent of both parents and school boards, where for a time that seemed advisable. But he added that segregated school systems established by law were in complete violation of the whole spirit of the Amendment; separate schools for colored people were inevitably inferior to those for whites. “Sir”, he said in conclusion, “if we did not intend to make the colored race full citizens . . . we should have left them slaves.”195
fixed purpose of maintaining these principles [of the Republic].” Like Edmunds, he argued that segregation made either adequate or equal facilities impossible; there was not enough money in the South to support two school systems.197 Senator Howe asserted that “ . . . I am of the opinion that the authority of Congress to issue these commands, to enact this bill into law, is as clear, as indisputable as its authority to lay taxes or do any other one thing referred to in the Constitution.” Like Frelinghuysen he thought that voluntary segregation might exist in some places for a time without violating the amendment. “Open two school houses wherever you please;” he said, and “furnish in them equal accommodations and equal instruction, and the whites will for a time go by themselves, and the colored children will go by themselves for the same reason, because each will feel more at home by themselves than at present either can feel with the other . . . .” But legally segregated schools, he thought would not in fact be equal, and it was the duty of Congress to prohibit them.198 Senator Pease of Mississippi shortly before the bill was passed speaking in favor of the bill said in unequivocal terms: “The main objection that has been brought forward by the opponents of this bill is the objection growing out of mixed schools. . . . There has been a great revolution in public sentiment in the South during the last three or four years, and I believe that to-day a majority of the southern people are in favor of supporting, maintaining, and fostering a system of common education . . . I believe that the people of the South so fully recognize this, that if this measure shall become a law, there is not a State south of Mason and Dixon’s line that will abolish its school system . . . . “ . . . ” I say that whenever a State shall legislate that the races shall be separated, and that legislation is based upon color or race, there is a distinction made; it is a distinction the intent of which is to foster a concomitant of slavery and to degrade him. The colored man understands and appreciates his former condition; and when laws are passed that say that ‘because you are a black man you shall have a separate school,’ he looks upon that, and justly, as tending to degrade him. There is no equality in that.
Senator Edmunds used both constitutional and pragmatic arguments in support of the bill. “What the Constitution authorizes us to do is to enforce equality,” he said, “and . . . not halfequality, for there is no such thing as halfequality. It is entire equality or none at all.” And segregated schools imposed inequality on Negroes. He quoted figures from Georgia school statistics, to demonstrate that although forty-three percent of the children in that state were colored, there were nonetheless only 356 schools for colored children as against 1379 for whites. In the light of this kind of evidence, he thought, the duty of Congress was clear.196 Senator Boutwell declared that “opening the public schools of this country to every class and condition of people without distinction of race and color, is security . . . that . . . the rising . . . generations will advance to manhood with the 194
Boutwell and Conkling, it will be recalled, had both served as members of the Joint Committee. 195 Id. at 3451–3455. 196 Id. at 4173.
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Id. at 4116. Id. at 4151.
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“ . . . because when this question is settled I want every college and every institution of learning in this broad land to be open to every citizen, that there shall be no discrimination.”199
The opponents of the Sumner bill meantime had become aware of the epoch-making significance of the Supreme Court’s decision in the Slaughter House Cases, and they leaned very heavily upon Justice Miller’s opinion during the debate. Thurman of Ohio analysed the Slaughter House Cases at length to prove his former contention that the main body of civil rights was still in the custody of the states and that the present bill was unconstitutional.”200 Senator Henry Cooper of Tennessee, after citing Justice Miller’s opinion to make the same constitutional point, asked the Republican majority, “ . . . what good are you to accomplish thus by forcing the mixture of the races in schools?”201 And Senator Saulsbury of Delaware, who, in 1866 had insisted that if Congress enacted the Fourteenth Amendment it would work an entire revolution in state-federal relations, now argued flatly that the Sumner bill was unconstitutional under Justice Miller’s interpretation of the limited scope of the “privileges or immunities” clause of the Amendment.202 However, the Senate majority remained firm in its intention to pass the bill with the ban on segregated schools. At the close of debate, Senator Aaron Sargent of California presented an amendment that “nothing herein contained shall be construed to prohibit any State or school district from providing separate schools for persons of different sex or color, where such separate schools are equal in all respects to others of the same grade established by such authority, and supported by an equal pro rata expenditure of school funds.” This amendment the Senate promptly defeated, 21 to 26.203 Senator McCreery then moved an amendment providing that “nothing herein contained shall be so construed as to apply to schools already established.” This, too, met defeat, mustering but eleven “ayes” in its support.204 Immediately after this, the Senate, on May 22, passed the Sumner bill, by a vote of 29 to 16, and sent it to the House.205 199
Id. Id. 201 Id. 202 Id. 203 Id. 204 Id. 205 Id. 200
at at at at at at at
4153–4154. 4089. 4154. 4159. 4167. 4171. 4176.
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Again the conclusion with respect to congressional intent as regards segregated schools seems fairly clear: a majority of the Senate in the Forty-third Congress, under control of leaders, a number of whom had supported the passage of the Fourteenth Amendment eight years earlier, thought Congress had the constitutional power to ban segregated schools and that it would be good national policy to do so.206 Congress adjourned before the House could take action on the Sumner bill, so that the measure carried over to the second session of the Congress, beginning in December, 1874. And now occurred a curious anticlimax with respect to the prohibition of segregated schools; Congress speedily enacted what virtually amounted to the Sumner bill of 1874 into law, but with the provision banning segregated schools eliminated from the bill. The critical action occurred in the House of Representatives, where Butler on December 16 introduced what amounted to a somewhat modified draft of the measure passed by the Senate the previous spring. The constitutional debates produced little that was new. It was apparent that Congress by virtue of Section 5 had the constitutional power to take all civil liberties under its protection. Representative Robert Hale of New York, a veteran of the Thirty-ninth Congress, twitted Finck of Ohio for his fallible memory in forgetting so conveniently that in 1866, he had solemnly warned that the impending amendment would place all civil rights under federal protection.207 Whatever may be said about the quantum or quality of Congressional debates on one side or the other no one can deny that the 39th Congress opened with a determination on the part of the Radical Republican majority to deprive the states of all power to maintain racial distinctions in governmental functions. No one can gainsay that this determination permeated the 39th Congress and continued through the passage adoption of the Fourteenth Amendment. The debates and all of the related materials show conclusively that the Fourteenth 206 Flack long ago reached a similar conclusion, that the great majority in Congress who voted for Sumner’s bill “fully believed they had the power to pass it.” “Of all the evidence,” he said, “only a very minor part of it against this conclusion.” FLACK, op. cit. supra n. 79, at 271. 207 3 Cong. Rec. 979, 980 (1875).
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Amendment effectively sanction to the principle deprived of all power to tions in governmental public schools.
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gave constitutional that states are thereby enforce racial distincfunctions including
II. THERE IS CONVINCING EVIDENCE THAT THE STATE LEGISLATURES AND CONVENTIONS WHICH RATIFIED THE FOURTEENTH AMENDMENT CONTEMPLATED AND UNDERSTOOD THAT IT PROHIBITED STATE LEGISLATION WHICH WOULD REQUIRE RACIAL SEGREGATION IN PUBLIC SCHOOLS
The Fourteenth Amendment was submitted to the states for consideration on June 16, 1866. 14 Stat. 358. It was deliberated by thirty-seven states and ratified by thirty-three.208 We urge that the evidence with respect to the states’ understanding indicates that three-fourths of the states understood and contemplated the Amendment to forbid legislation compelling the assignment of white and Negro youth to separate schools. The evidence which compels this conclusion is adduced from governors’ messages, reports of the legislative committees on federal relations and entries in the journals of the legislatures. At that time, the legislatures, almost without exception, kept no verbatim record of debates and speeches; and the journals merely noted motions and votes. There are, however, newspaper summaries of some speeches and proceedings. But much of the evidence from these sources is inadequate. More significant is the modifications which the states made in their schools’ laws. For if it was understood in the legislatures, which considered the proposed Amendment, that ratification would perforce forbid compulsory 208 The ratifying states included twenty free or nonslaveholding states (Connecticut, New Hampshire, New Jersey, Oregon, Vermont, New York, Ohio, Illinois, Kansas, Maine, Nevada, Indiana, Minnesota, Rhode Island, Wisconsin, Pennsylvania, Michigan, Massachusetts, Nebraska and Iowa), two former slave-holding but loyal states (West Virginia and Missouri), and the eleven former slaveholding states which had seceded (Alabama, Arkansas, Florida, Georgia, Louisiana, Mississippi, North Carolina, South Carolina, Tennessee, Texas and Virginia). Delaware, Kentucky and Maryland, three former slave-holding but non-seceding states, expressly rejected the Amendment. California, probably because the control of its legislature differed in each house, was unable to take any definitive action.
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segregated schools, it seems certain that the legislatures would have apprehended its effect upon the state’s constitutional or statutory provisions for public schools. If, for example, a state required or authorized segregated schools under existing law, presumably the legislature would not knowingly adopt the Amendment without giving some thought to its implications. After adoption, it would be expected that measures would be taken to conform the school laws to the new constitutional mandate. If, however, a state’s school laws and practices already conformed to the understanding that the Fourteenth Amendment forbade segregated schools, it is probable that its legislature would not have objected to the Amendment on this question and would afterwards either retain or reinforce its school laws. On the other hand, if there was an authorization or requirement of segregation in a state’s school laws, and, after ratification, the legislature took no action to end this disparity, undoubtedly it would appear that this state did not understand the Amendment to have the effect which Appellants urge. Yet, if a state under these same conditions had rejected the Amendment, it would suggest that the Amendment’s impact upon the school segregation law was a controlling factor. We submit, the new constitutional and statutory provisions enacted with respect to public schools during the critical period, i.e., from 1866, the year the Amendment was submitted, until several years following adoption, constitute strong evidence on the question of the understanding of the Amendment in the state legislatures. Then, too, we note that the Fourteenth Amendment was designed particularly as a limitation upon the late Confederate States. Slaughter House Cases, 16 Wall. 36. Each of them, except Tennessee, was required to endorse the Amendment and the price of readmission also required each to demonstrate that it “modified its constitution and laws in conformity therewith.” 14 Stat. 428 (Act of March 2, 1867). In this connection, Representative Boutwell significantly declared:209 “We are engaged in the great work of reconstructing this Government, and I suppose if we are committed to anything, it is this: that in the ten States not now
209
Cong. Globe, 39th Cong., 2nd Sess. 472 (1867).
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represented there shall hereafter be no distinction on account of race or color.”
These new constitutions, and the proposals and debates of the conventions which framed them, then are of utmost significance. Certainly, they had to measure up to the requirements of the Fourteenth Amendment and, therefore, their educational provisions apparently reflect the understanding of the draftsmen as to the Amendment’s effect upon compulsory public school segregation. Similarly, since the constitutions of these states, were subject to the scrutiny of Congress, an additional insight into the understanding of Congress is provided. For it would hardly be possible to maintain that Congress contemplated the Fourteenth Amendment as a prohibition on compulsory segregated schools if it had approved a constitution having a provision inconsistent with this proposition. We now turn to the legislative history of the Fourteenth Amendment in the states. The proceedings in the several states shall be taken up in turn. Because of the geographic origin of certain of the instant cases and the significance of the contemporary understanding and contemplation of the effect of the Amendment upon Southern institutions, we will first treat the evidence from the states whose readmission to the Union was conditioned upon their conformity with the Amendment. A. The eleven states seeking readmission understood that the Fourteenth Amendment stripped them of power to maintain segregated schools
Subsequent to the proclamation of the Thirteenth Amendment the South sought to define the relations between the new freedmen and white men in a manner which retained most of the taint of the former master-slave relationship. The ante-bellum constitutions remained inviolate although prohibitions against slavery were added. Laws were passed which restricted Negroes in their freedom of movement, employment, and opportunities for learning. Slaughter House Cases, 16 Wall. 36, 71–72; Strauder v. West Virginia, 100 U.S. 303, 306–307. In Arkansas210 and Florida,211 the socalled Black Codes required separate schools for the children of the two races. 210
Ark. Acts 1866–67 p. 100. Cong. Globe, 39th Cong., 1st Sess. 217 (1866).
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After March 2, 1867, the date of the First Reconstruction Act, 14 Stat. 428, the South was obliged to redefine the status of the freedmen in conformity with their understanding of the Fourteenth Amendment. New constitutions were adopted which without exception were free of any requirement or specific authorization of segregated schools. It is also significant that in almost all of these constitutional conventions and legislatures, the issue of segregated schools was specifically raised and rejected. And no law compelling segregated schools was enacted in any state until after it had been readmitted. Arkansas The first of these states to be readmitted was Arkansas. 15 Stat. 72 (Act of June 22, 1868). The constitution which it submitted to Congress had not one reference to race; the education article merely obligated the general assembly to “establish and maintain a system of free schools for all persons” of school age.212 It is reported that this article was adopted to nullify the segregated school law passed by the legislature earlier in 1867.213 Its adoption had been generally opposed in the Convention on the ground that it would “establish schools in which there would be ‘indiscriminate social intercourse between whites and blacks.’”214 The electorate was warned that this constitution would “force children into mixed schools.”215 But the new constitution was adopted and proclaimed law on April 1, 1868.216 The general assembly convened on April 3, and ratified the Fourteenth Amendment on April 6, 1868.217 It then proceeded to repeal the former school statute and a new school law was proposed whereby taxes were to be assessed to support a system of common schools for the education of all children. This law was interpreted as establishing “a system of schools where the two races are blended together.”218 And it was attacked because it granted white parents “no option to their children . . . but to 212
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28 (1923). Id. at 247. 215 Daily Arkansas Gazette, March 19, 1868; Id., March 15, 1868. 216 Id., April 2, 1868. 217 Ark. Sen. J., 17th Sess. 19–21 (1869). 218 Ibid. 214
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send them to the negro schools . . . unless, as is now rarely the case, they are able to give their children education in other schools.”219
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These provisions for public schools were included in the legislative record which Arkansas submitted to the scrutiny of Congress. Whereupon, Arkansas was re-admitted on June 22, 1868. 15 Stat. 72. One month later, but after readmission, the legislature amended the public school statute and directed the Board of Education to “make the necessary provisions for establishing separate schools for white and colored children and youths . . . .”220 North Carolina, South Carolina, Louisiana, Georgia, Alabama and Florida The North Carolina, South Carolina, Louisiana, Georgia, Alabama and Florida modifications in their constitutions and laws were approved by Congress in the Omnibus Act of June 25, 1868 and Congress authorized readmittance effective on the date each ratified the Amendment. 15 Stat. 73. The constitution which Florida offered for congressional review imposed a specific duty on the state to provide “for the education of all children residing within its borders without distinction or preference.”221 The legislature ratified the Amendment on June 9, 1868 and when it next convened passed a law to maintain “a uniform system of instruction, free to all youth of six to twenty-one years.”222 It is agreed that this law was not designed to foster segregated schools and by its operation “mixed schools” were authorized or required.223 Several years later the Florida Legislature passed a sweeping law which forbade any racial distinction in the full and equal enjoyment of public schools, conveyances, accommodations and amusements.224 The first compulsory school segregation provision did not appear until over twenty years after readmission.225 In the North Carolina Constitution of 1868, the education article called for the general 219
Daily Arkansas Gazette, April 10, 1868. Act of July 23, 1868 as amended by Ark. Acts 1873, p. 42. See Ark. Dig. Stats., c. 120 § 5513 (1874). 221 FLA. CONST. 1868, Art. VIII § 1. 222 Fla. Laws 1869, Act of Jan. 30, 1869. 223 KNIGHT, PUBLIC EDUCATION IN THE SOUTH 306 (1922) EATON, “SPECIAL REPORT TO THE UNITED STATES COMMISSION OF EDUCATION”, REP. U.S. COMMR. EDUC. TO SECY. INT. (1871). 224 Fla. Laws 1873, c. 1947. 225 FLA. CONST. 1885, Art. XII § 2. 220
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assembly to maintain “a general and uniform system of public schools, wherein tuition shall be free of charge to all the children of the State between the ages of six and sixteen.”226 Furthermore, the general assembly was “empowered to enact that every child of sufficient mental and physical ability, shall attend the public schools” unless otherwise educated.227 It is reported that the Constitutional Convention refused by a vote of 86 to 11 to adopt a section which provided that “The General Assembly shall provide separate and distinct schools for the black children of the state, from those provided for white children.”228 The adopted article also survived amendments which would have permitted separate schools “for any class of the population” providing each class shared equally in the school fund.229 Some proponents of the education article said that it did not force racial commingling but they frankly admitted that it did not prevent it and contended that separate schools, if established, should only develop out of the mutual agreement of parents rather than through legislation.230 Available contemporary comment upon the education article of the 1868 constitution uniformly agreed that it either authorized or required mixed schools.231 The 1868 Constitution, with this education article, was submitted to Congress and treated as being in conformity with the Amendment. North Carolina’s readmission was thus assured contingent upon its ratification of the Fourteenth Amendment. The state legislature convened on July 1, 1868 and ratified the Amendment on July 4th.232 Three days later the lower house adopted a resolution providing for the establishment of separate schools, but it failed to win support in 226
N. C. CONST.
1868, Art. IX § 2. Id., § 17. 228 Motion of Mr. Durham reported in KNIGHT, INFLUENCE OF RECONSTRUCTION ON EDUCATION 22 (1913). 229 Motions of Messrs. Graham and Tourgee reported in Id. at 22. 230 NOBLE, A HISTORY OF PUBLIC SCHOOLS IN NORTH CAROLINA 340–41 (1930). 231 Wilmington Morning Star, March 27, 1868; id., March 28, 1868, p. 2; Charlotte Western Democrat, March 24, 1868; id., April 17, 1868, p. 2; Greensboro Times, April 2, 1868, p. 3; id., April 16, 1868, p. 1; Fayetteville News, April 14, 1868, p. 2; id., June 2, 1868, p. 1. 232 N. C. Laws 1867, ch. CLXXXIV, Sec. 50. 227
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the upper house which successfully carried a resolution instructing the Board of Education to prepare a code for the maintenance of the system of free public schools contemplated in the constitution.233 Significantly, this measure made no reference to race. It was enrolled on July 28, 1868.234
equal burdens; and they overwhelmingly considered compulsory segregation to be a hostile distinction based on race and previous condition.242 The chairman of the Education Committee of the South Carolina Convention, defending the proposed education article, explained:243
At the next regular session after readmission, the legislature passed a school law which required separate schools.235 However doubtful the validity of this law was to some as late as 1870,236 the state constitution as amended in 1872, settled the issue by specifically requiring racial separation in education.237
“The whole measure of Reconstruction is antagonistic to the wishes of the people of the State, and this section is a legitimate portion of that scheme. It secures to every man in this State full political and civil equality, and I hope members will not commit so suicidal an act as to oppose the adoption of this section.”
South Carolina and Louisiana both ratified the Amendment on July 9, 1868 and were readmitted as of that date pursuant to the Omnibus Act. 15 Stat. 73. The educational articles in their 1868 constitutions were of the same cloth. The Louisiana article flatly said: “There shall be no separate schools or institutions of learning established exclusively for any race by the State of Louisiana.”238 South Carolina’s constitution provided that: “All the public schools, colleges and universities of this State, supported in whole or in part by the public school fund, shall be free and open to all the children and youths of the State, without regard to race or color.”239 In addition to this, the South Carolina Constitution required the legislature to pass a compulsory school law after it organized facilities for the education of all children.240 The 1868 constitutions of both states also declared that all citizens, without regard to race or color, were entitled to equal civil and political rights.241 The proponents of the education articles in the Louisiana and South Carolina conventions defended the provisions prohibiting segregation by force of law in public schools as an incident of equal justice or equal benefits in return for 233
NOBLE,
op. cit. supra n. 230, at 297, 299. See List of Public Acts and Resolutions Passed by the General Assembly of North Carolina, Spec. Sess. of July, 1868. 235 N. C. Laws 1868–69, c. CLXXXIV, § 50. 236 NOBLE, op. cit. supra n. 230, at 325. 237 Art. IX, § 2. 238 LA. CONST. 1868, Title VII, Art. 135. 239 S. C. CONST. 1868, Art. XX § 10. 240 Id., § 4. 241 Id., Art. I, § 7; LA. CONST. 1868, Title I, Art 2. 234
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Continuing, he explained:244 “We only compel parents to send their children to some school, not that they shall send them with the colored children; we simply give those colored children who desire to go to white schools, the privilege to do so.” (Emphasis supplied.)
After the Louisiana and South Carolina constitutions were approved by Congress, the South Carolina Legislature, in a special session, ratified the Amendment and temporarily organized the school system in conformity with the education article, despite Governor Scott’s plea for a law which would require racial separation in schools as a preventive against “educational miscegenation.”245 At the next regular session, the school system was permanently organized, and a law was passed forbidding officials of the state university to “make any distinction in the admission of students or management of the university on account of race, color or creed.”246 The Louisiana legislature acted with similar celerity and consistency. It assembled on June 29, 1868, ratified the Amendment on July 9, 1868 and enacted laws conforming to the constitutional mandate against segregated schools.247 At its next session, it supplemented the school laws by imposing penal and civil 242 Proceedings of the South Carolina Constitutional Convention of 1868, Held at Charleston, S. C., Beginning January 14th and Ending March 17th, 1868, pp. 654–900 (1868); Official Journal of the Proceedings for Framing a Constitution for Louisiana, 1867–1868, passim (1868). 243 Proceedings, op. cit. supra n. 242, at 899. 244 Id. at 690. 245 S. C. House J., Spec. Sess., p. 51 et seq. (1868). See Charleston Daily News, July 10, 1868. 246 S. C. Acts 1868–69, pp. 203–204. 247 DABNEY, UNIVERSAL EDUCATION IN THE SOUTH 370 (1936).
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sanctions against any teacher refusing to accept a pupil of either race.248 Subsequent laws forbade racial distinctions at a state institution for the instruction of the blind, prohibited racial separation on common carriers, and provided that there should be no racial discrimination in admission, management and discipline at an agricultural and mechanical college.249
But the significant point again is that this was done only after readmission.
More than a quarter-century elapsed before South Carolina and Louisiana in 1895 and 1898, respectively, changed these laws to require racial segregation in public education.250
The Constitutional Convention of 1867–68, however, rewrote the basic state document and the committee on education reported a proposal to establish a thorough system of public education “without partiality or distinction.”255 During the drafting and consideration of the proposed education article, several efforts to include provisions requiring segregated schools were defeated.256 The Convention adopted an article which directed the General Assembly to “provide a thorough system of general education to be forever free to all children of the State . . . ”.257
The Alabama Constitutional Convention assembled on November 4, 1867, but the education article was not adopted until December 5th, the final day of the session. What emerged was borrowed directly from the Iowa Constitution of 1857, in most particulars, plus the language of a statute passed by the 1865–66 Iowa legislature to specifically bar segregation in schools.251 This anti-segregation article survived two attempts to introduce provisos specifically requiring the establishment of separate schools.252 Congress found that Alabama had conformed its constitution with the Amendment and considered the state qualified for readmission as soon as it ratified the Fourteenth Amendment. On July 13th, 1868, the General Assembly fulfilled the final requirement. Thereafter, on August 11th, the State Board of Education, acting under the legislative powers conferred upon it in the constitution, passed a regulation which made it unlawful “to unite in one school both colored and white children, unless it be by the unanimous consent of the parents and guardians of such children . . . ”253
248 FAY, “THE HISTORY OF EDUCATION IN LOUISIANA,” 1 U.S. Bu. Educ. Cir. No. 1, p. 101 (1898). 249 La. Acts 1869, p. 37; La. Laws 1871, pp. 208–10; La. Laws 1875, pp. 50–52. 250 S. C. CONST. 1895, Art. XI § 7; LA. CONST. 1898, Art. 248. 251 Compare ALA. CONST. 1867, Art. XI with IOWA CONST. 1857, Art. IX and Iowa Laws 1865–66, p. 158. 252 Official Journal of the Constitutional Convention of the State of Alabama 1867–68, pp. 237, 242 (1869). 253 Ala. Laws 1868, App., Acts Ala. Bd. of Educ. It would appear that had this law been tested, application of the rule applicable to borrowed statutes would have invalidated it inasmuch as a similar statute in Iowa had been struck down on the basis of a less stringent constitutional provision. Clark v. Board of School Directors, 24 Iowa 266 (1868).
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Georgia, like most of the South, had no public school system prior to Reconstruction. In fact, no reference to public schools appears in either the ante-bellum Georgia Constitution or the Constitution of 1865 which was substantially a reenactment of the former.254
After this constitution was approved by Congress, the legislature ratified the Fourteenth Amendment on July 21, 1868 and Georgia apparently qualified for readmission. But the General Assembly forcibly expelled its Negro complement at this session on the ground that their color made them ineligible to hold office. This action prompted Congress to refuse to seat the Georgia congressional delegation.258 The General Assembly then reconvened on January 10, 1870, re-seated its Negro members, ratified the Fourteenth Amendment again, and expunged the word “white” from all state laws.259 The conduct of this legislature satisfied Congress and Georgia was readmitted to the Union on July 15, 1870. 16 Stat. 363. Three months later, on October 13, 1870, the state legislature passed a public school act which in section 32 established a system of segregated schools.260 The state constitution was 254 2 Thorpe, Federal and State Constitutions 765 et seq. (1909). 255 Journal of the Constitutional Convention of Georgia, 1867–68, p. 151 (1868). 256 Id., at 69, 151, 479, 558. See ORR, HISTORY OF EDUCATION IN GEORGIA 187 (1950). 257 GA. CONST. 1868, Art. VI. 258 ORR, op. cit. supra n. 256, at 195–196. 259 Ga. Sen. J. Pt. II, p. 289 (1870); Ga. House J. pp. 307, 1065 (1870). 260 Ga. Laws 1870, p. 57.
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amended in 1877 and validated this legislation by an express requirement for racial separation in public schools.261 Texas In Texas a Constitutional Convention met in June 1868 to frame the constitution under which it was subsequently readmitted. Drafted to secure the approval of Congress,262 it required the legislature to maintain “a system of public free schools, for the gratuitous instruction of all the inhabitants of this State of school age.”263 This constitution was accepted at the elections in 1869, and the legislature, without discussion, ratified the three Civil War Amendments on February 18, 1870.264 Texas was readmitted on March 30, 1870, 16 Stat. 80, and the legislature drafted a public school law which provided that local boards of education, “when in their opinion the harmony and success of the schools require it, . . . may make any separation of the students or schools necessary to secure success in operation . . . ”.265 Contemporary opinion was that this grant of discretion to school boards was a restrained effort to achieve racial separation without offending Congress and that the Fourteenth Amendment forbade the requirement of separate schools although it did not compel mixed schools.266 It was not until 1876, when Texas adopted a new constitution, that racial separation in schools was expressly required by law.267 Virginia Virginia submitted to Congress a constitution which contained no reference to race or racial separation in public schools.268 In the Constitutional Convention, the issue of segregation was introduced when the report of the committee on education was being considered. First, an amendment was proposed to provide “that in no case shall white and colored children be taught in the same school.”269 This
amendment was defeated.270 Subsequently, a proposal to add an independent section providing for the establishment of segregated schools met a like fate.271 A provision was also submitted to require that public schools be open to all classes without distinction and that the legislature be denied the power to make any law which would admit of any invidious distinctions.272 This proposal and a substitute to the same effect were also defeated.273 Opponents of the proposals to prohibit segregated schools explained the failure of passage, not on the grounds of fundamental objection, but because it was feared that the adoption of such an article in the constitution would doom its chance of ratification.274 Thus, an article merely directing the general assembly to provide for a uniform system of public free schools was adopted “rather than risk having the Congress or Union Leagues force an obnoxious law on them.”275 After the election of 1869, at which the constitution was adopted, the General Assembly convened and ratified the Fourteenth Amendment on October 8, 1869. This session passed no school laws and the establishment of the public school system was deferred until after readmission. Full statehood status was regained on January 26, 1870. 16 Stat. 62. Six months later, on June 11th, the General Assembly established a “uniform system of schools” in which separate schools were required.276 A specific constitutional mandate for segregated277 schools, however, did not appear until 1902. Mississippi Mississippi followed the general pattern of the former seceded states. The Constitutional Convention of 1868, adopted an education article which made no mention of race or racial separation.278 At least two unsuccessful attempts were also made in the Convention to require segregated schools.279 270
261
GA. CONST. 1877, Art. VIII § 262 TEX. CONST. 1871, Art. I § 1. 263
Id. Art. IX §§ 1–4. Daily State Journal, February 20, 1870. 265 6 Tex. Laws 1866–71, p. 288. (Emphasis added.) 266 Flake’s Daily Bulletin, March 3, 1870; Id. March 13, 1870. 267 TEX. CONST. 1876, Art. VII § 7; 8 TEX. Laws 1873–79 CXX § 54. 268 VA. CONST. 1868, Art. VIII § 3. 269 JOURNAL OF THE VIRGINIA CONSTITUTIONAL CONVENTION, 1867– 68, p. 299 (1868). 264
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CONVENTION TO THE VOTERS OF VIRGINIA (1868). 275 DABNEY, UNIVERSAL EDUCATION IN THE SOUTH 143–44 276
(1936).
Va. Acts 1869–70, c. 259 § 47, p. 402. 277 VA. CONST. 1902, Art. IX § 140. 278 MISS. CONST. 1868, Art. VIII. 279
JOURNAL OF THE MISSISSIPPI CONSTITUTIONAL CONVENTION OF
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While the convention journal does not specifically indicate that the Fourteenth Amendment was raised as an objection to segregated schools, the convention had passed a resolution which declared that: “ . . . the paramount political object . . . is the restoration or reconstruction of our government upon a truly loyal and national basis, or a basis which will secure liberty and equality before the law, to all men, regardless of race, color or previous conditions.”280
The convention also framed a Bill of Rights which required all public conveyances to accord all persons the same rights,281 and it refused to adopt an article forbidding intermarriage.282 The next legislature convened in January, 1870, ratified the Fourteenth and Fifteenth Amendments, repealed all laws relative to Negroes in the Code of 1857, as amended by the Black Code of 1865, and indicated that it intended to remove all laws “which in any manner recognize any natural difference or distinction between citizens and inhabitants of the state.”283 The Constitution and actions of the legislature proved acceptable to Congress, and Mississippi was restored to the Union on February 23, 1870. 16 Stat. 77. It was not until 1878 that Mississippi passed a law requiring segregated schools;284 and it was still later when the Constitution was altered to reiterate this requirement.285 Tennessee Tennessee, although a member state in the late Confederacy, was not subjected to the requirements of the First Reconstruction Act, inasmuch as it had promptly ratified the Fourteenth Amendment and had been readmitted prior to the passage of that Act. Nevertheless, this state likewise reentered the Union with compulsory racial segregation absent from its constitution and statutory provisions on public schools. Readmission was under the Constitution of 1834, inasmuch as 280
Id. at 123. Id. at 47; MISS.
281
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1868, Art. I, § 24.
282
JOURNAL OF THE MISSISSIPPI CONSTITUTIONAL CONVENTION OF
1868, pp. 199, 212 (1868). 283 GARNER, RECONSTRUCTION IN MISSISSIPPI 285 (1901). 284 Miss. Laws 1878, p. 103. 285 MISS. CONST. 1890, Art. IX, § 2.
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the Constitutional Convention of 1865 merely amended it to abrogate slavery and authorize the general assembly to determine the qualifications of the exercise of the elective franchise.286 The education article in this constitution merely required the legislature to encourage and support common schools “for the benefit of all the people” in the state.287 The first law providing for tax supported schools, on its face, also made no racial distinction.288 The next law, however, prohibited compulsory integrated schools.289 Contemporary federal authorities noted that ante-bellum practice apparently had restricted the benefits of the school system to white children; but approved these provisions because, in sum, they provided a sufficient guarantee for the support and enjoyment of common schools for the equal benefit of all the people without distinction on the basis of race or color.290 The Governor convened the legislature in special session on July 4, 1866 to consider the Fourteenth Amendment. In urging its adoption, he summarized Section 1, and said that its practical effect was to protect the civil rights of Negroes and to “prevent unjust and oppressive discrimination” in the exercise of these citizenship rights.291 A joint resolution to ratify was introduced in the upper house; and a resolution to amend it with a proviso that the proposed Amendment should not be construed to confer upon a person of color rights to vote, to hold office, to sit on juries or to intermarry with whites or to “prevent any state from enacting and enforcing such laws” was voted down.292 286
TENN. CONST. 1834 as amended by §§ 1 and 9 of “Schedule” ratified February 22, 1865. In conformity with the Schedule’s directive the legislature enacted that Negroes could exercise and pursue all types of employment and business under the laws applicable to white persons, Tenn. Acts. 1865–66, c. 15; that Negroes were competent witnesses, Id., c. 18; and that persons of color henceforth had the same rights in courts, contracts and property as white persons except that Negroes could not serve on juries and that this act “shall not be construed as to require the education of white and colored children in the same school.” Id., c. 40, § 4. 287 TENN. CONST. 1834, Art. XI § 10. 288 Tenn. Acts. 1853–54, c. 81. 289 Tenn. Acts. 1865–66, c. 40, § 4. 290 Rep. U.S. Commr. Educ. 1867–68, 101 (18). 291 Tenn. House J., Called Sess. 3, 26–27 (1866); Tenn. Sen. Called Sess. 8 (1866). 292 Tenn. Sen. J., Called Sess. 26 (1866).
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Then the Senate approved the joint resolution and the House concurred.293 After ratification, a group in the lower house formally protested its confirmation of the Amendment on the ground that it invaded state rights “and obliterates all distinctions in regard to races, except Indians not taxed.”294 A similar protest was filed in the upper house.295 Such of the debates as were reported in the press indicate that the legislators understood the Amendment to force absolute equality296 and that under the inhibitions of Section 1 “distinctions in schools cannot be made, and the same privileges the one has cannot be denied the other . . . .”297 Tennessee was readmitted July 24, 1866. 15 Stat. 708–711. After readmission, a school law was passed on March 5, 1867 whereby boards of education were “authorized and required to establish . . . special schools for colored children, when the whole number by enumeration exceeds twenty-five.”298 It also provided for the discontinuance of these separate schools when the enrollment fell below fifteen. The law, however, did not forbid non-segregated schools. But it was repealed in 1869 and replaced with a requirement that racial separation in schools be observed without exception.299 Finally, the constitution was amended in 1870 to secure the same result.300 In summary, therefore, as to these eleven states the evidence clearly reveals that the Fourteenth Amendment was understood as prohibiting color distinctions in public schools. B. The majority of the twenty-two union states ratifying the 14th Amendment understood that it forbade compulsory segregation in public schools.
Other than the states already treated, twenty-six Union States considered the Amendment. Twenty-two of them ratified it. The evidence adduced here is of a somewhat less uniform character than that from the states 293
Id. at p. 24; Tenn. House J., Called Sess. 24 (1866). Tenn. House J., Called Sess. 38 (1866). 295 Tenn. Sen. J., Called Sess. 41–42 (1866). 296 Nashville Dispatch, July 12, 1866. 297 Id., July 25, 1866. 298 Tenn. Laws 1867, c. 27, § 17. 299 Tenn. Laws 1870, c. 33, § 4. 300 TENN. CONST. 1870, Art. XI, § 12. 294
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which formed the late Confederacy for the simple reason that the legislatures in the North were unfettered by any congressional surveillance, and they did not experience the imperative necessity of re-examining their constitutions and laws at the time the proposed Fourteenth Amendment was considered by them. Thus, it is to be expected that some of these legislatures deferred attuning their school laws with the keynote of the Amendment until several years after it had become the law of the land. In other states, the legislatures adjusted their school laws almost simultaneously with their ratification of the Amendment. Still others, because existing laws and practices conformed with their basic understanding with respect to the impact of the Amendment, were not required to act. In the end, nevertheless, we submit that the overwhelming majority of the Union States ratified or did not ratify the Fourteenth Amendment with an understanding or contemplation that it commanded them to refrain from compelling segregated schools and obliged them to conform their school laws to assure consistency with such an understanding. West Virginia and Missouri West Virginia, a state created during the Civil War when forty western counties refused to follow Virginia down the road to secession, and Missouri, a former slaveholding state comprised the small minority of states which ratified the Fourteenth Amendment and perpetuated laws requiring segregated schools without any subsequent enactment consistent with a discernment that such laws and the Amendment were incompatible. Both states required separate schools for the two races prior to the submission of the Amendment.301 These laws were continued after the Amendment was proclaimed as ratified;302 and both states subsequently strengthened the requirement of separate schools in the 1870’s by amending their constitutions to specifically proscribe racial integration in public schools.303 The New England States Segregated schools also existed in some of the strongly abolitionist 301
W. Va. Laws 1865, p. 54; Mo. Laws 1864, p. 126. W. Va. Laws 1867, c. 98; W. Va. Laws 1871, p. 206; Mo. Laws 1868, p. 170; Mo. Laws 1869, p. 86. 303 W. VA. CONST. 1872, Art. XII, § 8; MO. CONST. 1875, Art. IX. 302
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New England states prior to their consideration and ratification of the Amendment. But their reaction to the prohibitions of Section 1 was directly contrary to the course taken in West Virginia and Missouri. In Connecticut, prior to the adoption of the Amendment, racial segregation was not required by state law but segregated schools were required in some cities and communities, e.g., in Hartford pursuant to an ordinance enacted in 1867 and in New Haven by administrative regulation.304 On August 1, 1868, four days after the Amendment was proclaimed, however, the legislature expressly forbade separate schools.305 Interestingly, during the course of debate on this bill, amendments which would have required segregation or permitted separate “equal” schools were introduced and rejected.306 Similarly, racial separation in schools was never required by the constitution or laws of Rhode Island, but segregated schools existed at least in Providence, Newport and Bristol.307 Here, too, the same legislature which ratified the Amendment enacted a law prohibiting racial segregation in public schools.308 In Maine, there was no racial separation in public schools prior to the adoption of the Amendment.309 However, the leading supporter of ratification extolled in the broadest terms its
equality provisions and indicated that the proponents expected it to compel in the other states the same equality in civil and political rights as existed in Maine, itself.310 Massachusetts too, had already made unlawful any racial segregation in schools prior to the submission of the Amendment.311 Thus, since Massachusetts had already considered state required racial segregation completely inconsistent with a system of laws and government which treats all persons alike irrespective of color,312 there was no subsequent legislative action interpretative of the impact of the Amendment on segregation. The deliberations of the legislature on the proposed Amendment opened with its reference to the body by the governor. He recommended ratification and his speech indicates that he understood Section 1 of the Amendment to be a reinforcement of the Civil Rights Act of 1866 and observed: “Whatever reasons existed at the time for the enactment of that bill, apply to the incorporation of its provisions into the state law.”313 Surprisingly, strong opposition to ratification developed. A majority of the joint committee recommended rejection on the ground that the proposed Amendment neither specifically guaranteed Negro suffrage nor added anything to what was already in the constitution “possibly excepting the last clause” of Section 1. Of this, is concluded:314 “The denial by any state to any person within its jurisdiction, of the equal protection of the laws, would be a flagrant perversion of the guarantees of personal rights . . . . [But] such denial would be equally possible and probable hereafter, in spite of an indefinite reiteration of these guarantees by new amendments.”
304
MORSE, THE DEVELOPMENT OF FREE SCHOOLS IN THE UNITED
STATES AS ILLUSTRATED BY CONNECTICUT AND MICHIGAN 127, 144, 192 (1918); WARNER, NEW HAVEN NEGROES 34, 71–72 (1940). 305 Conn. Acts 1866–68, p. 206. See Conn. House J. 410 (1866); Conn. Sen. J. 374 (1866). 306 Conn. Sen. J. 247–48 (1868); Conn. House J. 595 (1868). See New Haven Evening Register, June 17, 1868. 307 BARTLETT, FROM SLAVE TO CITIZEN, c. 6 passim. (unpub. ms., pub. expected in Dec. 1953). See Ammons v. School Dist. No. 5, 7 R. I. 596 (1864). 308 R. I. LAWS 1866, C. 609. The Committee on Education recommended passage of this act, saying: “The great events of the time are, also, all in favor of the elevation of the colored man. They are all tending to merge the distinctions of race and of class in the common brotherhood of humanity. They have already declared the Negro and the white man to be equal before the law; and the privileges here asked for by these petitioners, are simply a necessary result of this recognized equality.” It went on to say, “We have no right to withhold it from him in any case”, and asked, “With what consistency can we demand that these colored people shall be equal before the law in other states or the territories, while we, ourselves, deprive them of one of their most important civil rights?” Report of Committee on Education, Pub. Doc. No. 4 (1896). 309 See CHADBOURNE, A HISTORY OF EDUCATION IN MAINE (1936).
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The minority reported that:315 “Without entering into any argument upon the merits of the amendment, they would express the opinion that its ratification is 310
Speech of Senator Crosby in the Maine Senate, January 16, 1867, reported in Kennebec Journal, January 22, 1867, p. 1. 311 Mass. Acts & Res. 1854–1855, p. 650; Mass. Acts & Res. 1864–1865, pp. 674–75. 312 This was precisely the fundamental proposition underlying the enactment of the Act of 1855 prohibiting racial segregation in public schools. Report of the Committee on Education, Mass. House Doc. No. 167, March 17, 1855. 313 Mass. Acts and Res. 1867, pp. 789, 820; Boston Daily Advertiser, January 5, 1867, Sat. Supp. 314 Mass. House Doc. 149, pp. 23–24 (1867). 315 Id., at 25.
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extremely important in the present condition of national affairs.”
When these reports were presented in the lower house of the legislature, a motion was passed to substitute the minority report.316 Suffrage had claimed much of the strident debate on the motion. But a speech of one of the last members to speak for the motion was reported as follows:317 “To the first article of this amendment, there had been no objection brought by those who favored rejection . . . . The speaker felt that this was a most important article; by it the question of equal rights was taken from the supreme courts of the States and given to the Supreme Court of the United States for decision; the adoption of the article was the greatest movement that the country had made toward centralization, and was a serious and most important step. This was taken solely for the reason of obtaining protection for the colored people of the South; the white men who do not need this article and do not like it, sacrifice some of their rights for the purpose of aiding the blacks.”
The upper house considered the motion several days later, re-echoed the theme of the speeches previously made in the lower house, and voted for ratification.318 The New Hampshire legislature took up the proposed Amendment in June of 1866. The governor’s message urged ratification but its brief comment was not revealing.319 The majority report of the house committee with respect to the Amendment merely offered a resolution to modify.320 But the minority reported a number of reasons for rejection which, inter alia, criticized section 1 on the grounds of ambiguity and furthermore:321 “Because said amendment is a dangerous infringement upon the rights and independence of all the states, north as well as south, assuming as it does, control their legislation in matters purely local in their character, and impose disabilities upon them for regulating, in their own way [such matters].” 316
Boston Daily Advertiser, March 13, 1867, p. 2; Ibid., March 14, 1867, p. 1. 317 Id., March 14, 1867, p. 1 (Speech of Richard Henry Dana, Jr.). 318 Mass. Acts and Res. 1867, p. 787; Mass. Leg. Doc. Sen. Doc. No. 25 (1867); Boston Daily Advertiser, March 21, 1867, p. 1. 319 N. H. House J. 137 (1866). 320 Ibid., p. 174. 321 Id. at 176.
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The same set of objections was presented by a minority of the special committee of the upper house.322 Both chambers voted for ratification, however, within a month after the Amendment was offered to the state.323 Laws governing public schools in New Hampshire appear to have never been qualified on the basis of race or color at any time after its organic law obligated the legislature to stimulate public education.324 Similarly, Vermont seems to have no history of segregated schools. Neither did its laws sanction such a policy.325 When the legislature convened in 1866, the Governor’s opening message discussed the proposed Fourteenth Amendment at some length. He urged that it be ratified to secure “equal rights and impartial liberty”, otherwise a small number of whites in the South and the entire colored race would be left unprotected. In concluding, he said Vermont welcomed “such a reorganization of the rebellious communities, as would have given the people, white and black, the equal civil and political rights secured to the people of the State, by our Bill of Rights and Constitution, and under which peace, order, civilization, education, contentment, Christianity and liberty have shed their benign and blessed influence alike upon every home and household in our beloved Commonwealth.”326 Thereupon, both houses routinely voted for ratification.327 The Middle Atlantic States Three MidAtlantic States, New York, New Jersey and Pennsylvania ratified the Amendment. The Pennsylvania evidence is in some detail because it was one of the few states to preserve the full discussions and debates of its legislature. Furthermore, its statutes, previous to the adoption of the Amendment, authorized segregation in schools;328 and public carriers had regulations which excluded or segregated Negroes. See West Chester & Phila. R. Co. v. Miles, 5 Smith (55 Pa.) 209 (1867). ted
On January 2, 1867, the Governor transmitthe Fourteenth Amendment to the
322
N. H. Sen. J. 70 (1866). Id. at 94, N. H. House J. 231–33 (1866). 324 N. H. CONST. 1792, § LXXXIII. 325 VT. CONST. 1777, c. II, § XXXIX; VT. CONST. 1786, c. II, § XXXVIII; VT. CONST. 1793, c. II, § 41. See Report of the Indiana Department of Public Instruction 23–28 (1867–68). 326 Vt. Sen. J. 28 (1866); Vt. House J. 33 (1866). (Emphasis added.) 327 Vt. House J. 139 (1866); Vt. Sen. J. 75 (1866). 328 Act of May 8, 1854, Pa. L. 617 § 24. 323
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Legislature. He called for its adoption primarily upon political grounds but strenuously urged that every citizen of the United States had certain rights that no state had a right to abridge and the proposed Amendment asserted “these vital principles in an authoritative manner, and this is done in the first clause of the proposed amendments [sic].”329 The resolution recommending ratification was introduced in the Pennsylvania Senate by its floor leader. He urged that one of the reasons why it had to be adopted was because Mississippi had enacted a law requiring segregation on railroads and the Amendment was necessary to overcome all state legislation of this character.330 In summary of his concept of the purpose of section 1, he said: “The South must be fenced in by a system of positive, strong, just legislation. The lack of this has wrought her present ruin; her future renovation can come only through pure and equitable law; law restraining the vicious and protecting the innocent, making all castes and colors equal before its solemn bar, that, sir, is the sine qua non . . . .”
The pith of the speeches of both the proponents and opponents of ratification are as follows: Senator Bingham, a leading supporter of the resolution, noted that “it has been only a question of time how soon all legal distinctions will be wiped out.”331 Another announced, “I shall vote for it with satisfaction for my own conscience and gratitude to Congress for squarely meeting the universal demand of the loyal states to destroy all legal caste within our borders.”332 The leading opponent of ratification interpreted the Amendment as follows:333 “By the first section it is intended to destroy every distinction founded upon a difference in the caste, nationality, race or color of persons . . . which has found its way into the laws of the Federal or State Governments which regulate the civil relations or rights of the people. No law shall be made or executed which does not secure equal rights to all. In all matters of civil legislation and 329
Pa. Sen. J. 16 (1867). 2 Pa. Leg. Rec., app., p. III (1867). 331 Id. at XVI. 332 Id. at XXII (speech of Senator Taylor). 333 Id. at XLI (speech of Mr. Jenks). 330
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administration there shall be perfect equality in the advantages and securities guaranteed by each state to everyone here declared a citizen, without distinction of race or color, every one being equally entitled to demand from the state and state authorities full security in the enjoyment of such advantages and securities.” (Emphasis supplied).
The legislature ratified the Amendment on January 17, 1867.334 About two weeks later, on February 5th, a bill was introduced making it unlawful for public conveyances to exclude or segregate Negroes.335 In introducing this bill, its sponsor announced that the doctrine of equality before the law required the passage of this bill. Both he and another supporter of the bill pointed out that these practices were pursuant to carrier regulations and policies and had to be eradicated by legislative action. It was also pointed out that the bill did not effect social equality because that is regulated solely by the personal tastes of each individual.336 The bill was overwhelmingly enacted into law the following month.337 The school law authorizing separate schools was not specifically repealed until 1881 when the legislature made it unlawful for any school official to make any distinction on account of race or color in students attending or seeking to attend any public school.338 It appears, however, that when the state constitution was amended in 1873, the 1854 school law was viewed as having been brought into conformity with the adoption of a provision for a school system “wherein all children of this Commonwealth above the age of six years shall be educated . . . .”339 The Secretary of State, official reporter of the Convention, states particular attention was paid to “that part which confers authority on the subject of education.” And he noted that the new article was formulated to conform with the policy of protest against all racial discrimination and, specifically, to remove the “equivocal and invidious provision.”340 These purposes are 334
Pa. Laws 1867, 1334. 2 Pa. Leg. Rec., app. p. LXXXIV (1867). 336 Id. at pp. LXXXIV et seq. (Remarks of Senators Lowery and Brown.) 337 Act of March 22, 1867, Pa. Laws 1867, pp. 38–39. 338 Act of June 8, 1881, Pa. L. 76, § 1, Pa. Laws 1881, p. 76. 339 PA. CONST. 1873, Art. X, § 1. 340 JORDAN, OFFICIAL CONVENTION MANUAL 44 (1874). 335
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further borne out when the sponsor of the 1881 bill stated:341 “In proposing the repeal of the act of 1854, which in terms would be prohibited by the present State and Federal Constitutions, it seems a matter of surprise that an act so directly in conflict with the Fourteenth and Fifteenth Amendments of the Constitution of the United States should have been permitted to have remained in the statute book until this time.”
New Jersey, as early as 1844, enacted general legislation for the establishment and support of a public school system “for the equal benefit of all persons . . . .”342 In 1850, special legislation was enacted which enabled Morris Township to establish a separate colored school district if the local town meeting voted to do so.343 The state superintendent of schools construed this act and concluded that it in combination with the earlier law of 1844 permitted any local school system to maintain separate schools provided both schools offered the same advantages and no child was excluded.344 The New Jersey Legislature convened in a special session and hastily ratified the Amendment on September 11, 1866.345 The dispatch with which this was done was made a focal issue in the following elections. The Republicans broadly defended the Amendment as “forbidding class legislation, or the subjecting of one class of people to burdens that are not equally laid upon all.”346 The Democrats more specifically contended that their candidates opposed the Amendment because they were “against Negro suffrage and the attempt to mix negroes with workingmen’s children in public schools.”347 When the Republicans captured the governorship and elected a radical congressional delegation, the Democrats captured the state legislature and immediately proceeded to rescind New Jersey’s ratification.348 341
Pa. Sen. J. (entry dated May 26, 1881). N. J. CONST. 1844, Art. IV § 7(6); N. J. (1847). 343 N. J. Laws 1850, pp. 63–64. 342
REV. STATS.,
c. 3
344
ANNUAL REPORT OF THE STATE SUPERINTENDENT OF SCHOOLS
41–42, (1868). 345 N. J. Sen. J., Extra Sess., 1866, p. 14; MINUTES OF THE ASSEMBLY, Extra Sess., 1866, p. 8. 346 Newark Daily Advertiser, October 25, 1866; Trenton State Gazette, November 3, 1866. 347 Trenton Daily True American, November 3, 1866. 348 N. J. Sen. J. 198, 249, 356 (1868); Minutes of the Assembly; 309, 743 (1868). See KNAPP, NEW JERSEY POLITICS DURING THE PERIOD OF CIVIL WAR AND RECONSTRUCTION 167 (1924).
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When the Republicans recaptured control of the legislature in 1870 the school law was amended to require “a thorough and effective system of public schools for the instruction of all children . . . .”349 And this was later reinforced by an enactment which made it unlawful to exclude any child from any public school on account of color.350 As a result of this law, separate schools soon disappeared except in a few counties where Negro citizens generally accepted them. When Negroes chose not to accept these segregated schools the school authorities were required to admit them to the white schools pursuant to the prohibition of the 1881 school law.351 New York, like the other Middle-Atlantic states, had ante-bellum constitutions which merely authorized the legislature to establish a common school fund.352 There was never any general legislation on the subject of racial separation in schools sharing in the common school fund. The legislature, however, granted charters to Brooklyn, Canandaigua, Buffalo and Albany which permitted these cities to maintain segregated schools as early as 1850.353 The Common School Act of 1864 was in the same vein. It only permitted school boards in certain political subdivisions to establish and maintain segregated schools “when the inhabitants of any school district shall so determine, by resolution at any annual meeting called for that purpose, establish a separate school or separate schools for the instruction of such colored children . . . .”354 Communities exercising the option under this law comprised the exception rather than the rule.355 Shortly after New York ratified the Amendment,356 a constitutional convention was held and it adopted a new constitution which 349
N. J. Laws 1874, p. 135. N. J. Laws 1881, p. 186. 351 See Pierce v. Union Dist. School Trustees, 17 Vroom (46 N. J. L.) 76 (1884). 352 N. Y. CONST. 1821, Art. VII; N. Y. CONST. 1846, Art. IX. 353 N. Y. Laws 1850, c. 143; N. Y. Laws 1852, c. 291. See Dallas v. Fosdick, 50 How. Prac. 249 (1869); People v. Easton, 13 Abb. Prac. N. S. 159 (1872). 354 N. Y. Laws 1864, c. 555. 350
355
ANNUAL REPORT OF THE STATE SUPERINTENDENT OF PUBLIC
131, 159, 163, 166, 170, 233, 323 (1866). N. Y. Sen. J. 33 (1867); N. Y. Ass. J. 77 (1867). The Governor’s message upon transmission of the Amendment leaves little doubt that he considered it as a “moderate proposition” containing “just the conditions for safety and justice indispensable to a permanent settlement.” N. Y. Sen. J. 6 (1867); N. Y. Ass. J. 13 (1867). INSTRUCTION 356
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provided for free instruction of all persons of school age.357 The convention approved a committee report which contained a ringing declaration that Negroes should have full equality in the enjoyment of all civil and political rights and privileges.358 Subsequently, in 1873, the legislature passed an “Act to Provide for the Protection of Citizens in Their Civil and Public Rights.”359 The Act made it unlawful for any person to exclude any other person on the ground of race or color from the equal enjoyment of any place of public accommodation, place of public amusement, public conveyance, “common schools and public instruction [sic] of learning . . . .” (emphasis supplied). It also annulled the use of the word “white” or any other discriminatory term in all existing laws, statutes, ordinances and regulations.360 The New York Court of Appeals did not give vitality to this act in the case of People ex rel. King v. Gallagher, 92 N.Y. 438 (1883). But cf. Railway Mail Association v. Corsi, 326 U.S. 88. The Western Reserve States The five states in the Western Reserve all ratified the Fourteenth Amendment. Each of them had rather well established public school systems prior to the Civil War. In Ohio, the first public school legislation expressly denied Negroes the benefit of free schools.361 Twenty years later, in 1847, this act was amended to permit the maintenance of separate schools for colored children if 357
N. Y. CONST.
1868, Art. IX. See PROCEEDINGS
AND DEBATES OF
THE CONSTITUTIONAL CONVENTION OF THE STATE OF NEW YORK
1867–68 (1868). 358 “First Strike out all discriminations based on color. Slavery, the vital source and only plausible ground of such invidious discrimination, being dead, not only in this State, but throughout the Union, as it is soon to be, we trust, throughout this hemisphere, we can imagine no tolerable excuse for perpetuating the existing proscription. Whites and blacks are required to render like obedience to our laws, and are punished in like measure for their violation. Whites and blacks are indiscriminately drafted and held to service to fill our State’s quotas in a war whereby the Republic was saved from disruption. We trust that we are henceforth to deal with men according to their conduct, without regard to their color. If so, the fact should be embodied in the Const.” DOCUMENTS OF THE CONVENTION OF THE STATE OF NEW YORK, 1867–68, Doc. No. 15 (1868). 359 N. Y. Laws 1873, c. 186 § 1. 360 Id., § 3. 361 Ohio Laws 1828–29, p. 73.
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the residents of a school district objected to their admission into the white schools.362 At its next session, the legislature repealed the provision in an earlier law that had prohibited the application of taxes paid by white residents toward the support of colored schools.363 And in 1853 the school law was revised to require the allocation of public school funds in proportion to the number of children of school age regardless of color.364 Separate schools, however, were still maintained except in Cleveland, Oberlin and other northern cities despite the general feeling that this act had relaxed the stringent restrictions of the antecedent laws. Furthermore, the State Supreme Court held this law not to entitle colored children, as of right, to admission into white schools. Van Camp v. Board of Education, 9 Ohio St. 406 (1859). After ratification of the Amendment,365 the legislature did not immediately modify the schools laws. In fact, it did nothing until after the Ohio Supreme Court upheld compulsory segregated schools in State ex rel. Garnes v. McCann, 21 Ohio St. 198 (1872). Then the legislature enacted a statute which permitted rather than required segregated schools.366 Later, it denied local school authorities the power to exercise their discretion in the premises.367 By this act, all public schools were opened to all children without distinction on account of race or color. State v. Board of Education, 2 Ohio Cir. Ct. Rep. 557 (1887). Indiana’s pre-Fourteenth Amendment school law provided for the support of public schools but exempted “all Negroes and mulattoes” from the assessment.368 This law was interpreted as excluding colored children from 362
Ohio Laws 1847–48, pp. 81–83. Ohio Laws 1848–49, pp. 17–18. 364 Ohio Laws 1852, p. 441. 365 Ohio Sen. J. 9 (1867); Ohio House J. 13 (1867). The Amendment was ratified within two days of its submission to the legislature by the Governor. He observed that the Amendment had four provisions; the first of which was “the grant of power to the National Government to protect the citizens of the whole country . . . should any state attempt to oppress classes or individuals, or deprive them of equal protection of the laws . . . ” Ohio Exec. Doc., Part I, 282 (1867). 366 Ohio Laws 1878, p. 513. 367 Ohio Laws 1887, p. 34. 368 Ind. Rev. Stats. 314 (1843). 363
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public schools wherever the parents of white children objected. Lewis v. Henley, 2 Ind. 332 (1850). On January 11, 1867, Governor Morton submitted the Fourteenth Amendment to the legislature. His message urged ratification but suggested that schools should be provided for Negroes and that they be educated in separate schools to relieve any friction which could arise if they were required to be admitted to white schools.369 A resolution to ratify the Amendment was introduced on the same day and referred to a joint committee. Five days later the resolution was reported out favorably with a recommendation of prompt ratification.370 A minority report was made which objected to the Amendment primarily because it conferred civil and political equality upon Negroes, including the same rights that were then enjoyed by the white race.371 The resolution was adopted on the same day in the Senate.372 No speeches were made in support of the resolution in this chamber but two senators spoke at length against it.373 In the House, the main contention of the opponents was that the Amendment would impose Negro equality,374 seat Negroes on juries, grant them suffrage and admit them into the white schools.375 The proponents only denied that the Amendment conferred suffrage.376 And the lower chamber adopted the resolution on January 23, 1867.377 Two years after ratification of the Fourteenth Amendment, the legislature revised its law to require the organization of separate schools.378 The act also authorized the maintenance of non-segregated schools in areas where there were insufficient Negro children residing within a reasonable distance to justify a separate school. In 1874, the compulsory segregation section of this law was declared valid in the case of Cory v. Carter, 48 Ind. 327 (1874).
The legislature, however, revised the school laws at its next session to permit (not require) segregated schools.379 The revised law, furthermore, required that colored children be admitted to the regular schools if a separate school was not maintained. This provision was applied in sustaining mixed schools in State v. Grubbs, 85 Ind. 213 (1883). Illinois statutes never specifically required separate schools. But the ante-bellum school statute provided that school districts with Negro populations should allow these residents a portion of the school fund equal to the amount of taxes collected from them.380 As construed by the state superintendent of schools, this law was applied to require segregated schools.381 The Illinois legislature received the governor’s message endorsing ratification of the Fourteenth Amendment on January 7, 1867. Both chambers then ratified it on the same day with virtually no discussion or debate.382 About one year later, in December 1869, Illinois called a constitutional convention. It adopted the present organic law which provides for a free public school system for the education of “all children”.383 This provision stems from a resolution in which the convention directed the Education Committee to submit an article which would call for the establishment of a public school system for the education of every “susceptible child—without regard to color or previous condition”.384 Furthermore, the convention rejected two resolutions which would have directed the establishment of a compulsory segregated school system.385 Of all the states of the Western Reserve, Michigan was most deeply affected by the tide of abolitionism which swept this section during the pre-war years. By its Constitution of 1850 the word “white” was eliminated from the section establishing voting qualifications386 and 379 380 381
Ind. Doc. J., Part I, p. 21 (1867). Ind. House J. 101 (1867). 371 Id. at 102. 372 Ind. Sen. J. 79 (1867). 373 Brevier, Legislative Reports 44–45 (1867). 374 Id. at 79. 375 Id. at 80, 88–89, 90. 376 Id. at 90. 377 Ind. House J. 184 (1867). 378 Ind. Laws 1869, p. 41.
1865–66, pp. 27–29; 2
REPORTS MADE TO THE GENERAL ASSEMBLY AT ITS TWENTY-FIFTH
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SESSION, 382
pp. 35–37. Ill. House J. 40, 154 (1867); Ill. Sen. J. 40, 76 (1867). 383 ILL. CONST. 1870, Art. VIII, § 1. 384
JOURNAL OF THE CONSTITUTIONAL CONVENTION OF THE STATE OF
ILLINOIS,
Convened at Springfield, December 13, 1869, p. 234. 385 Id. at 429–431, 860–861. 386 Compare MICH. CONST. 1850, Art. VII, § 1 with MICH. CONST. 1835, Art. II, § 1.
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slavery was declared intolerable.387 Neither this constitution nor the general law of the state recognized any racial distinctions in the enjoyment of public education. But as early as 1842 and as late as 1866, special statutes were passed granting school boards in certain of the larger cities discretionary power to regulate the apportionment of school funds and distribution of pupils among the several schools under their jurisdiction. Pursuant to this authority some school boards, e.g., in Detroit and Jackson, established separate schools.388 The Amendment was submitted to the legislature on January 6, 1867. On January 12th, a resolution was adopted in the Senate instructing the Committee on Public Instruction to report out a bill “to prevent the exclusion of children from the primary or graded or other public schools of this state on account of race or color.” And four days later the general school law was amended to provide that “all residents of any district shall have an equal right to attend any school therein . . . .”389 The Fourteenth Amendment was subsequently ratified on February 16, 1867.390 The legislative record of Michigan during the next several years is replete with more blows against segregation and other distinctions based on race or color. In 1869, insurance companies were prohibited from making any distinction between white and Negro insureds.391 The ban against interracial marriages was removed in 1883.392 Then in 1885, the civil rights law was enacted prohibiting racial separation on public conveyances, in places of public accommodation, recreation, and amusement.393 Wisconsin, since 1848, provided for a public school system free to all children.394 Moreover, 387
Art. XVIII, § 11. See People ex rel. Workman v. Board of Education of Detroit, 18 Mich. 400 (1869) for reference to these special statutes and notice of separate schools in these two cities. Since the decision in this case, there have been no segregated schools maintained by state authorities. 389 1 Mich. Laws 42 (1867); Mich. Acts 1867, Act 34 § 28. 390 The journals of the Michigan legislature indicate that both houses promptly ratified the Amendment without reference to a committee. Mich. Sen. J. 125, 162 (1867); Mich. House J. 181 (1867). 391 Mich. Acts 1869, Act 77 § 32. See Mich. Comp. Laws § 7220 (1897). 392 Mich. Acts 1883, Act 23, p. 16. 393 Mich. Acts 1885, Act 130 § 1. See Mich. Comp. Laws § 11759 (1897). 394 WIS. CONST. 1848, Art. X, § 3; WIS. REV. STATS. Title VII (1849). 388
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during the crucial years, its Negro population was insignificant—less than two-tenths of one percent.395 Thus, it seems obvious why segregation in schools or elsewhere never merited the attention of the legislature at the time of its ratification of the Amendment or thereafter.396 The Wisconsin legislature met on January 3, 1867 and was addressed by the Governor. His speech suggests that in his thinking the Fourteenth Amendment which he asked them to ratify was designed to apply solely to the South and required that “they must assent to the proposed amendment with all of its guarantees, securing to all men equality before the law . . . .”397 A joint resolution was introduced to ratify the Amendment and referred to a committee of three, two of whom reported a recommendation to adopt. The report filed by the minority member condemned the Amendment at some length. “The apparent object,” to him, was to allow Congress to enfranchise Negroes, legislate generally on civil rights, “give to the federal government the supervision of all the social and domestic relations of the citizen of the state and to subordinate state governments to federal power.”398 It appears that this understanding of the Amendment was not disputed. Rather, one supporter of the Amendment is reported as stating: “If the states refuse to legislate as to give all men equal civil rights and equal protection before the laws, then, sir, there should be supervisory power to make them do that, and a consolidation of that kind will be a benefit instead of an injury.399 And, another answered:400 “We therefore need such a provision in the Constitution so that if the South 395
LEGAL STATUS OF THE COLORED POPULATION IN RESPECT TO
SCHOOLS AND EDUCATION, SPECIAL REPORT OF THE COMMISSIONER OF EDUCATION, 396
400 (1871). Wis. Sen. J. 119, 149 (1867); Wis. Ass. J. 224–226, 393 (1867). The entire series of Journals covering the War and Reconstruction years shows but a single reference to color in connection with education. This was a proposal to amend an 1863 bill so as to limit certain educational privileges to children of “white parentage”. The amendment failed and the matter was never revived. Wis. Ass. J. 618 (1863). 397 Wis. Sen. J. 32 (1867); Wis. House J. 33 (1867). 398 Id. at 96, 98 et seq. (Report filed by Sen. Garrett T. Thorne). 399 Wisconsin State Journal, Feb. 7, 1867 (Reporting speech of Assemblyman C. B. Thomas). 400 Daily Wisconsin Union, Feb. 7, 1867 (Reporting speech of Assemblyman H. C. Hobart).
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discriminates against the blacks the United States courts can protect them. I know it is objected that this is an enlargement of the power of the United States Supreme Court. But it is a power given on the side of liberty—power to protect and not power to oppress. For the appeal will come up to this court from the aggrieved individual against the aggressing state . . . .”
The Western States Of the states west of the Mississippi which ratified the Amendment, Nebraska is quite significant because it was admitted to the Union during the life of the 39th Congress and conditions were imposed upon its admission which demonstrate that the Congress which prepared the Amendment intended to eradicate all distinctions based upon race. Nebraska won statehood without having ratified the Amendment. But the enabling Act provided that “this act shall take effect with the fundamental and perpetual condition that there shall be no abridgement or denial of the exercise of the elective franchise, or any other right, to any person by reason of race or color . . . .” Act of February 9, 1867, ch. 9, sec. 3, 14 Stat. 377 (emphasis supplied). The Act, furthermore, required Nebraska to publicly proclaim this fundamental condition “as a part of the organization of this state.” While the enabling Act was still being considered by Congress, the territorial legislature forthwith passed a “Bill to remove all distinctions on account of race or color in our public schools”401 since the existing school law restricting the enumeration of pupils to white youths402 had heretofore been administratively construed to exclude colored children from the public schools. This bill failed to enter the statute books for lack of gubernatorial endorsement.403 The same session of the legislature by an appropriate resolution recognized the enabling Act’s “fundamental condition” on February 20, 1867 and on March 1st Nebraska was proclaimed the 37th state. Two months later, a 401 Neb. House J., 12th Terr. Sess. 99, 105 (1867). See Omaha Weekly Republican, January 25, 1867, p. 2; Id., February 8, 1867. 402 Neb. Comp. Laws 1855–65, pp. 92, 234, 560, 642 (1886). 403 MESSAGES AND PROCLAMATIONS OF THE GOVERNORS OF NEBRASKA.
COLLECTED IN PUBLICATIONS OF THE NEBRASKA STATE HISTORICAL SOCIETY,
249 (1942).
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special session of the legislature was called to ratify the Amendment and to enact legislation to “render Nebraska second to no other state in the facilities offered to all her children, irrespective of sex or condition . . . .”404 The Amendment was ratified in June 1867,405 and the school law was amended to require the enumeration of “all the children” in the school census.406 The new school law did not in specific language prohibit segregation, but colored children entered the public schools on a non-segregated basis at the next school term in September, 1867.407 Another school law was enacted in 1869 which provided an increase in the taxes for the support of public schools “affording the advantages of a free education to all youth;”408 and thereafter no school law has contained any language describing the system of public schools operated by the state. Prior to its ratification of the Amendment, Kansas, a loyal border state, had adopted a policy of permissive segregation whereby boards of education were authorized, but not required, to establish separate schools.409 The legislature ratified the Amendment on January 16, 1867,410 and changed the school law on February 26th by an act which made it illegal for “any” school board to refuse to admit “any” child.411 In 1868, it reenacted the earlier permissive school segregation law.412 Subsequently, an 1876 revision of the school laws omitted any authorization for segregation in cities of the first class and specifically forbade segregated schools in cities of the second class.413 The same session also
404
Id. at 274. Neb. House J. 148 (1867); Neb. Sen. J. 174 (1867). 406 2 Neb. Comp. Laws 1866–77, p. 351 (1887). 407 See Nebraska City News, August 26, 1867, p. 3; Id., September 4, 1867, p. 3. 408 2 Neb. Comp. Laws 1866–77, pp. 451, 453 (1887). 409 Kan. Laws 1862, c. 46, Art. 4 §§ 3, 18; Kan. Laws 1864, c. 67, § 4; Kan. Laws 1865, c. 46, § 1. 410 The Amendment was ratified without reference to a committee within three days after it was submitted to the legislature. Kan. Sen. J. 43, 76, 128 (1867); Kan. House J. 62, 79 (1867). 411 Kan. Laws 1867, c. 125, § 1; KAN. GEN. STATS., c. 92, § 1 (1868). The punitive feature of this statute directed county superintendents to withhold school funds from any offending schools. 412 Kan. Gen. Stats., c. 18, Art. V § 75, c. 19, Art. V § 57 (1868). 413 Kan. Laws 1876, 238. 405
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passed a civil rights act which is still the law and proscribes any distinction on account of race or color in “any state university, college, or other school of public instruction” or in any licensed place of public accommodation or amusement, or on any means of public carriage.414 In 1879, the legislature reenacted the law permitting racial separation in schools but limited it to cities of the first class.415 Minnesota ratified the Fourteenth Amendment on January 16, 1867.416 Its legislature was not obliged to contemplate whether the Amendment nullified segregated schools because such practices had been made a penal offense in 1864.417 However, in submitting the Amendment to the legislature, the governor urged that its adoption was necessary because of the failure of the former seceding states “to reorganize their civil government on the basis of equal . . . rights, without distinction of color . . . .”418 In 1873, the legislature rephrased the school law so as to specifically prohibit segregated schools.419
remained inactive after the decision in State v. Duffy, 7 Nev. 342 (1872), which vitiated the first section of the school law. There is no subsequent reference to the subject of separate schools in the statute books and the segregatory statute itself was dropped from subsequent compilations of laws.422 The Oregon evidence is singularly meager. There were no laws requiring or permitting racial separation in schools either prior or subsequent to ratification of the Amendment on September 9, 1866. What the ratifying legislature understood as to the force of the Amendment and the significance of the abortive attempt to withdraw its ratification in 1868 on this subject is unavailable from the bare notations contained in the legislative journals.423 The contemporary newspapers are also barren of information on this point.424 What evidence there is, indicates that separate schools did exist at least in Portland as late as 1867 and that they were discontinued in 1871.425
In Nevada, the school law in existence prior to its consideration of the Amendment excluded Negroes from public schools and prescribed a penalty against any school which opened its doors to such persons.420 However, the statute provided that school authorities might, if they deemed it advisable, establish a separate school for colored children and maintain it out of the general school fund. While the legislature took no affirmative action after it ratified the Amendment on January 22, 1867,421 it similarly
Almost two years after the Amendment was submitted to the states, Iowa ratified on April 3, 1868.426 Neither the state constitution nor laws required or in any manner authorized racial separation in schools at that time.427 Instances of exclusion and segregation were being quickly remedied without recourse to the courts.428 Where the courts were called upon, local practices of segregation in schools were never sustained as lawful. Clark v. School Directors, 24 Iowa 266 (1868); Smith v. Directors of
414 Kan. Laws 1874, c. 49, § 1. See KAN. REV. STATS. § 21–2424 (1935). 415 Kan. Laws 1879, c. 81, § 1. This is the current law in Kansas. KAN. REV. STATS. § 27–1724 (1935). 416 The governor laid the proposed Amendment before the legislature with the observation that it would secure equal civil rights to all citizens and both houses voted at once to ratify the Amendment without further reference. Minn. Exec. Doc. 26 (1866); Minn. House J. 26 (1866); Minn. Sen. J. 22, 23 (1866). 417 Minn. Laws 1864, c. 4, § 1, amending Minn. Laws 1862, c. 1, § 33. 418 Minn. Exec. Docs. 25 (1866). 419 Minn. Stats., ch. 15 § 74 (1873). 420 Nev. Laws 1864–65, p. 426. 421 The governor presented the Amendment to the legislature with an admonition that they were expected to ratify it and the ratification was accomplished three days later. The journals indicate virtually no opposition or advocacy of the Amendment. Nev. Sen. J. 9, 47 (1867); Nev. Ass. J. 25 (1867). 422 See Nev. Comp. Laws (1929).
423 Ore. Sen. J. 25, 34–36 (1866); Id., at 271–272 (1868); Ore. House J. 273 (1868); Ore. Laws 1868, 114; Id., “Joint Resolutions and Memorials” 13. 424 The Oregonian, the state’s leading newspaper, purportedly carried all the legislative happenings in full. See The Oregonian, September 14, 1866. None of its 1866 issues indicate more than that the legislature considered the Amendment dealt with “equality” and that the primary controversy was with respect to suffrage. Ibid., September 21, 1866. 425 See REYNOLDS, PORTLAND PUBLIC SCHOOLS, 1875, 33 ORE. HIST. Q. 344 (1932); W. P. A. ADULT EDUCATION PROJECT, HISTORY OF EDUCATION IN PORTLAND 34 (1937). 426 Ratification was almost perfunctorily effected. Iowa Sen. J. 265 (1868) Iowa House J. 132 (1868). 427 S427 IOWA CONST. 1857, Art. IX. § 12; Iowa Laws 1866, p. 158, reinforcing the Acts of 1860 and 1862 which required the instruction of all children without regard to race. SCHAFFTER, THE IOWA CIVIL RIGHTS ACT, 14 Iowa L. Rev. 63, 64– 65 (1928). 428 Dubuque Weekly Herald, January 30, 1867, p. 2; Des Moines Iowa State Register, January 29, 1868, p. 1; Id., February 19, 1868, p. 1.
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Independent Schools Dist., 40 Iowa 518 (1875); Dove v. Independent School Dist., 41 Iowa 689 (1875). The state supreme court also forbade segregation by a common carrier in its dining facilities, predicating its decision squarely upon the Fourteenth Amendment. Coger v. N. W. Union Packet Co., 37 Iowa 145 (1873). In sum, the legislatures in all of the Union States which ratified the Fourteenth Amendment, except three, understood and contemplated that the Amendment proscribed State laws compelling segregation in public schools. C. The non-ratifying states understood that the Fourteenth Amendment forbade enforced segregation in public schools
Four states did not ratify the Amendment, three specifically withholding endorsement and the other being unable to arrive at any definitive position. Delaware, in the anomalous position of a former slave state which sided with the Union, rejected it on February 7, 1867 with a resolution which declared that “this General Assembly believes the adoption of the said proposed amendment to the Constitution would have a tendency to destroy the rights of the States in their Sovereign capacity as states, would be an attempt to establish an equality not sanctioned by the laws of nature or God . . . .”429Again, in 1873, the state legislators denounced “ . . . all other measures intended or calculated to equalize or amalgamate the Negro race with the white race, politically or socially, and especially do they proclaim unceasing opposition to making Negroes eligible to public office, to sit on juries, and to their admission into public schools where white children attend, and to the admission on terms of equality with white people in the churches, public conveyances, places of amusement or hotels, and to any measure designed or having the effect to promote the equality of the Negro with the white man in any of the relations of life, or which may possibly conduce to such result.”430
Then, shortly thereafter, the General Assembly in a series of discriminatory statutes demonstrated that it fully understood that equal429 13 Del. Laws 256. See Del. Sen. J. 76 (1867); Del. House J. 88 (1867) for speech of Governor Saulsbury recommending rejection on the ground that it was a flagrant invasion of state rights. 430 Del. Laws 1871–73, pp. 686–87.
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ity before the law demanded non-segregation. It passed laws permitting segregation in schools,431 places of public accommodation, places of public amusement and on public carriers.432 Delaware, however, deferred sanctioning compulsory racial separation in public schools until after this Court handed down the Plessy decision.433 Maryland Maryland was also a loyal former slave-holding state. It rejected the Amendment on March 23, 1867.434 The establishment of universal free public education here coincided with the Reconstruction Period. Although Maryland has always maintained a dual school system, it has never enacted a law specifically forbidding racial integration in its public schools. Rather, separate and parallel provisions were made for the education of white and colored children.435 Kentucky The third of the states which rejected the Amendment was Kentucky, a state with a slaveholding background and generally sympathetic with the South with regard to the status of Negroes although it did not secede. It was the first to refuse ratification: its rejection was enrolled on January 10, 1867.436 While Negroes were denied or severely limited in the enjoyment of many citizenship rights at that time, including exclusion from juries,437 the legislature was silent on the specific question of compulsory segregated schools.438 Like its Maryland brothers, it passed two discrete series of laws, one for the benefit of white children and the other for colored children. But no definite compulsory education statute was enacted until 1904439 although the constitution had been previously amended so as to support such legislation.440 431
DEL. REV. STATS. c. 42 § 12 (1874); Del. Laws 1875, pp. 82–83; Del. Laws 1881, c. 362. 432 Del. Laws 1875–77, c. 194. 433 DEL. CONST. 1897, Art. X, § 2. 434 Md. Sen. J. 808 (1867); Md. House J. 1141 (1867). 435 Md. Laws 1865, c. 160, tit. i–iv; Md. Rev. Code §§ 47, 60, 119 (1861–67 Supp.); Md. Laws 1868, c. 407; Md. Laws 1870, c. 311; Md. Laws 1872, c. 377; Md. Rev. Code, tit. xvii §§ 95, 98 (1878). 436 Ky. House J. 60 (1867); Ky. Sen. J. 63 (1867). 437 Ky. Laws 1865–66, pp. 38–39, 49–50, 68–69. 438 Ky. Laws 1869, c. 1634; 1 Ky. Laws 1869–70, pp. 113–127; Ky. Laws 1871–72, ch. 112; KY. STATS., c. 18 (1873); KY. GEN. STATS., c. 18, pp. 371 et seq. (1881). 439 Ky. Laws 1904, pp. 181–82. 440 KY. CONST. 1891, § 187.
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California California was the only state whose legislature considered the Amendment and yet did not reach an official stand on the matter.441 Before the Fourteenth Amendment was proclaimed the law of the land, the legislature in 1866, relaxed the pattern of compulsory segregation when the school law was revised to permit Negro children to enter “white” schools, provided a majority of the white parents did not object.442 This provision survived changes made in the school laws in 1870 and 1872; and, in 1874, a bill to eliminate segregated schools led to the adoption of a law which required the admission of colored children “into schools for white children” if separate schools were not provided.443 Later in this same year the state supreme court upheld segregated schools despite the petitioner’s claim that this practice violated the Amendment. Ward v. Flood, 48 Cal. 36 (1874). The legislature then revised the school laws and eliminated the provisions which had been held to require separate schools for Negro children.444 The evidence from the non-ratifying states also indicates that their legislatures understood or contemplated that the Fourteenth Amendment forbade legislation which enforced the separation of white and colored children in public schools. CONCLUSIONS OF PART II
There is, therefore, considerable evidence and, we submit, conclusive evidence that the Congress which submitted and the state legislatures and conventions which considered 441 The Committee on Federal Relations in the Assembly and Senate, respectively, recommended rejection and ratification of the Amendment and no further action was taken. Cal. Ass. J., 17th Sess., p. 611 (1867–68); Cal. Sen. J., 17th Sess., p. 676 (1867–68), p. 676. See FLACK, THE ADOPTION OF THE FOURTEENTH AMENDMENT 207 (1908). 442 Cal. Stats. 1866, p. 363. Pursuant to this statute a number of “white” schools admitted colored children without untoward incident. CLOUD, EDUCATION IN CALIFORNIA 44 (1952). 443 Cal. Stats. 1873–74, p. 97. 444 Cal. Stats. 1880, p. 48. See Wysinger v. Crookshank, 82 Cal. 588 (1890). The laws segregating Chinese children remained on the books probably because it was the general impression that only discriminatory laws aimed at Negroes were forbidden by the Fourteenth Amendment. Debates of the California Constitutional Convention of 1873, pp. 631, 642, 649 (1880).
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the Fourteenth Amendment contemplated and understood that it would proscribe all racial distinctions in law including segregation in public schools. A part of this evidence consists of the political, social and legal theories which formed the background of the men who framed the Fourteenth Amendment and the Radical Republican majority in Congress at that time. Congressional debates following the Civil War must be read and understood in the light of the equalitarian principles of absolute and complete equality for all Americans as exemplified throughout the Abolitionist movement prior to the Civil War. Many of the members of Congress, in debating the bill which became the Civil Rights Act of 1875, made it clear in no uncertain terms that it was generally understood in the 39th Congress that the Fourteenth Amendment was intended to prohibit all racial distinctions, including segregation in public school systems. Running throughout the 39th Congress was a determination of the Radical Republican majority to transform these equalitarian principles into federal statutory and constitutional law. They realized that these high principles could not be achieved without effective federal legislation. The infamous Black Codes were demonstrative proof that the southern states were determined to prevent the newly freed Negroes from escaping from an inferior status even after the Thirteenth Amendment. The Radical Republican majority realized that in the status of American law at that time, the only way to achieve fulfillment of their determination to remove caste and racial distinctions from our law would be for them to effect a revolutionary change in the federal-state relationship. After many drafting experiments, the Committee of Fifteen introduced in Congress the proposed amendment to the Constitution which was to become the Fourteenth Amendment. The broad and comprehensive scope of the bill was clearly set forth by Senator Howard, Chairman of the Judiciary Committee. An appraisal of the Congressional debates during the period the Fourteenth Amendment was being considered show conclusively that in so far as section 1 was concerned, there could be no doubt that it was intended to not only destroy the validity of the existing Black Codes, A M E R I C A N
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but also to deprive the states of power to enact any future legislation which would be based upon class or caste distinctions. It is likewise clear that the Fourteenth Amendment was intended to be even more comprehensive than the scope of the original bill which, subsequently weakened by amendment, became the Civil Rights Act of 1866. Throughout the debates in the 39th Congress and subsequent Congresses, the framers of the Amendment, the Radical Republican majority in Congress, over and over again, made it clear that: (1) future Congresses might in the exercise of their power under section 5 take whatever action they might deem necessary to enforce the Amendment; (2) that one of the purposes of the Amendment was to take away from future Congresses the power to diminish the rights intended to be protected by the Amendment; and (3) they at all times made it clear that the Amendment was meant to be self-executing and that the judiciary would have the authority to enforce the provisions of the Amendment without further implementation by Congress. All of the decisions of this Court, without exception, have recognized this principle. Other Congressional debates, including those on the readmission of certain states, the amnesty bills and other legislation give further evidence of the intent of Congress in regard to the broad scope of the Fourteenth Amendment. The debates in Congress on legislation which was later to become the Civil Rights Act of 1875 made it clear that efforts of states to set up segregated school systems violated the Fourteenth Amendment. These debates were more specific on the question of segregation in public education because some states were already beginning to violate the Fourteenth Amendment by setting up segregated systems. A study of the statements and actions of those responsible for state ratification of the Amendment remove any doubt as to their understanding that the Fourteenth Amendment was intended to prohibit state imposed racial segregation in public schools. After addressing ourselves to questions 1 and 2 propounded by this Court, we find that the evidence not only supports but also compels the conclusions reached in Part One hereof. Wherefore, we respectfully submit, this Court should decide that the constitutional provisions and statutes involved in these cases are in violation of the Fourteenth Amendment and therefore unconstitutional. G A L E
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PART THREE
This portion is directed to questions four and five of the Court’s Order: 4. Assuming it is decided that segregation in public schools violates the Fourteenth Amendment, (a) would a decree necessarily follow providing that, within the limits set by normal geographic school districting, Negro children should forthwith be admitted to schools of their choice, or (b) may this Court, in the exercise of its equity powers, permit an effective gradual adjustment to be brought about from existing segregated systems to a system not based on color distinctions? 5. On the assumption on which questions 4(a) and (b) are based, and assuming further that this Court will exercise its equity powers to the end described in question 4(b), (a) should this Court formulate detailed decrees in these cases; (b) if so what specific issues should the decrees reach; (c) should this Court appoint a special master to hear evidence with a view to recommending specific terms for such decrees; (d) should this Court remand to the courts of first instance with directions to frame decrees in these cases, and if so, what general directions should the decrees of this Court include and what procedures should the courts of first instance follow in arriving at the specific terms of more detailed decrees? I. THIS COURT SHOULD DECLARE INVALID THE CONSTITUTIONAL AND STATUTORY PROVISIONS HERE INVOLVED REQUIRING SEGREGATION IN PUBLIC SCHOOLS. AFTER CAREFUL CONSIDERATION OF ALL OF THE FACTORS INVOLVED IN TRANSITION FROM SEGREGATED SCHOOL SYSTEMS TO UNSEGREGATED SCHOOL SYSTEMS, APPELLANTS KNOW OF NO REASONS OR CONSIDERATIONS WHICH WOULD WARRANT POSTPONEMENT OF THE ENFORCEMENT OF APPELLANTS’ RIGHTS BY THIS COURT IN THE EXERCISE OF ITS EQUITY POWERS.
The questions raised involve consideration of the propriety of postponing relief in these A M E R I C A N
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cases, should the Court declare segregation in public schools impermissible under the Constitution. The basic difficulty presented is in the correlation between a grant of effective relief and temporary postponement. After carefully addressing ourselves to the problem, we find that difficulty insurmountable. A. The Fourteenth Amendment requires that a decree be entered directing that appellants be admitted forthwith to public schools without distinction as to race or color
“It is fundamental that these cases concern rights which are personal and present”. Sweatt v. Painter, 339 U.S. 629, 635; see also Sipuel v. Board of Regents, 332 U.S. 631, 633. These rights are personal because each appellant445 is asserting his individual constitutional right to grow up in our democratic society without the impress of state-imposed racial segregation in the public schools. They are present because they will be irretrievably lost if their enjoyment is put off. The rights of the adult students in the Sipuel, Sweatt, and McLaurin cases required, this Court held, vindication forthwith. A fortiori, this is true of the rights of children to a public education that they must obtain, if at all while they are children. It follows that appellants are entitled to be admitted forthwith to public schools without distinction as to race and color. B. There is no equitable justification for postponement of appellants’ enjoyment of their rights
Even if the Court should decide that enforcement of individual and personal constitutional rights may be postponed, consideration of the relevant factors discloses no equitable basis for delaying enforcement of appellants’ rights. Appellants have no desire to set precise bounds to the reserve discretion of equity. They concede that, as a court of chancery, this Court has power in a proper case to mold its relief to individual circumstances in ways and to an extent which it is now unnecessary to define with entire precision. But the rights established by these appellants are far outside the classes as to which, whether for denial or delay, a “balance of convenience” has been or ought to be struck. These infant appellants are asserting the most important secular claims that can be put As used herein “appellant” includes the respondents in No. 10.
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forward by children, the claim to their full measure of the chance to learn and grow, and the inseparably connected but even more important claim to be treated as entire citizens of the society into which they have been born. We have discovered no case in which such rights, once established, have been postponed by a cautious calculation of conveniences. The nuisance cases, the sewage cases, the cases of the overhanging cornices, need not be distinguished. They distinguish themselves. The Fourteenth Amendment can hardly have been intended for enforcement at a pace geared down to the mores of the very states whose action it was designed to limit. The balance between the customs of the states and the personal rights of these appellants has been struck by that Amendment. “[A] court of equity is not justified in ignoring that pronouncement under the guise of exercising equitable jurisdiction.” Youngstown Co. v. Sawyer, 343 U.S. 579, 610 (concurring opinion). Affirming the decree of one of the few judges still carrying the traditional title and power of Chancellor, the highest Court of Delaware epitomized equity in one of the cases now before this bar when it declared in Gebhart v. Belton, 91 A. 2d 137, 149 that “To require the plaintiffs to wait another year under present conditions would be in effect partially to deny them that to which we have held they are entitled.”
Appellants, in the main, are obliged to speculate as to factors which might be urged to justify postponement of the enforcement of their rights. Hitherto, appellees have offered no justification for any such postponement. Instead they have sought to maintain a position which is, essentially, that a state may continue governmentally enforced racism so long as the state government wills it. In deciding whether sufficient reason exists for postponing the enjoyment of appellants’ rights, this Court is not resolving an issue which depends upon a mere preponderance of the evidence. It needs no citation of authority to establish that the defendant in equity who asks the chancellor to go slow in upholding the vital rights of children accruing to them under the Constitution, must make out an affirmative case of crushing conviction to sustain his plea for delay. The problem of effective gradual adjustment cannot fairly arise in three of the five cases A M E R I C A N
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consolidated for argument. In the Kansas case, there was a frank concession on oral argument that elimination of segregation would not have serious consequences. In Delaware, courtcompelled desegregation in this very case has already been accomplished. The case from the District of Columbia is here on a dismissal of the complaint on motion. In the oral argument the counsel for respondents implied that he foresaw no difficulties in enforcing a decree which would abolish segregation. Surely it would be curious as well as a gratuitous assumption that such a change cannot be expeditiously handled in this nation’s capital. Cf. District of Columbia v. John R. Thompson Co., 346 U.S. 100. We can, however, put out of the case what is not in dispute. We concede that there may well be delays of a purely administrative nature involved in bringing about desegregation. Any injunction requires time for compliance and we do not ask the impossible. We strongly urge, however, that no reason has been suggested and none has been discovered by us that would warrant denying appellants their full rights beyond the beginning of the next school year. But we do not understand that the “effective gradual adjustment” mentioned in this Court’s fourth and fifth questions referred to such conceded necessities. We proceed then, to consider possible grounds that might be put forth as reasons for added delay, or for the postponement of relief to appellants. It has been suggested that desegregation may bring about unemployment for Negro teachers. (Appellees’ Brief in Davis v. County School Board, p. 31; Transcript of Argument in the same case, p. 71) If this is more than a remote possibility, it undoubtedly can be offset by good faith efforts on the part of the responsible school boards.446 On the other hand, if appellees’ suggestion is based upon an unexpressed intention of discriminating against Negro teachers by wholesale firings, it is not even worthy of notice in a court of equity. It has been bruited about that certain of the states involved in this litigation will cease to support and perhaps even abolish their public 446
In view of the nationwide shortage of teachers, it is doubtful that any unemployment would be more than transitory. See e.g., New York Times, August 19, 1953, 31:8 (S. M. Bouthardt puts elementary teachers shortage at 116,000); August 24, 1953, 21:1 (Comm. Thurston and NEA on shortage); 22 J. Neg. Ed. 95 (1953).
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school systems, if segregation is outlawed. (Davis v. County School Board, Transcript of Argument, pp. 69–70; Gebhart v. Belton, Transcript of Argument, p. 17; Briggs v. Eliott, Record on Appeal, p. 113.) We submit that such action is not permissible. Cf. Rice v. Elmore, 165 F. 2d 387 (CA 4th 1947), cert. denied, 333 U.S. 875. Any such reckless threats cannot be relevant to a consideration of effective “gradual adjustment”; they are based upon opposition to desegregation in any way, at any time. Finally, there are hints and forebodings of trouble to come, ranging from hostility and deteriorated relations to actual violence. (Appellees’ brief in Briggs v. Eliott, p. 267; Appellees’ brief in Davis v. County School Board, p. 17.) Obviously this Court will not be deterred by threats of unlawful action. Buchanan v. Warley, 245 U.S. 60, 81. Moreover, there are powerful reasons to confirm the belief that immediate desegregation will not have the untoward consequences anticipated. The states in question are inhabited in the main by law-abiding people who up to now have relied upon what they believe— erroneously, as we have demonstrated—to be the law. It cannot be presumed that they will not obey the law as expounded by this Court. Such evidence as there is lends no support to defendants’ forebodings. Note, Grade School Segregation: The Latest Attack on Racial Discrimination, 61 Yale L. J. 730, 739, 743 (1952). A higher public interest than any yet urged by appellees is the need for the enforcement of constitutional rights fought for and won about a century ago. Public interest requires that racial distinctions proscribed by our Constitution be given the fullest protection. Survival of our country in the present international situation is inevitably tied to resolution of this domestic issue. The greatest strength of our democracy grows out of its people working together as equals. Our public schools are “[d]esigned to serve as perhaps the most powerful agency for promoting cohesion among a heterogeneous democratic people . . . .” Mr. Justice Frankfurter, concurring in Illinois ex rel. McCollum v. Board of Education, 333 U.S. 206, 216–217. C. Appellants are unable, in good faith, to suggest terms for a decree which will secure effective gradual adjustment because no such decree will protect appellants’ rights
Question 5 assumes that the Court, having decided that segregation in public schools A M E R I C A N
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violates the Fourteenth Amendment, will, nevertheless, in the exercise of its equity powers, permit an effective gradual adjustment from segregated schools to systems not operated on the basis of color distinctions. This necessarily assumes further that reasons might be produced to justify consideration of postponement of the enforcement of the present and personal rights here involved. As we have pointed out immediately hereinbefore we are unable to identify any such reason. Appellants obviously are aware of the existence of segregated school systems throughout the South similar to those presently before this Court. Similarly, appellants realize that the thrust of decisions in these cases may appear to present complex problems of adjustment because segregated schools have existed for nearly a century in many areas of this country. Generalizations, however, as to the scope and character of the complexities which might arise from immediate enforcement of appellants’ rights would be unwarranted. This is demonstrated in part by the fact that even in the five cases joined for hearing, there appears to be no uniformity in the extent of the task of adjustment from segregated to non-segregated schools. Necessarily, consideration of the specific issues which decrees should reach on the basis of the assumptions of Question 5 likewise requires the assumption that reasons will be adduced to warrant consideration of postponement of enforcement of appellants’ rights.447 Though no cogent reasons were offered to support them, two suggestions of methods of postponement of relief to appellants were made 447
It follows that there is no need for this Court to appoint a Master. Since repeal in 1948 of the 1805 statute, 28 U.S.C., § 863 (1946), forbidding the introduction of new evidence at an appellate level, there would appear to be no reason why such master could not be appointed. Certainly respected authorities have recommended the practice of appellate courts’ taking evidence. See 1 WIGMORE, EVIDENCE 41 (3d ed., 1940); POUND, APPELLATE PROCEDURE IN CIVIL CASES pp. 303, 387 (1941); Note, 56 HARV. L. REV. 1313 (1943), and in other times and jurisdictions it has been respected practice. See SMITH, APPEALS OF THE PRIVY COUNCIL FROM AMERICAN PLANTATIONS 310 (1950); Rules of the Supreme Court of Judicature, Order 58, Rules 1, 2; cf. New Mexico, Stat. 1949, c. 168, § 19. However, taking of evidence by a Master is undoubtedly a departure from normal practice on appeal and it may result in loss of time to the prejudice of plaintiffs’ rights.
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to this Court in the original brief for the United States. The first of these was “integration on a grade basis,” i.e., to integrate the first grades immediately, and to continue such integration until completed as to all grades in the elementary schools (Brief, pp. 30–31). The second was integration “on a school-by school” basis (Brief, p. 31). The first suggestion is intolerable. It would mean the flat denial of the right of every appellant in these cases. The second plan is likewise impossible to defend because it would mean the deliberate denial of the rights of many of the plaintiffs. If desegregation is possible in some schools in a district, why not in all? Must some appellants’ rights be denied altogether so that others may be more conveniently protected? Whether any given plan for gradual adjustment would be effective would depend on the showing of reasons valid in equity for postponement of enforcement of appellants’ rights. In accordance with instructions of this Court we have addressed ourselves to all of the plans for gradual adjustment which we have been able to find. None would be effective. We recognize that the appellees, as school officials and state officers, might offer reasons for seeking postponement of the effect of decrees in these cases. Therefore, we submit, affirmative answers to questions 4(b) and 5 can come only from appellees since they alone can adduce reasons for postponement of enforcement of appellants’ rights. In the absence of any such reasons the only specific issue which appellants can recommend to the Court that the decrees should reach is the substantive one presented here, namely, that appellees should be required in the future to discharge their obligations as state officers without drawing distinctions based on race and color. Once this is done not only the local communities involved in these several cases, but communities throughout the South, would be left free to work out individual plans for conforming to the then established precedent free from the statutory requirement of rigid racial segregation. In the very nature of the judicial process once a right is judicially declared proposals for postponement of the remedy must originate with the party desiring that postponement. A M E R I C A N
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We submit that it would be customary procedure for the appellees to first produce whatever reasons they might urge to justify postponement of relief. Appellants then would be in a position to advise the Court of their views with respect to the matter.
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ROBERT L. CARTER, JACK GREENBERG, OLIVER W. HILL, THURGOOD MARSHALL, LOUIS L. REDDING, SPOTTSWOOD W. ROBINSON, III,
CONCLUSION
CHARLES S. SCOTT,
Under the applicable decisions of this Court the state constitutional and statutory provisions herein involved are clearly unconstitutional. Moreover, the historical evidence surrounding the adoption, submission and ratification of the Fourteenth Amendment compels the conclusion that it was the intent, understanding and contemplation that the Amendment proscribed all state imposed racial restrictions. The Negro children in these cases are arbitrarily excluded from state public schools set apart for the dominant white groups. Such a practice can only be continued on a theory that Negroes, qua Negroes, are inferior to all other Americans. The constitutional and statutory provisions herein challenged cannot be upheld without a clear determination that Negroes are inferior and, therefore, must be segregated from other human beings. Certainly, such a ruling would destroy the intent and purpose of the Fourteenth Amendment and the very equalitarian basis of our Government. WHEREFORE, it is respectfully submitted that the judgments in cases No. 1, 2 and 4 should be reversed and the judgment in No. 10 should be affirmed on the grounds that the constitutional and statutory provisions involved in each of the cases violate the Fourteenth Amendment.
Attorneys for Appellants in Nos. 1, 2, 4 and for Respondents in No. 10. SUPPLEMENT AN ANALYSIS OF THE POLITICAL, SOCIAL, AND LEGAL THEORIES UNDERLYING THE FOURTEENTH AMENDMENT
The first Section of the Fourteenth Amendment did not spring full blown from the brow of any individual proponent. Primitive natural rights theories and earlier constitutional forms were the origins of its equal protection-due process-privileges and immunities trilogy. The occasion for the metamorphosis of moral premises to full-fledged constitutional status was the attack on the American system of slavery. During the long antislavery crusade, the trilogy became a form of shorthand for, and the spearhead of, the whole of the argument against distinctions and caste based on race. Section One of the Fourteenth Amendment thus marks the “constitutionalization” of an ethico-moral argument. The really decisive shifts occurred before the Civil War, and the synthesis was made, not by lawyers or judges, but by laymen. Doctrines originally worked out and propagated by a dissident minority became, by 1866, the dominant constitutional theory of the country. In both language and form, Section One was the distillation of basic constitutional and legal theories long understood and voiced by leaders in a Congress upon which history had cast both the opportunity and the obligation to amend the Constitution to regulate relationships profoundly altered by the abolition of slavery.1 None can doubt that the thrust of the Amendment was equalitarian and that it was adopted to wipe out the racial inequalities that were the legacies of that system. But beyond this, the majestic generalities of the Section can be
CHARLES L. BLACK JR., ELWOOD H. CHISOLM, WILLIAM T. COLEMAN JR., CHARLES T. DUNCAN, GEORGE E. C. HAYES, WILLIAM R. MING JR., CONSTANCE BAKER MOTLEY, JAMES M. NABRIT JR., DAVID E. PINSKY, FRANK D. REEVES, JOHN SCOTT, JACK B. WEINSTEIN,
1
Graham, The Early Antislavery Backgrounds of the Fourteenth Amendment, 1950 WIS. L. REV. 479–507, 610–661, hereinafter cited Early Antislavery Backgrounds.
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seen to have evolved naturally and logically in the minds of the antislavery generation.2 At the outset we point out that we do not set forth the arguments of pamphleteers, or even of lawyers or congressmen, to justify the validity of their constitutional theories. We do not say that these theories were universally held, or deny that they were vigorously challenged. Nor do we urge that the pre-Civil War Constitution contained the sweeping guarantees that the Abolitionists claimed for Negroes. These are beside our present point. What we do undertake in this section is illumination of the constitutional language—the moral and ethical opinions that were the matrix of the Amendment, the development under terrific counter-pressures of the principal texts and forms, the meaning of “equal protection” and “due process” as understood and contemplated by those who wrote those phrases into the Amendment. 1. The declaration of the “Self-Evident Truths”
The roots of our American equalitarian ideal extend deep into the history of the western world. Philosophers of the seventeenth and eighteenth centuries produced an intellectual climate in which the equality of man was a central concept. Their beliefs rested upon the basic proposition that all men were endowed with certain natural rights, some of which were surrendered under the so-called “social contract.” The state, in return, guaranteed individual rights, and owed protection equally to all men. Thus, governments existed, not to give, 2 Basic monographs and articles on the Fourteenth Amendment and its major clauses are: 2 CROSSKEY, POLITICS AND THE CONSTITUTION IN THE HISTORY OF THE UNITED STATES cc. 31–32 (1953); FLACK, THE ADOPTION OF THE FOURTEENTH AMENDMENT (1908); THE JOURNALS OF THE JOINT COMMITTEE OF FIFTEEN ON RECONSTRUCTION (Kendrick ed. 1914); TENBROEK, THE ANTISLAVERY ORIGINS OF THE FOURTEENTH AMENDMENT (1951) hereinafter cited ANTISLAVERY ORIGINS; WARSOFF, EQUALITY AND THE LAW (1938); Boudin, Truth and Fiction About the Fourteenth Amendment, 16 N. Y. U. L. Q. REV. 19 (1938); Fairman, Does the Fourteenth Amendment Incorporate the Bill of Rights? The Original Understanding, 2 STAN. L. REV. 5 (1949); Frank and Munro, The Original Understanding of “Equal Protection of the Laws,” 50 COL. L. REV. 131 (1950); Graham, The “Conspiracy Theory” of the Fourteenth Amendment, 47 YALE L. J. 371, 48 YALE L. J. 171 (1938); McLaughlin, The Court, The Corporation, and Conkling, 46 AM. HIST. REV. 45 (1940). 3 LOCKE, SECOND TREATISE ON GOVERNMENT c. 2 (1698).(1926); SMITH, AMERICAN PHILOSOPHY OF EQUALITY (1927); WRIGHT, AMERICAN INTERPRETATIONS OF NATURAL LAW (1931); Corwin, The “Higher Law” Background of American Constitutional
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but to protect rights; and allegiance and protection were reciprocal. For his allegiance, the citizen was guaranteed his rights and the equal protection of the law.3 This doctrine was the core of the first great statement of American principles. To Jefferson and the other draftsmen of the Declaration of Independence, it was “self-evident” that “all men are created equal,” and “are endowed by their Creator with certain unalienable Rights,” among which are “Life, Liberty and the pursuit of Happiness,” and that “to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.”4 Abhorrence of arbitrariness—the central element of due process—and the ideal of a general and equal law—the core of equal protection—both were implicit in the LockeanJeffersonian premises. Slavery—with its theories of racial damnation, racial inferiority, and racial discrimination—was inherently repugnant to the American creed and the Christian ethic. This fact was being rapidly and increasingly sensed. As men sensed it, they had to fit it into the only political theory they knew: Governments existed, not to give, but to protect human rights; allegiance and protection were reciprocal—i.e., ought to be reciprocal; rights and duties were correlative—i.e., had to be correlative if Americans ever were to live with their consciences and to justify their declared political faith. Long before the Revolution, Quakers and Puritans attacked slavery as a violation of the social compact and Christian ethic.5 After 1776, Law, 42 HARV. L. REV. 149, 365 (1928); Graham, Early Antislavery Backgrounds, supra note 1, at 610–611; Hamilton. Property According to Locke, 41 YALE L. J. 864 (1932). 4 It is interesting to note in this context that Jefferson’s original draft of the Declaration, accepted by Franklin and Adams, the other members of the sub-committee responsible for the drafting, contained severe strictures on the King because of the slave trade. See BECKER, op. cit. supra note 3, at 212–213. 5 German Quakers of Pennsylvania had argued as early as 1688, “Though they are black, we cannot conceive there is more liberty to have them slaves [than] . . . to have other white ones . . . . We should do to all men like as we will be done ourselves, making no difference of what descent or colour they are . . . . Here is liberty of conscience, which is right and reasonable; here ought to be likewise liberty of body . . . .” MOORE, NOTES ON THE HISTORY OF SLAVERY IN MASSACHUSETTS 75 (1866). In 1700, in his antislavery tract, THE SELLING OF JOSEPH, the great Puritan elder, Judge Samuel Sewall, declared, “All men, as they are . . . Sons of Adam, are co-heirs, and have equal Right unto Liberty.” Id. at 83–87. See also Graham, Early Antislavery Backgrounds, supra note 1, at 614–615.
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Jefferson’s “self-evident truths” put a cutting edge on all such pleas—made them the broadswords in every attack. Idealists demanded that America live up to her Declaration. “All men” must mean all men. “Unalienable Rights . . . of Life, Liberty and the pursuit of Happiness” must be given its full human, not merely a restricted racial, application. Race and color were arbitrary, insubstantial bases for accord or denial of natural, human rights. Sensitive leaders soon found themselves confronted with what Gunnar Myrdal treated recently as An American Dilemma.6 Having pledged their “Lives . . . Fortunes, and sacred Honor” to the causes of liberty and freedom, either Americans endeavored to live up to their creed or stultified themselves before the world. After the Revolution, the “self-evident truths” and the provisions of the state Bills of Rights were employed as weapons against slavery and against racial distinctions.7 Down through the Civil War, moreover, the “selfevident truths” constituted precisely what Jefferson declared them to be—political axioms—except in the South after the invention of the cotton gin.8 They were on every tongue as rhetorical shorthand, and were popularly regarded as the marrow of the Constitution itself. In justifying one revolution, Jefferson no less than Locke had laid the groundwork for another. The dominating premise that governments were instituted for protection and that they derived their just powers from the consent of the governed had begun to make slavery, and with it race distinctions, untenable. What slowly took shape was an ethical interpretation of American origins and destiny.
2. The moral suasion campaign and its rejection
U.S. SUPREME COURT, OCTOBER 1953
The Age of Enlightenment of the seventeenth and eighteenth centuries gave birth to a world-wide antislavery movement. A wave of humanitarianism, embracing quests for abolition of slavery, suffrage for women, and penal, land, and other reforms, swept across the United States of the early nineteenth century. Because of its dramatic qualities, the American anti-slavery movement assumed even larger proportions and eventually overshadowed the other phases.9 Like them, it was based fundamentally on Judeo-Christian ethic and was formulated in terms of equalitarianism and natural rights. The early antislavery movement was a campaign of moral suasion. Rational men appealed to other rational men to square precept with practice. Proponents of equality, who were by that definition opponents of slavery, sought to persuade slaveholders of the error of enslaving other men, i.e., of denying equality to those held as slaves. That campaign bore early fruit in Virginia, in the uplands of the Carolinas, and even in the deeper South. The appeal to the South ultimately broke on the hard rock of economic self-interest after invention of the cotton gin. Geography and migrations tended further to sectionalize the institution. Quakers and ScotchIrish yeomen from Virginia and the Carolinas, unable to arrest spread of a labor system they detested, and others from the deeper South, fled en masse, settling generally in Ohio and Indiana. There they were joined by staunch Puritan and Calvinist stocks from New York and New England. Thus, the antislavery movement became
6
2 vols. (1944). In 1783, Chief Justice Cushing, pointing to the “All men are born free and equal” clause of the Massachusetts Bill of Rights, declared that “ . . . slavery is inconsistent with our conduct and Constitution, and there can be no such thing as perpetual servitude of a rational creature.” MOORE, op. cit. supra note 5, at 209–221. Four years later, Congress passed the Northwest Ordinance outlawing slavery in the territories. 2 THORPE, THE FEDERAL AND STATE CONSTITUTIONS, COLONIAL CHARTERS, AND OTHER ORGANIC LAWS 957–962 (1909). Vermont effected abolition by constitutional clause; other northern states by prospective legislative action. Graham, Early Antislavery Backgrounds, supra note 1, at 617. 8 While early southern leaders in Virginia accepted Jeffersonian concepts of natural rights, contract, and equality, later 7
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leaders and theorists defended the slave society on the basis of Greek concepts. Man had no rights save those created by the state. Men were inherently unequal, and the end of the state was not equality but justice. Each man would have status in accordance with his ability. Such theorists posited the inherent inferiority of the Negro. Their theory was broad enough to justify slavery for any man, irrespective of race or color. See THE PRO-SLAVERY ARGUMENT, AS MAINTAINED BY THE MOST DISTINGUISHED WRITERS OF THE SOUTHERN STATES (1853). See also 1 THE WORKS OF JOHN C. CALHOUN 393–394, 6 id. at 182–183 (Crallé ed. 1854–1855); SPAIN, THE POLITICAL THEORY OF JOHN C. CALHOUN c. 8 (1951). 9 NYE, FETTERED FREEDOM 2, 10–11, 217–218, and passim (1949).
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sectionalized with important centers in Ohio, western New York, and Pennsylvania. Spearheading the movement was the American Anti-Slavery Society, founded in 1833 and headed by the wealthy Tappan brothers. Recruited and led by Theodore Weld,10 a brilliant orator and organizer, and by his co-leader, James G. Birney,11 a converted Alabama slaveholder and lawyer, whole communities were abolitionized in the years 1835– 1837. Appeals were aimed at influential leaders; lawyers in particular were sought out and recruited by the score. This appeal was an ethico-moral-religiousnatural rights argument. It was addressed by the revivalists to their countrymen as patriots, Christians, and “free moral agents.” “The law of nature clearly teaches the natural republican equality of all mankind. Nature revolts at human slavery. . . . The Law of God renders all Natural Rights inalienable. . . . Governments and laws are established, not to give, but to protect . . . rights.”12 Negroes, they continued, were “not naturally inferior.” They simply had been degraded by slavery. They were persons, endowed by God with all the attributes of personality. Their enslavement could no more be justified than could chattelization of men with red hair. Slavery rested on a capricious, discredited classification.13 It simply was institutionalized false imprisonment. White men were protected against enslavement and against 10
See
THOMAS, THEODORE WELD
(1950);
LETTERS OF THEODORE
DWIGHT WELD, ANGELINA GRIMKE WELD AND SARAH GRIMKE,
1822– 1844, 2 vols. (Barnes and Dumond ed. 1934) cited hereinafter as WELD-GRIMKE LETTERS.1830–1844 (1933). Weld was a tireless speaker and pamphleteer who turned out documents that became guide posts in the antislavery movement: SLAVERY AS IT IS (1839); THE POWER OF CONGRESS OVER THE DISTRICT OF COLUMBIA (1838); THE BIBLE AGAINST SLAVERY (1837). Such persons as William Jay, John Quincy Adams and Senator Robert C. Winthrop relied on Weld for legal research. See 2 WELDGRIMKE LETTERS 748, 956–958. The evangelical character of the antislavery movement helps account for the flood of arguments that poured from it. It was even organized on an analogy drawn from early Christian evangelists with its Seventy and its Council of Twelve. 11 See BIRNEY, JAMES G. BIRNEY AND HIS TIMES (1890); LETTERS OF JAMES G. BIRNEY, 1831–1857, 2 vols. (Dumond ed. 1938), referred to hereinafter as BIRNEY LETTERS. 12 OLCOTT, TWO LECTURES ON THE SUBJECT OF SLAVERY AND ABOLITION 24–29 (1838). 13 The idea that race and color were arbitrary, capricious standards on which to base denial of human rights was implicit in all antislavery attacks on discrimination and prejudice. Yet it was when the constitutional-legal attack began to reinforce the religious one that such arguments
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false imprisonment. “What abolitionists demand as naked justice is that the benefit and protection of these just laws be extended to all human beings alike . . . without regard to color or any other physical peculiarities.”14 Racial discrimination, in short, was repugnant both as a breach of equality and as a breach of protection. Because it was a breach of protection, it also was a breach of equality; and because it was a breach of equality, it was thereby an even greater breach of protection. This was the outcome of Americans’ triplebarreled major premise which posited the purpose of all government to be the protection of inalienable rights bestowed upon all men by their Creator. Once that compound premise was granted—and in the generations since 1776 virtually all Americans outside the South had spoken as if they granted it—the abolitionists’ conclusions were unassailable. The heart of it was that these basic ideals of liberty, equality, and protection were deemed to be paramount by reason of their place in the Declaration and determinative by reason of the place of the Declaration in American life and history. The issue had to be resolved within the framework of the constitutional system. Appeals to ethico-moral concepts and to natural rights were good enough to argue as to what ought to be. Reality was something else again. Constitutional reality was that the status of inhabitants of the United States, white or Negro, was fixed by the Constitution. Social reality was that the great mass of Negroes were slaves. Inevitably, then, the first skirmishes as to the rights claimed for Negroes had to be fought out in the case of free Negroes.15 The targets became explicit, and the concept of an arbitrary classification developed. Lawyers like Ellsworth, Goddard, Birney (Philanthropist, Dec. 9, 1836, p. 3, cols. 4–5), Gerrit Smith (see AMERICAN ANTI-SLAVERY SOCIETY, 3 ANNUAL REPORTS 16–17 (1836)) and Salmon P. Chase (SPEECH . . . IN THE CASE OF THE COLORED WOMAN, MATILDA . . . 32 (1837)) helped to formulate the concept and linked it with the principles of equality, affirmative protection, and national citizenship. 14 OLCOTT, op. cit. supra note 12, at 44. 15 For characteristic references to plans for bettering the lot of the free Negro, see 1 WELD-GRIMKE LETTERS, op. cit. supra note 10, at 132–135, 262; AMERICAN ANTI-SLAVERY SOCIETY, 4 ANNUAL REPORTS 32–35, 105–111 (1837). 5 ANNUAL REPORTS 127 (1838). For evidence of how large the condition of the free Negroes, and plans for their betterment, figured in the early A. A. S. S. strategy, see The Condition of Free People of Color in the United States, The Anti-slavery Examiner #13a (1839), apparently written by Judge William Jay, reprinted in his MISCELLANEOUS WORKS 371–395 (1853).
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here were northern black laws—the laws in Ohio and Connecticut; the techniques were persuasion, conversion, and demonstration. It was in the course of this campaign that what presently became the constitutional trinity of the anti-slavery movement received its decisive synthesis. The first comprehensive crystallization of antislavery constitutional theory occurred in 1834 in the arguments of W. W. Ellsworth and Calvin Goddard, two of the outstanding lawyers and statesmen of Connecticut, on the appeal16 of the conviction of Prudence Crandall for violation of an ordinance forbidding the education of non-resident colored persons without the consent of the civil authorities.17 They reveal this theory as based on broad natural rights premises and on an ethical interpretation of American origins and history. Four ideals were central and interrelated: the ideal of human equality, the ideal of a general and equal law, the ideal of reciprocal protection and allegiance, and the ideal of reason and substantiality as the true bases for the necessary discriminations and classifications by government. Race as a standard breached every one of these ideals, as did color. What was attacked was denial of human equality and denial of protection of the laws—denials inherent in any racial discrimination backed by public authority. Slavery was the arch evil in this respect, and the primary one, both because of the magnitude of its denials and deprivations and abridgments, and because these necessarily established a whole pattern of discrimination based upon race and color alone. It was this pattern of public discrimination that was combatted no less than slavery. It had to be combatted because it was deemed a part of slavery. Although neither slavery nor segregated schools was the issue in the case, the 16 17
Crandall v. State, 10 Conn. 339 (1834). REPORT OF THE ARGUMENTS OF COUNSEL IN THE CASE OF
PRUDENCE CRANDALL, PLFF. IN ERROR, VS. STATE OF CONNECTICUT, BEFORE THE SUPREME COURT OF ERRORS, AT THEIR SESSION AT
1834. The arguments are printed in condensed form in the official report, Crandall v. State, supra note 16, at 349–353 (1834).34–51 (1853); STIENER, HISTORY OF SLAVERY IN CONN. 45–52 (1893); VON HOLST, CONSTITUTIONAL HISTORY 1828–1846 98, 99 (1881); McCarron, Trial of Prudence Crandall, 12 CONN. MAG. 225–232 (1908); NYE, op. cit. supra note 9, at 83.
Ellsworth-Goddard argument is one of the classic statements of the social and ethical case for equality of opportunity irrespective of race. It gave immense impetus to the emerging concept of American nationality and citizenship. Fully reported and widely circulated as a tract, it soon became one of the fountainheads of antislavery constitutional theory. It figured prominently in Abolitionist writings throughout the ’thirties. In the spring of 1835, Judge William Jay, Abolitionist son of the first Chief Justice and one of the founders and vice-presidents of the American Anti-Slavery Society, devoted fifteen pages of his Inquiry into the Character and Tendency of the Colonization and AntiSlavery Societies18 to a slashing attack on the trial court’s decision. The due process element of our modern trilogy was introduced in the course of a determined attack made in 1835 by the WeldBirney group upon Ohio’s black laws. Enacted in 1807, these laws embodied prohibitions against Negro immigration, employment, education, and testimony. A report19 prepared at Weld’s direction by a committee of the newly formed Ohio Anti-Slavery Society appealed to the American and Christian conscience. Notwithstanding the affirmative duty of all government to “promote the happiness and secure the rights and liberties of man,” and despite the fact that American government was predicated on the “broad and universal principle of equal and unalienable rights,” these statutes had singled out a “weak and defenseless class of citizens—a class convicted of no crime—no natural inferiority,” and had invidiously demanded their exclusion from “the rights and privileges of citizenship.” This, it was argued, the Constitution forbade. “Our Constitution does not say, All men of a certain color are entitled to certain rights, and are born free and independent . . . . The expression is unlimited . . . . All men are so born, and have the unalienable rights of life and liberty—the pursuit of happiness, and the acquisition and possession of wealth.”
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These were the doctrinal cornerstones.20 They were the heart of the ethico-moralhistorical-natural rights argument which the American Anti-Slavery Society broadcast in the mid- and late-’thirties. They were broadcast particularly throughout Ohio, western New York and Pennsylvania, Rhode Island, and Massachusetts.21 Weld was the director and master strategist; Birney, the forensic quartermaster and attorney general. The “Twelve” and the “Seventy” were the chosen instruments. These were the two dedicated hand-picked groups of trained teachers, ministers, divinity students, self-named after the early Christian Apostles. Their revivals converted thousands before funds ran out and southern antagonism crippled the movement. Numerous anti-slavery newspapers and coordinated pamphlet and petition campaigns were reinforcing media. The trouble, of course, was that northerners were still largely indifferent to or unreached by this program, while the South rejected it almost without a hearing. Coincidence played a great part here. Alarmed lest educated Negroes foment slave insurrections, the South further tightened its controls.22 Fortuitously, the Vesey and Turner uprisings had seemed to offer frightening confirmation of fears in this regard. Meanwhile, cotton profits and politics had begun to rationalize slavery as “a positive good.” The insidious belief spread that the South must 20 It is not implied that these arguments were without antecedents. Earlier (1819–21) in the controversy over Missouri’s admission, the provision in its Constitution prohibiting immigration of free Negroes prompted antislavery arguments based on the republican form of government and comity clauses. See BURGESS, THE MIDDLE PERIOD, 1817–58 c. 4 (1897); MCLAUGHLIN, CONSTITUTIONAL HISTORY OF THE UNITED STATES c. 29 (1935); WILSON, RISE AND FALL OF THE SLAVE POWER cc. 11–12 (1872), especially at 154. Later, the Horton episode, and the protracted controversy over southern seamen’s laws whereunder northern and British free Negro seamen were confined to quarters or jailed while in southern ports, gave further impetus to theories of national or American citizenship. The former was a cause cél;agebre of 1826–1827 involving a statute of the District of Columbia which authorized sale for jail fees of suspected fugitive slaves. Horton, a free Negro of New York, who had been arrested and threatened with sale, was saved by timely aid of Abolitionist friends who capitalized the incident. See JAY, MISCELLANEOUS WRITINGS ON SLAVERY 48, 238–242 (1853); TUCKERMAN, WILLIAM JAY AND THE CONSTITUTIONAL MOVEMENT FOR ABOLITION OF SLAVERY 31–33 (1893); 3 CONG. DEB. 555 (1826). Regarding the seamen’s controversy, see Hamer, Great Britain, the United States and the Negro Seamen Acts, 1822–1848, 1 J. OF SO. HIST. 1–28 (1935); H. R. REP. NO. 80, 27th Cong., 3rd Sess. (1843). Later, in 1844, the Hoar incident occurred, in which Judge Samuel Hoar of
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insulate herself, safeguard her “peculiar institutions,” and remove them even from discussion and criticism.23 In the Pinckney Report of 1836,24 pro-slave theorists sought to implement these convictions. To reinforce Calhoun’s defensive doctrines of concurrent majority and state interposition, and in a determined attempt to protect slavery in the Federal District from possible interference or abolition by Congress under its sweeping powers over the District and territories, Pinckney and his colleagues in the House employed the due process clause of the Fifth Amendment and “the principles of natural justice and of the social compact.”25 3. The political action campaign
A. Systemization Thus, the antislavery campaign was set back, its piecemeal conversion and demonstration program was frustrated at the outset by barriers that held slavery to be a positive good—untouchable even where Congress had full powers over it. Antislavery men were denied the use of the mails. Their antislavery petitions were throttled by Congressional “gags”. They were forced to defend even their own rights to speak and write and proselytize. In consequence, the antislavery leaders had to reorient their whole movement and strategy.26 This reorientation, greatly accelerated by the Pinckney Report, was marked by rapid “constitutionalization” of the higher law argument. Massachusetts, proceeding to Charleston to defend imprisoned Negro seamen, was expelled from South Carolina by legislative resolution. See Hamer, supra, and the elaborate documentation in STATE DOCUMENTS ON FEDERAL RELATIONS: THE STATES AND THE UNITED STATES 237–238 (Ames ed. 1904). The Hoar expulsion and the numerous laws, both North and South, excluding free Negroes and mulattoes, were cited repeatedly in the debates of the ‘fifties and in 1866. See, for example, CONG. GLOBE, 39th Cong., 1st Sess. 475 (1866) (Remarks of Sen. Trumbull). 21 See especially BARNES, op. cit. supra note 10, cc. 2, 3, 4, and WELD-GRIMKE LETTERS and BIRNEY LETTERS, op. cit. supra notes 10, 11. 22 See EATON, FREEDOM OF THOUGHT IN THE OLD SOUTH c. 5 (1940) and statutes there cited; SYDNOR, DEVELOPMENT OF SOUTHERN SECTIONALISM 1819–1848 (1948). 23 See JENKINS, PROSLAVERY THOUGHT IN THE OLD SOUTH (1935); and the histories of Eaton and Sydnor, op. cit. supra note 22; and WILTSIE, JOHN C. CALHOUN, NULLIFIER, 1828–1839 c. 20, esp. 283–286 (1949); cf. Corwin, National Power and State Interposition, 1787–1861, 10 MICH. L. REV. 535 (1912). 24 H. R. REP. NO. 691, 24th Cong., 1st Sess. (1836). 25 Id. at 14. 26 DUMOND, THE ANTISLAVERY ORIGINS OF THE CIVIL WAR (1938); NYE, op. cit. supra note 9.
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There was a shift from an overwhelming faith in moral suasion to a reluctant resort to political action, from efforts to convince Americans of the expediency and justice of freeing their slaves, to a search for constitutional power to free them.27 These tendencies may be traced today in the pages of the Weld-Grimke and Birney Letters, in a vast pamphlet literature, in annual reports of the state and national societies,28 but most satisfactorily in the columns of Birney’s Philanthropist.29 Calhoun and “positive good” theorists had fashioned a constitutional system that promised absolute protection for slavery and ignored the constitutional reference to slaves as “persons,” referring to them whenever possible as “property.” These theorists also employed the “compact” and “compromises” of 1787 as a device that removed slavery from the reach not merely of state and federal legislatures but from adverse discussion and criticism. Birney and his colleagues now formulated a countersystem, one which exalted liberty and exploited the founding fathers’ use of “persons.” Denying all limiting force to the “compact” or “compromises,” this group hailed the spirit of the Declaration, of the Constitution, and American institutions generally. They seized on the leading provisions of the state and federal bills of rights as affirmative guarantees of the freedom of the slaves.30 In his earlier writings,31 Birney’s ethical interpretation of American origins and history was essentially that of the Crandall argument and the Ohio Anti-Slavery Society reports. The natural rights creed of the Declaration, the universality of guarantees of the state bills of rights, the Signers’ and the Fathers’ known aversion to slavery, the “color blindness” of the 27
DUMOND,
op. cit. supra note 26, especially cc. 5–6; T. C.
SMITH, THE LIBERTY AND FREE SOIL PARTIES IN THE NORTHWEST
(1897);
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op. cit. supra note 9. Cf. CRAVEN, THE COMING OF (1943); NEVINS, ORDEAL OF THE UNION (1947). Read straight through, the six ANNUAL PROC. AND REP. OF AMERICAN ANTISLAVERY SOCIETY (1833–1839) and the five ANNIVERSARY PROC. OF THE OHIO ANTISLAVERY SOCIETY (1836– 1840) reveal the shift from confident evangelism to determined self-defense and political action. Not until after the Pinckney Report (supra note 24), the “Gags” denying antislavery petitions, and the refusal of the South to countenance discussion of the issue, does one find serious interest in political movements and tactics. The THIRD ANNUAL REPORT OF THE A. A. S. S. (May 10, 1836) signed by Elizur Wright is thus the turning point and a catalog of the THE CIVIL WAR 28
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Articles of Confederation, the outright prohibition of slavery in the territories by the Northwest Ordinance, and above all, the silence, the euphemisms, the circumlocutions of the Constitution—these were the recurrent and expanding points. Not merely slavery, but all public race discrimination was ethically and morally wrong. It was so because it was a denial of the rights and protections that governments were established to secure. After the Pinckney Report, however, and especially after the growing mob action against Abolitionists began to make it clear that state bills of rights were not self-executing but rested on local enforcement, Birney reexamined his position. Everywhere there was this anomaly: the great natural and fundamental rights of conscience, inquiry and communication, secured on paper in every constitution, nevertheless were denied and abridged daily for want of sanctions. All men by nature “possessed” these indispensable rights; all constitutions “declared” and “secured” them. It was the bounden duty of all governments “created for the purposes of protection” to safeguard and enforce them. Yet the hard fact was that state and local governments were flagrantly, increasingly derelict. Nothing, southerners argued, could be done about it. Challenged in this manner, Birney and his aides shifted their ground. They advanced from the old position that the Federal Constitution was neutral—“or at least not pro-slavery”—to the stand that the document was antislavery. Constitutionalization of the natural rights argument proceeded at a much more rapid pace. No longer was the fight waged merely defensively in behalf of the right to proselytize, or counter-defensively to support sweeping Federal powers over the District and territories; factors that had reoriented opinion. By the SIXTH ANNUAL (1839), the “imperative necessity of political action” caused Wright to devote much of his space to convincing the still hesitant and divided membership. 29 Birney’s career as an editor can be followed in the BIRNEY LETTERS, op. cit. supra note 11 (see index entries “Philanthropist”), and in his pamphlet NARRATIVE OF THE LATE RIOTOUS PROCEEDINGS AGAINST THE LIBERTY OF THE PRESS IN CINCINNATI (1836). 30 Sometimes Abolitionists, in desperation, appealed to a higher law beyond the Constitution, but this was not a consistent argument or one possible within the legal framework. 31 BIRNEY LETTERS, op. cit. supra note 11. For a fuller and documented summary, see Graham, Early Antislavery Backgrounds, supra note 1, at 638–650. REPORT OF THE A. A. S. S.
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more and more the antislavery forces took the offensive against slavery itself.32 Thus, by December 1836, the Abolitionists’ argument was recrystallizing around three major propositions: First, the great natural and fundamental rights of life, liberty, and property, long deemed inherent and inalienable, were now held to be secured by both state and national constitutions. Second, notwithstanding this double security, and in disregard of the obligation of governments to extend protection in return for allegiance, these rights were being violated with impunity both on national soil and in the states, (a) by the fact of slavery itself, (b) by mob action directed against those working for abolition, (c) by flagrant discriminations against free Negroes and mulattoes. Third, race and color—“grades and shades”—whenever and wherever employed as criteria and determinants of fundamental rights, violated both the letter and spirit of American institutions; race per se was not only an ignoble standard; it was an irrational and unsubstantial one. The problems of implementing this theory, Birney worked out in several series of articles during 1837. Rescrutinizing the document, he began to make the same rigorous use of the Federal Bill of Rights that previously he and others had made of Ohio’s. Ultimately, he focused on the due process clause employed in Pinckney’s Report:33 “The Constitution contains provisions which, if literally carried out, would extinguish the entire system of slavery. It guarantees to every state in the union a republican form of government, Art. IV, Sec. 4th. A majority of the people of South Carolina are slaves; can she be said properly to have a republican form of government? It says, that ‘the right of the people to be secure in their persons, houses, papers and effects . . . against unreasonable searches and seizures, shall not be violated.’ Slaves, Sir, are men, constitute a portion of the people: Is that no ‘unreasonable 32
See Graham, Early Antislavery Backgrounds, supra note 1, at 650–653. 33 Philanthropist, Jan. 13, 1837, p. 2. Birney continued his “Reply to Judge L” in the Jan. 20 and 27, 1837 numbers, and in the former demonstrated his forensic powers by brilliant caricature of the South’s efforts to suppress discussion of slavery.
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seizure,’ by which the man is deprived of all his earnings [effects?]—by which in fact he is robbed of his own person? Is the perpetual privation of liberty ‘no unreasonable seizure’? Suppose this provision of the Constitution were literally and universally enforced; how long would it be before there would not be a single slave to mar the prospect of American liberty? Again, ‘no person shall be held to answer for a capital or otherwise infamous crime unless on the presentment or indictment of a grand jury, except in cases arising in the land or naval forces, [sic] nor shall any person be compelled in any case to witness against himself; nor be deprived of life, liberty or property without due process of law.’ Art. V Amendments. “Are slaves ever honored with indictment by a grand jury? Are they never compelled ‘to witness against themselves’? never tortured until they lie against their own lives? never deprived of life without ‘due process of law’? By what ‘due process of law’ is it, that two millions of ‘persons’ are deprived every year of the millions of dollars produced by their labor? By what due process of law is it that 56,000 ‘persons,’ the annual increase of the slave population, are annually deprived of their ‘liberty’? Such questions may seem impertinent, to Mr. L., but when he shall feel that the slave is a ‘person,’ in very deed, and has rights, as inalienable as his own, he will acknowledge their propriety. Again ‘In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury . . . 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.’ Art. VI of the Amendments. Take all the above provisions in connection with that clause under Art. VI, which declares that ‘This Constitution and the laws of the United States which shall be made in pursuance thereof’ etc., ‘shall be the supreme law of the land, and the judges in every state shall be bound thereby, anything in the Constitution or laws of any state to the contrary notwithstanding’—and then carry them out to their full extent, and how long would it be ere slavery would be utterly prostrated? I do not say they were inserted with a specific view toward this end, but I do say, that so long as they shall stand, the Constitution of these U[nited] States will be a perpetual rebuke to the selfishness and injustice of the whole policy of the slaveholder. The provisions embody principles which are at entire A M E R I C A N
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enmity with the spirit and practice of slavery. How an instrument, containing such principles, can be tortured to express a sanction to slavery, I am yet to learn.”34
Reassimilation of the old theory into the Bill of Rights now proceeded rapidly.35 The various clauses restraining the powers of Congress began to be popularly regarded as sources of Congressional power. The initial premise in this regard was that the provisions of the Bill of Rights were not rights, they were guarantees, and guarantees customarily presumed the intent and capacity, as well as the duty, to make them good.36 An open letter37 to his Congressman from an unnamed Abolitionist in Batavia38 reveals the hold and spread and reach of these ideas: “The very Constitution of the United States is attempted to be distorted and made an ally of domestic slavery. That Constitution was established, not by the citizens or voters, but by ‘the people’ of the United States to secure the blessings of liberty and establish justice. The Union . . . was formed for the same great purposes, . . . yet we have been told that petitioning for liberty endangers this Union, that the partnership will be dissolved by extending to all the very right it was intended to secure.
“Slavery in the District of Columbia violates the most important and sacred principles of the Constitution. . . . I speak not of the mere letter, but of the principles . . . —of the rights it guarantees, of the form, in which the guarantee is expressed. The 5th Amendment declares ‘no person shall be deprived of life, liberty or property without due process of law.’ This petition informs you free men in the District . . . have been first imprisoned, and then sold for their jail fees. [Suppose, he 34
Ibid. Resolutions and petitions still were the chief media in evolving this system of constitutional shorthand. Similarity of the revivalists’ lectures from place to place, their widespread circulation of the Philanthropist and printed tracts, Birney’s own speaking tours, all contributed to resulting stereotypes. 36 For a striking statement of this theory in 1866 see CONG. GLOBE, 39th Cong., 1st Sess. 1270 (Rep. Thayer, later a distinguished Philadelphia judge). 37 Graham, Early Antislavery Backgrounds, supra note 1, at 655. 38 Perhaps John Joliffe, a local antislavery lawyer, who was a close friend of Birney. See Graham, Early Antislavery Backgrounds, supra note 1, at 655, n. 256. 35
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continued, this had happened to American seamen in a foreign port.] Would not Congress upon petition enquire into the fact and redress the wrong if it existed? Would not you, Sir, be one of the foremost in repelling the insult to our seamen and punishing the aggressor? Would you not consider it your duty—your official duty to do so? And yet you have no power to discriminate in the object of your protection—a colored sailor is entitled to the protection of his country’s laws, and Constitution, and flag, and honor, as well as a white one,—he is as much entitled to that protection in Washington city beneath the flag of his country and while he reposes under the tower of the Capitol as he is at Qualla Balloo or Halifax, or anywhere on the face of the earth. And all should be protected with equal and exact justice, whether sailors or laborers—citizens or soldiers: if so, you are bound to enquire into the alleged abuses, and if they exist to redress them.” Thus, by October, 1837, the date of Birney’s retirement as editor of the Philanthropist, the motivating premise of Abolitionism already was coming to be this: Americans’ basic civil rights were truly national, but in practice their basic civil liberty was not. By acts in support and in toleration of slavery and by failure to protect the friends of the enslaved race, the states and the federal government all abridged, and all allowed to be abridged, the dearest privileges and immunities of citizenship. Humanitarianism had attempted to soften race prejudice and meet this challenge squarely but had been frustrated. Failure left no alternative but political action and the instinctive answer that government had the power to do what the governed had the job to do. The answer to denied power and to defective power was the concept of an inherent power derived from the standing duty to protect. The gist of it was that because allegiance and protection were reciprocal—i.e., ought to be reciprocal—because the government protected its citizens abroad without discrimination, and because the text of the Federal Bill of Rights gave no warrant for discrimination, Congress was duty bound not to discriminate. It must do “equal and exact justice” irrespective of race. It had no other choice. It lacked power to discriminate between those persons who were equally entitled to protection. It was duty bound also to remove such discrimination as existed. Implicitly, and morally, these same obligations rested on the states; yet respect for the constitutional division A M E R I C A N
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of power here introduced conflict. Few were yet ready for the extreme proposition that Congress might constitutionally abolish slavery in the states. The original form, as shown by the Batavian communication, was more often that Congress was duty bound to hear petitions to abolish slavery, or that slavery had been abolished in federal territory by the force of the Preamble and Declaration. Because the great natural rights were now also national constitutional rights, they began to generate and carry with them—even into the states—the power for their enforcement.
moral agents” committed to the spread of doctrine that had immense intrinsic appeal.
B. Popularization
After that date even stronger forces enter the picture. First, were the compilers and synthesizers—pamphleteers and journalists like Tiffany45 and Goodell46 and Mellen47 who wrote the articles and treatises on the “Unconstitutionality of Slavery” which Dr. tenBroek analyzes so well.48 Others annotated copies of Our National Charters49 setting down after each clause or phrase of the Constitution and the Declaration (much as Birney had done in his early articles) antislavery arguments and doctrines gleaned “both from reason and authority.” Such materials, broadcast by the thousand, reprinted, condensed and paraphrased, were themselves powerful disseminators.
Four routes and media of political action “constitutionalizing” the anti-slavery argument are to be noted. First were the countless petitions, resolutions, declarations, letters, editorials, speeches, and sermons broadcast by the original antislavery proponents and converts—uniformly men and women of influence and position whose idealism was extraordinary and undoubted. One has to read only the Weld-Grimke and the Birney39 Letters, or the monographs of Barnes,40 Dumond41 and Nye42—and Nevins’s great history43—to realize the appeal of these peoples’ character and of their example and argument. Moreover, many of them were southerners, and of the proudest type who practiced what they preached—Birney alone freeing slaves to the value of thousands of dollars,44 and the Grimke sisters doing likewise with those they inherited. Every antislavery society was a band of disciples, workers, petitioners, writers, and “free 39
The legal and constitutional argument in the BIRNEY LETTERS is remarkable both in range and interest. Note especially the due process arguments at 293, 647, 805–806, 835; the declaration that colored people are “citizens” at 815, and “persons” at 658 and 835; the exceptionally strong references to “natural equality of men” at 272; the composite synthesis of all these elements in the Declaration of 1848 drafted by William Goodell at 1048–1057; the various references to major law cases at 386–387 (Nancy Jackson v. Bulloch, 12 Conn. 38 (1837)), at page 658, 667– 670 (Birney’s arguments in The Creole, 2 Moore, Digest of International Law 358–361 (1906), for which Weld did much of the research), at 758 (Jones v. Van Zandt, 46 U.S. 215 (1846) in which Salmon P. Chase was of counsel). By contrast, the legal argument in the WELD-GRIMKE LETTERS is more limited, but see page 798 for the letter of Ebenezer Chaplin, an Athol, Massachusetts physician, to Weld, dated October 1, 1839, urging greater emphasis on the unconstitutionality of slavery and less on its cruelties, and specifically
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In consequence, simply as an incident of the intense revival campaigns, the equal protectiondue process-privileges and immunities theory became the core of thousands of abolitionist petitions, resolutions, and lectures. Now one, now another of the elements was accented, depending on the need and circumstances, but in an astonishing number of cases two or three parts of the trilogy were used. The whole thus became, even before 1840, a form of popular constitutional shorthand.
It was the minority party platform that gave antislavery theory its most concise, effective statement. Drafted generally by Salmon P. Chase or Joshua R. Giddings, these documents, first of the Liberty and Free Soil parties in the ‘forties, then of the Free Democracy and Republican parties in the ‘fifties, and in 1860, all made use, in slightly varying combination, of mentioning the Declaration of Independence, the common law, the Ordinance of 1787, the Preamble, and the due process clause of the Fifth Amendment. 40 Op. cit. supra note 10. 41 Op. cit. supra note 26. 42 Op. cit. supra note 9. 43 THE ORDEAL OF THE UNION, 2 vols. (1947). 44 1 BIRNEY LETTERS, op. cit. supra note 11, at 52, 494, 498, 500–501. 45 TIFFANY, A TREATISE ON THE UNCONSTITUTIONALITY OF AMERICAN SLAVERY (1849). 46 GOODELL, VIEWS OF AMERICAN CONSTITUTIONAL LAW IN ITS BEARING UPON AMERICAN SLAVERY (1844). 47 MELLEN, AN ARGUMENT ON THE UNCONSTITUTIONALITY OF SLAVERY . . . (1841). 48 TENBROEK, ANTISLAVERY ORIGINS, op. cit. supra note 2, c. 3 and pp. 86–91. 49 (Goodell ed. 1863).
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“4. That the Constitution of the United States, ordained to form a more perfect Union, to establish justice, and secure the blessings of liberty, expressly denies to the general government all power to deprive any person of life, liberty, or property without due process of law; and, therefore, the government, having no more power to make a slave than to make a king, and no more power to establish slavery than to establish a monarchy, should at once proceed to relieve itself from all responsibility for the existence of slavery wherever it possesses constitutional power to legislate for its extinction.”52
the cardinal articles of faith: human equality, protection, and equal protection from the Declaration, and due process both as a restraint and a source of congressional power. Such consistent repetition testifies both to the nature and extent of previous distillations and to the power and significance of current ones: 1. Liberty Party Platform (adopted in 1843 for the 1844 campaign): “Resolved, That the fundamental truth of the Declaration of Independence, that all men are endowed by their Creator with certain unalienable rights, among which are life, liberty, and the pursuit of happiness, was made the fundamental law of our national government by that amendment of the Constitution which declares that no person shall be deprived of life, liberty, or property without due process of law.”50
5. Republican Party Platform, 1860:
3. Free Democracy Platform, 1852:
“8. That the normal condition of all the territory of the United States is that of freedom; that as our republican fathers, when they had abolished slavery in all our national territory, ordained that no person should be deprived of life, liberty, or property without due process of law, it becomes our duty, by legislation whenever such legislation is necessary, to maintain this provision of the Constitution against all attempts to violate it; and we deny the authority of Congress, of a
“1. That governments deriving their just powers from the consent of the governed are instituted among men to secure to all those unalienable rights of life, liberty, and the pursuit of happiness with which they are endowed by their Creator, and of which none can be deprived by valid legislation, except for crime.
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“Resolved, That with our republican fathers we hold it be a self-evident truth, that all men are endowed with the unalienable rights to life, liberty, and the pursuit of happiness, and that the primary object and ulterior designs of our federal government were to secure these rights to all persons within its exclusive jurisdiction; that, as our republican fathers, when they had abolished slavery in all our national territory, ordained that no person should be deprived of life, liberty, or property without due process of law, it becomes our duty to maintain this provision of the Constitution against all attempts to violate it for the purpose of establishing slavery in any Territory of the United States, by positive legislation prohibiting its existence or extension therein; that we deny the authority of Congress, of a territorial legislature, of any individual or association of individuals, to give legal existence to slavery in any Territory of the United States, while the present Constitution shall be maintained.”53
“Resolved, That our fathers ordained the Constitution of the United States in order, among other great national objects, to establish justice, promote the general welfare, and secure the blessings of liberty, but expressly denied to the federal government, which they created, all constitutional power to deprive any person of life, liberty, or property without due legal process. “Resolved, that, in the judgment of this convention, Congress has no more power to make a slave than to make a king; no more power to institute or establish slavery than to institute or establish a monarchy. No such power can be found among those specifically conferred by the Constitution, or derived by any just implication from them.”51
The full platform is in STANWOOD, HISTORY OF THE PRESIDENCY 216–220 (1904). In addition to the plank quoted, it contains numerous references to “equality of the rights among men,” “the principle of equal rights with all its practical consequences and applications,” the “higher law” and “moral law,” and the sacredness of rights of speech, press and petition. 51 Id. at 240. This platform was drafted by Salmon P. Chase. See SMITH, THE LIBERTY AND FREE SOIL PARTIES IN THE NORTHWEST 140 (1897).
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4. Republican Party Platform, 1856:
2. Free Soil Party Platform, 1848:
52
STANWOOD, op. cit. supra note 50, 253–254. This platform was drafted by Salmon P. Chase (see WARDEN, LIFE OF CHASE 338 (1874)) and Joshua R. Giddings (see SMITH, op. cit. supra note 51, 247–248). 53 STANWOOD, op. cit. supra note 50, at 271. This platform was drafted by Joshua R. Giddings. JULIAN, THE LIFE OF JOSHUA R. GIDDINGS 335–336 (1892).
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territorial legislature, or of any individual, to give legal existence to slavery in any Territory of the United States. “14. That the Republican party is opposed to any change in our naturalization laws, or any state legislation by which the rights of citizenship hitherto accorded to immigrants from foreign lands shall be abridged or impaired; and in favor of giving a full and efficient protection to the rights of all classes of citizens, whether native or naturalized, both at home and abroad.”54
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True, these were party platforms, but these were the platforms of parties to which leaders in the Congress that would frame the Fourteenth Amendment had given their allegiance.55 Many Congressmen whose names later loomed large in the formulation of and debates on the Thirteenth and Fourteenth Amendments and the Civil Rights Acts were men of anti-slavery backgrounds56 which, it will be recalled, had sought out community leaders, particularly lawyers.57 Even in the ‘forties, antislavery Whigs, Liberty Party-Free Soilers, and later, members of the Free Democracy, converted by the Weld-Birney group, began to enter Congressmen like Joshua R. Giddings,58 E. S. Hamlin,59 the Wade brothers,60 Horace Mann,61 Philomen Bliss,62 A. P. Granger,63 Thaddeus Stevens,64 Gerrit Smith,65 William Lawrence,66 James M. Ashley67 (who introduced the Thirteenth Amendment in the House), Samuel 54
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op. cit. supra note 50, at 293. See infra pp. 27–36, and notes 56–69. 56 Among them the following members of the Joint Committee on Reconstruction: George H. Williams, Oregon; Henry W. Grimes, Iowa; William Pitt Fessenden, Maine; Henry T. Blow, Missouri; John A. Bingham, Ohio; George S. Boutwell, Massachusetts; Justin S. Morrill, Vermont; Roscoe Conkling, New York; Elihu B. Washburne, Illinois; and Thaddeus Stevens, Pennsylvania. Two others, Jacob M. Howard of Michigan and Ira Harris of New York, invariably voted with the so-called Radicals. See KENDRICK op. cit. supra note 2, at 155–195. 57 Among Weld’s converts were Reps. Edward Wade, and Philemon Bliss, and John H. Paine, Liberty Party leader. See 1 WELD-GRIMKE LETTERS, op. cit. supra note 10, at 236–240. 58 1795–1864; represented Ohio’s Ashtabula and Jefferson Counties (Western Reserve) in House, 25th–34th Congresses, 1838–1859; with John Quincy Adams one of the original antislavery leaders in the House. 7 DICT. AM. BIOG. 260 (1931). 59 1808–1894; represented Lorain County district in 28th Cong. 1844–45; one of the political lieutenants of Salmon P. Chase in the ‘fifties. See 2 BIRNEY LETTERS, op. cit. supra note 11, at 1025. 55
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Galloway68 (a former member of the “Seventy”) and John A. Bingham.69 All were either associates, converts, or disciples of the Weld-Birney group; and after 1854, all were Republicans. In addition to the western group of antislavery leaders, there was an equally strong and determined group with its focus in New England. From this group emerged Charles Sumner, Wendell Phillips, and Henry Wilson. Sumner later became one of the most intransigent leaders of the Republican party during and after the Civil War.70 Wilson was also in Congress during the Reconstruction period; and became Vice-President and voted with the Radicals on important tie votes.71 Other New Englanders who served in Congress, and were members of the Joint Committee on Reconstruction, include William Pitt Fessenden of Maine, Justin Morrill of Vermont, and George S. Boutwell of Massachusetts.72 Because Bingham is known to have drafted Sections One and Five of the Fourteenth Amendment, his speeches are of special interest. From 1855–63 and from 1865–73, he represented the Twenty-first Ohio District, which included the Cadiz-Mt. Pleasant Quaker settlements, antislavery strongholds. Furthermore, as a youth he had attended Franklin College at New Athens in 1837–38. At that date Franklin was second only to Oberlin as an antislavery stronghold;73 the Weld-Birney crusade was at its 60 Edward Wade, 1803–1862, elected as a Free Soiler from Cleveland, 1853–55, and as a Republican, 1855–61 Ben Wade, 1800–1878, law partner of Giddings, and Radical Senator, 1851–1869. See 2 BIRNEY LETTERS, op. cit. supra note 11, at 710. 19 DICT. AM. BIOG. 303 (1936). 61 1796–1859; one of the organizers of the American public school system; elected as a Whig to succeed J. Q. Adams, Mass. district; reelected as Free Soiler, served 1848–53; President, Antioch College, 1852–59. 12 DICT. AM. BIOG. 240 (1933). 62 1813–1889; Ohio Circuit Judge, 1848–51; elected as a Republican from Elyria-Oberlin district, Ohio, served 1855– 59; Chief Justice of Dakota Territory, 1861; Assoc. Justice Missouri Supreme Court, 1868–72; Dean of Univ. of Missouri Law School, 1872–1889. 2 DICT. AM. BIOG. 374 (1929). 63 1789–1866; antislavery Whig from Syracuse, N.Y.; served 1855–59. BIOG. DIR. AM. CONG., H. R. DOC. NO. 607, 81st Cong., 2d Sess. 1229 (1950). 64 1792–1868; elected as a Whig from Lancaster, Pa. district, 1849–53; as a Republican, 1859–68; Radical Republican leader in the House. 17 DICT. AM. BIOG. 620 (1935). 65 1797–1874; elected from Peterboro, N.Y. district, one of the regions converted by Weld; served 1853–1854, resigned. 17 DICT. AM. BIOG. 270 (1935). 66 1819–1899; grad. Franklin College, New Athens, Ohio, 1838; Cincinnati Law School, 1840; Supreme Court
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height. Indeed, in Birney’s Philanthropist, 1836–37, we find various anti-slavery petitions and resolutions from the Cadiz and Mt. Pleasant societies.74 These are couched in the very phraseology for which Bingham in 1856– 66 manifested his decisive preference. Four of Bingham’s speeches are of particular significance: I. In his maiden speech in the House, March 6, 1856, attacking laws recently passed by the Kansas pro-slavery legislature which declared it a felony even to agitate against slavery, Bingham argued: “These infamous statutes . . . [contravene] the Constitution of the United States. . . . [A]ny territorial enactment which makes it a felony for a citizen of the United States, within the territory of the United States ‘to know, to argue and to utter freely’, according to conscience is absolutely void. . . . [A] felony to utter there, in the hearing of a slave, upon American soil, beneath the American flag . . . the words of the Declaration ‘All men are born free and equal, and endowed by their Creator with the inalienable rights of life and liberty;’ . . . [A] felony to utter . . . those other words. . . . ‘We, the people of the United States, in order to establish justice,’ the attribute of God, and ‘to secure liberty,’ the imperishable right of man, do ‘ordain this Constitution’. . . . It is too late to make it a felony to utter the selfevident truth that life and liberty belong of right to every man. . . . This pretended legislation . . . violates the Constitution in this—that it abridges the freedom of speech and of the press, and deprives persons of liberty without due process of law, or any process but that of brute force, while the Constitution provides that Congress shall Reporter, 1851; Judge, 1857–64; elected as a Republican, served 1865–71, 1873–77. 11 DICT. AM. BIOG. 52 (1933). 67 1824–1896; elected as a Republican from Scioto County, 1859–69. See 1 WELD-GRIMKE LETTERS, op. cit. supra note 10, at 333. 1 DICT. AM. BIOG. 389 (1928). 68 1811–1872, elected as a Republican from Columbus, 1855–57. See WELD-GRIMKE LETTERS, op. cit. supra note 10, at 228. 69 For eight terms (1855–63, 1865–73) Bingham represented the 21st Ohio District, composed of Harrison, Jefferson, Carroll and Columbiana Counties, including the Quaker settlements along Short Creek and the Ohio. See 3 BRENNAN, BIOGRAPHICAL ENCYCLOPEDIA . . . OF OHIO 691 (1884). 70 18 DICT. AM. BIOG. 208 (1936). 71 20 DICT. AM. BIOG. 322 (1936). 72 Fessenden was the son of General Samuel Fessenden, the leading Abolitionist of Maine, who was one of the national
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make no law abridging the freedom of speech or of the press; and it expressly prescribes that ‘no person shall be deprived of life, liberty, or property without due process of law.”75
II. On January 13, 1857, Bingham spoke in support of Congress’ power over slavery in the territory and attacked President Buchanan’s recent defense of the Kansas-Nebraska Act of 1854 repealing the Missouri Compromise. After a long analysis of the provisions of the Federal Bill of Rights, of the Northwest Ordinance, the enabling acts and constitutions of the states carved from the Ohio Territory—emphasizing especially the Federal due process clause and the “all men are born equally free and independent” clauses of the state constitution, he said: “The Constitution is based upon EQUALITY of the human race. . . . A State formed under the Constitution and pursuant to its spirit, must rest upon this great principle of EQUALITY. Its primal object must be to protect each human being within its jurisdiction in the free and full enjoyment of his natural rights . . . . “It must be apparent that the absolute equality of all, and the equal protection of each, are principles of our Constitution, which ought to be observed and enforced in the organization and admission of new States. The Constitution provides . . . that no person shall be deprived of life, liberty, or property, without due process of law. It makes no distinction either on account of complexion or birth—it secures these rights to all persons within its exclusive jurisdiction. This is equality. It protects not only life and liberty, but also property, the product of labor. It contemplates that no man shall be wrongfully deprived of the fruit of his toil any more than of his life.”76 vice-presidents of the American Anti-Slavery Society, 6 DICT. AM. BIOG. 348 (1931); on Morrill, see 13 DICT. AM. BIOG. 198 (1934); on Boutwell, see 2 DICT. AM. BIOG. 489 (1929). 73 See Graham, Early Antislavery Backgrounds, op. cit. supra note 1, at 624, n. 150. 74 For an example see Philanthropist, Mar. 10, 1837, p. 3, col. 4. 75 CONG. GLOBE, 34th Cong., 1st Sess. app. 124 (1856). Three other antislavery Republicans representing constituencies converted in the Weld-Birney crusade also used all the old rhetoric and theory including due process: Rep. Granger (N. Y.) id. at 295–296; Reps. Edward Wade (id. at 1076–1081) and Philemon Bliss (id. at 553–557), both Ohioans and among Weld’s early converts. See also the speech of Rep. Schuyler Colfax (Ind.), id. at 644. 76 CONG. GLOBE, 34th Cong., 3rd Sess. app. 135–140 (1857).
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III. On January 25, 1858, attacking “The Lecompton Conspiracy”—the proposed proslave constitution of Kansas declaring that only “All freemen, when they form a compact, are equal in rights,”—and absolutely barring free Negroes from the state, Bingham declared: “The [Federal] Constitution . . . declares upon its face that no person, whether white or black, shall be deprived of life, liberty, or property, but by due process of law; and that it was ordained by the people to establish justice! . . . [By sanctioning these provisions] we are asked to say, that the self-evident truth of the Declaration, ‘that ALL MEN ARE CREATED EQUAL’ is a self-evident lie. . . . We are to say . . . to certain human beings in the Territory of Kansas, though you were born in this Territory, and born of free parents, though you are human beings, and no chattel, yet you are not free to live here . . . ; you must be disseized of your freehold liberties and privileges, without the judgment of your peers and without the protection of law. Though born here, you shall not, under any circumstances, be permitted to live here.”77
IV. On February 11, 1859, Bingham attacked the admission of Oregon because its constitution forbade immigration of free Negroes and contained other discriminations against them: “[T]his constitution . . . is repugnant to the Federal Constitution, and violative of the rights of citizens of the United States . . . . “Who are citizens of the United States? They are those, and those only, who owe allegiance to the Government of the United States; not the base allegiance imposed upon the Saxon by the Conqueror . . . ; but the allegiance which requires the citizen not only to obey, but to support and defend, if need be with his life, the Constitution of his country. All free persons born and domiciled within the jurisdiction of the United States; all aliens by act of naturalization, under the laws of the United States.”
“The people of the several States”, who according to the Constitution are to choose the representatives in Congress, and to whom political powers were reserved by the Tenth Amendment, were to Bingham “the same community, or body politic, called by the Preamble . . . ‘the people of the United States’”. Moreover, certain “distinctive political rights”—for example the right to choose representatives and officers of the United States,
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to hold such offices, etc.—were conferred only on “citizens of the United States.” “ . . . I invite attention to the significant fact that natural or inherent rights, which belong to all men irrespective of all conventional regulations, are by this Constitution guaranteed by the broad and comprehensive word ‘person,’ as contradistinguished from the limited term citizen—as in the fifth article of amendments, guarding those sacred rights which are as universal and indestructible as the human race, that ‘no person shall be deprived of life, liberty, or property, but by due process of law, nor shall private property be taken without just compensation.’ And this guarantee applies to all citizens within the United States.”
Against infringement of “these wise and beneficent guarantees of political rights to the citizens of the United States as such, and of natural rights to all persons, whether citizens or strangers,” stood the supremacy clause. “There, sir, is the limitation upon State sovereignty—simple, clear, and strong. No State may rightfully, by Constitution or statute law, impair any of these guarantied rights, either political or natural. They may not rightfully or lawfully declare that the strong citizens may deprive the weak citizens of their rights, natural or political. . . . “ . . . This provision [excluding free Negroes and mulattoes] seems to me . . . injustice and oppression incarnate. This provision, sir, excludes from the State of Oregon eight hundred thousand of the native-born citizens of the other States, who are, therefore, citizens of the United States. I grant you that a State may restrict the exercise of the elective franchise to certain classes of citizens of the United States, to the exclusion of others; but I deny that any State may exclude a law abiding citizen of the United States from coming within its territory, or abiding therein, or acquiring and enjoying property therein, or from the enjoyment therein of the ‘privileges and immunities’ of a citizen of the United States. What says the Constitution: “ ‘The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States. Art. 4, Section 2.’ “Here is no qualification. . . . The citizens of each State, all the citizens of each State, being citizens of the United States, shall be entitled to ‘all privileges and immunities of citizens of the several States.’ Not to the rights and immunities of the several States; not to those constitutional rights and immunities which result exclusively from A M E R I C A N
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State authority or State legislation; but to ‘all privileges and immunities’ of citizens of the United States in the several States. There is an ellipsis in the language employed in the Constitution, but its meaning is self-evident that it is ‘the privileges and immunities of citizens of the United States . . . ’ that it guaranties. . . . “ . . . [S]ir, I maintain that the persons thus excluded from the State by this section of the Oregon Constitution, are citizens by birth of the several States, and therefore are citizens of the United States, and as such are entitled to all the privileges and immunities of citizens of the United States, amongst which are the rights of life and liberty and property, and their due protection in the enjoyment thereof by law; . . . . “Who, sir, are citizens of the United States? First, all free persons born and domiciled within the United States—not all free white persons, but all free persons. You will search in vain, in the Constitution of the United States, for that word white; it is not there. You will look in vain for it in that first form of national Government—the Articles of Confederation; it is not there. The omission of this word—this phrase of caste—from our national charter, was not accidental, but intentional. . . . “ . . . This Government rests upon the absolute equality of natural rights amongst men. . . . “ . . . Who . . . will be bold enough to deny that all persons are equally entitled to the enjoyment of the rights of life and liberty and property; and that no one should be deprived of life or liberty, but as punishment for crime; nor of his property, against his consent and without due compensation? . . . “The equality of all to the right to live; to the right to know; to argue and to utter, according to conscience; to work and enjoy the product of their toil, is the rock on which that Constitution rests—. . . . The charm of that Constitution lies in the great democratic idea which it embodies, that all men, before the law, are equal in respect of those rights of person which God gives and no man or State may rightfully take away, except as a forfeiture for crime. Before your Constitution, sir, as it is, as I trust it ever will be, all men are sacred, whether white or black. . . . ”78
Several points must here be emphasized. It will be noted that Bingham disavows the color line as a basis for citizenship of the United 78 CONG. GLOBE, 35th Cong., 2nd Sess. 981–985 (1859) (emphasis added throughout).
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States; that he regards Milton’s rights of communication and conscience, including the right to know, to education, as one of the great fundamental natural “rights of person which God gives and no man or state may rightfully take away,” and which hence are “embodied” also within, and secured by, “the great democratic idea that all men before the law are equal.” In short, the concept and guarantee of the equal protection of the laws is already “embodied” in the Federal Constitution as of 1859; this same concept, moreover, embraces “the equality of all . . . to the right to know”; and above all, there is no color line in the Constitution, even of 1859. Conclusions
From this consideration of the historical background against which the Fourteenth Amendment was written, submitted by Congress, and ratified by the requisite number of states, these important facts develop: 1. To the opponents of slavery, equality was an absolute, not a relative, concept which comprehended that no legal recognition be given to racial distinctions of any kind. Their theories were formulated with reference to the free Negro as well as to slavery—that great reservoir of prejudice and evil that fed the whole system of racial distinctions and caste. The notion that any state could impose such distinctions was totally incompatible with antislavery doctrine. 2. These proponents of absolute equalitarianism emerged victorious in the Civil War and controlled the Congress that wrote the Fourteenth Amendment. Ten of the fifteen members of the Joint Committee on Reconstruction were men who had antislavery backgrounds. 3. The phrases—“privileges and immunities,” “equal protection,” and “due process”—that were to appear in the Amendment had come to have specific significance to opponents of slavery. Proponents of slavery, even as they disagreed, knew and understood what that significance was. Members of the Congress that formulated and submitted the Amendment shared that knowledge and understanding. When they translated the antislavery concepts into constitutional provisions, they employed these by now traditional phrases that had become freighted with equalitarian meaning in its widest sense.
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In the Supreme Court of the United States October Term, 1953 No. 1 OLIVER BROWN, ET AL., APPELLANTS VS. BOARD OF EDUCATION OF TOPEKA, SHAWNEE COUNTY, KANSAS, ET AL., APPELLEES APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS BRIEF FOR THE BOARD OF EDUCATION, TOPEKA, KANSAS, ON QUESTIONS PROPOUNDED BY THE COURT PETER F. CALDWELL, Counsel for the Board of Education of Topeka, Kansas, 512 Capitol Federal Building, Topeka, Kansas.
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I. Statement II. Question 4(a) should be answered in the negative: and question 4(b) in the affirmative III. Questions 5(a), (b) and (c) should be answered in the negative IV. Question 5(d) should also be answered in the negative
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This brief is filed in response to the order of the Court, entered June 8, 1953, propounding five questions on which briefs were requested. Since the date of that order the Topeka Board of Education on September 3, 1953, duly adopted the following resolution: “Be it resolved that it is the policy of the Topeka Board of Education to terminate maintenance of segregation in the elementary schools as rapidly as is practicable.”;
and on September 8, 1953, it passed a motion, “ . . . that segregation be terminate in the Southwest and Randolph Schools this year . . . ”. Prior to the adoption of said resolution the Board of G A L E
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Education maintained twenty separate elementary schools for white children, each of which schools was attended by white children residing within a limited geographic area or boundaries near the school, and it also maintained four separate schools for negro children with large area or district boundaries. Negro students living some distance from school were furnished transportation to and from school if they requested it. Since September 8, 1953, negro children living within the area boundaries of the Southwest School and the Randolph School are assigned to and are attending those schools along with and equally with white children. The Board is still maintaining the four separate negro schools and eighteen separate white schools. By reason of its having resolved to terminate segregation in the elementary schools of Topeka “as rapidly as is practicable,” the Topeka Board of Education no longer has an actual interest in the controversy over the constitutionality of segregation in such schools, and it therefore prefers to refrain from arguing and briefing Questions 1, 2, and 3 as propounded by the Court, which are directed to the constitutional questions involved. The Board of Education of Topeka is, however, actually and directly interested in Questions 4 and 5 as propounded by the Court. Briefly summarized, we contend; First, That termination of segregation in the elementary schools of Topeka will involve difficult and far reaching administrative decisions, affecting nearly all school children, nearly all teachers, and nearly all school buildings, so that to attempt to accomplish it in a hurried or summary manner will be both impossible and impractical. Second, The public interest, including the interest of negro children in Topeka, equity, and practical considerations require that termination of segregation in the elementary schools of Topeka shall be permitted to be accomplished in a gradual and orderly manner. II. QUESTION 4(a) SHOULD BE ANSWERED IN THE NEGATIVE: AND QUESTION 4(b) IN THE AFFIRMATIVE
Both Questions 4(a) and 4(b) contemplate the possibility that this Court might issue a broad, general order requiring abolition of segregation in the elementary schools of Topeka, rather than a limited order relating to the rights of the few particular negro children who are parties to this suit. A M E R I C A N
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Such a general order would necessitate almost a complete readjustment of the elementary school system as now maintained in Topeka, so far as fixing attendance areas and boundaries for all the elementary school buildings in Topeka; it would require the transfer of many white and negro children from the schools they now attend to other buildings, as well as the transfer and assignment of many teachers to serve the resulting new classes in the various buildings. Many of the grade schools now used for white children in the city are already full, and some are badly overcrowded. A school building program has been carried on and is being carried on now. The Southwest School was completed and opened in 1952; two other new schools are under construction now, and the Board is deciding on new sites for still two more schools to be constructed as quickly as possible. All five of these new buildings are, or will be, in areas where there have been new housing projects, and where the school population is now and probably will remain predominantly white children. These schools will probably not serve many negro children even when segregation is finally abolished. The majority of the negro school population resides in a few scattered areas throughout the older parts of the city, and is not evenly distributed throughout the entire city. Many negro children live nearest to white schools which are already overcrowded. To transfer and admit these negro children to the schools nearest their residences will require either that many white children now attending such schools will have to be transferred to other schools, or that annexes will have to be provided. In short we have little doubt that the area boundaries of the existing white and negro schools will have to be redefined. This will necessarily require reassigning students, both white and negro, to schools which they do not now attend, and this in turn will require changing the classes to fit the new children in, and may involve transferring teachers from building to building as well. It is the plan of the Board of Education of Topeka to make the transition from segregated to integrated elementary schools gradually and in an orderly manner on a school by school basis, but as rapidly as is practically possible. Such changes will be made at convenient times between semesters, and in such a manner that the administrative decisions and changes can be conveniently and efficiently handled without interrupting the G A L E
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continuity of the regular school program. The Board has discussed its policy and plans in open, public meetings attended by members of both white and negro races. It has invited and secured cooperation and suggestions, and the public generally in the community is assisting the Board in achieving its objective of terminating segregation “as rapidly as is practicable.” If this Court should enter an order to abolish segregation in the public schools of Topeka “forthwith,” as suggested in Question 4(a), the Topeka Board would, of course, do its best to comply with the order. We believe, however, that it would probably require that the regular classes be suspended, while the many administrative changes and adjustments are being made, and while the necessary transfers of and reassignment of students and teachers are being made. Important decisions would have to be hurriedly made, without time for careful investigation of the facts nor for careful thought and reflection. Most decisions would have to be made on a temporary or an emergency basis. We believe the attendant confusion and interruption of the regular school program would be against the public interest, and would be damaging to the children, both negro and white alike. We respectfully urge that in making and issuing its decree this Court has equitable power and discretion to shape the decree and to control its execution in such a manner as to protect the public interest: United States v. Morgan, 307 U.S. 183, 81 L. Ed. 1211, 59 S. Ct. 795: “It is familiar doctrine that the extent to which a court of equity may grant or withhold its aid, and the manner of moulding its remedies, may be affected by the public interest involved.” (p. 1219, L. Ed.)
Virginia Ry. Co. v. System Federation No. 40, 300 U.S. 515, 81 L. Ed. 789, 52 S. Ct. 512: “6. The extent to which equity will go to give relief where there is no adequate remedy at law is not a matter of fixed rule, but rests rather in the sound discretion of the court. “7. Courts of equity may, and frequently do, go much further to give and withhold relief in furtherance of the public interest than they are accustomed to go when only private interests are involved.” (Syll. 6. and 7.)
Securities Exch. Comm. v. U. S. R. and Imp. Co., 310 U.S. 434, 84 L. Ed. 1293, 60 S. Ct. 1044: “7. A court of equity has discretion, in the exercise of jurisdiction committed to it, to
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grant or deny relief upon performance of conditions which will safeguard the public interest.” (Syll. 7.)
Because the Board of Education believes that a “forthwith” order to abolish segregation in the Topeka school system would seriously damage and interrupt the operation and administration of the schools and would be plainly against public interest, and because it believes that an order to abolish segregation, in the public interest, should permit “an effective gradual adjustment”; we respectfully submit that Question 4(a) propounded by the Court should be answered in the negative, and that Question 4(b) should be answered in the affirmative. III. QUESTIONS 5(a), (b) AND (c) SHOULD BE ANSWERED IN THE NEGATIVE
If segregation in the public schools of Topeka is to be abolished by decree of the Court permitting an “effective gradual adjustment” as suggested in Question 4(b), then the Board of Education should be permitted to manage the readjustment, subject only to the usual and normal jurisdiction always retained by a court of equity for the enforcement of its decree or judgment. We have heretofore pointed out the many intricate administrative decisions which will be involved in the transition to an integrated system of grade schools in Topeka. These are the problems and decisions which the Board of Education is organized to handle. Clearly there will be considerable administrative expense involved in making the adjustment. In Kansas the Board of Education is required to comply with cash basis and budget laws in connection with such expenditures, and taxes must be levied for such expenses within the levy limitation laws. Thus the necessary adjustments for a transition from segregated to integrated schools will affect nearly all the other administrative actions of the
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Board of Education. For this Court or a special master to undertake to control the necessary readjustments or to draw detailed orders and decrees will involve them in the control and direction of the administration of the entire school program either directly or indirectly. We believe such detailed control by this Court or a special master is unnecessary and undesirable. We therefore submit that Questions 5(a), (b) and (c) should be answered in the negative. IV. QUESTION 5(d) SHOULD ALSO BE ANSWERED IN THE NEGATIVE
If this Court should enter an order or decree as suggested in Question 4(b), there is no need for a more specific or detailed decree in this case. The Board of Education of Topeka has already on its own initiative resolved to terminate segregation in the elementary schools “as rapidly as is practicable” and has already taken its first step toward that end by providing for an integrated system in two schools which were formerly used only for white children. Certainly at this time there is no need for a more detailed decree than the decree suggested in Question 4(b). The District Court will always have jurisdiction to enforce the decree. If the need for a more specific decree should arise in the future, the District Court will have ample power to make such a decree under its general power to enforce the judgment and decree of the court. We respectfully submit that Question 5(d) should be answered in the negative. PETER F. CALDWELL,
Counsel for the Board of Education of Topeka, Kansas, 512 Capitol Federal Building, Topeka, Kansas.
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BROWN V. BOARD OF EDUCATION OF TOPEKA BROWN ET AL. V. BOARD OF EDUCATION OF TOPEKA, SHAWNEE COUNTY, KAN., ET AL BRIGGS ET AL V. ELLIOTT ET AL. DAVIS ET AL. V. COUNTY SCHOOL BOARD OF PRINCE EDWARD COUNTY, VA., ET AL GEBHART ET AL. V. BELTON ET AL. Nos. 1, 2, 4, 10. Reargued Dec. 7, 8, 9, 1953. Decided May 17, 1954. 347 U.S. 483 Class action originating in the four states of Kansas, South Carolina, Virginia, and Delaware, by which minor Negro plaintiffs sought to obtain admission to public schools on a nonsegregated basis. On direct appeals by plaintiffs form adverse decisions in the United States District Courts, District of Kansas, 98 F.Supp. 797, Eastern District of South Carolina, 103 F.Supp. 337, and on grant of certiorari after decision favorable to plaintiffs in the Supreme Court of Delaware, 91 A.2d 137, the United States Supreme Court, Mr. Chief Justice Warren, held that segregation of child in public schools solely on the basis race, even though the physical facilities and other tangible factors may be equal, deprives the children of the minority group of equal educational opportunities, in contravention of the Equal Protection Clause of the Fourteenth Amendment. Cases ordered restored to docket for further argument regarding formulation of decrees. In resolving question whether segregation of races in public schools constituted a denial of equal protection of the laws, even though the tangible facilities provided might be equal, court would consider public education in light of its full development and present status throughout the nation, and not in light of conditions prevailing at time of adoption of the amendment. U.S.C.A.Const. Amend. 14. G A L E
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The opportunity of an education, where the state has undertaken to provide it, is a right which must be made available to all on equal terms. U.S.C.A.Const. Amend. 14. The segregation of children in public schools solely on the basis of race, even though the physical facilities and other tangible factors may be equal, deprives the children of minority group of equal educational opportunities, and amounts to a deprivation of the equal protection of the laws guaranteed by the Fourteenth Amendment to the Federal Constitution. U.S.C. A.Const. Amend. 14. The doctrine of “separate but equal” has no place in the field of public education, since separate educational facilities are inherently unequal. U.S.C.A.Const. Amend. 14. In view of fact that actions raising question of constitutional validity of segregation of races in public schools were class actions, and because of the wide applicability of decisions holding that segregation was denial of equal protection of laws, and the great variety of local conditions, the formation of decrees presented problems of considerable complexity, requiring that cases be restored to the docket so that court might have full assistance of parties in formulating appropriate decrees. U.S.C.A.Const. Amend. 14. No. 1: Mr. Robert L. Carter, New York City, for appellants Brown and others. Mr. Paul E. Wilson, Topeka, Kan., for appellees Board of Education of Topeka and others. Nos. 2, 4: Messrs. Spottswood Robinson III, Thurgood Marshall, New York City for appellants Briggs and Davis and others. Messrs. John W. Davis, T. Justin Moore, J. Lindsay Almond Jr., Richmond, Va., for appellees Elliott and County School Board of Prince Edward County and others. Asst. Atty. Gen. J. Lee Rankin for United States amicus curiae by special leave of Court. No. 10: Mr. H. Albert Young, Wilmington, Del., for petitioners Gerbhart et al. A M E R I C A N
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Mr. Jack Greenberg, Thurgood Marshall, New York City, for respondents Belton et al. Mr. Chief Justice Warren delivered the opinion of the Court. These cases come to us from the States of Kansas, South Carolina, Virginia, and Delaware. They are premised on different facts and different local conditions, but a common legal question justifies their consideration together in this consolidated opinion.1 In each of the cases, minors of the Negro race, through their legal representatives, seek the aid of the courts in obtaining admission to the public schools of their community on a nonsegregated basis. In each instance, they have been denied admission to schools attended by white children under laws requiring or permitting segregation according to race. This segregation was alleged to deprive the plaintiffs of the equal protection of the laws under the Fourteenth Amendment. In each of the cases other than the Delaware case, a three-judge federal district court denied relief to the plaintiffs on the so-called “separate but equal” doctrine announced by this Court in Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256. Under that doctrine, equality of treatment is accorded when the races are provided substantially equal facilities, even though these facilities be separate. In the Delaware case, the Supreme Court of Delaware adhered to that doctrine, but 1
In the Kansas case, Brown v. Board of Education, the plaintiffs are Negro children of elementary school age residing in Topeka. They brought this action in the United States District Court for the District of Kansas to enjoin enforcement of a Kansas statute which permits, but does not require, cities of more than 15,000 population to maintain separate school facilities for Negro and white students. Kan.Gen.Stat1949, § 72–1724. Pursuant to the authority, the Tupeka Board of Education elected to establish segregated elementary schools. Other public schools in the community, however, are operated on a nonsegregated basis. The three-judge District Court, convened under 28 U.S.C. §§ 2281 and 2284, 28 U.S.C.A. §§ 2281, 2284, found that segregation in public education has a detrimental effect upon Negro children, but denied relief on the ground that the Negro and white schools were substantially equal with respect to buildings, transportation, curricula, and educational qualifications of teachers. 98 F.Supp. 797. The case is here on direct appeal under 28 U.S.C.A. § 1253. In the South Carolina case, Briggs v. Elliott, the plaintiffs are Negro children of both elementary and high school age residing in Clarendon County. They brought this action in the United States District Court for the Eastern District of South Carolina to enjoin enforcement of provisions in the state constitution and statutory code which require the segregation of Negroes and whites in public schools. S.C.
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ordered that the plaintiffs be admitted to the white schools because of their superiority to the Negro schools. The plaintiffs contend that segregated public schools are not “equal” and cannot be made “equal,” and that hence they are deprived of the equal protection of the laws. Because of the obvious importance of the question presented, the Court took jurisdiction.2 Argument was heard in the 1952 Term, and reargument was heard in the 1952 Term, and reargument was heard this Term on certain questions propounded by the Court.3 Reargument was largely devoted to the circumstances surrounding the adoption of the Fourteenth Amendment in 1868. It covered exhaustively consideration of the Amendment in Congress, ratification by the states, then existing practices in racial segregation, and the views of proponents and opponents of the Amendment. This discussion and our own investigation convince us that, although these sources cast some light, it is not enough to resolve the problem with which we are faced. At best, they are inconclusive. The most avid proponents of the post-War Amendments undoubtedly intended them to remove all legal distinctions among “all persons born or naturalized in the United States.” Their opponents, just as certainly, were antagonistic to both the letter and the spirit of the Amendments and Const. Art. XI, § 7; S.C. Code 1942 § 5377. The three-judge District Court, convened under 28 U.S.C. §§ 2281 and 2284, 28 U.S.C.A.§§ 2281, 2284, denied the requested relief. The court found that the Negro schools were inferior to the white schools and ordered the defendants to begin immediately to equalize the facilities. But the court sustained the validity of the contested provisions and denied the plaintiffs admission to the white schools during the equalization program. 98 F.Supp. 529. This Court vacated the District Court’s judgment and remanded the case for the purpose of obtaining the court’s reviews on a report filed by the defendants concerning the progress made in the equalization program. 342 U.S. 350, 72 S.Ct. 327, 96 L.Ed. 392. On remand, the District Court found that substantial equality had been achieved except for buildings and that the defendants were proceeding to rectify this inequality as well. 103 F.Supp. 920. The case is again here in direct appeal under 28 U.S.C. § 1253, 28 U.S.C.A. § 1253. In the Virginia case, Davis v. County School Board, the plaintiffs are Negro children of high school age residing Prince Edward County. They brought this action in the United States District Court for the Eastern District of Virginia to enjoin enforcement of provisions in the state constitution and statutory code which require the segregation of Negroes and whites in public schools. Va.Const. § 140; Va.
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wished them to have the most limited effect. What others in Congress and the state legislatures had in mind cannot be determined with any degree of certainty.
should be so little in the history of the Fourteenth Amendment relating to its intended effect on public education.
An additional reason for the inconclusive nature of the Amendment’s history, with respect to segregated schools, is the status of public education at that time.4 In the South, the movement toward free common schools, supported by general taxation, had not yet taken hold. Education of white children was largely in the hands of private groups. Education of Negroes was almost nonexistent, and practically all of the race were illiterate. In fact, any education of Negroes was forbidden by the law in some states. Today, in contrast, many Negroes have achieved outstanding success in the arts and sciences as well as in the business and professional world. It is true that public school education at the time of the Amendment had advanced further in the North, but the effect of the Amendment on Northern States was generally ignored in the congressional debates. Even in the North, the conditions of public education did not approximate those existing today. The curriculum was usually rudimentary; ungraded schools were common in rural areas; the school term was but three months a year in many states; and compulsory school attendance was virtually unknown. As a consequence, it is not surprising that there
In the first cases in this Court construing the Fourteenth Amendment, decided shortly after its adoption, the Court interpreted it as proscribing all state-imposed discriminations against the Negro race.5 The doctrine of “separate but equal” did not make its appearance in this Court until 1896 in the case of Plessy v. Ferguson, supra, involving not education but transportation.6 American courts have since labored with the doctrine for over half a century. In this Court, there have been six cases involving the “separate but equal” doctrine in the field of public education.7 In Cumming v. Board of Education of Richmond County, 175 U. S. 528, 20 S.Ct. 197, 44 L.Ed. 262, and Gong Lum v. Rice, 275 U.S. 78, 48 S.Ct. 91, 72 L.Ed. 172, the validity of the doctrine itself was not challenged.8 In more recent cases, all on the graduate school level, inequality was found in that specific benefits enjoyed by white students were denied to Negro students were denied to Negro Students of the same educational qualifications. State of Missouri ex rel. Gaines v. Canada, 305 U.S. 337, 59 S.Ct. 232, 83 L.Ed. 208; Sipuel v. Board of Regents of University of Oklahoma, 332 U.S. 631, 68 S.Ct. 299, 92 L.Ed. 247; Sweatt v. Painter, 339 U.S. 629, 70 S.Ct. 848, 94 L.Ed. 1114; McLaurin v, Oklahoma State
Code 1950, § 22–221, The three-judge District Court, convened under 28 U.S.C. §§ 2281 and 2284, 28 U.S.C.A. §§ 2281, 2284, denied the requested relief. The court found the Negro school inferior in physical plant, curricula, and transportation, and ordered the defendants forwith to provide substantially equal curricula and transportation and to “proceed with all reasonable diligence and dispatch to remove” the inequality in physical plant. But, as in the South Carolina case, the court sustained the validity of the contested provisions and denied the plaintiffs admission to the white schools during the equalization program. 103 F.Supp. 337. The case is here on direct appeal under 28 U.S.C. § 1253. In the Delaware case, Gebhart v. Belton, the plaintiffs are Negro children of both elementary and high school age residing in New Castle County. They brought this action in the Delaware Court of Chancery to enjoin enforcement of provisions in the state constitution and statutory code which require the segregation of Negroes and whites in public schools. Del.Const. Art. X, § 2; Del.Rev.Code, 1935, § 2631, 14 Del.C. § 141. The Chancellor gave judgment for the plaintiffs and ordered their immediate admission to schools previously attended only by white children, on the ground that the Negro schools were inferior with respect to teacher training, pupil-teacher ratio, extracurricular activities, physical plant, and time and distance involved in travel. Del.Ch.,
87 A.2d 862. The Chancellor also found that segregation itself results in an inferior education for Negro children (see note 10, infra), but did not rest his decision on that ground. 87 A.2d at page 865. The Chancellor’s decree was affirmed by the Supreme Court of Delaware, which intimated, however, that the defendants might be able to obtain a modification of the decree after equalization of the Negro and white schools and had been accomplished. 91 A.2d 137, 152. The defendants, contending only that the Delaware courts had erred in ordering the immediate admission of the Negro plaintiffs to the white schools, applied to this Court for certiorari. The writ was granted, 344 U.S, 891, 73 S.Ct. 213, 97 L.Ed. 689. The plaintiffs, who were successful below, did not submit a cross-petition. 2 344 U.S. 1, 73 S.Ct. 1, 97 L.Ed. 3, Id., 344 U.S. 141, 73 S.Ct. 124, 97 L.Ed. 152, Gebhart v. Belton, 344 U.S. 891, 73 S.Ct. 213, 97 L.Ed. 689. 3 345 U.S. 972, 73 S.Ct. 1118, 97 L.Ed. 1388. The Attorney General of the United States participated both Terms as amicus curiae. 3. 345 U.S. 972, 73 S.Ct. 1118, 97 L.Ed. 1388. The Attorney General of the United States participated both Terms as amicus curiae. 4 For a general study of the development of public education prior to the Amendment, see Butts and Cremin, A History of Education in American Culture (1953), Pts. I, II; Cubberley,
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Regents, 339 U.S. 637, 70 S.Ct. 851, 94 L.Ed. 1149. In none of these cases was it necessary to re-examine the doctrine to grant relief to the Negro plaintiff. And in Sweatt v, Painter, supra, the Court expressly reserved decision on the question whether Plessy v. Ferguson should be held inapplicable to public education. In the instant cases, that question is directly presented. Here, unlike Sweatt v. Painter, there are findings below that the Negro and white schools involved have been equalized, or are being equalized, with respect to buildings, curricula, qualifications and salaries of teachers, and other “tangible” factors.9 Our decision, therefore, cannot turn on merely a comparison of these tangible factors in the Negro and white schools involved in each of the cases. We must look instead to the effect of segregation itself on public education. [1] In approaching this problem, we cannot turn the clock back to 1868 when the Amendment was adopted, or even to 1896 when Plessy v. Ferguson was written. We must consider public education in the light of its full development and its present place in American life throughout the Nation. Only in this way can it be determined if segregation in public schools deprives these plaintiffs of the equal protection of the laws. [2] Today, education is perhaps the most important function of state and local Public Education in the United States (1934 ed.), cc. II-XII. School practices current at the time of the adoption of the Fourteenth Amendment are described in Butts and Crimin, supra, at 269–275; Cubberley, supra, at 288–339, 408–431; Knight, Public Education in the South (1922), ecc. VIII, IX. See also H. Ex. Doc. No. 315, 41st Cong., 2d Sees. (1871). Although the demand for free public schools followed substantially the same pattern in both the North and the South, the development in the South and did not begin to gain momentum until about 1850, some twenty years after that in the North. The reasons for the somewhat slower development in the South (e.g., the rural character of the South and the different regional attitudes toward state assistance) are well explained in Cubberley, supra, at 408– 424. In the country as a whole, but particularly in the South, the War virtually stopped all progress in public education. Id., at 427–428. The low status of Negro education in all sections of the country, both before and immediately after the War, is described in Beale, A History of Freedom of Teaching in American Schools (1941), 112–132, 175–195. Compulsory school attendance laws were not generally adopted until after the ratification of the fourteenth Amendment, and it was not until 1918 that such laws were in force in all the states. Cubberley, supra, at 563–565.
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governments. Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms. [3] We come then to the question presented: Does segregation of children in public schools solely on the basis of race, even though the physical facilities and other “tangible” factors may be equal, deprive the children of the minority group of equal educational opportunities? We believe that it does. In Sweatt v. Painter, supra [339 U.S. 629, 70 S.Ct. 850], in finding that a segregated law school for Negroes could not provide them equal educational opportunities, this Court relied in large part on “those qualities which are incapable of objective measurement but which make for greatness in a law school.” In McLaurin v. Oklahoma State Regents, supra [339 5
In re Slaughter-House Cases, 1873, 16 Wall. 36, 67–72, 21 L.Ed. 394; Strauder v. West Virginia, 1880, 100 U.S. 303, 307–308, 25 L.Ed. 664. “It ordains that no State shall deprive any person of life, liberty, or property. without due process of deny, to any person within its jurisdiction the equal protection of the laws. What is this but declaring that the law in the States shall be the same for the black as for the white; that all persons, whether colored or white, shall stand equal before the laws of the States, and, in regard to the colored race, for whose protection the amendment was primarily designed, that no discrimination shall be made against them by law because of their color? The words of the amendment, it is true, are prohibitory, but they contain a necessary implication of a positive immunity, or right, most valuable to the colored race,—the right to exemption from unfriendly legislation against them distinctively as colored,— exemption from legal discrimination, implying inferiority in civil society, lessening the security of their enjoyment of the rights which others enjoy, and discriminations which are steps towards reducing them to the condition of a subject race.”
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U.S. 67, 70 S.Ct. 853], the Court, in requiring that a Negro admitted to a white graduate school be treated like all other students, again resorted to intangible considerations: “* * * his ability to study, to engage in discussions and exchange views with other students, and, in general, to learn his profession.” Such considerations apply with added force to children in grade and high schools. To separate them from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their hearts and minds in a way unlikely ever to be undone. The effect of this separation on their educational opportunities was well stated by a finding in the Kansas case by a court which nevertheless felt compelled to rule against the Negro plaintiffs.
Ferguson, this finding is amply supported by modern authority.11 Any language in Plessy v. Ferguson contrary to this finding is rejected. [4] We conclude that in the field of public education the doctrine of “separate but equal” has no place. Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs and others similarly situated for whom the actions have been brought are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment. This disposition makes unnecessary any discussion whether such segregation also violates the Due Process Clause of the Fourteenth Amendment.12
Whatever may have been the extent of psychological knowledge at the time of Plessy v.
[5] Because these are class actions, because of the wide applicability of third decision, and because of the great variety of local conditions, the formulation of decrees in these cases presents problems of considerable complexity. On reargument, the consideration of appropriate relief was necessarily subordinated to the primary question—the constitutionality of segregation in public education. We have now announced that such segregation is a denial of the equal protection of the laws. In order that we may have the full assistance of the parties in formulating decrees, the cases will be restored to the docket, and the parties are requested to present further argument on Questions 4 and 5
See also State of Virginia v. Rives, 1879, 100 U.S. 313, 318, 25 L.Ed. 667; Ex parte Virginia, 1879, 100 U.S. 339, 344–345, 25 L.Ed. 676. 6 The doctrine apparently originated in Roberts v. City of Boston, 1850, 5 Cush. 198, 59 Mass. 198, 206, upholding school segregation against attack as being violative of a state constitutional guarantee of equality. Segregation in Boston public schools was eliminated in 1855. Mass. Acts 1855, c. 256. But elsewhere in the North segregation in public education has persisted in some communities until recent years. It is apparent that such segregation has long been a nationwide problem, not merely one of sectional concern. 7 See also Berea College v. Kentucky, 1908, 211 U.S 45, 29 S. Ct. 33, 53 L.Ed. 81. 8 In the Cumming case, Negro taxpayers sought an injunction requiring the defendant school board to discontinue the operation of a high school for white children until the board resumed operation of a high school for Negro children. Similarly, in the Gong Lum case, the plaintiff, a child of Chinese descent, contended only that state authorities had misapplied the doctrine by classifying him with Negro children and requiring him to attend a Negro school. 9 In the Kansas case, the court below found substantial equality as to all such factors. 98 F.Supp. 797, 798. In the
South Carolina case, the court below found that the defendants were proceeding “promptly and in good faith to comply with the court’s decree.” 103 F.Supp, 920, 921. In the Virginia case, the court below noted that the equalization program was already “afoot and progressing,” 103 F.Supp. 337, 341; since then, we have been advised, in the Virginia Attorney General’s brief on reargument, that the program has now been completed. In the Delaware case, the court below similarly noted that the state’s equalization program was well under way. 91 A.2d 137, 139. 10 A similar finding was made in the Delaware case: “I conclude from the testimony that in our Delaware society, State-imposed segregation in education itself results in the Negro children, as a class, receiving educational opportunities which are substantially inferior to those available to white children otherwise similarly situated.” 87 A.2d 862, 865. 11 K. B. Clark, “Effect of Prejudice and Discrimination on Personality Development” (Midcentury White House Conference on Children and Youth, 1950); Witmer and Kotinsky, Personality in the Making (1952), c. VI; Deutscher and Chein, “The Psychological Effects of Enforced Segregation: A Survey of Social Science Opinion,” 26 J.Psychol. 259 (1948); Chein, “What are the Psychological Effects of Segregation Under Conditions of Equal Facilities?,” 3 Int.
“Segregation of white and colored children in public schools has a detrimental effect upon the colored children. The impact is greater when it has the sanction of the law; for the policy of separating the races is usually interpreted as denoting the inferiority of the Negro group. A sense of inferiority affects the motivation of a child to learn. Segregation with the sanction of law, therefore, has a tendency to [retard] the educational and mental development of Negro children and to deprive them of some of the benefits they would receive in a racial[ly] integrated school system.”10
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previously propounded by the Court for the reargument this Term.13 The Attorney General of the United States is again invited to participate. The Attorneys General of the states requiring or permitting segregation in public
education will also be permitted to appear as amici curiae upon request to do so by September 15, 1954, and submission of briefs by October 1, 1954.14 It is so ordered.
J. Opinion and Attitude Res. 229 (1949); Brameld, “Educational Costs,” in Discrimination and National Welfare (MacIver, ed., 1949), 674–681. And see generally Myrdal, An American Dilemma (1944). 12 See Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, concerning the Due Process Clause of the Fifth Amendment. 13 “4. Assuming it is decided that segregation in public schools violates the Fourteenth Amendment “(a) would a decree necessarily follow providing that, within the limits set by normal geographic school districting, Negro children should forthwith be admitted to schools of their choice, or “(b) may this Court, in the exercise of its equity powers, permit an effective gradual adjustment to be brought about from existing segregated systems to a system not based on color distinctions?
“5. On the assumption on which questions 4(a) and (b) are based, and assuming further that this Court will exercise its equity powers to the end described in question 4(b), “(a) should this Court formulate detailed decrees in these cases; “(b) if so, what specific issues should the decrees reach; “(c) should this Court appoint a special master to hear evidence with a view to recommending specific terms for such decrees; “(d) should this Court remand to the courts of first instance with directions to frame decrees in these cases, and if so what general directions should the decrees of this Court include and what procedures should the courts of first instance follow in arriving at the specific terms of more, detailed decrees?” 14 See Rule 42, Revised Rules of this Court, effective July 1, 1954, 28 U.S.C.A.
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IN THE SUPREME COURT OF THE UNITED STATES
OLIVER BROWN, ET AL., APPELLANTS, VS. BOARD OF EDUCATION OF TOPEKA, ET AL., APPELLEES.
TABLE OF CONTENTS
Preliminary Statement Questions Involved Developments in These Cases Since the Last Argument
NO. 2 HARRY BRIGGS, JR. ET AL., APPELLANTS, VS. R. W. ELLIOTT, ET AL., APPELLEES.
The The The The
NO. 3 DOROTHY E. DAVIS, ET AL., APPELLANTS, VS. COUNTY SCHOOL BOARD OF PRINCE EDWARD COUNTY, VIRGINIA, ET AL., APPELLEES.
NO. 5 FRANCIS B. GEBHART, ET AL., PETITIONERS, VS. ETHEL LOUISE BELTON, ET AL., RESPONDENTS.
APPEALS FROM THE UNITED STATES DISTRICT COURTS FOR THE DISTRICT OF KANSAS, THE EASTERN DISTRICT OF SOUTH CAROLINA AND THE EASTERN DISTRICT OF VIRGINIA, AND ON PETITION FOR A WRIT OF CERTIORARI TO THE SUPREME COURT OF DELAWARE, RESPECTIVELY BRIEF FOR APPELLANTS IN NOS. 1, 2 AND 3 AND FOR RESPONDENTS IN NO. 5 ON FURTHER REARGUMENT CHARLES L. BLACK JR., ELWOOD H. CHISOLM, WILLIAM T. COLEMAN JR., CHARLES T. DUNCAN, GEORGE E. C. HAYES, LOREN MILLER, WILLIAM R. MING JR., CONSTANCE BAKER MOTLEY, JAMES M. NABRIT JR., DAVID E. PINSKY, FRANK D. REEVES, JOHN SCOTT, JACK B. WEINSTEIN, of Counsel. HAROLD BOULWAR, ROBERT L. CARTER,
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JACK GREENBERG, OLIVER W. HILL, THURGOOD MARSHALL, LOUIS L. REDDING,, SPOTTSWOOD W. ROBINSON III, CHARLES S. SCOTT, Attorneys for Appellants in Nos. 1, 2, 3 and for Respondents in No. 5.
OCTOBER TERM, 1954
Kansas case Delaware case South Carolina case Virginia case
Argument I.
Answering Question 4: Only a decree requiring desegregation as quickly as prerequisite administrative and mechanical procedures can be completed will discharge judicial responsibility for the vindication of the constitutional rights of which appellants are being deprived A. Aggrieved parties showing denial of constitutional rights in ana- logous situations have received immediate relief despite arguments for delay more persuasive than any available here B. Empirical data negate unsupported speculations that a gradual decree would bring about a more effective adjustment II. Answering Question 5: If this court should decide to permit an “effective gradual adjustment” from segregated school systems to systems not based on color distinctions, it should not formulate detailed decrees but should remand these cases to the courts of first instance with specific directions to complete desegregation by a day certain Declaratory provisions Time provisions Conclusion PRELIMINARY STATEMENT
On May 17, 1954, this Court disposed of the basic constitutional question presented in these cases by deciding that racial segregation in public education is unconstitutional. The Court said, however, that the formulation of decrees was made difficult “because these are class actions, because of the wide applicability of this decision and because of the great variety of local O F
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conditions . . . .” The cases were restored to the docket, and the parties were requested to present further argument on Questions 4 and 5 previously propounded by the Court for the reargument last Term. Questions Involved
Questions 4 and 5, left undecided and now the subject of discussion in this brief, follow: 4. Assuming it is decided that segregation in public schools violates the Fourteenth Amendment (a) would a decree necessarily follow providing that, within the limits set by normal geographic school districting, Negro children should forthwith be admitted to schools of their choice, or (b) may this Court, in the exercise of its equity powers, permit an effective gradual adjustment to be brought about from existing segregated systems to a system not based on color distinctions? 5. On the assumption on which question 4(a) and (b) are based, and assuming further that this Court will exercise its equity powers to the end described in question 4(b) (a) should this Court formulate detailed decrees in these cases; (b) if so, what specific issues should the decrees reach; (c) should this Court appoint a special master to hear evidence with a view to recommending specific terms for such decrees; (d) should this Court remand to the courts of first instance with directions to frame decrees in these cases, and if so, what general directions should the decrees of this Court include and what procedures should the courts of first instance follow in arriving at the specific terms of more detailed decrees? DEVELOPMENTS IN THESE CASES SINCE THE LAST ARGUMENT The Kansas Case
On September 3, 1953, the Topeka School Board adopted the following resolution: Be it resolved that it is the policy of the Topeka Board of Education to terminate the G A L E
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maintenance of segregation in the elementary schools as rapidly as is practicable.
On September 8, 1953, appellees ordered segregation terminated in two of the nineteen school districts in Topeka. In September, 1954, segregation was completely terminated in ten other school districts and partially in two. There is now a total school enrollment of approximately 8,500 children of elementary school age attending 23 elementary schools. Of the 8,500 children enrolled, approximately 700 Negro children are in four elementary schools for Negroes. There are 123 Negro children now attending schools on a non-segregated basis pursuant to appellees’ implementation of its policy of removing segregation from the public school system. The blunt truth is that 85% of the Negro children in Topeka’s elementary schools are still being denied the constitutional rights for which appellants sought redress in their original action. While Topeka has been effectuating its plan, several other cities of the first class have undertaken the abolition of segregated schools. Lawrence and Pittsburg have completely desegregated. Kansas City, Abilene, Leavenworth and Parsons have ordered partial desegregation. Wichita and Salina have revised their school regulations to permit Negro children to attend schools nearest their homes. Only Coffeeville and Fort Scott have not taken any affirmative action whatsoever. The Delaware Case
By order of the Court of Chancery, affirmed by the Supreme Court of Delaware, the named plaintiffs were immediately admitted to the schools to which they applied. These plaintiffs and other members of the class are in their third year of uninterrupted attendance in the two Delaware schools named in the order. That attendance has been marked by no untoward incident. The order, however, did not result in elimination of separate schools for Negroes in the two school districts involved, in each of which one segregated elementary school is yet maintained by petitioners. The State Board of Education has statutory authority to “exercise general control and supervision over the public schools of the State, including . . . the determination of the educational policies of the State and the seeking in every way to direct and develop public sentiment in support of public education.” DELAWARE A M E R I C A N
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Title 14, Section 121 (1953). Accordingly, the State Board of Education, on June 11, 1954, adopted a statement of “Policies Regarding Desegregation of Schools of the State” and announced “a general policy” that it “intends to carry out the mandates of the United States Supreme Court decision as expeditiously as possible.” It further requested that “the school authorities together with interested citizen groups throughout the State should take immediate steps to hold discussions for the purpose of (1) formulating plans for desegregation in their respective districts and (2) presenting said plans to the State Board of Education for review.” On August 19, 1954, the State Board of Education requested “that all schools, maintaining four or more teachers, present a tentative plan for desegregation in their area on or before October 1, 1954.” The desegregation plans of the Claymont Board of Education, whose members are petitioners here, providing for the complete termination of segregation, were approved by the State Board of Education on August 26, 1954. These plans have been partially put into operation. No plan ending segregation in the Hockessin schools, the other Delaware area in the litigation here, has yet been formulated. Delaware statutes provide for two types of public school districts, exclusive of the public school system in Wilmington which is practically autonomous. One type is commonly known as the State Board District. As to it, the statute provides that the “Board of School Trustees shall be the representative in the District of the State Board of Education.” DELAWARE CODE, Title 14, Section 702 (1953). There are 98 such units. The other type is the Special School District, concerning which the statute provides that “There shall be a Board of Education which shall be responsible for the general administration and supervision of the free public schools and educational interests of the District.” DELAWARE CODE, Title 14, Section 902 (1953). There are fifteen Special School Districts. Wilmington, which is in New Castle County and contains 34% of the population of the State, in June desegregated all elementary and secondary schools for the 1954 summer session. It has also completely desegregated its night school sessions. Beginning in September, 1954,
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4
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31
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24
24
0
0
43
43 98
Special School Districts
3
1
1
5
1
0
3
4
0
0
6
6 15
desegregation of all elementary schools was effectuated, with some integration of teachers. The school districts involved in this litigation also are in New Castle County, which has 68% of the State’s population. Desegregation in varying degrees has started in every major school district in this county, except one. The State Board of Education has made specific requests to 58 of the 113 school districts in the State to submit such plans. Another six districts have stated that any kind of plan they may have would be more or less nullified by overcrowded classroom conditions. Fourteen others have indicated that they desire to await the mandate of this Court. The remaining districts have not responded to the State Board. In summary, school districts in areas comprising more than 50% of the population of Delaware have undertaken some desegregation of the public schools. Many school districts in semi-urban and rural areas have undertaken no step. The ultimate responsibility for effectuating desegregation throughout Delaware rests
*
Partial desegregation, that is, on the high school level, was instituted by the Milford Board of Education, in Sussex County. This action was later revoked and a test of the revocation is now pending in the Delaware courts. See Simmons v. Steiner, 108 A. 2d 173 (Del. Ct. Chanc. 1954). In that case the Vice-Chancellor found the Negro plaintiffs’ rights to remain as students in Milford High School “clear and convincing” and restrained the Board of Education from excluding them. However, the Supreme Court of Delaware temporarily stayed the injunction to give that court sufficient time to examine “serious questions of law.” Argument has been scheduled for December 13, 1954. Steiner v. Simmons (Del Sup. Ct. No. 27, 1954).
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with petitioners here, members of the State Board of Education.
So declared L. B. McCord of Manning, Clarendon County superintendent of education, in an address before the Lions Club here Monday night. Decrying the fact that “Our churches seem to be letting their zeal run away in leading the way,” he denounced de-segregation as contrary to the Scriptures and to good sense.
The South Carolina Case
Since May 17, 1954, South Carolina’s fifteen-man legislative “Segregation Study Committee” was reorganized and has conferred with the Governor, State education officials, other legislators and spokesmen from various civic and teacher organizations. All of their meetings have been closed to the public. The Committee also visited Louisiana and Mississippi “to observe what was being done in those states to preserve segregated schools.” On July 28, the committee issued an interim report which recommended that public schools be operated during the coming year “in keeping with previously established policy.” The committee construed its assignment as being the formulation of courses of action whereby the State could continue public education “without unfortunate disruption by outside forces and influences which have no knowledge of recent progress and no understanding of the problems of the present and future . . . .” Moreover, the report stated that the committee also recognized “the need for a system in keeping with public opinion and established traditions and living patterns.” The State Attorney General insisted that this Court should not undertake to direct further action even by the school district involved and announced that he considered the Clarendon County case “purely a local matter as far as the parties to the suit are concerned.” In Rock Hill (population 25,000 with 20% Negroes) a Catholic grade school voluntarily desegregated. Opening day enrollment was 29 white students and five Negroes. There has been no report of overt action against this development; but the parents of some of the children have been remonstrated with by neighbors and workers.1 A newspaper report1a of a public speech of E. B. McCord, one of the appellees herein, superintendent of education for Clarendon County, states in part: There will be no mixed schools in Clarendon County as long as there is any possible way for present leadership to prevent them.
The Virginia Case
On May 27, 1954, the State Board of Education advised city and county school boards to continue segregation during the present school year. On August 28, the Governor named a thirty-two-man, all-white legislative commission to study the problems raised by the Court’s ruling and to prepare a report and recommendations to the legislature and to him. The Governor then announced: . . . I am inviting the commission to ascertain, through public hearings and such other means as appear appropriate, the wishes of the people of Virginia; to give careful study to plans or legislation or both, that should be considered for adoption in Virginia after the final decree of the Court is entered, and to offer such other recommendations as it may deem proper as a result of the decision of the Supreme Court affecting the public schools.2
At its first meeting the commission adopted a rule that: All meetings of the commission shall be executive and its deliberations confidential, except when the meeting consists of a public hearing or it is otherwise expressly decided by the commission.3
By October, the local school boards or boards of supervisors of approximately 25 of the state’s 98 counties had adopted and forwarded to the Governor resolutions urging the continuation of segregated schools. In May, 1954, the Richmond Diocese of the Roman Catholic Church, which includes all but 6 of Virginia’s counties, announced that during the Fall of 1954, Negroes would for the first time be admitted to previously all-white Catholic parochial schools where there was no separate parochial school for Negroes. Approximately 40 Negro pupils of a total of 3,527 are enrolled in four high and six elementary
1
2
1a
3
Southern School News, Sept. 3, 1954, p. 12, col. 3–4. Charleston News and Courier, August 4, 1954.
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parochial schools formerly attended only by white pupils. The Superintendent of the Richmond Diocese states that integration in these schools “has worked out magnificently, without a ripple of discontent, . . . .”4 ARGUMENT
I. Answering Question 4: Only a decree requiring desegregation as quickly as prerequisite administrative and mechanical procedures can be completed will discharge judicial responsibility for the vindication of the constitutional rights of which appellants are being deprived. In the normal course of judicial procedure, this Court’s decision that racial segregation in public education is unconstitutional would be effectuated by decrees forthwith enjoining the continuation of that segregation. Indeed, in Sipuel v. Board of Regents, 332 U.S. 631, when effort was made to secure postponement of the enforcement of similar rights, this Court not only refused to delay action but accelerated the granting of relief by ordering its mandate to issue forthwith. In practical effect, such disposition of this litigation would require immediate initiation of the administrative procedures prerequisite to desegregation, to be followed by the admission of the complaining children and others similarly situated to unsegregated schools at the beginning of the next academic term. This means that appellees will have had from May 17, 1954, to September, 1955, to complete whatever adjustments may be necessary. If appellees desire any postponement of relief beyond that date, the affirmative burden must be on them to state explicitly what they propose and to establish that the requested postponement has judicially cognizable advantages greater than those inherent in the prompt vindication of appellants’ adjudicated constitutional rights. Moreover, when appellees seek to postpone the enjoyment of rights which are personal and present, Sweatt v. Painter, 339 U.S. 629; Sipuel v. Board of Regents, 332 U.S. 631, that burden is particularly heavy. When the rights of school children are involved the burden is even greater. Each day relief is postponed is to the appellants a day of serious and irreparable injury; for this Court has announced that 4
Id. at p. 14, col. 5. As used in this Brief, “appellants” include the respondents in No. 5.
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segregation of Negroes in the public schools “generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone . . . .” And, time is of the essence because the period of public school attendance is short. A. Aggrieved parties showing denial of constitutional rights in analogous situations have received immediate relief despite arguments for delay more persuasive than any available here. Where a substantial constitutional right would be impaired by delay, this Court has refused to postpone injunctive relief even in the face of the gravest of public considerations suggested as justification therefor. In Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, this Court upheld the issuance of preliminary injunctions restraining the Government’s continued possession of steel mills seized under Presidential order intended to avoid a work stoppage that would imperil the national defense during the Korean conflict. The Government argued that even though the seizure might be unconstitutional, the public interest in uninterrupted production of essential war materials was superior to the owners’ rights to the immediate return of their properties. It is significant that in the seven opinions filed no Justice saw any merit in this position. If equity could not appropriately exercise its broad discretion to withhold the immediate grant of relief in the Youngstown case, such a postponement must certainly be inappropriate in these cases where no comparable overriding consideration can be suggested. Similarly in Ex parte Endo, 323 U.S. 283, this Court rejected the Government’s argument that hardship and disorder resulting from racial prejudice could justify delay in releasing the petitioner. There, the argument made by the Government to justify other than immediate relief was summarized in the Court’s opinion as follows (pp. 296–297): It is argued that such a planned and orderly relocation was essential to the success of the evacuation program; that but for such supervision there might have been a dangerously disorderly migration of unwanted people to unprepared communities; that unsupervised evacuation might have resulted in hardship and disorder; that the success of the evacuation program was thought to require the knowledge that the Federal government was maintaining control over the evacuated population except as the A M E R I C A N
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release of individuals could be effected consistently with their own peace and wellbeing and that of the nation; that although community hostility towards the evacuees has diminished, it has not disappeared and the continuing control of the Authority over the relocation process is essential to the success of the evacuation program. It is argued that supervised relocation, as the chosen method of terminating the evacuation, is the final step in the entire process and is a consequence of the first step taken. It is conceded that appellant’s detention pending compliance with the leave regulations is not directly connected with the prevention of espionage and sabotage at the present time. But it is argued that Executive Order No. 9102 confers power to make regulations necessary and proper for controlling situations created by the exercise of the powers expressly conferred for protection against espionage and sabotage. The leave regulations are said to fall within that category.
In a unanimous decision, with the Court’s opinion by Mr. Justice Douglas and two concurring opinions, the Court held that the petitioner must be given her unconditional liberty because the detention was not permissible by either statutory or administrative authorization. Viewing the petitioner’s right as being in that “sensitive area of rights specifically guaranteed by the Constitution” (p. 299), the Court rejected the Government’s contention that a continuation of its unlawful course of conduct was necessary to avoid the harmful consequences which otherwise would follow. It is true that in the Endo case the contention rejected was that an executive order (which on its face did not authorize the petitioner’s detention) ought to be extended by “construction” so as to entitle the Relocation Authority to delay the release of the petitioner until it felt that social conditions made it convenient and prudent to do so. In this case, the suggestion is that this Court, in the exercise of its equity powers, ought to withhold appellants’ constitutional rights on closely similar grounds. But this is not a decisive distinction. If, as the Endo case held, the enjoyment of a constitutional right may not be deferred by a process of forced construction on the basis of factors closely similar to the ones at work in the instant case, then certainly this Court ought not to find in its equitable discretion a mandate or empowerment to obtain the same result. G A L E
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In the Endo case, the national interest in time of war was present. In these cases, no such interest exists. Thus, there is even less basis for delaying the immediate enjoyment of appellants’ rights. Counsel have discovered no case wherein this Court has found a violation of a present constitutional right but has postponed relief on the representation by governmental officials that local mores and customs justify delay which might produce a more orderly transition. It would be paradoxical indeed if, in the instant cases, it were decided for the first time that constitutional rights may be postponed because of anticipation of difficulties arising out of local feelings. These cases are brought to vindicate rights which, as a matter of common knowledge and legal experience, need, above all others, protection against local attitudes and patterns of behavior.5 They are brought, specifically, to uphold rights under the Fourteenth Amendment which are not to be qualified, substantively or remedially, by reference to local mores. On the contrary, the Fourteenth Amendment, on its face and as a matter of history, was designed for the very purpose of affording protection against local mores and customs, and Congress has implemented that design by providing redress against aggression under color of state laws, customs and usages. 28 U.S.C. § 1343; 42 U.S.C. § 1983. Surely, appellants’ rights are not to be enforced at a pace geared down to the very customs which the Fourteenth Amendment and implementing federal laws were designed to combat. Cases in which delays in enforcement of rights have been granted involve totally dissimilar considerations. Such cases generally deal with the abatement of nuisances, e.g., New Jersey v. New York, 283 U.S. 473; Wisconsin v. Illinois, 278 U.S. 367; Arizona Copper Co. v. Gillespie, 230 U.S. 46; Georgia v. Tennessee Copper Co., 206 U.S. 230; or with violations of the anti-trust laws, e.g., Schine Chain Theaters v. United States, 334 U.S. 110; United States v. National Lead Co., 332 U.S. 319; United States v. Crescent Amusement Co., 323 U.S. 173; Hartford-Empire Co. v. United States, 323 U.S. 5
In the instant cases, dark and uncertain prophecies as to anticipated community reactions to school desegregation are speculative at best.
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386; United States v. American Tobacco Co., 221 U.S. 106; Standard Oil Co. of New Jersey v. United States, 221 U.S. 1. These cases are readily distinguishable, and are not precedents for the postponement of relief here. In the nuisance cases, the Court allowed the offending parties time to comply because the granting of immediate relief would have caused great injury to the public or to the defendants with comparatively slight benefit to the plaintiffs. In the instant cases, a continuation of the unconstitutional practice is as injurious to the welfare of our government as it is to the individual appellants. In the anti-trust cases, delay could be granted without violence to individual rights simply because there were no individual rights on the plaintiff’s side. The suits were brought by the Government and the only interest which could have been prejudiced by the delays granted is the diffuse public interest in free competition. The delays granted in anti-trust cases rarely, if ever, permit the continuance of active wrongful conduct, but merely give time for dissolution and dissipation of the effects of past misconduct. Obviously, these cases have nothing to do with ours. It should be remembered that the rights involved in these cases are not only of importance to appellants and the class they represent, but are among the most important in our society. As this Court said on May 17th: Today, education is perhaps the most important function of state and local governments. Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms.
Neither the nuisance cases nor the anti-trust cases afford any support for delay in these cases. On the contrary, in cases more nearly analogous
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to the instant cases, this Court has held that the executive branch of the government could not justify the detention of wrongfully seized private property on the basis of a national economic crisis in the midst of the Korean conflict. Nor could the War Relocation Authority wrongfully detain a loyal American because of racial tension or threats of disorder. It follows that in these cases this Court should apply similar limitations to the judiciary in the exercise of its equity power when a request is made that it delay enjoyment of personal rights on grounds of alleged expediency. B. Empirical data negate unsupported speculations that a gradual decree would bring about a more effective adjustment. Obviously, we are not aware of what appellees will advance on further argument as reasons for postponing the enforcement of the rights here involved. Therefore, the only way we can discuss Question 4(b) is by conjecture in so far as reasons for postponement are concerned. There is no basis for the assumption that gradual as opposed to immediate desegregation is the better, smoother or more “effective” mode of transition. On the contrary, there is an impressive body of evidence which supports the position that gradualism, far from facilitating the process, may actually make it more difficult; that, in fact, the problems of transition will be a good deal less complicated than might be forecast by appellees. Our submission is that this, like many wrongs, can be easiest and best undone, not by “tapering off” but by forthright action. There is now substantial documented experience with desegregation in this country, in schools and elsewhere.6 On the basis of this experience, it is possible to estimate with some accuracy the chances of various types of “gradual” plans for success in minimizing trouble during the period of transition. Some plans have been tried involving a set “deadline” without the specification of intervening steps to be taken. Where such plans have been tried, the tendency seems to have been to regard the deadline as the time when action is to be initiated rather than the time at which
6
See
ASHMORE, THE NEGRO AND THE SCHOOLS
(1954); CLARK, 9 J. SOCIAL ISSUES 1–77 (1953); NEXT STEPS IN RACIAL DESEGREGATION IN EDUCATION, 23 J. NEGRO ED. 201–399 (1954).(1950). DESEGREGATION: AN APPRAISAL OF THE EVIDENCE,
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desegregation is to be accomplished. Since there exists no body of knowledge that is even helpful in selecting an optimum time at the end of which the situation may be expected to be better, the deadline date is necessarily arbitrary and hence may be needlessly remote.7 A species of the “deadline” type of plan attempts to prepare the public, through churches, radio and other agencies, for the impending change. It is altogether conjectural how successful such attempts might be in actually effecting change in attitude. The underlying assumption—that change in attitude must precede change in action—is itself at best a highly questionable one. There is a considerable body of evidence to indicate that attitudemay itself be influenced by situation8 and that, where the situation demands that an individual act as if he were not prejudiced, he will so act, despite the continuance, at least temporarily, of the prejudice.9 We submit that this Court can itself contribute to an effective and decisive change in attitude by insistence that the present unlawful situation be changed forthwith. As to any sort of “deadline” plan, even assuming that community leaders make every effort to build community support for desegregation, experience shows that other forces in the community will use the time allowed to firm up and build opposition.10 At least in South 7 ASHMORE, op. cit. supra note 6, at 70, 71, 79, 80; CLARK, op. cit. supra note 6, at 36, 45. 8 CLARK, op. cit. supra note 6, at 69–76. 9 KUTNER, WILKINS and YARROW, VERBAL ATTITUDES AND OVERT BEHAVIOR INVOLVING RACIAL PREJUDICE, 47 J. ABNORMAL AND SOCIAL PSYCH. 649–652 (1952); LA PIERE, ATTITUDES VS. ACTION, 13 SOCIAL FORCES 230–237 (1934); SAENGER and GILBERT,
CUSTOMER REACTIONS TO THE INTEGRATION OF NEGRO SALES PERSONNEL,
57–76 (1950); DEUTSCH and COLLINS, INTERRACIAL HOUSING, A PSYCHOLOGICAL STUDY OF A SOCIAL EXPERIMENT (1951); CHEIN, DEUTSCH, HYMAN and JAHODA, CONSISTENCY AND INCONSISTENCY IN INTERGROUP RELATIONS, 5 J. SOCIAL ISSUES 1–63 (1949). ASHMORE, op. cit. supra note 6, at 42; New York Times, “Mixed Schools Set in ‘Border’ States”, August 29, 1954, p. 88, col. 1–4; New York Times, “New Mexico Town Quietly Ends Pupil Segregation Despite a Cleric”, August 31, 1954, p. 1, col. 3–4; ROSE, YOU CAN’T LEGISLATE AGAINST PREJUDICE—OR CAN YOU?, 9 COMMON GROUND 61–67 (1949), reprinted in RACE PREJUDICE AND DISCRIMINATION, (Rose ed. 1951); NICHOLS, BREAKTHROUGH ON THE COLOR FRONT (1954); MERTON, WEST and JAHODA, SOCIAL FICTIONS AND SOCIAL FACTS: THE DYNAMICS OF RACE RELATIONS IN HILLTOWN, COLUMBIA UNIVERSITY BUREAU OF APPLIED SOCIAL RESEARCH (mimeographed); MERTON, WEST, JAHODA and SELDEN, SOCIAL POLICY AND SOCIAL RESEARCH IN HOUSING, 7 J. SOCIAL
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Carolina and Virginia, as well as in some other states affected by this decision, statements and action of governmental officials since May 17th demonstrate that they will not use the time allowed to build up community support for desegregation.11 Church groups and others in the South who are seeking to win community acceptance for the Court’s May 17th decision cannot be effective without the support of a forthwith decree from this Court. Besides the “deadline” plans, various “piecemeal” schemes have been suggested and tried. These seem to be inspired by the assumption that it is always easier and better to do something slowly and a little at a time than to do it all at once. As might be expected, it has appeared that the resistance of some people affected by such schemes is increased since they feel arbitrarily selected as experimental animals. Other members in the community observe this reaction and in turn their anxieties are sharpened.12 Piecemeal desegregation of schools, on a class-by-class basis, tends to arouse feelings of the same kind13 and these feelings are heightened by the intra-familial and intra-school differences thus created.14 It would be hard to imagine any means better calculated to increase tension in regard to desegregation than to so arrange matters so that some children in a family were attending segregated and others unsegregated classes. Hardly more promising of harmony is ISSUES,
132–140 (1951); MERTON, THE SOCIAL PSYCHOLOGY OF (1948). South as well as North, people’s actions and attitudes were changed not in advance of but after the admission of Negroes into organized baseball. See CLEMENT, RACIAL INTEGRATION IN THE FIELD OF SPORTS, 23 J. NEGRO ED. 226– 228 (1954). Objections to desegregation have generally been found to be greater before than after its accomplishment. CLARK, op. cit. supra note 6, passim; CONFERENCE REPORT, ARIZONA HOUSING
COUNCIL FOR CIVIC UNITY CONFERENCE ON SCHOOL SEGREGATION
(Phoenix, Arizona, June 2, 1951). 10 CLARK, op. cit. supra note 6, at 43, 44; BROGAN, THE EMERSON SCHOOL—COMMUNITY PROBLEM, GARY, INDIANA, BUREAU OF INTERCULTURAL EDUCATION REPORT (October 1947, mimeographed); TIPTON, COMMUNITY IN CRISIS 15–76 (1953). 11 For the latest example of this, see New York Times, “7 of South’s Governors Warn of ‘Dissensions’ in Curb on Bias— Avow Right of States to Control Public School Procedures— Six at Meeting Refrain from Signing Statement”, November 14, 1954, p. 58, col. 4–5. 12 TIPTON, op. cit. supra note 11, at 42, 47, 57, 71; CLARK, SOME PRINCIPLES RELATED TO THE PROBLEM OF DESEGREGATION, 23 J. NEGRO ED. 343 (1954); CULVER, RACIAL DESEGREGATION IN EDUCATION IN INDIANA, 23 J. NEGRO ED. 300 (1954). 13 ASHMORE, op. cit. supra note 6, at 79, 80; CLARK, DESEGREGATION: AN APPRAISAL OF THE EVIDENCE, op. cit. supra note 6, at 36, 45.
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the prospect of a school which is segregated in the upper parts and mixed in the lower. When one looks at various “gradual” processes, the fact is that there is no convincing evidence which supports the theory that “gradual” desegregation is more “effective”.15 On the contrary, there is considerable evidence that the forthright way is a most effective way.16 The progress of desegregation in the Topeka schools is an example of gradualism based upon conjecture, fears and speculation regarding community opposition which might delay completion of desegregation forever. The desegregation plan adopted by the Topeka school authorities called for school desegregation first in the better residential areas of the city and desegregation followed in those areas where the smallest number of Negro children lived. There is little excuse for the school board’s not having already completed desegregation. Apparently either the fact that the school board, in order to complete the transition, may have to utilize one or more of the former schools for Negroes and assign white children to them or the fact that it must now reassign some 700 Negro children to approximately seven former allwhite schools, seems to present difficulties to appellees. One must remember that in Topeka there has been complete integration above the sixth grade for many years. The schools already desegregated have reported no difficulties. There can hardly be any basic resistance to nonsegregated schools in the habits or customs of the city’s populace. The elimination of the remnants of segregation throughout the city’s school system should be a simple matter. No special public preparations involving teachers, parents, students or the general public were made, nor were they necessary in advance of either the first or second step in the 14
implementation of the Board’s decision to desegregate the school system. Indeed, the Board of Education adopted the second step in January, 1954, and the only reports of what was involved were those published in the newspapers. Negro parents living in these territories were not notified by appellees regarding the change, but transferred their children to the schools in question on the basis of information provided in the newspapers. As far as the teachers in those schools were concerned, they were merely informed in the Spring of 1954 that their particular schools would be integrated in September. Thus, delay here cannot be based upon need for public orientation. It should be pointed out that of the 23 public elementary schools, there exists potential space for some additional 83 classrooms of which 16 such potential classrooms are in the four schools to which the majority of the Negroes are now assigned. No claim can be made that the school system is overcrowded and unable to absorb the Negro and white children under a reorganization plan. There is no discernable reason why all of the elementary schools of Topeka have not been desegregated. As is pointed out in the Brief for Petitioners on Further Reargument in Bolling v. Sharpe (No. 4, October Term, 1954) the gradualist approach adopted by the Board of Education in Washington, D.C., produced confusion, hardship and unnecessary delay. Indeed, the operation of the “Corning Plan” has produced manifold problems in school administration which could have been avoided if the transition had been immediate. The argument that delay is more sound educationally has been shown to be without basis in fact in the operation of the District of Columbia plan—so conclusively, in fact, that the time schedule has been accelerated. The experience in the District argues for immediate action. question of integration is raised, and when policies remain unsettled for a protracted period the pressures mount. One school board member in Arizona privately expressed the wish that the state had gone all the way and made integration mandatory instead of optional—thus giving the board something to point to as justification for its action.
CLARK, EFFECTS OF PREJUDICE AND DISCRIMINATION ON PERSONAL-
ITY DEVELOPMENTS, MID-CENTURY WHITE HOUSE CONFERENCE ON CHILDREN AND YOUTH (mimeographed, 1950). 15 ASHMORE, op. cit. supra note 6, at 80:
Proponents of the gradual approach argue that it minimizes public resistance to integration. But some school officials who have experienced it believe the reverse is true. A markedly gradual program, they contend, particularly one which involves the continued maintenance of some separate schools, invites opposition and allows time for it to be organized. Whatever the merit of this argument, the case histories clearly indicate a tendency for local political pressure to be applied by both sides when the
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CLARK,
op. cit. supra note 6, at 46, 47;
WRIGHT, RACIAL
INTEGRATION IN THE PUBLIC SCHOOLS OF NEW JERSEY,
23 J. NEGRO 283 (1954); KNOX, RACIAL INTEGRATION IN THE SCHOOLS OF ARIZONA, NEW MEXICO, AND KANSAS, 23 J. NEGRO ED. 291, 293 (1954); CULVER, RACIAL DESEGREGATION IN EDUCATION IN INDIANA, 23 J. NEGRO ED. 296, 300–302 (1954). ED.
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To suggest that this Court may properly mold its relief so as to serve whatever theories as to educational policy may be in vogue is to confuse its function with that of a school board, and to confuse the clear-cut constitutional issue in these cases with the situation in which a school board might find itself if it were unbound by constitutional requirements and were addressing itself to the policy problem of effecting desegregation in what seems to it the most desirable way. But even if a judgment as to the abstract desirability of gradualism could be supported by evidence, it is outside the province of this Court to balance the merely desirable against the adjudicated constitutional rights of appellants. The Constitution has prescribed the educational policy applicable to the issue tendered in this case, and this Court has no power, under the guise of a “gradual” decree, to select another. We submit that there are various necessary administrative factors which would make “immediate” relief as of tomorrow physically impossible. These include such factors as need for redistricting and the redistribution of teachers and pupils. Under the circumstances of this case, the Court’s mandate will probably come down in the middle or near the close of the 1954 school term, and the decrees of the courts of first instance could not be put into effect until September, 1955. Appellees would, therefore, have had from May 17, 1954, to September, 1955, to make necessary administrative changes. II. Answering Question 5: If this court should decide to permit an “effective gradual adjustment” from segregated school systems to systems not based on color distinctions, it should not formulate detailed decrees but should remand these cases to the courts of first instance with specific directions to complete desegregation by a day certain. In answering Question 5, we are required to assume that this Court “will exercise its equity powers to permit an effective gradual adjustment to be brought about from existing segregated systems to a system not based on color distinctions” thereby refusing to hold that appellants were entitled to decrees providing that, “within the limits set by normal geographic school districting, Negro children should forthwith be admitted to schools of their choice.” While we feel most strongly that this Court will not subordinate appellants’ constitutional rights to immediate relief to any G A L E
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plan for an “effective gradual adjustment,” we must nevertheless assume the contrary for the purpose of answering Question 5.17 Question 5 assumes that there should be an “effective gradual adjustment” to a system of desegregated education. We have certain difficulties with this formulation. We have already demonstrated that there is no reason to believe that any form of gradualism will be more effective than forthwith compliance. If, however, this Court determines upon a gradual decree, we then urge that, as a minimum, certain safeguards must be embodied in that “gradual” decree in order to render it as nearly “effective” as any decree can be which continues the injury being suffered by these appellants as a consequence of the unconstitutional practice here complained of. Appellants assume that “the great variety of local conditions”, to which the Court referred in its May 17th opinion, embraces only such educationally relevant factors as variations in administrative organization, physical facilities, school population and pupil redistribution, and does not include such judicially non-cognizable factors as need for community preparation, Ex Parte Endo, 323 U.S. 283, and threats of racial hostility and violence, Buchanan v. Warley, 245 U.S. 60; Monk v. City of Birmingham, 185 F. 2d 859 (C. A. 5th 1950), cert. denied, 341 U.S. 940. Further we assume that the word “effective” might be so construed that a plan contemplating desegregation after the lapse of many years could be called an “effective gradual adjustment.” For, whenever the change is in fact made, it results in a desegregated system. We do not understand that this type of adjustment would be “effective” within the meaning of Question 5 nor do we undertake to answer it in this framework. Rather, we assume that under any circumstances, the question encompasses due consideration for the constitutional rights of each of these appellants and those presently “5. On the assumption on which question 4(a) and (b) are based, and assuming further that this Court will exercise its equity powers to the end described in question 4(b). “(a) should this Court formulate detailed decrees in these cases; “(b) if so, what specific issues should the decrees reach;“(c) should this Court appoint a special master to hear evidence with a view to recommending specific terms for such decrees;“(d) should this Court remand to the courts of first instance with directions to frame decrees in these cases, and if so, what general directions should the decrees of this Court include and what procedures should the courts of first instance follow in arriving at the specific terms of more detailed decrees?”
17
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in the class they represent to be free from enforced racial segregation in public education. Ordinarily, the problem—the elimination of race as the criterion of admission to public schools—by its very nature would require only general dispositive directions by this Court. Even if the Court decides that the adjustment to nonsegregated systems is to be gradual, no elaborate decree structure is essential at this stage of the proceedings. In neither event would appellants now ask this Court, or any other court, to direct or supervise the details of operation of the local school systems. In either event, we would seek effective provisions assuring their operation— forthwith in the one instance and eventually in the other—in conformity with the Constitution. These considerations suggest appellants’ answers to Question 5. Briefly stated, this Court should not formulate detailed decrees in these cases. It should not appoint a special master to hear evidence with a view to recommending specific terms for such decrees. It should remand these cases to the courts of first instance with directions to frame decrees incorporating certain provisions, hereinafter discussed, that appellants believe are calculated to make them as nearly effective as any gradual desegregation decree can be. The courts of first instance need only follow normal procedures in arriving at such additional provisions for such decrees as circumstances may warrant. Declaratory provisions This Court should reiterate in the clearest possible language that segregation in public education is a denial of the equal protection of the laws. It should order that the decrees include a recital that constitutional and statutory provisions, and administrative and judicial pronouncements, requiring or sanctioning segregated education afford no basis for the continued maintenance of segregation in public schools.
real or imagined dilemma of some school officials who contend that, pending the issuance of injunctions against the continuation of segregated education in their own systems, they are entitled or even obliged to carry out state policies the invalidity of which this Court has already declared. The dilemma is well illustrated by the case of Steiner v. Simmons (Del. Sup. Ct. No. 27, 1954), pending in the Delaware Supreme Court, wherein plaintiffs are suing for readmission to Milford’s high school from which, on September 30, 1954, they were expelled because they are Negroes. The Vice Chancellor granted the requested mandatory injunction, finding that plaintiffs had a constitutional right to readmission to school. The Delaware Supreme Court, however, granted a stay pending determination of the appeal on the basis of its preliminary conclusion that “there are serious questions of law touching the existence of that legal right.”18 This Court’s decision of May 17th put state authorities on notice that thereafter they could not with impunity abrogate the constitutional rights of American children not to be segregated in public schools on the basis of race. This type of recital in the decree should foreclose further misunderstanding, real or pretended, of the principle of law that continuation of racial segregation in public education is in direct violation of the Constitution—state constitutions, statutes, custom or usage requiring such segregation to the contrary notwithstanding.
The important legal consequence of such declaratory provisions would be to obviate the
Time provisions We do not know what considerations may be presented by appellees to warrant gradualism. But whatever these considerations may be, appellants submit that any school plan embracing gradualism must safeguard against the gradual adjustment becoming an interminable one. Therefore, appellants respectfully urge that this Court’s opinion and mandate also contain specific directions that any decree to be entered by a district court shall
18 Cf. Burr v. Bd. of School Commrs. of Baltimore, Superior Court of Baltimore City, Oct. 5, 1954 (unreported), in which case Judge James K. Cullen stated in part: In the instant case this Court is asked to issue a writ of mandamus requiring these defendants, the School Board, to continue with its policy of segregation. This Court finds the Board of School Commissioners have exercised their discretion legally and in accordance with a final and enforceable holding and decision of the Supreme Court. Those cases were undoubtedly argued before the Supreme Court fully, and the views of every division of thought of our citizenry was undoubtedly presented to the Court; but the Court has spoken. Whether
the individual agrees or disagrees with the finding, he is bound thereby so long as it remains the law of the land. The Court realizes the change and the difficulty some may have accepting the reality or the inevitable from the standpoint of enforcement. We live in a country where our rights and liberties have been protected under a system of laws which has withstood the test of time. We must allow ourselves to be governed by those laws, realizing there are many differences among our people. Respect for the law is of paramount importance. The law must be accepted. We must all be forced to abide by it. We can gain nothing by demonstrations of violence except sorrow and possible destructions.
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specify (1) that the process of desegregation be commenced immediately, (2) that appellees be required to file periodic reports to the courts of first instance, and (3) an outer time limit by which desegregation must be completed. Even cases involving gradual decrees have required some amount of immediate compliance by the party under an obligation to remedy his wrongs to the extent physically possible.19 In Wisconsin v. Illinois, 281 U.S. 179, the Court said: It already has been decided that the defendants are doing a wrong to the complainants, and that they must stop it. They must find out a way at their peril. We have only to consider what is possible if the state of Illinois devotes all its powers to dealing with an exigency to the magnitude of which it seems not yet to have fully awaked. It can base no defenses upon difficulties that it has itself created. If its Constitution stands in the way of prompt action, it must amend it or yield to an authority that is paramount to the state (p. 197). *** 1. On and after July 1, 1930,20 the defendants, the state of Illinois and the sanitary district of Chicago are enjoined from diverting any of the waters of the Great Lakes-St. Lawrence system or watershed through the Chicago drainage canal and its auxiliary channels or otherwise in excess of an annual average of 6,500 c.f.s. in addition to domestic pumpage (p. 201).
Considering the normal time consumed before the issuance of the mandate of this Court and the time for submission and preparation of decrees by the courts of first instance, decrees in these cases will not issue until after February, 1955—after the normal mid-term in most school systems. Thus, the school boards would have until September, 1955—sixteen months after the May 17th opinions—to change to a system not based on color distinctions. This time could very well be considered as necessarily incidental to any decision by this Court requiring “forthwith” decrees by the courts of first instance.
19
See Wisconsin v. Illinois, 281 U.S. 179; Arizona Copper Co. v. Gillespie, 230 U.S. 46; Georgia v. Tennessee Copper Co., 206 U.S. 230; Westinghouse Air Brake Co. v. Great Northern Ry. Co., 86 Fed. 132 (C. C. S. D. N. Y. 1898). 20 This opinion was rendered April 30, 1930.
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Whatever the reasons for gradualism, there is no reason to believe that the process of transition would be more effective if further extended. Certainly, to indulge school authorities until September 1, 1956, to achieve desegregation would be generous in the extreme. Therefore, we submit that if the Court decides to grant further time, then the Court should direct that all decrees specify September, 1956, as the outside date by which desegregation must be accomplished. This would afford more than a year, in excess of the time necessary for administrative changes, to review and modify decisions in the light of lessons learned as these decisions are put into effect. We submit that the decrees should contain no provision for extension of the fixed limit, whatever date may be fixed. Such a provision would be merely an invitation to procrastinate.21 We further urge this Court to make it plain that the time for completion of the desegregation program will not depend upon the success or failure of interim activities. The decrees in the instant cases should accordingly provide that in the event the school authorities should for any reason fail to comply with the time limitation of the decree, Negro children should then be immediately admitted to the schools to which they apply.22 All states requiring segregated public education were by the May 17th decision of this Court put upon notice that segregated systems of public education are unconstitutional. A decision granting appellees time for gradual adjustment should be so framed that no other state maintaining such a system is lulled into a period of inaction and induced to merely await suit on the assumption that it will then be granted the same period of time after such suit is instituted. 21
ASHMORE, THE NEGRO AND THE SCHOOLS
70–71 (1954); CULVER, 23 J. NEGRO ED.
RACIAL DESEGREGATION IN EDUCATION IN INDIANA,
296–302 (1954). 22 See United States v. American Tobacco Co., 221 U.S. 106, where this Court directed the allowance of a period of six months, with leave to grant an additional sixty days if necessary, for activities dissolving an illegal monopoly and recreating out of its components a new situation in harmony with the law, but further directed that if within this period a legally harmonious condition was not brought about, the lower court should give effect to the requirements of the Sherman Act.
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CONCLUSION
CHARLES L. BLACK JR.,
Much of the opposition to forthwith desegregation does not truly rest on any theory that it is better to accomplish it gradually. In considerable part, if indeed not in the main, such opposition stems from a desire that desegregation not be undertaken at all. In consideration of the type of relief to be granted in any case, due consideration must be given to the character of the right to be protected. Appellants here seek effective protection for adjudicated constitutional rights which are personal and present. Consideration of a plea for delay in enforcement of such rights must be preceded by a showing of clear legal precedent therefor and some public necessity of a gravity never as yet demonstrated.
ELWOOD H. CHISOLM,
There are no applicable legal precedents justifying a plea for delay. As a matter of fact, relevant legal precedents preclude a valid plea for delay. And, an analysis of the non-legal materials relevant to the issue whether or not relief should be delayed in these cases shows that the process of gradual desegregation is at best no more effective than immediate desegregation.
ROBERT L. CARTER,
WHEREFORE,
we respectfully submit that this Court should direct the issuance of decrees in each of these cases requiring desegregation by no later than September of 1955.
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WILLIAM T. COLEMAN JR., BRIEF FOR APPELLANTS AND RESPONDENTS ON FURTHER ARGUMENT
CHARLES T. DUNCAN, GEORGE E. C. HAYES, LOREN MILLER, WILLIAM R. MING JR., CONSTANCE BAKER MOTLEY, JAMES M. NABRIT JR., DAVID E. PINSKY, FRANK D. REEVES, JOHN SCOTT, JACK B. WEINSTEIN,
of Counsel.
HAROLD BOULWARE,
JACK GREENBERG, OLIVER W. HILL, THURGOOD MARSHALL, LOUIS L. REDDING, SPOTTSWOOD W. ROBINSON III, CHARLES S. SCOTT,
Attorneys for Appellants in Nos. 1, 2, 3 and for Respondents in No. 5.
CROSS REFERENCE Report by the President’s Committee on Equality of Opportunity in the Armed Forces
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U.S. SUPREME COURT, OCTOBER 1954 SUPPLEMENTAL BRIEF FOR THE BD. OF EDUC., TOPEKA, KS, ON QUESTIONS PROPOUNDED BY THE COURT
MILESTONES IN THE LAW
In the Supreme Court of the United States No. 1, October Term, 1954 OLIVER BROWN, ET AL., APPELLANTS VS. BOARD OF EDUCATION OF TOPEKA, SHAWNEE COUNTY, KANSAS ET AL., APPELLEES
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS SUPPLEMENTAL BRIEF FOR THE BOARD OF EDUCATION, TOPEKA, KANSAS, ON QUESTIONS 4 AND 5 PROPOUNDED BY THE COURT PETER F. CALDWELL, Counsel for the Board of Education of Topeka, Kansas, 512 Capitol Federal Building, Topeka, Kansas.
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This supplemental brief is filed in response to the order of this Court directing and requesting further briefs and argument on questions 4 and 5 heretofore propounded by the Court. In its brief, heretofore filed herein in December, 1953, The Board of Education of Topeka urged that in the event segregation in its elementary schools were held to be unconstitutional, this case should simply be remanded to the lower court with instructions to reverse its judgment and to enter a decree requiring that segregation be terminated “as rapidly as is practicable” by the defendant Board of Education. It was suggested that by such a decree the lower court could retain jurisdiction for enforcement of the decree, and that if a need for a more specific decree should arise in the future, the lower court would have power to amplify its decree under the general power of an equity court to enforce its decree. As was pointed out in its brief filed in December, 1953, The Board of Education of Topeka in September, 1953, adopted a resolution to terminate segregation in its elementary schools “as rapidly as is practicable”; and on September 8, 1953, terminated segregation at two of its elementary schools, to wit: Southwest and Randolph Schools. G A L E
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Since that time, the Board of Education of Topeka has already taken its second far-reaching step or stride toward termination of segregation by adopting the recommendations of its superintendent of schools as set out in the following report which was made on January 20, 1954, and was approved and adopted by the Board of Education on the same date: SECOND STEP IN TERMINATION OF SEGREGATION IN TOPEKA ELEMENTARY SCHOOLS
I. In implementation of the Board’s policy to terminate segregation in elementary schools as soon as practicable, I propose that the second step be taken at the opening of school in September, 1954. The step should be acted upon by the Board at this time in order to enable everybody concerned to make necessary plans for next year. II. In the second step, I propose that segregation be terminated in the following school districts and that transportation not be provided Negro Children to Come Negro from Following Schools Children to Integrated Schools Mckinley Buchanan Monroe Washington 21 16 5
1. Central Park 2. Clay 3. Crestview 4. Gage 5. Grant (Limited)* 6. Oakland 7. Polk (Limited)** 8. Potwin 9. Quincy 10. Quinton Heights 11. State Street 12. Sumner Randolph Southwest
13 0 1 3
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3
34
1 38
5
5
9 5 39
12 1 24
12
123
* The limitation suggested at Grant is that three Negro children isolated in the extreme northern part of Grant School district be permitted to attend Grant, while the remainder of the Negro children continue at McKinley. ** The limitation suggested at Polk School is as follows: Several Negro children in this district live very close to Buchanan School. They should continue at this school. There would not be room for them at Polk and there is plenty of room at Buchanan. However, there are three Negro children now attending Monroe School but residing in the Polk district. I suggest that they be allowed to attend Polk School.
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for Negro children who are affected, but that such child be given the privilege of attending the nearest Negro School if his parents want him to do so. (All pupil accounting is based on the number belonging on October 16, 1953.) III. The effects of taking this step would be as follows: 1. It would reduce the enrollments of Negro Schools as indicated. McKinley Buchanan Monroe Washington
From 127 160 245 292 824
To 89 121 221 280 711
It is gratifying to be able to report to the Court that The Board of Education has been carrying out its policy of termination of segregation “as rapidly as is practicable” with full public cooperation and acceptance by both white and Negro pupils, teachers and parents.
1. It would place 123 Negro children in integrated schools. 2. It would leave, in addition to the four schools for Negro children, 12 schools integrated, 2 schools (Grant and Polk) on a basis of partial integration, and 5 schools continuing on a segregated basis (Lafayette, Lincoln, Lowman Hill, Parkdale and Van Buren.) Thus, by announcing the changes in the spring of 1954, all parties affected had ample opportunity to adjust themselves to the changes before they became effective the following September. Segregation has been completely terminated in 12 elementary school districts, and partially terminated in two others; and, as of September, 1954, there will remain only four Negro schools and five white schools in which segregation is being continued. The Board of Education has requested the superintendent, and he plans, to make
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recommendations for the third step toward termination of segregation early in 1955 to become effective in September, 1955. In the meantime, of course, he will have had an opportunity to observe the results and the operation of the second step which became effective in September, 1954. Thus before taking the third step, the board of education will have the benefit of its experiences with the first and second steps.
O F
The administrative problems, which were discussed in the brief filed in December, 1953, are the chief problems with which The Board of Education is confronted; but with practical experience, they are being satisfactorily solved. Their solution, however, cannot be effected “forthwith,” but require time for a gradual adjustment. It is respectfully submitted that The Board of Education of Topeka is in good faith carrying out its adopted policy to terminate segregation “as rapidly as is practicable,” and that there is no need at this time for the appointment of a special master or for the Court to undertake to formulate specific decrees directing the particular steps to be taken to terminate segregation in the schools of Topeka. Respectfully submitted, PETER F. CALDWELL, Counsel for the Board of Education of Topeka, Kansas, 512 Capitol Federal Building, Topeka, Kansas.
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In the Supreme Court of the United States October Term, 1954
LOUIS L. REDDING, SPOTTSWOOD W. ROBINSON III, CHARLES S. SCOTT, Attorneys for Appellants in Nos. 1, 2, 3 and for Respondents in No. 5.
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NO. 1 OLIVER BROWN, ET AL., APPELLANTS, VS. BOARD OF EDUCATION OF TOPEKA, ET AL., APPELLEES.
NO. 2 HARRY BRIGGS, JR., ET AL., APPELLANTS, VS. R. W. ELLIOTT, ET AL., APPELLEES.
NO. 3 DOROTHY E. DAVIS, ET AL., APPELLANTS, VS. COUNTY SCHOOL BOARD OF PRINCE EDWARD COUNTY, VIRGINIA, ET AL., APPELLEES.
NO. 5 FRANCIS B. GEBHART, ET AL., PETITIONERS, VS. ETHEL LOUISE BELTON, ET AL., RESPONDENTS.
TABLE OF CONTENTS
Argument Briefs filed by appellees and state Attorneys General do not offer any affirmative plan for desegregation but are merely restatements of arguments in favor of interminable continuation of racial segregation Opinion polls are immaterial to the issues herein and do not afford any basis to support an argument that a gradual adjustment would be more effective The wide applicability of the decision in these cases should not affect the relief to which appellants are entitled Average differences in student groups have no relevance to the individual rights of pupils: individual differences can be handled administratively without reference to race Official reactions in states affected by the May 17th decision make it plain that delay will detract from rather than contribute to the “effectiveness” of the transition to desegregated schools
Conclusion APPEALS FROM THE UNITED STATES DISTRICT COURTS FOR THE DISTRICT OF KANSAS, THE EASTERN DISTRICT OF SOUTH CAROLINA AND THE EASTERN DISTRICT OF VIRGINIA, AND ON PETITION FOR A WRIT OF CERTIORARI TO THE SUPREME COURT OF DELAWARE, RESPECTIVELY REPLY BRIEF FOR APPELLANTS IN NOS. 1, 2 AND 3 AND FOR RESPONDENTS IN NO. 5 ON FURTHER REARGUMENT CHARLES L. BLACK JR., ELWOOD H. CHISOLM, WILLIAM T. COLEMAN JR., CHARLES T. DUNCAN, GEORGE E. C. HAYES, LOREN MILLER, WILLIAM R. MING JR., CONSTANCE BAKER MOTLEY, JAMES M. NABRIT JR., LOUIS H. POLLAK, FRANK D. REEVES, JOHN SCOTT, JACK B. WEINSTEIN, of Counsel. HAROLD BOULWARE, ROBERT L. CARTER, JACK GREENBERG, OLIVER W. HILL, THURGOOD MARSHALL,
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The briefs filed on this reargument by appellees and amici curiae (with the exception of those in Nos. 1 and 5, and the brief filed on behalf of the Attorney General of The United States) are similar in substance despite some differences in details. Our reply to them can, therefore, be made in one joint brief. ARGUMENT
Briefs filed by appellees and state Attorneys General do not offer any affirmative plan for desegregation but are merely restatements of arguments in favor of interminable continuation of racial segregation In our Brief on Further Reargument, we stated:1 Much of the opposition to forthwith desegregation does not truly rest on any theory
1 Brief for Appellants in Nos. 1, 2 and 3 and for Respondents in No. 5 on Further Reargument, 1954 Term, p. 31.
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that it is better to accomplish it gradually. In considerable part, if indeed not in the main, such opposition stems from a desire that desegregation not be undertaken at all.
Similarly, the briefs filed at this time, both by appellees and state attorneys general seem to be directed against ending racial segregation in our time, rather than toward desegregation within a reasonable time. First, these briefs do not in fact offer any affirmative plan or elements of such a plan for accomplishing the task of desegregation. Secondly, and equally significant, the main reasons now proffered in support of indefinite delay are identical with arguments previously advanced for denying relief on the merits. This Court has decided that racial segregation is unconstitutional—that it is a practice, moreover, which has such effects on its victims that it can only be described as abhorrent. Yet, in answering questions 4 and 5, propounded by the Court, the States do not even get around to what must, in the light of that decision, be the main problem underlying those questions: How can this practice be most expeditiously done away with? Reasons for delay, which would seem to occupy at best a subsidiary position, are the sole preoccupation of state counsel, and the affirmative problem gets virtually no attention.2 The brief of the Attorney General of Florida does contain a Point entitled “Specific Suggestions to the Court in Formulating a Decree.”3 But, the effect of the suggested plan4 would be to subject the constitutional rights of Negro children to denial on the basis of such a variety of intangible factors that the plan itself cannot be seriously regarded as one for implementing the May 17th decision. Each individual Negro child must, under the Florida plan, petition a court of the first instance for admission to an unsegregated school, after exhausting his administrative remedies. It is up to
2 It is true that Delaware and Kansas catalogue the progress they have made thus far in accomplishing integration. But both states plead for delay without offering any valid reasons therefor. 3 Brief of the Attorney General of the State of Florida as amicus curiae, pp. 57–65. Hereinafter, citations to briefs of appellees and amici curiae will be abbreviated. See, e.g., fn. 5, infra. 4 Set out commencing at p. 61 of the Florida Brief.
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him to establish to that court’s satisfaction that there exists no “reasonable grounds” for delay in his admission. “Reasonable grounds” include lack of a reasonable time to amend the state school laws, good faith efforts of the school board in promoting citizens’ educational committees, administrative problems, and “evidence of . . . a strong degree of sincere opposition and sustained hostility” [emphasis supplied] giving the school board ground to believe that admission of the applicant would “ . . . create emotional responses among the children which would seriously interfere with their education.” In other words, the applicant’s right is to be postponed until everything seems entirely propitious for granting it. It is submitted that this is not a plan for granting rights, but a plan for denying them just as long as can possibly be done without a direct overruling of the May 17th decision. Lest there be any doubt about this, the final criterion for admission to unsegregated schooling should be quoted:5 (6) Evidence that the petitioner’s application was made in good faith and not for capricious reasons. Such evidence should demonstrate: (a) That the petitioner personally feels that he would be handicapped in his education, either because of lack of school plant facilities or psychological or sociological reasons if his application for admission is denied. (b) That the petitioner is not motivated in his application solely by a desire for the advancement of a racial group on economic, social or political grounds, as distinguished from his personal legal right to equality in public school education as guaranteed by the 14th Amendment. This distinction should be carefully drawn [emphasis supplied].
Where the devisers of a plan are disposed to characterize opposition to desegregation as “sincere” and reasons for desiring admission as “capricious”, we cannot be surprised at a rather peculiar procedural consequence of the dispensation they set up. The “petitioner”, if he is to make timely application, exhaust his administrative remedies, and allow time for appeal, will have to draw this fine distinction at about four years of age, if he is to start the first grade in a desegregated school. Out of the mouths of babes and sucklings will have to come a wisdom in self-analysis which surely has never in the history of this country been required of any
5
Florida Brief, p. 63.
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applicant for relief from the denial of a personal constitutional right. The Florida Brief is no real exception to the statement that none of the States has offered any plan for actually implementing the decision of this Court. The quality and thrust of the reasons now advanced for delay may best be evaluated by noting that (except for those that deal with purely administrative matters obviously requiring little time for solution) they are arguments which were advanced at an earlier stage in this litigation as grounds for denying relief on the merits, and now, under slightly altered guise, they walk again after their supposed laying to rest on May 17. Thus, the impossibility of procuring community acceptance of desegregation, urged earlier as a ground for decision on the merits,6 now turns up as an argument for indefinite postponement7 with no convincing reasons given for supposing that community attitudes will change within the segregated pattern. The prediction that white parents will withdraw their children from public schools is repeated,8 with the implied hope, no doubt, that at some remote date they will have attained a state of mind that will result in their leaving their children in school. “Racial tensions” are again predicted.9 Negro teachers may lose their jobs.10 Violence is warned of.11 The people and the legislature will abolish the school system or decline to appropriate money for its support.12 All these are serious matters, but we have elsewhere shown solid reason for believing that those dire predictions, one and all, are unreliable. There is no reason for supposing that delay can minimize whatever unpleasant consequences might follow from the eradication of this great 6
South Carolina Brief (1952) p. 27. Cf. Id. at p. 35; Virginia Brief (1952) pp. 24–25. 7 Virginia Brief (1954) p. 13; Delaware Brief (1954) pp. 16, 25; Florida Brief (1954) p. 201 ff.; Texas Brief (1954) pp. 16– 17; North Carolina Brief (1954) pp. 7–8. 8 Compare Florida Brief (1954) pp. 26–27 and North Carolina Brief (1954) pp. 36–37 with Virginia Brief (1952) p. 30. 9 Compare Florida Brief (1954) p. 95 with Virginia Brief (1952) p. 27. 10 Compare Florida Brief (1954) pp. 31–32; North Carolina Brief (1954) pp. 24–25; and Texas Brief (1954) pp. 10–11, with Virginia Brief (1952) p. 31. 11 Compare North Carolina Brief (1954) p. 37 and Florida Brief (1954) p. 25 with South Carolina Brief (1952) p. 27. 12 Compare North Carolina Brief (1954) p. 36; Virginia Brief (1954) p. 15; and Arkansas Brief (1954) pp. 7–8 with South Carolina Brief (1952) p. 27.
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evil. Here, however, the point is that, where these arguments are resuscitated as grounds for delay, the inference is that their sponsors favor delay as long as present conditions prevail—that, in other words, they now want to delay desegregation just as long as the conditions exist which they formerly regarded as sufficient grounds for imposing segregation as a matter of legal right. The distinction is too fine to make such practical difference, either to the Negro child who is growing up or to this Court. That it is opposition to the principle of the May 17th decision that animates these briefs is made clear by noting that the equality of schools, Plessy style, is now being urged as a ground for delay.13 Nothing could make it clearer, moreover, that many responsible officials, taking a realistic view, will not regard the “separate but equal” doctrine as abolished until this Court orders its abandonment in practice. Most significant here is the amicus curiae brief of the Attorney General of Texas which, after making a straight-out Plessy argument, continues with the statement: “However, if the occasion arises whereby we are compelled to abolish segregation in Texas, it should be a gradual adjustment in view of the complexities of the problem” (p. 4). Opinion polls are immaterial to the issues herein and do not afford any basis to support an argument that a gradual adjustment would be more effective Several of the briefs filed herein refer to polls of public opinion in their respective States in support of arguments to postpone desegregation indefinitely.14 These polls appear to have been made for the purpose of sampling opinions of various groups within the State as to whether they approved of the May 17th decision and whether they thought it could be enforced immediately without friction. The information as to racial hostility obtained from these polls is indecisive of the issues before this Court. In Buchanan v. Warley, 245 U.S. 60, 80, this Court stated: That there exists a serious and difficult problem arising from a feeling of race hostility which the law is powerless to control, and to 13 Compare North Carolina Brief (1954) pp. 25–35, 43; Texas Brief (1954) pp. 2–4; and Maryland Brief (1954) p. 10 with Virginia Brief (1952) pp. 18–19 and South Carolina Brief (1952) pp. 8–9. 14 Texas Brief, pp. 16–17; Virginia Brief pp. 13–14; North Carolina Brief pp. 7–9; Florida Brief pp. 23–24, 105 ff: Delaware Brief p. 12.
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which it must give a measure of consideration, may be freely admitted. But its solution cannot be promoted by depriving citizens of their constitutional rights and privileges. We believe the same answer should be given to any suggestion that the enforcement of constitutional rights be deferred to a time when it will have uniform public acceptance. Even if relevant, results of polls are often not conclusive. For example, the Florida survey polled eleven “leadership” groups. These groups give evidence of a very high degree of “willingness” to comply. Although peace officers are greatly opposed to desegregation (Table 3, p. 138), only two of the eleven groups would not positively comply, and in those cases there is a very even division (Table 4, p. 139). Overall, six of the eleven groups are not opposed to the decision (Table 3, p. 138); 84.5% of white principals and supervisors who, would be charged with the duty of implementation, would comply (Table 4, p. 139). A majority of all groups expect neither mob violence nor “serious violence” (Table 5, p. 140). Moreover, such polls are not a valid index of how the individuals questioned will in fact act in the event of desegregation. Modern psychological research shows that, especially in the case of broad public issues, many persons simply “do not follow through even on actions which they say they personally will take in support of an opinion.”15 The Attorney General of Texas sets out in his brief in these cases a survey by the “Texas Poll” showing 71% disapproval of the May 17th decision and 65% approval of continued segregation notwithstanding this Court’s decision. It is interesting to note that in Sweatt v. Painter, 339 U.S. 629, respondents included in their brief a survey made by the same “Texas 15
BUCHANAN, KRUGMAN AND VAN WAGENEN, AN INTERNATIONAL
13 (1954). For other studies dealing with the discrepancy between verbal statements and actions, see Link and Freiberg, “THE PROBLEM OF VALIDITY VS. RELIABILITY IN PUBLIC OPINION POLLS”, 6 PUBLIC OPINION QUARTERLY 87–98, esp. 91–92 (1942); JENKINS AND CORBIN, “DEPENDABILITY OF PSYCHOLOGICAL BRAND BAROMETERS II, THE PROBLEM OF VALIDITY”, 22 JOURNAL OF APPLIED PSYCHOLOGY, 252–260 (1938); HYMAN, “DO THEY TELL THE TRUTH?”, 8 PUBLIC OPINION QUARTERLY 557–559 (1944); SOCIAL SCIENCE RESEARCH COUNCIL, COMMITTEE ON ANALYSIS OF PRE–ELECTION POLLS AND FORECASTS 302–303 (1949); LA PIERE, “ATTITUDES VS. ACTIONS”, 13 SOCIAL FORCES 230–237 (1934); DOOB, PUBLIC OPINION AND PROPAGANDA 151 (1948); HARTLEY AND HARTLEY, FUNDAMENTALS OF SOCIAL PSYCHOLOGY 657 (1952). See also Irvin v. State, 66 So. 2d 288, 290–292, cert. denied 346 U.S. 927, reh. denied 347 U.S. 914. POLICE FORCE AND PUBLIC OPINION
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Poll” showing that 76% of all Texans were “against Negroes and whites going to the same universities.” However, this Court ordered Sweatt admitted to the University of Texas. He and other Negroes attended the University.16 Since then Negroes have been admitted to and are attending this and other public universities in twelve southern States.16a Finally, there is nothing to indicate that an extended delay in ordering the elimination of all segregation will improve public attitudes or eliminate the objections presently interposed. Clearly the polls are irrelevant and should be so treated by this Court. The wide applicability of the decision in these cases should not affect the relief to which appellants are entitled Effort is made throughout the briefs for appellees and the several attorneys general to balance the personal and present rights here involved against the large number of children of both races now attending public school on a segregated basis. This argument is made for a twofold purpose: to escape the uniformity of decisions of this Court on the personal character of the rights involved and, secondly, to destroy the present character of the right involved. Of course, the decision of this Court in the instant cases will have wide effect involving public school systems of many states and many public school children. The mere fact of numbers involved is not sufficient to delay enforcement of rights of the type here involved.17 16
It is also significant that many municipal junior colleges in Texas have also desegregated their student bodies. See SOUTHERN SCHOOL NEWS, October 1, 1954, p. 13, c. 5. 16a JOHNSON, “PUBLIC HIGHER EDUCATION IN THE SOUTH”, 23 JOURNAL OF NEGRO EDUCATION 317 (1954), especially at 328 where Dr. Johnson, University of North Carolina Sociologist, concludes: The transition from complete segregation to some degree of integration of Negroes into the publiclysupported institutions of higher learning in the South has already been accomplished in all except five of the Southern states, and most of this change has occurred in the brief period, 1948–1953. Despite numerous predictions of violence, this transition has been accomplished without a single serious incident of interracial friction. 17
We put to one side as obviously immaterial the mere technical character of these suits as class actions under Rule 23(a)(3). Obviously, the mere joinder of plaintiffs in a spurious class suit for reasons of convenience cannot have any effect on the nature of the rights asserted or on the availability of normal relief remedy. Whether a suit is or is not a class action tells us little, in this field of law, as to the magnitude of the interests involved; Sweatt v. Painter was an individual mandamus suit, but the effect of that decision spread throughout the segregating states.
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On the face of it, their position is both illtaken and self-defeating. That it is ill-taken becomes clear when the suggestion itself is clearly stated; obviously, there is nothing in mere numerousness as such which has any tendency whatever to create or destroy rights to efficacious legal relief. Behind every numeral is a Negro child, suffering the effects spoken of by the Court on May 17. It is a manifest inconsequence to say that the rights or remedial needs of each child are diminished merely because others are in the same position. That this argument is selfdefeating emerges when it is considered that its tendency is simply to establish that we have to do with an evil affecting a great many people; presumably, the abolition of a widespread evil is even more urgent than dealing with isolated cases of wrongdoing. This Court has consistently treated the personal rights of litigants on a personal basis. Every leading case involving discrimination against Negroes has necessarily and demonstrably involved large numbers of people; yet this Court has given present relief on a personal basis to those who showed themselves entitled to it, without any hint of the possibility that the rights of citizenship are diminished because many people are being denied them. The Sweatt, Sipuel and McLaurin cases and Smith v. Allwright, all, as was well known to this Court and to the country, involved not merely the individuals or classplaintiffs or geographical subdivision actually before the Court, but also the whole framework of law school, graduate school or primary election segregation. All major constitutional cases involve large numbers of people. Yet there is not a hint, in words or in action, in any past case, to the effect that the wide applicability of a decision was considered material to the right to relief. It is unthinkable that this Court would apply any such doctrine to limit the enjoyment of constitutional rights in general; there is no reason for its making a special and anomalous exception of the case at bar. Actually, to point to the vast numbers of people whose lives will be affected by the relief granted here is only a diffuse way of raising all the questions as to the consequences of immediate desegregation. We have dealt with these questions elsewhere. The suggestion that mere numerousness makes a difference adds nothing new, but merely serves to confuse the issues by diverting attention from the extremely personal plight of each child, and from his need for present relief. G A L E
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Average differences in student groups have no relevance to the individual rights of pupils: individual differences can be handled administratively without reference to race Having attempted to subordinate appellants’ personal and present constitutional rights to an alleged overriding consideration of the large numbers of people involved, these briefs for appellees then seek to further limit the individual rights of Negro students by broad characterizations of group intelligence, group morality and health.18 Specifically, it is pointed out that statistics show that on the average Negro children in segregated schools score lower on achievement tests and are in general more retarded culturally than white children. This data, contrary to the conclusions advanced thereupon, merely underscores and further documents the finding quoted in this Court’s opinion: “Segregation of white and colored children in public schools has a detrimental effect upon the colored children. The impact is greater when it has the sanction of the law; for the policy of separating the races is usually interpreted as denoting the inferiority of the Negro group. A sense of inferiority affects the motivation of a child to learn. Segregation with the sanction of law, therefore, has a tendency to [retard] the educational and mental development of Negro children and to deprive them of some of the benefits they would receive in a racial[ly] integrated school system.”
We have come too far not to realize that educability and absorption and adoption of cultural values has nothing to do with race. What is achieved educationally and culturally, we now know to be largely the result of opportunity and environment.19 That the Negro is so disadvantaged educationally and culturally in the states where segregation is required is the strongest argument against its continuation for any period of time. Yet those who use this argument as a basis for interminable delay in
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North Carolina Brief, pp. 39–41; Florida Brief, pp. 19–21, 189. 19 KLINEBERG, RACE DIFFERENCES: THE PRESENT POSITION OF THE PROBLEM, 2 INTERNATIONAL SOCIAL SCIENCE BULLETIN 460 (1950); MONTAGUE, STATEMENT ON RACE, THE UNESCO STATEMENT BY EXPERTS ON RACE PROBLEMS 14–15 (1951); MONTAGUE, MAN’S MOST DANGEROUS MYTH: THE FALLACY OF RACE 286 (1952); KIRKPATRICK, PHILOSOPHY OF EDUCATION 399–433 (1951). See KLINEBERG, RACE AND PSYCHOLOGY, UNESCO (1951); ALLPORT, THE NATURE OF PREJUDICE (1954); COMAS, RACIAL MYTHS, UNESCO (1951).
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the elimination of segregation in reality are seeking to utilize the product of their own wrongdoing as a justification for continued malfeasance. Our public school systems have grown and improved as an American institution. And in every community it is obvious that children of all levels of culture, educability, and achievement must be accounted for within the same system. In some school systems the exceptional children are separated from the rest of the children. In others there are special classes for retarded children, for slow readers and for the physically handicapped. But these factors have no relation to race. These are administrative problems with respect to conduct of the public school. In the past, large city school systems, North and South, have had the problem of absorbing children from rural areas where the public schools and cultural backgrounds were below the city standards. On many occasions these migrations have been very sudden and in proportionately very large numbers. This problem has always been solved as an administrative detail. It has never been either insurmountable nor has it been used as an excuse to force the rural children to attend sub-standard schools. Similarly, large cities have met without difficulty the influx of immigrants from foreign countries. Cultural and health standards have always been maintained in public schools and there could be no objection to the continuation of such standards without regard to race. All social scientists seem to be in agreement that race and color have no connection whatsoever with a student’s ability to be educated. Achievement and cultural deficiencies are nonracial in character, also. Hence these factors in no wise relate to questions posed as to whether desegregation should take place immediately or over an extended period. Perhaps the main reasons for rejecting appellees’ argument are that the conditions they complain of can never be remedied as long as segregation in public schools is continued and these so-called problems, i.e., average on achievement tests, health, etc., are administrative problems which can be solved by recognized administrative regulations made to fit the problems without regard to pigmentation of the skin. It is significant that appellees and the AttorneysGeneral who advance these arguments do not give any hope to anyone that the continuation G A L E
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of segregated public education will ever remove these problems which are the product of this segregation.
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On the other hand, appellants have shown in their Brief on Further Reargument that on the basis of substantial documented experience: “There is no basis for the assumption that gradual as opposed to immediate desegregation is the better, smoother or more ‘effective’ mode of transition. On the contrary, there is an impressive body of evidence which supports the position that gradualism, far from facilitating the process, may actually make it more difficult; that, in fact, the problems of transition will be a good deal less complicated than might be forecast by appellees. Our submission is that this, like many wrongs, can be easiest and best undone, not by ‘tapering off’ but by forthright action” (p. 31).
REPLY BRIEF FOR APPELLANTS AND RESPONDENTS ON FURTHER REARGUMENT
Official reactions in states affected by the May 17th decision make it plain that delay will detract from rather than contribute to the “effectiveness” of the transition to desegregated schools Events occurring in the states affected by the decision of May 17, 1954, do not support the suggestions of appellees and amici curiae that further (and limitless) postponement of relief to Negro children will assure an “effective” adjustment from segregated to nonsegregated school systems. In terms of legislative, executive or administrative reaction, the southern and border states may now be grouped in three loose categories: (1) Those which have not waited for further directions from the Court, but have undertaken desegregation in varied measure during the current school year. Typical of the states falling in this category are Delaware,20 Kansas,21 Missouri,22 and West Virginia.23 Although not a 20
Brief for Appellants in Nos. 1, 2 and 3 and for Respondents in No. 5 on Further Reargument, pp. 4–7; Brief for Petitioners on the Mandate in No. 5, pp. 10–12. 21 Brief for Appellants in Nos. 1, 2 and 3 and for Respondents in No. 5 on Further Reargument, pp. 3–4; Supplemental Brief for the State of Kansas on Questions 4 and 5 Propounded by the Court, pp. 13–22; Supplemental Brief for the Board of Education, Topeka, Kansas on Questions 4 and 5 Propounded by the Court, pp. 2–4. 22 SOUTHERN SCHOOL NEWS, September 3, 1954, p. 9, c. 2–5; Id., October 1, 1954, p. 10, c. 1–5; Id., November 4, 1954, p. 12, c. 1–5; Id., December 1, 1954, p. 10, c. 1–5; Id., January 6, 1955, p. 11, c. 1; Id., February 3, 1955, p. 15, c. 1–5. 23 SOUTHERN SCHOOL NEWS, October 1, p. 14, c. 1, 5; Id., January 6, 1955, p. 2, c. 4–5.
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state, the District of Columbia would fall within this group. (2) Those which have decided to await a decision on the question of relief but have indicated an intention to obey the Court’s directions. Kentucky,24 Oklahoma,25 and Tennessee26 are among the states in this category. (3) Those which have indicated an intention to circumvent the decision of this Court or interminably delay the enjoyment by Negro children of their constitutionally protected rights not to be segregated in public schools. Included in this category are states like South Carolina27 and Mississippi,28 which have enacted legislation designed to nullify any decision of this Court in these cases, and states like Virginia29 and Florida,30 where either the governors or special legislative committees studying the problem have recommended that “every legal means” be used to preserve segregated school systems.31 Against this background of state reaction to the decision of May 17, 1954, it is clear that postponement of relief will serve no purpose. The states in the first category have already begun to implement this Court’s decision and any delay as to them may imperil the progress already made.32 The states in the second category have indicated a willingness to do whatever this Court directs and there is certainly no reason for delay as to them. The probable effect of delay, as to states in the third category, must be evaluated in the light of their declared intentions; we are justified in assuming that it would have no affirmative effect, but would merely provide additional time to devise and put into practice schemes expressly designed to thwart this Court’s decision. CONCLUSION
Appellants recognize that the problems confronting this Court, as it turns to the 24
SOUTHERN SCHOOL NEWS, September 3, 1954, p. 7, c. 3; Id., November 4, 1954, p. 16, c. 1; Id., December 1, 1954, p. 9, c. 1, 3. 25 SOUTHERN SCHOOL NEWS, February 3, 1955, p. 10, c. 1–2; Id., March 3, 1955, p. 16, c. 1; THE NEW YORK TIMES, April 6, 1955, p. 20, c. 5. 26 SOUTHERN SCHOOL NEWS, October 1, 1954, p. 11, c. 1; Id., December 1, 1954, p. 12, c. 4; NEW YORK POST, March 16, 1955, p. 58, c. 4. 27 SOUTHERN SCHOOL NEWS, September 3, 1954, p. 12, c. 1–2; Id., February 3, 1955, p. 3, c. 2–4, Id., March 3, 1955, p. 14, c. 1–3. 28 SOUTHERN SCHOOL NEWS, September 3, 1954, p. 8, c. 3; Id., October 1, 1954, p. 9, c. 4–5; Id., November 4, 1954, p. 11, c.
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implementation of its decision in these cases, are of primary magnitude. Their high seriousness is enhanced by the fact that sovereign states are in effect, though not formally, at the bar and that the evil to which the Court’s decree must be directed is no transitory wrong but is of the essence of the social structure of a great section of our nation. Yet, it should be borne in mind that the very magnitude of these problems exists because of the assumption, tacitly indulged up to now, that the Constitution is not to be applied in its full force and scope to all sections of this country alike, but rather that its guarantees are to be enjoyed, in one part of our nation, only as molded and modified by the desire and customs of the dominant component of the sectional population. Such a view, however expressed, ignores the minimum requirement for a truly national constitution. It ignores also a vast part of the reality of the sectional interest involved, for that interest must be composed of the legitimate aspirations of Negroes as well as whites. It certainly ignores the repercussions which any reluctance to forthrightly enforce appellants’ rights would have on this nation’s international relations. Every day of delay means that this country is failing to develop its full strength. The time has come to end the division of one nation into those sections where the Constitution is and those where it is not fully respected. Only by forthright action can the country set on the road to a uniform amenability to its Constitution. Finally, the right asserted by these appellants is not the only one at stake. The fate of other great constitutional freedoms, whether secured by the Fourteenth Amendment or by other provisions, is inevitably bound up in the resolution to be made in these cases. For 4–5; Id., January 6, 1955, p. 10, c. 1–2; THE NEW YORK TIMES, April 6, 1955, p. 20, c. 5. 29 SOUTHERN SCHOOL NEWS, February 3, 1955, p. 10, c. 4. 30 SOUTHERN SCHOOL NEWS, January 6, 1955, p. 6, c. 2. 31 Indeed, Governor Marvin B. Griffin of Georgia has asserted: “However, if this court is so unrealistic as to attempt to enforce this unthinkable evil upon us, I serve notice now that we shall resist it with all the resources at our disposal and we shall never submit to the proposition of mixing the races in the classrooms of our schools.” 32 See, e.g., Steiner v. Simmons, 111 A. 2d 574 (Del. 1955), rev’g. 108 A. 2d 173 (Del. 1954). There the Supreme Court reversed a chancery court determination that forthwith desegregation was proper under the decision of this Court of May 17, 1954.
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delay in enforcement of these rights invites the insidious prospect that a moratorium may equally be placed on the enjoyment of other constitutional rights. In disposing of the great issues before it, this Court should do no less than order the abolition of racial segregation in public education by a day certain, as heretofore set forth in Appellants’ Brief on Further Reargument. Respectively submitted, CHARLES L. BLACK JR.,
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CONSTANCE BAKER MOTLEY, JAMES M. NABRIT JR., LOUIS H. POLLAK,
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FRANK D. REEVES, JOHN SCOTT, JACK B. WEINSTEIN,
of Counsel.
HAROLD BOULWARE, ROBERT L. CARTER, JACK GREENBERG, OLIVER W. HILL,
ELWOOD H. CHISOLM,
THURGOOD MARSHALL,
WILLIAM T. COLEMAN JR.,
LOUIS L. REDDING,
CHARLES T. DUNCAN,
SPOTTSWOOD W. ROBINSON III,
GEORGE E. C. HAYES,
CHARLES S. SCOTT,
Attorneys for Appellants in Nos. 1, 2, 3 and for Respondents in No. 5.
LOREN MILLER, WILLIAM R. MING JR.,
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In the Supreme Court of the United States Cite as 75 S.Ct. 753
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OLIVER BROWN, ET AL., APPELLANTS, V. BOARD OF EDUCATION OF TOPEKA, SHAWNEE COUNTY, KANSAS, ET AL. HARRY BRIGGS, JR., ET AL., APPELLANTS, V. R. W. ELLIOTT, ET AL. DOROTHY E. DAVIS, ET AL., APPELLANTS, V. COUNTY SCHOOL BOARD OF PRINCE EDWARD COUNTY, VIRGINIA, ET. AL. SPOTTSWOOD THOMAS BOLLING, ET AL., PETITIONERS,
V. C. MELVIN SHARPE, ET AL. FRANCIS B. GEBHART, ET AL., PETITIONERS, V. ETHEL LOUISE BELTON, ET AL. Nos. 1–5. Argued April 11, 12, 13, and 14, 1955. Decided May 31. 1955. 349 U.S. 294
Class actions by which minor plaintiffs sought to obtain admission to public schools on a nonsegregated basis. On direct appeals by plaintiffs from adverse decisions in United States District Courts, District of Kansas, 98 F. Supp. 797, Eastern District of South Carolina, 103 F.Supp. 920, and Eastern District of Virginia, 103 F.Supp. 337, on certiorari before judgment on appeal to the United States Court of Appeals for the District of Columbia from adverse decision in the United States District Court for the District of Columbia, and on certiorari from decision favorable to plaintiffs in the Supreme Court of Delaware, 91 A.2d 137, the Supreme Court, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873, and 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884, held that racial discrimination in G A L E
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public education was unconstitutional and restored cases to docket for further argument regarding formulation of decrees. On further argument, the Supreme Court, Mr. Chief Justice Warren, held that in proceedings to implement Supreme Court’s determination, inferior courts might consider problems related to administration, arising from physical condition of school plant, school transportation system, personnel, revision of school districts and attendance areas into compact units to achieve system of determining admission to public schools on a nonracial basis, and revision of local laws and regulations, and might consider adequacy of any plan school authorities might propose to meet these problems and to effectuate a transition to racially nondiscriminatory school systems. Judgments, except that in case No. 5, reversed and cases remanded with directions; judgment in case No. 5 affirmed and case remanded with directions. All provisions of federal, state, or local law requiring or permitting racial discrimination in public education must yield to principle that such discrimination is unconstitutional. U.S.C.A. Const. Amend. School authorities have primary responsibility for elucidating, assessing, and solving problems arising from fact that racial discrimination in public education is unconstitutional. Question whether school authorities’ actions constitute good faith implementation of principle that racial discrimination in public education is unconstitutional could best be appraised by courts which originally heard cases raising questions of constitutionality of such discrimination, and it was appropriate to remand cases to such courts. 28 U.S.C.A.§§ 2281, 2284. Traditionally, equity has been characterized by a practical flexibility in shaping its remedies and by a facility for adjusting and reconciling public and private needs. Courts of equity, in implementing Supreme Court’s determination that racial discrimination in public education is unconstitutional, may properly take into account the public interest in elimination, in a systematic and effective manner, of obstacles to transition to school systems operated in accordance with constitutional principles, but constitutional principles cannot be allowed to yield because of disagreement with them. A M E R I C A N
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On remand from Supreme Court after determination in several cases that racial discrimination in public education is unconstitutional. inferior courts should, while giving weight to public considerations and private interest of litigants, require that school authorities make prompt and reasonable start toward full compliance with ruling. In proceedings to implement Supreme Court’s decision that racial discrimination in public education is unconstitutional, public school authorities have burden of establishing that grant of additional time for transition is necessary in public interest and is consistent with good faith compliance at earliest practicable date. Inferior courts, in implementing Supreme Court’s determination that racial discrimination in public education is unconstitutional, may consider problems related to administration, arising from physical condition of school plant, school transportation system, personnel, revision of school districts and attendance areas into compact units to achieve system of determining admission to public schools on a nonracial basis, and revision of local laws and regulations, and many consider adequacy of any plans school authorities may propose to meet these problems and to effectuate a transition to racially non discriminatory school system. Inferior courts, on remand from Supreme Court’s determination that discrimination in public education is unconstitutional, were directed to retain jurisdiction of cases during period of transition to nondiscriminatory school systems. Mr. Robert L. Carter, New York City, for appellants in No. 1. Mr. Harold R. Fatzer, Topeka, Kan., for appellees in No. 1. Messrs. Thurgood Marshall, New York City, and Spottswood W. Robinson, III, Richmond, VA., for appellants in Nos. 2 and 3. Messrs. S. E. Rogers, Summerton, S. C., and Robert McC. Figg, Jr., Charleston, S.C., for appellees in No. 2. Messrs. Archibald G. Robertson, Richmond, Va., and J. Lindsay Almond, Jr., Atty. Gen., for appellees in No. 3.
1 347 U.S. 43, 74 S.Ct. 686, 98 L.Ed. 873, 347 U.S. 497, 74 S. Ct. 693, 98 L.Ed. 884.
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Messrs. George E. C. Hayes and James M. Nabrit, Jr., Washington, D.C., for petitioners in No. 4. Mr. Milton D. Korman, Washington, D.C., for respondents in No. 4. Mr. Joseph Donald Craven, Wilmington, Del., for petitioners in No. 5. Mr. Louis L. Redding, Wilmington. Del., for respondents in No. 5. Messrs. Richard W. Ervin and Ralph E. Odum, Tallahassee. Fla., for State of Florida, I. Beverly Lake, Raleigh, N.C., for State of North Carolina, Thomas J. Gentry, Little Rock, Ark., for State of Arkansas, Mac Q. Williamson Oklahoma, City, Okla., for State of Oklahoma, C. Ferdinand Sybert, Ellicott City, Md., for State of Maryland, John Ben Shepperd and Burnell Waldrep, Austin, Tex., for State of Texas, Sol. Gen. Simon E. Sobeloff, Washington, D.C., for United States, amici curiae. Mr. Chief Justice Warren delivered the opinion of the Court. [1] These cases were decided on May 17, 1954. The opinions of that date,1 declaring the fundamental principle that racial discrimination in public education is unconstitutional, are incorporated herein by reference. All provisions of federal, state, or local law requiring or permitting such discrimination must yield to this principle. There remains for consideration the manner in which relief is to be accorded. Because these cases arose under different local conditions and their disposition will involve a variety of local problems, we requested further argument on the question of relief.2 In view of the nationwide importance of the decision. we invited the Attorney General of 2 Further argument was requested on the following questions, 347 U.S. 483, 495–496, note 13, 74 S.Ct. 686, 692, 98 L.Ed. 873, previously propounded by the Court: “4. Assuming it is decided that segregation in public schools violates the Fourteenth Amendment “(a) would a decree necessarily follow providing that, within the limits set by normal geographic school districting, Negro children should forthwith be admitted to schools of their choice, or “(b) may this Court, in the exercise of its equity powers, permit an effective gradual adjustment to be brought about from existing segregated systems to a system not based color distinctions? “5. On the assumption on which questions 4 (a) and (b) are based, and assuming further that this Court will exercise its equity powers to the end described in question 4 (b),
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the United States and the Attorneys General of all states requiring or permitting racial discrimination in public education to present their views on that question. The parties, the United States, and the States of Florida, North Carolina, Arkansas, Oklahoma, Maryland, and Texas filed briefs and participated in the oral argument. These presentations were informative and helpful to the Court in its consideration of the complexities arising from the transition to a system of public education freed of racial discrimination. The presentations also demonstrated that substantial steps to eliminate racial discrimination in public schools have already been taken, not only in some of the communities in which these cases arose, but in some of the states appearing as amici curiae, and in other states as well. Substantial progress has been made in the District of Columbia and in the communities in Kansas and Delaware involved in this litigation. The defendants in the cases coming to us from South Carolina and Virginia are awaiting the decisions of this Court concerning relief. [2,3] Full implementation of these constitutional principles may require solution of varied local school problems. School authorities have the primary responsibility of elucidating, assessing, and solving these problems; courts will have to consider whether the action of school authorities constitutes good faith implementation of the governing constitutional principles. Because of their proximity to local conditions and the possible need for further hearings, the courts which originally heard these cases can best perform this judicial appraisal. Accordingly, we believe it appropriate to remand the cases to those courts.3 [4,5] In fashioning and effectuating the decrees, the courts will be guided by equitable principles. Traditionally, equity has been “(a) should this Court formulate detailed decrees in these cases; “(b) if so, what specific issues should the decrees; “(c) should this Court appoint a special master to hear evidence with a view to recommending specific terms for such decrees; “(d) should this Court remand to the courts of first instance with directions to frame decrees in these cases, and if so what general directions should the decrees of this Court include and what procedures should the courts of first instance follow in arriving at the specific terms of more detailed decrees?”
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characterized by a practical flexibility in shaping its remedies4 and by a facility for adjusting and reconciling public and private needs.5 These cases call for the exercise of these traditional attributes of equity power. At stake is the personal interest of the plaintiffs in admission to public schools as soon as practicable on a nondiscriminatory basis. To effectuate this interest may call for elimination of a variety of obstacles in marking the transition to school systems operated in accordance with the constitutional principles set forth in our May 17, 1954, decision. Courts of equity may properly take into account the public interest in the elimination of such obstacles in a systematic and effective manner. But it should go without saying that the vitality of these constitutional principles cannot be allowed to yield simply because of disagreement with them. [6–9] While giving weight to these public and private considerations, the courts will require that the defendants make a prompt and reasonable start toward full compliance with our May 17, 1954, ruling. Once such a start has been made, the courts may find that additional time is necessary to carry out the ruling in an effective manner. The burden rests upon the defendants to establish that such time is necessary in the public interest and is consistent with good faith compliance at the earliest practicable date. To that end, the courts may consider problems related to administration, arising from the physical condition of the school plant, the school transportation system, personnel, revision of school districts and attendance areas into compact units to achieve a system of determining admission to the public schools on a nonracial basis, and revision of local laws and regulations which may be necessary in solving the foregoing problems. They will also consider the adequacy of any plans the defendants may propose to meet these problems and to effectuate a transition to a racially nondiscriminatory school system. 3
The cases coming to us from Kansas, South Carolina, and Virginia were originally heard by three-judge District Courts convened under 28 U.S.C. §§ 2281 and 2284, 28 U.S.C.A. §§ 2281, 2284. These cases will accordingly be remanded to those three-judge courts. See Briggs v. Elliott, 342 U.S. 350, 72 S.Ct. 327, 96 L.Ed. 392. 4 See Alexander v. Hillman, 296 U.S. 222, 239, 56 S.Ct. 204, 209, 80 L.Ed. 192. 5 See Hecht Co, v, Bowles, 321 U.S. 321, 329–330, 64 S.Ct. 587, 591, 592, 88 L.Ed. 754.
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During this period of transition, the courts will retain jurisdiction of these cases. The judgments below, except that in the Delaware case, are accordingly reversed and the cases are remanded to the District Courts to take such proceedings and enter such orders and decrees consistent with this opinion as are necessary and proper to admit to public schools on a racially nondiscriminatory basis with all deliberate speed the parties to these cases. The judgment in the Delaware case—ordering the immediate admission of the plaintiffs to schools
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previously attended only by white children—is affirmed on the basis of the principles stated in our May 17, 1954, opinion, but the case is remanded to the Supreme Court of Delaware for such further proceedings as that Court may deem necessary in light of this opinion. It is so ordered. Judgments, except that in case No. 5, reversed and cases remanded with directions; judgment in case No. 5 affirmed and case remanded with directions.
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Opinion of the U.S. Court of Appeals for the District of Columbia, March 9, 2007. . . . . . . . . . . . . . . . . . . . . . . . . . . 169 Briefs to the Supreme Court Brief for Petitioners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 197 Respondent’s Brief . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 219 Opinion of the U.S. Supreme Court, June 26, 2008 . . . . . . . . . 240
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Gun Control MATERIALS
This section includes the text of opinions from the U.S. Court of Appeals for the D.C. Circuit and the U.S. Supreme Court. The section also includes briefs filed with the U.S. Supreme Court. HOW TO USE MILESTONES IN THE LAW
This section allows readers to consider historical arguments made by judges and advocates in this landmark decision related to the Second Amendment. As you read this section, you might consider the following questions: n
What was the original intent behind the language in the Second Amendment?
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Should the courts place so much weight on the original intent behind the language of the Second Amendment?
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How did the majority decisions in both cases differ from the dissenting opinions?
THIS CASE IN HISTORY
The Second Amendment to the U.S. Constitution provides, “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not
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be infringed.” The language has for many years sparked debate, with some arguing the amendment guarantees an individual right to bear arms and others arguing that the amendment only guarantees that a state may form a militia. Until 2008, the Supreme Court had rarely addressed the Second Amendment. The few cases at the lower appellate level generally held that the Second Amendment guarantees an individual right to bear arms. In 2007 the U.S. Court of Appeals for the District of Columbia reviewed a handgun law enacted in 1976 by the District of Columbia. The court struck down the law, holding that the D.C. ordinance infringed on citizens’ rights to bear arms as guaranteed by the Second Amendment. The case was widely debated and became rather infamous for the majority opinion’s citation to Dred Scott v. Sanford. The Supreme Court agreed to review the case. In a sharply divided opinion, the Court concluded that the Second Amendment indeed guarantees individual rights rather than collective rights. Justice Antonin Scalia wrote the majority decision, relying heavily on the historical context of the Second Amendment’s enactment. Justice John Paul Stevens wrote one of the two dissents, and Scalia and Stevens argue back-and-forth fiercely in their opinions.
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OPINION OF THE U.S. COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA MARCH 9, 2007 NO. 04-7041 SHELLY PARKER, ET AL., APPELLANTS V. DISTRICT OF COLUMBIA AND ADRIAN M. FENTY, MAYOR OF THE DISTRICT OF COLUMBIA, APPELLEES.
NO. 04-7041. Argued Dec. 7, 2006. Decided March 9, 2007. Rehearing En Banc Denied May 8, 2007.
Appeal from the United States District Court for the District of Columbia (No. 03cv00213). Alan Gura argued the cause for appellants. With him on the briefs were Robert A. Levy and Clark M. Neily, III. Opinion for the Court filed by Senior Circuit Judge Silberman. Dissenting opinion filed by Circuit Judge Henderson. Silberman, Senior Circuit Judge. Appellants contest the district court’s dismissal of their complaint alleging that the District of Columbia’s gun control laws violate their Second Amendment rights. The court held that the Second Amendment (“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed”) does not bestow any rights on individuals except, perhaps, when an individual serves in an organized militia such as today’s National Guard. We reverse. I
Appellants, six residents of the District, challenge D.C.Code § 7-2502.02(a)(4), which generally bars the registration of handguns (with an exception for retired D.C. police officers); D.C.Code § 224504, which prohibits carrying a pistol without a license, insofar as that provision would prevent a registrant from moving a gun from one room to another within his or her home; and D.C.Code § 72507.02, requiring that all lawfully owned firearms be kept unloaded and disassembled or bound by a trigger lock or similar device. Shelly Parker, Tracey Ambeau, Tom G. Palmer, and George Lyon want G A L E
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to possess handguns in their respective homes for self-defense. Gillian St. Lawrence owns a registered shotgun, but wishes to keep it assembled and unhindered by a trigger lock or similar device. Finally, Dick Heller, who is a District of Columbia special police officer permitted to carry a handgun on duty as a guard at the Federal Judicial Center, wishes to possess one at his home. Heller applied for and was denied a registration certificate to own a handgun. The District, in refusing his request, explicitly relied on D.C.Code § 7-2502.02(a)(4). Essentially, the appellants claim a right to possess what they describe as “functional firearms,” by which they mean ones that could be “readily accessible to be used effectively when necessary” for self-defense in the home. They are not asserting a right to carry such weapons outside their homes. Nor are they challenging the District’s authority per se to require the registration of firearms. Appellants sought declaratory and injunctive relief pursuant to 28 U.S.C. §§ 2201, 2202, and 42 U.S.C. § 1983, but the court below granted the District’s motion to dismiss on the grounds that the Second Amendment, at most, protects an individual’s right to “bear arms for service in the Militia.” (The court did not refer to the word “keep” in the Second Amendment.) And, by “Militia,” the court concluded the Second Amendment referred to an organized military body-such as a National Guard unit. II
After the proceedings before the district judge, we decided Seegars v. Gonzales, 396 F.3d 1248 (D.C.Cir.2005). We held that plaintiffs bringing a pre-enforcement challenge to the District’s gun laws had not yet suffered an injury-in-fact and, therefore, they lacked constitutional standing. Although plaintiffs expressed an intention to violate the District’s gun control laws, prosecution was not imminent. We thought ourselves bound by our prior decision in Navegar, Inc. v. United States, 103 F.3d 994 (D.C.Cir.1997), to conclude that the District’s general threat to prosecute violations of its gun laws did not constitute an Article III injury. Navegar involved a pre-enforcement challenge by a gun manufacturer to certain provisions of the Violent Crime Control and Law Enforcement Act of 1994, which prohibited the manufacture (and possession) of semiautomatic assault weapons. We held then that the manufacturers whose products the statute listed eo nomine had standing to challenge the law in A M E R I C A N
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question because the effect of the statute was to single out individual fire-arms purveyors for prosecution. Id. at 999. However, manufacturers whose products were described solely by their characteristics had no pre-enforcement standing because the threat of prosecution was shared among the (presumably) many gun manufacturers whose products fit the statutory description, and, moreover, it was not clear how these descriptive por-tions of the statute would be enforced. Id. at 1001. In Navegar, then, the “factor . . . most significant in our analysis” was “the statute’s own identification of particular products manufactured only by appellants” because that indicated a “special priority” for preventing specified parties from engaging in a particular type of conduct. Id. Extending Navegar’s logic to Seegars, we said the Seegars plaintiffs were required to show that the District had singled them out for prosecution, as had been the case with at least one of the manufacturer plaintiffs in Navegar. Since the Seegars plaintiffs could show nothing more than a general threat of prosecution by the District, we held their feared injury insufficiently imminent to support Article III standing. 396 F.3d at 1255-56. We recognized in Seegars that our analysis in Navegar was in tension with the Supreme Court’s treatment of a pre-enforcement challenge to a criminal statute that allegedly threatened constitutional rights. See Id. (citing Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289, 99 S.Ct. 2301, 60 L.Ed.2d 895 (1979)). In United Farm Workers, the Supreme Court addressed the subject of pre-enforcement challenges in general terms: When the plaintiff has alleged an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder, he “should not be required to await and undergo a criminal prosecution as the sole means of seeking relief.”
442 U.S. at 298, 99 S.Ct. 2301 (quoting Doe v. Bolton, 410 U.S. 179, 188, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973)). The unqualified language of United Farm Workers would seem to encompass the claims raised by the Seegars plaintiffs, as well as the appellants here. Appellants’ assertions of Article III standing also find support in the Supreme Court’s decision in Virginia v. American Booksellers Ass’n, 484 U.S. 383, 108 S.Ct. 636, 98 L.Ed.2d 782 (1988), which allowed a pre-enforcement challenge to a Virginia statute criminalizing the display of certain types of sexually explicit material for G A L E
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commercial purposes. In that case, the Court held it sufficient for plaintiffs to allege “an actual and well-founded fear that the law will be enforced against them,” Id. at 393, 108 S.Ct. 636, without any additional requirement that the challenged statute single out particular plaintiffs by name.1 In both United Farm Workers and American Booksellers, the Supreme Court took a far more relaxed stance on pre-enforcement challenges than Navegar and Seegars permit. Nevertheless, unless and until this court en banc overrules these recent precedents, we must be faithful to Seegars just as the majority in Seegars was faithful to Navegar. Applying Navegar-Seegars to the standing question in this case, we are obliged to look for an allegation that appellants here have been singled out or uniquely targeted by the D.C. government for prosecution. No such allegation has been made; with one exception, appellants stand in a position almost identical to the Seegars plaintiffs. Appellants attempt to distinguish their situation from that of the Seegars plaintiffs by pointing to “actual” and “specific” threats, Appellants’ Br. at 21, lodged against appellants by D.C. during the course of the district court litigation. But this is in-sufficient. None of the statements cited by appellants expresses a “special priority” for preventing these appellants from violating the gun laws, or a particular interest in punishing them for having done so. Rather, the District appears to be expressing a sentiment ubiquitous among stable governments the world over, to wit, scofflaws will be punished. The noteworthy distinction in this case—a distinction mentioned in appellants’ complaint and pressed by them on appeal—is that appellant 1
Of course, American Booksellers can be distinguished from Navegar, Seegars, and the present case, on the ground that the constitutional challenge at issue there implicated the First (as opposed to the Second) Amendment. The American Booksellers Court was concerned that Virginia’s statute might chill speech without any prosecution ever taking place, 484 U.S. at 393, 108 S.Ct. 636, thereby creating a wrong without remedy if preenforcement standing were denied. But in deciding whether to privilege one amendment to the U.S. Constitution over another in assessing injury-in-fact, we note the statement of our dissenting colleague in Seegars: “I know of no hierarchy of Bill of Rights protections that dictates different standing analysis.” 396 F.3d at 1257 (Sentelle, J., dissenting). The Seegars majority, although it felt constrained by Navegar to reach a different result, tacitly agreed with Judge Sentelle’s assessment that the in-jury-in-fact requirement should be applied uniformly over the First and Second Amendments (and presumably all other constitutionally protected rights). Id. at 1254.
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Heller has applied for and been denied a registration certificate to own a handgun, a fact not present in Seegars. The denial of the gun license is significant; it constitutes an injury independent of the District’s prospective enforcement of its gun laws, and an injury to which the stringent requirements for pre-enforcement standing under Navegar and Seegars would not apply. Since D.C.Code § 22-4504 (prohibition against carrying a pistol without a license) and D.C.Code § 7-2507.02 (disassembly/trigger lock requirement) would amount to further conditions on the certificate Heller desires, Heller’s standing to pursue the license denial would subsume these other claims too. This is not a new proposition. We have consistently treated a license or permit denial pursuant to a state or federal administrative scheme as an Article III injury. See, e.g., Cassell v. F.C.C., 154 F.3d 478 (D.C.Cir.1998) (reviewing denial of license application to operate private land mobile radio service); Wilkett v. I.C.C., 710 F.2d 861 (D.C.Cir.1983) (reviewing denial of application for expanded trucking license); see also City of Bedford v. F.E.R.C., 718 F.2d 1164, 1168 (D.C.Cir.1983) (describing wrongful denial of a preliminary hydroelectric permit as an injury warranting review). The interests injured by an adverse licensing determination may be interests protected at common law, or they may be created by statute. And of course, a licensing decision can also trench upon constitutionally protected interests, see, e.g., Dist. Intown Props. Ltd. P’ship v. District of Columbia, 198 F.3d 874 (D.C.Cir.1999) (reviewing District of Columbia’s denial of a building permit under the Takings Clause); Berger v. Bd. of Psychologist Exam'rs, 521 F.2d 1056 (D.C.Cir.1975) (reviewing District of Columbia’s denial of a license to practice psychology under the Due Process Clause), which will also give rise to Article III injury. At oral argument, counsel for the District maintained that we should not view this as a licensing case for standing purposes because D.C.’s firearm registration system amounts to a complete prohibition on handgun ownership. The District argues that we must analyze appellants’ standing exclusively under our preenforcement precedents, Seegars and Navegar. We disagree on both counts. The District does not completely prohibit handgun registration. See D.C.Code § 7-2502.02(a)(4) (allowing certificates for pistols already registered in the District G A L E
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prior to 1976); D.C.Code § 7-2502.02(b) (excluding retired police officers of the Metropolitan Police Department from the ban on pistol registration). Had Heller been a re-tired police officer, presumably the District would have granted him a registration certificate. The same would be true if Heller had attempted to register a long gun, as opposed to a handgun. In any event, Heller has invoked his rights under the Second Amendment to challenge the statutory classifications used to bar his ownership of a handgun under D.C. law, and the formal process of application and denial, however routine, makes the injury to Heller’s alleged constitutional interest concrete and particular. He is not asserting that his injury is only a threatened prosecution, nor is he claiming only a general right to handgun ownership; he is asserting a right to a registration certificate, the denial of which is his distinct injury. We note that the Ninth Circuit has recently dealt with a Second Amendment claim by first extensively analyzing that provision, determining that it does not provide an individual right, and then, and only then, concluding that the plaintiff lacked standing to challenge a California statute restricting the possession, use, and transfer of assault weapons. See Silveira v. Lockyer, 312 F.3d 1052, 1066-67 & n. 18 (9th Cir.2003). We think such an approach is doctrinally quite unsound. The Supreme Court has made clear that when considering whether a plaintiff has Article III standing, a federal court must assume arguendo the merits of his or her legal claim. See Warth v. Seldin, 422 U.S. 490, 501-02, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975) (assuming factual allegations and legal theory of complaint for purposes of standing analysis). We have repeatedly recognized that proposition. See Waukesha v. E.P.A., 320 F.3d 228, 235 (D.C.Cir.2003); Am. Fed'n of Gov't Em-ployees, AFL-CIO v. Pierce, 697 F.2d 303, 305 (D.C.Cir.1982). “Indeed, in reviewing the standing question, the court must be careful not to decide the questions on the merits for or against the plaintiff, and must therefore assume that on the merits the plaintiffs would be successful in their claims.” Waukesha, 320 F.3d at 235 (citing Warth, 422 U.S. at 502, 95 S.Ct. 2197). This is no less true when, as here, the merits involve the scope of a constitutional protection. Still, we have not always been so clear on this point. Although we recognized in Claybrook v. Slater, 111 F.3d 904 (D.C.Cir.1997), that it was not necessary for a plaintiff to demonstrate A M E R I C A N
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that he or she would prevail on the merits in order to have Article III standing, the rest of our discussion seems somewhat in tension with that proposition. We did recognize that in Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992), when the Supreme Court used the phrase “legally protected interest” as an element of injury-in-fact, it made clear it was referring only to a “cognizable interest.” Claybrook, 111 F.3d at 906-07. The Court in Lujan concluded that plaintiffs had a “cognizable interest” in observing animal species without considering whether the plaintiffs had a legal right to do so. Id. (citing Lujan, 504 U.S. at 562-63, 112 S.Ct. 2130). We think it plain the Lujan Court did not mean to suggest a return to the old “legal right” theory of standing rejected in Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 15354, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970), because it cited Warth, inter alia, as precedent for the sentence which included the phrase “legally protected interest.” Lujan, 504 U.S. at 560, 112 S.Ct. 2130. Rather, the cognizable interest to which the Court referred would distinguish, to pick one example, a desire to observe certain aspects of the environment from a generalized wish to see the Constitution and laws obeyed. Indeed, in Judicial Watch, Inc. v. United States Senate, 432 F.3d 359 (D.C.Cir.2005), Judge Williams wrote an extensive concurring opinion (not inconsistent with the majority opinion) in which he persuasively explains that the term “legally protected interest,” as used in Lujan, could not have been intended to deviate from Warth’s general proposition that we assume the merits when evaluating standing. Id. at 363-66. In Claybrook, we went on to say, quite inconsistently, that “if the plaintiff’s claim has no foundation in law, he has no legally protected interest and thus no standing to sue.” Claybrook, 111 F.3d at 907. We concluded that plaintiff lacked standing, however, because the government agency in that case had unfettered discretion to take the action it did, and therefore there was “no law to apply.” Id. at 908. Thus the decision in Claybrook was actually based on a separate jurisdictional ground—reviewability under the Administrative Procedure Act—and federal courts may choose any ground to deny jurisdiction, e.g., Article III standing, prudential standing, or subject matter jurisdiction. See Judicial Watch, 432 F.3d at 366 (Williams, J., G A L E
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concurring) (noting that Claybrook is hard to classify as a standing opinion). There is no hierarchy which obliges a court to decide Article III standing issues before other jurisdictional questions. In re Papandreou, 139 F.3d 247, 255-56 (D.C.Cir.1998). Therefore, we do not read Claybrook to stand for the proposition, contra Warth, that we must evaluate the existence vel non of appellants’ Second Amendment claim as a standing question.2 In sum, we conclude that Heller has standing to raise his § 1983 challenge to specific provisions of the District’s gun control laws. III
As we noted, the Second Amendment provides: A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.
U.S. CONST. amend. II. The provision’s second comma divides the Amendment into two clauses; the first is prefatory, and the second operative. Appellants’ argument is focused on their reading of the Second Amendment’s operative clause. According to appellants, the Amendment’s language flat out guarantees an individual right “to keep and bear Arms.” Appellants concede that the prefatory clause expresses a civic purpose, but argue that this purpose, while it may inform the meaning of an ambiguous term like “Arms,” does not qualify the right guaranteed by the operative portion of the Amendment. The District of Columbia argues that the prefatory clause declares the Amendment’s only purpose—to shield the state militias from federal encroachment—and that the operative clause, even when read in isolation, speaks solely to military affairs and guarantees a civic, rather than an individual, right. In other words, according to the District, the operative clause is not just limited by the prefatory clause, but instead both clauses share an explicitly civic character. The District claims that the Second Amendment “protects private possession of 2 Admittedly, in Taylor v. F.D.I.C., 132 F.3d 753, 767 (D.C. Cir.1997), we observed that the causation requirement of standing could coincide with the causal element in a cause of action. But cf. Id. at 770 (Rogers, J., concurring). Whether that was correct or not, we concluded that even in that unique situation, not present here, we had discretion to decide the case on the merits or on standing grounds. Id. at 767-68.
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weapons only in connection with performance of civic duties as part of a well-regulated citizens militia organized for the security of a free state.” Individuals may be able to enforce the Second Amendment right, but only if the law in question “will impair their participation in common defense and law enforcement when called to serve in the militia.” But because the District reads “a well regulated Militia” to signify only the organized militias of the founding era— institutions that the District implicitly argues are no longer in existence today—invocation of the Second Amendment right is conditioned upon service in a defunct institution. Tellingly, we think, the District did not suggest what sort of law, if any, would violate the Second Amendment today—in fact, at oral argument, appellees’ counsel asserted that it would be constitutional for the District to ban all firearms outright. In short, we take the District’s position to be that the Second Amendment is a dead letter. We are told by the District that the Second Amendment was written in response to fears that the new federal government would disarm the state militias by preventing men from bearing arms while in actual militia service, or by preventing them from keeping arms at home in preparation for such service. Thus the Amendment should be understood to check federal power to regulate firearms only when federal legislation was directed at the abolition of state militias, because the Amendment’s exclusive concern was the preservation of those entities. At first blush, it seems passing strange that the able lawyers and statesmen in the First Congress (including James Madison) would have expressed a sole concern for state militias with the language of the Second Amendment. Surely there was a more direct locution, such as “Congress shall make no law disarming the state militias” or “States have a right to a wellregulated militia.” The District’s argument—as strained as it seems to us—is hardly an isolated view. In the Second Amendment debate, there are two camps. On one side are the collective right theorists who argue that the Amendment protects only a right of the various state governments to preserve and arm their militias. So understood, the right amounts to an expression of militant federalism, prohibiting the federal government from denuding the states of their armed fighting forces. On the other side of the debate are those who argue that the Second Amendment protects a right of G A L E
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individuals to possess arms for private use. To these individual right theorists, the Amendment guarantees personal liberty analogous to the First Amendment’s protection of free speech, or the Fourth Amendment’s right to be free from unreasonable searches and seizures. However, some entrepreneurial scholars purport to occupy a middle ground between the individual and collective right models. The most prominent in-between theory developed by academics has been named the “sophisticated collective right” model.3 The sophisticated collective right label describes several variations on the collective right theme. All versions of this model share two traits: They (1) acknowledge individuals could, theoretically, raise Second Amendment claims against the federal government, but (2) define the Second Amendment as a purely civic provision that offers no protection for the private use and ownership of arms. The District advances this sort of theory and suggests that the ability of individuals to raise Second Amendment claims serves to distinguish it from the pure collective right model. But when seen in terms of its practical consequences, the fact that individuals have standing to invoke the Second Amendment is, in our view, a distinction without a difference. But cf. United States v. Emerson, 270 F.3d 203, 218-21 (5th Cir.2001) (treating the sophisticated collective right model as distinct from the collective right theory). Both the collective and sophisticated collective theories assert that the Second Amendment was written for the exclusive purpose of preserving state militias, and both theories deny that individuals qua individuals can avail themselves of the Second Amendment today. The latter point is true either because, as the District appears to argue, the “Militia” is no longer in existence, or, as others argue, because the militia’s modern analogue, the National Guard, is fully equipped by the federal government, creating no need for individual ownership of firearms. It appears to us that for all its nuance, the
3
See United States v. Parker, 362 F.3d 1279, 1284 (10th Cir.2004); United States v. Price, 328 F.3d 958, 961 (7th Cir. 2003); United States v. Emerson, 270 F.3d 203, 219 (5th Cir.2001); Seegars v. Ashcroft, 297 F.Supp.2d 201, 218 (D.D.C.2004); see also Robert J. Cottrol & Raymond T. Diamond, The Fifth Auxiliary Right, 104 YALE L.J. 995, 1003-04 (1995).
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sophisticated collective right model amounts to the old collective right theory giving a tip of the hat to the problematic (because ostensibly individual) text of the Second Amendment. The lower courts are divided between these competing interpretations. Federal appellate courts have largely adopted the collective right model.4 Only the Fifth Circuit has interpreted the Second Amendment to protect an individual right.5 State appellate courts, whose interpretations of the U.S. Constitution are no less authoritative than those of our sister circuits, offer a more balanced picture.6 And the United States Department of Justice has recently adopted the individual right model. See Op. Off. of Legal Counsel, “Whether the Second Amendment Secures an Individual Right” (2004) available at http://www.usdoj.gov/olc/secondamendment2. pdf; see also Memorandum from John Ashcroft, Attorney General, to All United States’ Attorneys (Nov. 9, 2001), reprinted in Br. for the United States in Opposition at 26, Emerson, 536 U.S. 907, 122 S.Ct. 2362, 153 L.Ed.2d 184. The great legal treatises of the nineteenth century support the individual right interpretation, see Silveira v. Lockyer, 328 F.3d 567, 583-85 (9th Cir.2003) (Kleinfeld, J., dissenting from denial of rehearing en banc); Emerson, 270 F.3d at 236, 255-59, as does Professor Laurence Tribe’s leading treatise on constitutional law.7 Because we have no direct precedent—either in this court or the Supreme Court—that provides us with a square holding on the question, we turn first to the text of the Amendment.
4
See Silveira, 312 F.3d at 1092; Gillespie v. City of Indianapolis, 185 F.3d 693, 710 (7th Cir.1999); United States v. Wright, 117 F.3d 1265, 1273-74 (11th Cir.1997); United States v. Rybar, 103 F.3d 273, 286 (3d Cir.1996); Love v. Pepersack, 47 F.3d 120, 122 (4th Cir.1995); United States v. Hale, 978 F.2d 1016, 1019-20 (8th Cir.1992); United States v. Oakes, 564 F.2d 384, 387 (10th Cir.1977); United States v. Warin, 530 F.2d 103, 106 (6th Cir. 1976); Cases v. United States, 131 F.2d 916, 921-23 (1st Cir.1942). 5 Emerson, 270 F.3d at 264-65. 6 Of the state appellate courts that have examined the question, at least seven have held that the Second Amendment protects an individual right, see Hilberg v. F.W. Wool-worth Co., 761 P.2d 236, 240 (Colo.Ct.App.1988); Brewer v. Commonwealth, 206 S.W.3d 343, 347 & n. 5 (Ky.2006); State v. Blanchard, 776 So.2d 1165, 1168 (La.2001); State v. Nickerson, 126 Mont. 157, 247 P.2d 188, 192 (1952); Stillwell v. Stillwell, 2001 WL 862620, at *4 (Tenn.Ct.App. July 30, 2001); State v. Anderson, 2000 WL 122218, at *7 n. 3 (Tenn.Crim.App. Jan.26, 2000); State v. Williams, 158 Wash.2d 904, 148 P.3d 993, 998 (2006); Rohrbaugh v. State, 216 W.Va. 298, 607 S.E.2d 404, 412
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The District cites a decision in the Second Circuit, United States v. Toner, 728 F.2d 115 (2d Cir.1984), as holding that the Second Amendment protects only a right related to “civic purposes.” The District’s reliance on this case is plainly wrong. In Toner, the court stated only that the Second Amendment right was not “fundamental.” Id. at 128. The opinion in no way addressed the question whether the Second Amendment requires that use and possession of a weapon be for civic purposes. We are not aware of any Second Circuit decision that directly addresses the collective versus individual nature of the Second Amendment right. See Silveira, 312 F.3d at 1063 n. 11 (noting that only the Second and D.C. Circuits had yet to decide nature of Second Amendment right). A
We start by considering the competing claims about the meaning of the Second Amendment’s operative clause: “the right of the people to keep and bear Arms shall not be infringed.” Appellants contend that “the right of the people” clearly contemplates an individual right and that “keep and bear Arms” necessarily implies private use and ownership. The District’s primary argument is that “keep and bear Arms” is best read in a military sense, and, as a consequence, the entire operative clause should be understood as granting only a collective right. The District also argues that “the right of the people” is ambiguous as to whether the right protects civic or private ownership and use of weapons.
(2004), whereas at least ten state appellate courts (including the District of Columbia) have endorsed the collective right position, see Sandidge v. United States, 520 A.2d 1057, 1058 (D.C.1987); Commonwealth v. Davis, 369 Mass. 886, 343 N.E.2d 847, 850 (1976); In re Atkinson, 291 N.W.2d 396, 398 n. 1 (Minn.1980); Harris v. State, 83 Nev. 404, 432 P.2d 929, 930 (1967); Burton v. Sills, 53 N.J. 86, 248 A.2d 521, 526 (1968); In re Cassidy, 268 A.D. 282, 51 N.Y.S.2d 202, 205 (N.Y.App. Div.1944); State v. Fennell, 95 N.C.App. 140, 382 S.E.2d 231, 232 (1989); Mosher v. City of Dayton, 48 Ohio St.2d 243, 358 N.E.2d 540, 543 (1976); Masters v. State, 653 S.W.2d 944, 945 (Tex.App.1983); State v. Vlacil, 645 P.2d 677, 679 (Utah 1982); see also Kalodimos v. Village of Morton Grove, 103 Ill.2d 483, 83 Ill.Dec. 308, 470 N.E.2d 266, 269 (1984) (stating in dicta that Second Amendment protects collective right). 7 See 1 LAURENCE TRIBE, AMERICAN CONSTITUTIONAL LAW 902 & n. 221 (3d ed.2000). Professor Tribe was not always of this view. See Sanford Levinson, The Embarrassing Second Amendment, 99 YALE L.J. 637, 640 (1989) (critiquing Tribe’s earlier collective right position).
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In determining whether the Second Amendment’s guarantee is an individual one, or some sort of collective right, the most important word is the one the drafters chose to describe the holders of the right—“the people.” That term is found in the First, Second, Fourth, Ninth, and Tenth Amendments. It has never been doubted that these provisions were designed to protect the interests of individuals against government intrusion, interference, or usurpation. We also note that the Tenth Amendment—“The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people”— indicates that the authors of the Bill of Rights were perfectly capable of distinguishing between “the people,” on the one hand, and “the states,” on the other. The natural reading of “the right of the people” in the Second Amendment would accord with usage elsewhere in the Bill of Rights. The District’s argument, on the other hand, asks us to read “the people” to mean some subset of individuals such as “the organized militia” or “the people who are engaged in militia service,” or perhaps not any individuals at all— e.g., “the states.” See Emerson, 270 F.3d at 227. These strained interpretations of “the people” simply cannot be squared with the uniform construction of our other Bill of Rights provisions. Indeed, the Supreme Court has recently endorsed a uniform reading of “the people” across the Bill of Rights. In United States v. Verdugo-Urquidez, 494 U.S. 259, 110 S.Ct. 1056, 108 L.Ed.2d 222 (1990), the Court looked specifically at the Constitution and Bill of Rights’ use of “people” in the course of holding that the Fourth Amendment did not protect the rights of non-citizens on foreign soil: “[T]he people” seems to have been a term of art employed in select parts of the Constitution. The Preamble declares that the Constitution is ordained and established by “the People of the United States.” The Second Amendment protects “the right of the people to keep and bear Arms,” and the Ninth and Tenth Amendments provide that certain rights and powers are retained by and reserved to “the people.” See also U.S. CONST., amdt. 1; Art. I, § 2, cl. 1. While this textual exegesis is by no means conclusive, it suggests that “the people” protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a G A L E
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class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.
Id. at 265, 110 S.Ct. 1056. It seems unlikely that the Supreme Court would have lumped these provisions together without comment if it were of the view that the Second Amendment protects only a collective right. The Court’s discussion certainly indicates—if it does not definitively determine—that we should not regard “the people” in the Second Amendment as somehow restricted to a small subset of “the people” meriting protection under the other Amendments’ use of that same term. In sum, the phrase “the right of the people,” when read intratextually and in light of Supreme Court precedent, leads us to conclude that the right in question is individual. This proposition is true even though “the people” at the time of the founding was not as inclusive a concept as “the people” today. See Robert E. Shallope, To Keep and Bear Arms in the Early Republic, 16 CONST. COMMENT. 269, 280-81 (1999). To the extent that non-whites, women, and the propertyless were excluded from the protections afforded to “the people,” the Equal Protection Clause of the Fourteenth Amendment is understood to have corrected that initial constitutional shortcoming. The wording of the operative clause also indicates that the right to keep and bear arms was not created by government, but rather preserved by it. See Thomas B. McAffee & Michael J. Quinlan, Bringing Forward the Right to Keep and Bear Arms: Do Text, History, or Precedent Stand in the Way?, 75 N.C. L. REV. 781, 890 (1997). Hence, the Amendment acknowledges “the right . . . to keep and bear Arms,” a right that pre-existed the Constitution like “the freedom of speech.” Because the right to arms existed prior to the formation of the new government, see Robertson v. Baldwin, 165 U.S. 275, 280, 17 S.Ct. 326, 41 L.Ed. 715 (1897) (describing the origin of the Bill of Rights in English law), the Second Amendment only guarantees that the right “shall not be infringed.” Thomas Cooley, in his influential treatise, observed that the Second Amendment had its origins in the struggle with the Stuart monarchs in lateseventeenth-century England. See THOMAS M. COOLEY, THE GENERAL PRINCIPLES OF CONSTITUTIONAL LAW IN THE UNITED A M E R I C A N
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STATES OF AMERICA 270-72 (Rothman & Co.1981) (1880).8 To determine what interests this pre-existing right protected, we look to the lawful, private purposes for which people of the time owned and used arms. The correspondence and political dialogue of the founding era indicate that arms were kept for lawful use in selfdefense and hunting. See Emerson, 270 F.3d at 251-55 (collecting historical materials); Robert E. Shallope, The Ideological Origins of the Second Amendment, 69 J. AM. HIST. 599, 602-14 (1982); see also PA. CONST. sec. 43 (Sept. 28, 1776) (“The inhabitants of this state shall have liberty to fowl and hunt in seasonable times on the lands they hold, and on all other lands therein not enclosed. . . .”). The pre-existing right to keep and bear arms was premised on the commonplace assumption that individuals would use them for these private purposes, in addition to whatever militia service they would be obligated to perform for the state. The premise that private arms would be used for self-defense accords with Black stone’s observation, which had influenced thinking in the American colonies, that the people’s right to arms was auxiliary to the natural right of self-preservation. See WILLIAM BLACKSTONE, 1 COMMENTARIES *136, *139; see also Silveira, 328 F.3d at 583-85 (Kleinfeld, J.); Kasler v. Lockyer, 23 Cal.4th 472, 97 Cal.Rptr.2d 334, 2 P.3d 581, 602 (2000) (Brown, J., concurring). The right of selfpreservation, in turn, was understood as the right to defend oneself against attacks by lawless individuals, or, if absolutely necessary, to resist
Indeed, England’s Bill of Rights of 1689 guaranteed “[t]hat the Subjects, which are Protestants, may have Arms for their Defence, suitable to their conditions, as al-lowed by law.” 1 W. & M., Sess. 2, c. 2. Here too, however, the right was not newly created, but rather recognized as part of the common law tradition. The ancient origin of the right in England was affirmed almost a century later, in the aftermath of the antiCatholic Gordon riots of 1780, when the Recorder of London, who was the foremost legal advisor to the city as well as the chief judge of the Old Bailey, gave the following opinion on the legality of private organizations armed for defense against rioters: 8
The right of His majesty’s Protestant sub-jects, to have arms for their own defence, and to use them for lawful purposes, is most clear and undeniable. It seems, in-deed, to be considered, by the ancient laws of the Kingdom, not only as a right, but as a duty; for all the subjects of the realm, who are able to bear arms, are bound to be ready, at all times, to assist the sheriff, and other civil magistrates, in the
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and throw off a tyrannical government. See Silveira, 328 F.3d at 583-85 (Kleinfeld, J.); see also Id. at 569-70 (Kozinski, J., dissenting from the denial of rehearing en banc); Kasler, 97 Cal.Rptr.2d 334, 2 P.3d at 605 (Brown, J., concurring).9 With respect to the right to defend oneself against tyranny and oppression, some have argued that the Second Amendment is utterly irrelevant because the arms it protects, even if commonly owned, would be of no use when opposed to the arsenal of the modern state. But as Judge Kozinski has noted, incidents such as the Warsaw ghetto uprising of 1943 provide rather dramatic evidence to the contrary. See Silveira, 328 F.3d at 569-70 (dissenting from the denial of rehearing en banc). The deterrent effect of a well-armed populace is surely more important than the probability of overall success in a full-out armed conflict. Thus could Madison write to the people of New York in 1788: Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as public resources will bear, the governments are afraid to trust the people with arms. And it is not certain that with this aid alone they would not be able to shake off their yokes.
THE FEDERALIST NO. 46, at 299-300 (James Madison) (Clinton Rossiter ed., 1961). When we look at the Bill of Rights as a whole, the setting of the Second Amendment reinforces its individual nature. The Bill of Rights was almost entirely a declaration of individual rights, and the Second Amendment’s inclusion therein strongly indicates that it, too, was
execution of the laws and the preservation of the public peace. And that right which every Protestant most unquestionably possesses, individually, may, and in many cases must, be exercised collectively, is likewise a point which I conceive to be most clearly established by the authority of judicial decisions and ancient acts of parliament, as well as by reason and common sense. Opinion on the Legality of the London Military Foot Association, reprinted in WILLIAM BLIZZARD, DESULTORY REFLECTIONS ON POLICE 59-60 (1785). For further examination of the Second Amendment’s English origins, see generally JOYCE LEE MALCOLM, TO KEEP AND BEAR ARMS (1994). 9 The importance of the private right of self-defense is hardly surprising when one remembers that most Americans lacked a professional police force until the middle of the nineteenth century, see Levinson, supra, at 646 & n. 46, and that many Americans lived in backcountry such as the Northwest Territory.
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intended to protect personal liberty. The collective right advocates ask us to imagine that the First Congress situated a sui generis states’ right among a catalogue of cherished individual liberties without comment. We believe the canon of construction known as noscitur a sociis applies here. Just as we would read an ambiguous statutory term in light of its context, we should read any supposed ambiguities in the Second Amendment in light of its context. Every other provision of the Bill of Rights, excepting the Tenth, which speaks explicitly about the allocation of governmental power, protects rights enjoyed by citizens in their individual capacity. The Second Amendment would be an inexplicable aberration if it were not read to protect individual rights as well. The District insists that the phrase “keep and bear Arms” should be read as purely military language, and thus indicative of a civic, rather than private, guarantee. The term “bear Arms” is obviously susceptible to a military construction. But it is not accurate to construe it exclusively so. First, the word “bear” in this context is simply a more formal synonym for “carry,” i.e., “Beware of Greeks bearing gifts.” The Oxford English Dictionary and the original Webster’s list the primary meaning of “bear” as “to support” or “to carry.” See Silveira, 328 F.3d at 573 (Kleinfeld, J.). Dr. Johnson’s Dictionary— which the Supreme Court often relies upon to ascertain the founding-era understanding of text, see, e.g., Eldred v. Ashcroft, 537 U.S. 186, 199, 123 S.Ct. 769, 154 L.Ed.2d 683 (2003)—is in accord. The first three definitions for “bear” are “to carry as a burden,” “to convey or carry,” and “to carry as a mark of authority.” See JOHNSON’S AND WALKER’S ENGLISH DICTIONARIES COMBINED 126 (J.E. Worcester ed., 1830) [hereinafter Johnson]. Historical usage, as gleaned from the O.E.D. and Webster’s, supports the notion that “bear arms” was sometimes used as an idiom signifying the use of weaponry in conjunction with military service. However, these sources also confirm that the idiomatic usage was not absolute. Silveira, 328 F.3d at 573 (Kleinfeld, J.); Emerson, 270 F.3d at 229-32. Just as it is clear that the phrase “to bear arms” was in common use as a byword for soldiering in the founding era, see, e.g., Gary Wills, To Keep and Bear Arms, N.Y. REV. OF BOOKS, Sept. 21, 1995, at 62-73, it is equally evident from a survey of late eighteenth- and early nineteenth-century state G A L E
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constitutional provisions that the public understanding of “bear Arms” also encompassed the carrying of arms for private purposes such as self-defense. See Emerson, 270 F.3d at 230 n. 29 (collecting state constitutional provisions referring to the people’s right to “bear arms in defence of themselves and the State” among other formulations). Thus, it would hardly have been unusual for a writer at the time (or now) to have said that, after an attack on a house by thieves, the men set out to find them “bearing arms.” The District relies heavily on the use of “bearing arms” in a conscientious objector clause that formed part of Madison’s initial draft of the Second Amendment. The purpose of this clause, which was later dropped from the Amendment’s text, was to excuse those “religiously scrupulous of bearing arms” from being forced “to render military service in person.” THE COMPLETE BILL OF RIGHTS 169 (Neil H. Cogan ed.1997). The District argues that the conscientious objector clause thus equates “bearing arms” with military service. The Quakers, Mennonites, and other pacifist sects that were to benefit by the conscientious objector clause had scruples against soldiering, but not necessarily hunting, which, like soldiering, involved the carrying of arms. And if “bearing arms” only meant “carrying arms,” it is argued, the phrase would not have been used in the conscientious objector clause because Quakers were not religiously scrupulous of carrying arms generally; it was carrying arms for militant purposes that the Friends truly abhorred (although many Quakers certainly frowned on hunting as the wanton infliction of cruelty upon animals). See THOMAS CLARKSON, A PORTRAITURE OF QUAKERISM, VOL. I. That Madison’s conscientious objector clause appears to use “bearing arms” in a strictly military sense does at least suggest that “bear Arms” in the Second Amendment’s operative clause includes the carrying of arms for military purposes. However, there are too many instances of “bear arms” indicating private use to conclude that the drafters intended only a military sense. In addition to the state constitutional provisions collected in Emerson, there is the following statement in the report issued by the dissenting dele-gates at the Pennsylvania ratification convention: That the people have a right to bear arms for the defence of themselves and their own state, or the United States, or for the purpose of killing game. . . . A M E R I C A N
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THE ADDRESS AND REASONS OF DISSENT OF THE MINORITY OF THE CONVENTION OF PENNSYLVANIA TO THEIR CONSTITUENTS, reprinted in 3 THE COMPLETE ANTIFEDERALIST, 151 (Herbert J. Storing ed., 1981). These dissenting Antifederalists, writing in December 1787, were clearly using “bear arms” to include uses of weaponry outside the militia setting—e.g., one may “bear arms . . . for the purpose of killing game.”10 We also note that at least three current members (and one former member) of the Supreme Court have read “bear Arms” in the Second Amendment to have meaning beyond mere soldiering: “Surely a most familiar meaning [of ‘carries a firearm’] is, as the Constitution’s Second Amendment (‘keep and bear Arms’) and Black’s Law Dictionary . . . indicate: ‘wear, bear, or carry . . . upon the person or in the clothing or in a pocket, for the purpose . . . of being armed and ready for offensive or defensive action in a case of conflict with another person.” Muscarello v. United States, 524 U.S. 125, 143, 118 S.Ct. 1911, 141 L.Ed.2d 111 (1998) (Ginsburg, J., dissenting, joined by Rehnquist, C.J., Scalia, J., and Souter, J.) (emphasis in original). Based on the foregoing, we think the operative clause includes a private meaning for “bear Arms.” In contrast to the collective right theorists’ extensive efforts to tease out the meaning of “bear,” the conjoined, preceding verb “keep” has been almost entirely neglected. In that tradition, the District offers a cursory and largely dismissive analysis of the verb. The District appears to claim that “keep and bear” is a unitary term and that the individual word “keep” should be given no independent significance. This suggestion is somewhat risible in light of the District’s admonishment, earlier in its brief, that when interpreting constitutional text “every word must have its due force, and appropriate meaning; . . . no word was unnecessarily used or needlessly added.” Appellees’ Br. at 23 10
To be sure, collective right theorists have correctly observed that the Pennsylvania dissenters were not speaking for anyone but themselves-that is, they lost in their at-tempt to defeat ratification of the Constitution, and lacked the clout to have their sug-gested amendments sent to the First Con-gress, unlike the Antifederalist delegates in other state conventions. See Jack N. Rakove, The Second Amendment: The Highest Stage of Originalism, 76 CHI.-KENT L. REV. 103, 134-35 (2000). But that the dissenting delegates were political losers does not undercut their status as competent users of late-eighteenth-century English.
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(quoting Holmes v. Jennison, 39 U.S. (14 Pet.) 540, 570-71, 10 L.Ed. 579 (1840)). Even if “keep” and “bear” are not read as a unitary term, we are told, the meaning of “keep” cannot be broader than “bear” because the Second Amendment only protects the use of arms in the course of militia service. Id. at 26-27. But this proposition assumes its conclusion, and we do not take it seriously. One authority cited by the District has attempted to equate “keep” with “keep up,” a term that had been used in phrases such as “keep up a standing army” or, as in the Articles of Confederation, “every state shall keep up a well regulated and disciplined militia. . . .” See Wills, supra, at 66. The argument that “keep” as used in “the right of the people to keep . . . Arms” shares a military meaning with “keep up” as used in “every state shall keep up a well regulated militia” mocks usage, syntax, and common sense. Such outlandish views are likely advanced because the plain meaning of “keep” strikes a mortal blow to the collective right theory. Turning again to Dr. Johnson’s Dictionary, we see that the first three definitions of “keep” are “to retain; not to lose,” “to have in custody,” “to preserve; not to let go.” Johnson, supra, at 540. We think “keep” is a straightforward term that implies ownership or possession of a functioning weapon by an individual for private use. Emerson, 270 F.3d at 231 & n. 31; accord Silveira, 328 F.3d at 573-74 (Kleinfeld, J.). The term “bear arms,” when viewed in isolation, might be thought ambiguous; it could have a military cast. But since “the people” and “keep” have obvious individual and private meanings, we think those words resolve any supposed ambiguity in the term “bear arms.” ****** The parties generally agree that the prefatory clause, to which we now turn, declares the Second Amendment’s civic purpose—i.e., insuring the continuance of the militia system— and only disagree over whether that purpose was exclusive. The parties do attribute dramatically different meanings to “a well regulated Militia.” Appellants argue that the militia referenced in the Second Amendment’s prefatory clause was “practically synonymous” with “the people” referenced in the operative clause. The District advances a much more limited definition. According to the District, the militia was a body of adult men regulated and organized by state law as a civilian fighting force. The crucial A M E R I C A N
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distinction between the parties’ views then goes to the nature of the militia: Appellants claim no organization was required, whereas the District claims a militia did not exist unless it was subject to state discipline and leadership. As we have already noted, the District claims that “the Framers’ militia has faded into insignificance.” The parties draw on United States v. Miller, 307 U.S. 174, 59 S.Ct. 816, 83 L.Ed. 1206 (1939), to support their differing definitions. Miller, a rare Second Amendment precedent in the Supreme Court, the holding of which we discuss below, described the militia in the following terms:
XXXIII, 1 Stat. 271. Of course, many of the members of the Second Congress were also members of the First, which had drafted the Bill of Rights. But more importantly, they were conversant with the common understanding of both the First Congress and the ratifying state legislatures as to what was meant by “Militia” in the Second Amendment. The second Militia Act placed specific and extensive requirements on the citizens who were to constitute the militia: Be it enacted . . . [t]hat each and every free able-bodied white male citizen of the respective states, resident therein, who is or shall be of the age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia, by the captain or commanding officer of the company, within whose bounds such citizen shall reside, and that within twelve months after the passing of this Act. And . . . every such captain or commanding officer of a company . . . shall without delay notify such citizen of the said enrollment. . . . That every citizen, so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch, with a box therein, to contain not less than twenty four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball: or with a good rifle, knapsack, shot-pouch, and powder-horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder; and shall appear so armed, accoutred and provided, when called out to exercise, or into service.
The Militia which the States were expected to maintain and train is set in contrast with Troops which they were forbidden to keep without the consent of Congress. The sentiment of the time strongly disfavored standing armies; the common view was that adequate defense of country and laws could be secured through the Militia-civilians primarily, soldiers on occasion. The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. “A body of citizens enrolled for military discipline.” And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time
Id. at 178-79, 59 S.Ct. 816. The District claims that Miller’s historical account of the “Militia” supports its position. Yet according to Miller, the militia included “all males physically capable of acting in concert for the common defence” who were “enrolled for military discipline.” And Miller’s expansive definition of the militia—qualitatively different from the District’s concept—is in accord with the second Militia Act of 1792, passed by the Second Congress.11 Act of May 8, 1792, ch.
Id. (emphasis added).12 The reader will note that the Act’s first requirement is that the “free able-bodied white male” population between eighteen and fortyfive enroll in the militia. And enrollment was quite distinct from the various other regulations prescribed by Congress, which included the type of weaponry members of the militia must own. Becoming “enrolled” in the militia appears to have involved providing one’s name and
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The second Militia Act was passed on May 8, 1792. On May 2, 1792, Congress had enacted a Militia Act “providing for the authority of the President to call out the Militia.” Act of May 2, 1792, ch. XXVIII, 1 Stat. 264. The first Militia Act gave the President power to call forth the Militia in cases of invasion by a foreign nation or Indian tribe, and also in cases of internal rebellion. If the militia of the state wherein the rebellion was taking place either was unable to suppress it or refused to be called up, the first Militia Act gave the President authority to use militia from other states.
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Congress enacted this provision pursuant to its Article I, Section 8 powers over the militia: “The Congress shall have the power . . . [t]o provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress. . . .” U.S. CONST., art. I., sec. 8.
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whereabouts to a local militia officer—somewhat analogous to our nation’s current practice of requiring young men to register under the Selective Service Act. Silveira, 328 F.3d at 578 (Kleinfeld, J.). Thus when read in light of the second Militia Act, Miller defines the militia as having only two primary characteristics: It was all free, white, able-bodied men of a certain age who had given their names to the local militia officers as eligible for militia service. Contrary to the District’s view, there was no organizational condition precedent to the existence of the “Militia.” Congress went on in the second Militia Act to prescribe a number of rules for organizing the militia. But the militia itself was the raw material from which an organized fighting force was to be created. Thus, the second Militia Act reads: And be it further enacted, That out of the militia enrolled as is herein directed, there shall be formed for each battalion at least one company of grenadiers, light infantry or riflemen; and that to each division there shall be at least one company of artillery, and one troop of horse: There shall be to each company of artillery, one captain, two lieutenants, four sergeants, four corporals, six gunners, six bombardiers, one drummer, and one fifer.
Id. at 272, 59 S.Ct. 816 (emphasis added). The crucial point is that the existence of the militia preceded its organization by Congress, and it preceded the implementation of Congress’s organizing plan by the states. The District’s definition of the militia is just too narrow. The militia was a large segment of the population—not quite synonymous with “the people,” as appellants contend—but certainly not the organized “divisions, brigades, regiments, battalions, and companies” mentioned in the second Militia Act. Id. at 272, 59 S.Ct. 816. The current congressional definition of the “Militia” accords with original usage: “The militia of the United States consists of all ablebodied males at least 17 years of age and . . . under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.” 10 U.S.C. § 311. The statute then distinguishes between the “organized militia,” which consists of the National Guard and Naval Militia, and the “unorganized militia,” which consists of every member of the militia who is not a member of the National Guard or Naval G A L E
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Militia. Id. Just as in the 1792 enactment, Congress defined the militia broadly, and, more explicitly than in its founding-era counterpart, Congress provided that a large portion of the militia would remain unorganized. The District has a similar structure for its own militia: “Every able-bodied male citizen resident within the District of Columbia, of the age of 18 years and under the age of 45 years, excepting . . . idiots, lunatics, common drunkards, vagabonds, paupers, and persons convicted of any infamous crime, shall be enrolled in the militia.” D.C. Code § 49-401. The District argues that the modifier “well regulated” means that “[t]he militia was not individuals acting on their own; one cannot be a one-person militia.” We quite agree that the militia was a collective body de-signed to act in concert. But we disagree with the District that the use of “well regulated” in the constitutional text somehow turns the popular militia embodied in the 1792 Act into a “select” militia that consisted of semi-professional soldiers like our current National Guard. Contemporaneous legislation once again provides us with guidance in reading ambiguous constitutional text. See Op. at 30; see also Silveira, 328 F.3d at 579-80 (Kleinfeld, J.). The second Militia Act provides a detailed list of directions to both individuals and states that we take as an indication of what the drafters of the Second Amendment contemplated as a “well regulated Militia.” It will be recalled, the second Militia Act requires that eligible citizens enroll in the militia and, within six months, arm themselves accordingly. Subsequent to enrollment, arming oneself became the first duty of all militiamen. See Silveira, 328 F.3d at 581 (Kleinfeld, J.). The Act goes on to require of the states that the militiamen be notified of their enrollment; that within one year, the states pass laws to arrange the militia into divisions, brigades, regiments, battalions, and companies, as well as appoint various militia officers; that there be an Adjutant General appointed in each state to distribute all orders for the Commander in Chief of the State to the several corps, and so on. The statute thus makes clear that these requirements were independent of each other, i.e., militiamen were obligated to arm themselves regardless of the organization provided by the states, and the states were obligated to organize the militia, regardless of whether individuals A M E R I C A N
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had armed themselves in accordance with the statute. We take these dual requirements-that citizens were properly supplied with arms and subject to organization by the states (as distinct from actually organized)-to be a clear indication of what the authors of the Second Amendment contemplated as a “well regulated Militia.” Another aspect of “well regulated” implicit in the second Militia Act is the exclusion of certain persons from militia service. For instance, the Act exempts from militia duty “the Vice President of the United States, [executive branch officers and judges], Congressmen, custom house officers, . . . post officers, . . . all Ferrymen employed at any ferry on the post road, . . . all pilots, all mariners actually employed in the sea service of any citizen or merchant within the United States; and all persons who now are or may be hereafter exempted by the laws of the respective states.” Act of May 8, 1792, ch. XXXIII, 1 Stat. 271. Thus, even after the founding-era militia became “well regulated,” it did not lose its popular character. The militia still included the majority of adult men (albeit, at the time, “free able-bodied white male[s]”), who were to arm themselves, and whom the states were expected to organize into fighting units. Quite unlike today’s National Guard, participation was widespread and mandatory. As the foregoing makes clear, the “well regulated Militia” was not an elite or select body. See Silveira, 328 F.3d at 577-78 (Kleinfeld, J.). While some of the founding fathers, including George Washington and Alexander Hamilton, favored such organizations over a popular militia, see THE ORIGIN OF THE SECOND AMENDMENT at xlvii (David E. Young ed., 2d ed.1995), the Second Congress unambiguously required popular participation. The important point, of course, is that the popular nature of the militia is consistent with an individual right to keep and bear arms: Preserving an individual right was the best way to ensure that the militia could serve when called. ****** As we observed, the District argues that even if one reads the operative clause in isolation, it supports the collective right interpretation of the Second Amendment. Alternatively, the District contends that the operative clause should not, in fact, be read in isolation, and that it is imbued with the civic character of the G A L E
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prefatory clause when the Amendment is read, correctly, as two interactive clauses. The District points to the singular nature of the Second Amendment’s preamble as an indication that the operative clause must be restricted or conditioned in some way by the prefatory language. Compare Eugene Volokh, The Commonplace Second Amendment, 73 N.Y.U. L. REV. 793 (1998), with Michael C. Dorf, What Does the Second Amendment Mean Today?, 76 CHI.-KENT L. REV. 291 (2000). However, the structure of the Second Amendment turns out to be not so unusual when we examine state constitutional provisions guaranteeing rights or restricting governmental power. It was quite common for prefatory language to state a principle of good government that was narrower than the operative language used to achieve it. Volokh, supra, at 801-07. We think the Second Amendment was similarly structured. The prefatory language announcing the desirability of a well-regulated militia—even bearing in mind the breadth of the concept of a militia—is narrower than the guarantee of an individual right to keep and bear arms. The Amendment does not protect “the right of militiamen to keep and bear arms,” but rather “the right of the people.” The operative clause, properly read, protects the ownership and use of weaponry beyond that needed to preserve the state militias. Again, we point out that if the competent drafters of the Second Amendment had meant the right to be limited to the protection of state militias, it is hard to imagine that they would have chosen the language they did. We therefore take it as an expression of the drafters’ view that the people possessed a natural right to keep and bear arms, and that the preservation of the militia was the right’s most salient political benefit-and thus the most appropriate to express in a political document. That the Amendment’s civic purpose was placed in a preamble makes perfect sense given the then-recent ratification controversy, wherein Antifederalist opponents of the 1787 Constitution agitated for greater assurance that the militia system would remain robust so that standing armies, which were thought by many at the time to be the bane of liberty, would not be necessary. See BERNARD BAILYN, THE IDEOLOGICAL ORIGINS OF THE AMERICAN REVOLUTION 338-60 (Enlarged ed.1992). The Federalists who dominated the First Congress offered the Second Amendment’s preamble to palliate A M E R I C A N
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Antifederalist concerns about the continued existence of the popular militia. But neither the Federalists nor the Antifederalists thought the federal government had the power to disarm the people. This is evident from the ratification debates, where the Federalists relied on the existence of an armed populace to deflect Antifederalist criticism that a strong federal government would lead to oppression and tyranny. Antifederalists acknowledged the argument, but insisted that an armed populace was not enough, and that the existence of a popular militia should also be guaranteed. Compare THE FEDERALIST Nos. 8, 28, 59 (Alexander Hamilton), No. 46 (James Madison) (arguing that an armed populace constitutes a check on the potential abuses of the federal government) with MELANCTON SMITH [Federal Farmer], OBSERVATIONS TO A FAIR EXAMINATION OF THE SYSTEM OF GOVERNMENT PROPOSED BY THE LATE CONVENTION, AND TO SEVERAL ESSENTIAL AND NECESSARY ALTERATIONSIN IT (Nov. 8, 1787), reprinted in THE ORIGIN OF THE SECOND AMENDMENT, supra, at 89, 91 (despite the fact that the “yeomanry of the country . . . possess arms” for defense, the federal government could undermine the regular militia and render the armed populace of no importance). To be sure, as the District argues, the Miller Court did draw upon the prefatory clause to interpret the term “Arms” in the operative clause. As we note below, interpreting “Arms” in light of the Second Amendment’s militia purpose makes sense because “Arms” is an openended term that appears but once in the Constitution and Bill of Rights. But Miller does not command that we limit perfectly sensible constitutional text such as “the right of the people” in a manner inconsistent with other constitutional provisions. Similarly, the Second Amendment’s use of “keep” does not need to be recast in artificially military terms in order to conform to Miller. We note that when interpreting the text of a constitutional amendment it is common for courts to look for guidance in the proceedings of the Congress that authored the provision. Unfortunately, the Second Amendment’s drafting history is relatively scant and inconclusive. Emerson, 270 F.3d at 245-51. The recorded debates in the First Congress do not reference G A L E
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the operative clause, a likely indication that the drafters took its individual guarantee as rather uncontroversial. There is certainly nothing in this history to substantiate the strained reading of the Second Amendment offered by the District. B
We have noted that there is no unequivocal precedent that dictates the outcome of this case. This Court has never decided whether the Second Amendment protects an individual or collective right to keep and bear arms. On one occasion we anticipated an argument about the scope of the Second Amendment, but because the issue had not been properly raised by appellants, we assumed the applicability of the collective right interpretation then urged by the federal government. Fraternal Order of Police v. United States (F.O.P.II), 173 F.3d 898, 906 (D.C.Cir.1999). The Supreme Court has not decided this issue either. See id. As we have said, the leading Second Amendment case in the Supreme Court is United States v. Miller. While Miller is our best guide, the Supreme Court’s other statements on the Second Amendment warrant mention. In Dred Scott v. Sandford, 60 U.S. 393, 19 How. 393, 15 L.Ed. 691 (1857), the Court asserted the applicability of the Bill of Rights to the territories in the following terms: [N]o one . . . will contend that Congress can make any law in a Territory respecting the establishment of religion, or the free exercise thereof, or abridging the freedom of speech or of the press, or the right of the people of the Territory peaceably to assemble, and to petition the Government for the redress of grievances . . . [n]or can Congress deny to the people the right to keep and bear arms, nor the right to trial by jury, nor compel any one to be a witness against himself in a criminal proceeding. . . . These powers . . . in relation to rights of person . . . are, in express and positive terms, denied to the General Government.
Id. at 450 (emphasis added). Although Dred Scott is as infamous as it was erroneous in holding that African-Americans are not citizens, this passage expresses the view, albeit in passing, that the Second Amendment contains a personal right. It is included among other individual rights, such as the right to trial by jury and the privilege against self-incrimination. The other Second Amendment cases of the mid-nineteenth century did not touch upon the A M E R I C A N
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individual versus collective nature of the Amendment’s guarantee.13 In Robertson v. Baldwin, 165 U.S. 275, 17 S. Ct. 326, 41 L.Ed. 715 (1897), the Court addressed the scope of the term “involuntary servitude” in the Thirteenth Amendment. In discussing limitations inherent in that constitutional provision, the Court said the following: The law is perfectly well settled that the first 10 amendments to the constitution, commonly known as the “Bill of Rights,” were not intended to lay down any novel principles of government, but simply to embody certain guaranties and immunities which we had inherited from our English ancestors, and which had, from time immemorial, been subject to certain well-recognized exceptions, arising from the necessities of the case. . . . Thus, the freedom of speech and of the press (article 1) does not permit the publication of libels, blasphemous or indecent articles, or other publications injurious to public morals or private reputation; the right of the people to keep and bear arms (article 2) is not infringed by laws prohibiting the carrying of concealed weapons; the provision that no person shall be twice put in jeopardy (article 5) does not prevent a second trial, if upon the first trial the jury failed to agree, or if the verdict was set aside upon the defendant’s motion; nor does the provision of the same article that no one shall be a witness against himself impair his obligation to testify, if a prosecution against him be barred by the lapse of time, a pardon, or by statutory enactment.
165 U.S. at 281-82, 17 S.Ct. 326 (emphasis added). Just as in Dred Scott, the Second Amendment right is mentioned in a catalogue of other well-known individual right provisions, and, in the Supreme Court’s thin Second Amendment jurisprudence, Robertson has the virtue of straightforwardly suggesting one permissible form of regulatory limitation on the right to keep and bear arms. The decision does not 13
In United States v. Cruikshank, 92 U.S. 542, 551, 23 L.Ed. 588 (1876), and Presser v. Illinois, 116 U.S. 252, 264-66, 6 S.Ct. 580, 29 L.Ed. 615 (1886), the Court held that the Second Amendment constrained only federal government action and did not apply to the actions of state governments. This holding was reiterated in Maxwell v. Dow, 176 U.S. 581, 597, 20 S.Ct. 448, 44 L.Ed. 597 (1900), and Twining v. New Jersey, 211 U.S. 78, 98, 29 S.Ct. 14, 53 L.Ed. 97 (1908). Indeed, the Second Amendment is one of the few Bill of Rights provisions that has not yet been held to be incorporated through the Fourteenth Amendment. While the status of the Second Amendment within the twentieth-century incorporation debate is a matter
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discuss whether the right is individual or collective. Still, Robertson tends to cut against any version of the collective right argument. If the right to keep and bear arms offered no protection to individuals, the Court would not likely pick as a noteworthy exception to the right a prohibition on concealed weapons. The individual nature of the permitted regulation suggests that the underlying right, too, concerned personal ownership of firearms. Few decisions of Second Amendment relevance arose in the early decades of the twentieth century. Then came Miller, the Supreme Court’s most thorough analysis of the Second Amendment to date, and a decision that both sides of the current gun control debate have claimed as their own. We agree with the Emerson court (and the dissenting judges in the Ninth Circuit) that Miller does not lend support to the collective right model. See Silveira, 328 F.3d at 586-87 (Kleinfeld, J.); Emerson, 270 F.3d at 226-27. Nor does it support the District’s quasi-collective position. Although Miller did not explicitly accept the individual right position, the decision implicitly assumes that interpretation. Miller involved a Second Amendment challenge by criminal defendants to section 11 of the National Firearms Act (then codified at 26 U.S.C. §§ 1132 et seq.), which prohibited interstate transportation of certain firearms without a registration or stamped order. The defendants had been indicted for transporting a short-barreled shotgun from Oklahoma to Arkansas in contravention of the Act. The district court sustained defendants’ demurrer challenging their indictment on Second Amendment grounds. The government appealed. The defendants submitted no brief and made no appearance in the Supreme Court. Miller, 307 U.S. at 175-77, 59 S.Ct. 816. Hearing the case on direct appeal, the Court reversed and remanded. Id. at 183, 59 S.Ct. 816. of importance for the many challenges to state gun control laws, it is an issue that we need not decide. The District of Columbia is a Federal District, ultimately controlled by Congress. Although subject to § 1983 suits by federal law, see An Act to Permit Civil Suits Under [42 U.S.C. § 1983] Against Any Person Acting Under Color of Any Law or Custom of the District of Columbia, Pub.L. No. 96-170, 93 Stat. 1284 (1979), the District is directly constrained by the entire Bill of Rights, without need for the intermediary of incorporation. See, e.g., Pernell v. Southall Realty, 416 U.S. 363, 369-80, 94 S.Ct. 1723, 40 L.Ed.2d 198 (1974) (applying Seventh Amendment to local legislation for the District).
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On the question whether the Second Amendment protects an individual or collective right, the Court’s opinion in Miller is most notable for what it omits. The government’s first argument in its Miller brief was that “the right secured by [the Second Amendment] to the people to keep and bear arms is not one which may be utilized for private purposes but only one which exists where the arms are borne in the militia or some other military organization provided for by law and intended for the protection of the state.” Appellant’s Br. at 15, 307 U.S. 174, 59 S.Ct. 816. This is a version of the collective right model. Like the Fifth Circuit, we think it is significant that the Court did not decide the case on this, the government’s primary argument. Emerson, 270 F.3d at 222. Rather, the Court followed the logic of the government’s secondary position, which was that a short-barreled shotgun was not within the scope of the term “Arms” in the Second Amendment. The government had argued that even those courts that had adopted an individual right theory of the Second Amendment14 had held that the term “Arms,” as used in both the Federal and various state constitutions, referred “only to those weapons which are ordinarily used for military or public defense purposes and does not relate to those weapons which are commonly used by criminals.” Appellant’s Br. at 18, 307 U.S. 174, 59 S.Ct. 816. The government then proceeded to quote at length from a Tennessee state court case interpreting “Arms” in the Tennessee Bill of Rights to mean weapons “such as are usually employed in civilized warfare, and that constitute the ordinary military equipment.” Id. (quoting Aymette v. State, 21 Tenn. (2 Hum.) 154, 157, 1840 WL 1554 (1840)). The government’s weapons-based argument provided the Miller Court with an alternative means to uphold the National Firearms Act even if the Court disagreed with the government’s collective right argument. The Miller Court’s holding is based on the government’s alternative position: In the absence of any evidence tending to show that possession or use of a “shotgun having a barrel of less than eighteen inches
14
Here the brief for the United States cites two state court decisions interpreting state constitutional provisions: People v. Brown, 253 Mich. 537, 235 N.W. 245 (1931); State v. Duke, 42 Tex. 455 (1875). See Appellant’s Br. at 18, 307 U.S. 174, 59 S.Ct. 816, 83 L.Ed. 1206.
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in length” at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense. Aymette v. State, 2 Humphreys (Tenn.) 154, 158, 1840 WL 1554.
Miller, 307 U.S. at 178, 59 S.Ct. 816 (emphasis added). The quotation makes apparent that the Court was focused only on what arms are protected by the Second Amendment, see Emerson, 270 F.3d at 224, and not the collective or individual nature of the right. If the Miller Court intended to endorse the government’s first argument, i.e., the collective right view, it would have undoubtedly pointed out that the two defendants were not affiliated with a state militia or other local military organization. Id. To be sure, the Miller Court linked the Second Amendment’s language to the Constitution’s militia clause: “With obvious purpose to assure the continuation and render possible the effectiveness of such forces [i.e., the militia] the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.” 307 U.S. at 178, 59 S.Ct. 816. We take the “declaration and guarantee” referred to by the Miller Court to mean the Second Amendment’s prefatory clause (which declares the necessity of a “well regulated Militia”) and its operative clause (which guarantees the preservation of a right) respectively. The District would have us read this passage as recognizing a limitation on the Second Amendment right based on the individual’s connection (or lack thereof) to an organized functioning militia. We disagree. As already discussed, the Miller court was examining the relationship between the weapon in question-a short-barreled shotgun- and the preservation of the militia system, which was the Amendment’s politically relevant purpose. The term “Arms” was quite indefinite, but it would have been peculiar, to say the least, if it were designed to ensure that people had an individual right to keep weapons capable of mass destructione.g., cannons. Thus the Miller Court limited the term “Arms”-interpreting it in a manner consistent with the Amendment’s underlying civic purpose. Only “Arms” whose “use or A M E R I C A N
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possession . . . has some reasonable relationship to the preservation or efficiency of a well regulated militia,” id. at 177, 59 S.Ct. 816, would qualify for protection. Essential, then, to understanding what weapons qualify as Second Amendment “Arms” is an awareness of how the founding-era militia functioned. The Court explained its understanding of what the Framers had in mind when they spoke of the militia in terms we have discussed above. The members of the militia were to be “civilians primarily, soldiers on occasion.” Id. at 179, 59 S.Ct. 816. When called up by either the state or the federal government, “these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.” Id. (emphasis added). As we noted above, the “Militia” was vast, including all free, white, able-bodied men who were properly enrolled with a local militia officer. By contrast, the Ninth Circuit has recently (and we think erroneously) read “Militia” to mean a “state-created and state-organized fighting force” that excludes the unorganized populace. Silveira, 312 F.3d at 1069. As Judge Kleinfeld noted, the Ninth Circuit’s decision entirely ignores Miller’s controlling definition of the militia. 328 F.3d at 578 (dissenting from denial of rehearing en banc). The Ninth Circuit’s interpretation of “Militia” also fails to account for the second Militia Act of 1792, id. at 578-82, as well as local federal militia units such as those provided for by the Northwest Ordinance, see Act of Aug. 7, 1789, ch. VIII, 1 Stat. 50, or for the District of Columbia in 1803, Act of March 3, 1803, ch. XX, 2 Stat. 215. Miller’s definition of the “Militia,” then, offers further support for the individual right interpretation of the Second Amendment. Attempting to draw a line between the ownership and use of “Arms” for private purposes and the ownership and use of “Arms” for militia purposes would have been an extremely silly exercise on the part of the First Congress if indeed the very survival of the militia depended on men who would bring their commonplace, private arms with them to muster. A ban on the use and ownership of weapons for private purposes, if allowed, would undoubtedly have had a deleterious, if not catastrophic, effect on the readiness of the militia for action. We do not see how one could believe that the First Congress, when crafting The second amendment, would G A L E
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have engaged in drawing such a foolish and impractical distinction, and we think the Miller Court recognized as much. ****** To summarize, we conclude that the Second Amendment protects an individual right to keep and bear arms. That right existed prior to the formation of the new government under the Constitution and was premised on the private use of arms for activities such as hunting and self-defense, the latter being understood as resistance to either private lawlessness or the depredations of a tyrannical government (or a threat from abroad). In addition, the right to keep and bear arms had the important and salutary civic purpose of helping to preserve the citizen militia. The civic purpose was also a political expedient for the Federalists in the First Congress as it served, in part, to placate their Antifederalist opponents. The individual right facilitated militia service by ensuring that citizens would not be barred from keeping the arms they would need when called forth for militia duty. Despite the importance of the Second Amendment’s civic purpose, however, the activities it protects are not limited to militia service, nor is an individual’s enjoyment of the right contingent upon his or her continued or intermittent enrollment in the militia. IV
As a corollary to its collective right position, the District argues—albeit almost as an after thought—that it is not subject to the restraints of the Second Amendment because it is a purely federal entity.15 Although it has a militia statute, see D.C.Code § 49-401, the District argues that its militia does not implicate federalism concerns embodied in the Second Amendment-i.e., the District’s local legislation does not interfere with the “security of a free State.” The District does not argue, nor could it, that even if the Second Amendment confers an individual right, that right is enjoyed only by the residents of states (that would mean that citizens of the United States who lived in territories, 15
This contention originated in a concurring opinion in the District of Columbia Court of Appeals, see Sandidge v. United States, 520 A.2d 1057, 1059 (D.C.1987) (Nebeker, J.), and has been subsequently adopted by a federal district court, see Seegars v. Ashcroft, 297 F.Supp.2d 201, 238-39 (D.D.C.2004).
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such as the Northwest Territory, prior to their acceptance as states, did not enjoy a constitutional right). In any event, the Supreme Court has unambiguously held that the Constitution and Bill of Rights are in effect in the District. See O’Donoghue v. United States, 289 U.S. 516, 53941, 53 S.Ct. 740, 77 L.Ed. 1356(1933) (quoting Downes v. Bidwell, 182 U.S. 244, 260-61, 21 S.Ct. 770, 45 L.Ed. 1088 (1901)). “The mere cession of the District of Columbia to the Federal government relinquished the authority of the states, but it did not take it out of the United States or from under the aegis of the Constitution . . . . If, before the District was set off, Congress had passed an unconstitutional act affecting its inhabitants, it would have been void. If done after the District was created, it would have been equally void; in other words, Congress could not do indirectly, by carving out the District, what it could not do directly. The District still remained a part of the United States, protected by the Constitution.” Id. at 541, 53 S.Ct. 740. Rather, the District’s argument amounts to an appendage of the collective right position. It is only if one reads the prefatory language as limiting the operative clause to a guarantee about militias that one ever arrives at the question whether the guarantee is confined to state militias. Our dissenting colleague recognizes this point; her opinion begins with an acceptance of the collective right interpretation of the Second Amendment. Dissent at 402-04. It is therefore not clear to us that it is even relevant to discuss the meaning of “a free State”—language upon which the dissent heavily relies.16 Still, taking the argument as presented, we think it wrong on several grounds. First, the dissent (and the District) mistakenly reads “a free State” to mean an actual political unit of the United States, such as New York, etc., rather than a hypothetical polity. In fact, Madison’s initial proposal to the First Congress stated that a well-regulated militia was “the best security of a free country.” THE COMPLETE BILL OF RIGHTS, supra, at 169. The House committee then substituted “State” for “country” when it initially altered Madison’s 16
The dissent suggests that our opinion consists largely of dicta. Dissent at 401. But dictum refers to reasoning that does not support the holding of a case. We think all of our reasoning (whether correct or not) directly supports our holding. By contrast, the dissent’s “free State” discussion might be thought superfluous.
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proposal. We have no record of the House committee’s proceedings, but it is not credible to conclude that a profound shift was intended in the change from “country” to “State,” particularly as there was no subsequent comment on the change. The record of the debates in the First Congress relied upon by our dissenting colleague only further undermines the reading of “a free State” as meaning an individual state of the union. As she points out, Elbridge Gerry, an Antifederalist Representative from Massachusetts, criticized an initial formulation of the Second Amendment as follows: “A well regulated militia being the best security of a free state, admitted an idea that a standing army was a secondary one.” Dissent at 405 n. 10. Gerry’s obvious fear was that a standing army would be erected as an auxiliary defense of “a free State,” and that eventually such an army would entirely displace the militia. That Gerry worried a standing army would be understood as the “secondary” security of a free state, however, indicates that he understood “a free State” to mean the new country as a whole. After all, no one contended that a standing federal army would be used to protect individual states. It was the entire nation, including the District of Columbia, that a standing army would be erected to defend, and thus if a standing army were to supplant the militia in securing “a free State,” the “State” in question would undoubtedly have been the United States. The use of both the indefinite article and the modifier “free” with the word “state,” moreover, is unique to the Second Amendment. Elsewhere the Constitution refers to “the states” or “each state” when unambiguously denoting the domestic political entities such as Virginia, etc. With “a free State,” we understand the framers to have been referring to republican government generally. The entire purpose of making the militia subject to the authority of the national government was that a standing army would not be necessary. The District’s militia, organized by Congress in 1803, see Act of March 3, 1803, ch. XX, 2 Stat. 215, was no less integral to that national function than its state counterparts. That the D.C. militia is not a state militia does not make it any less necessary to the “security of a free State.” The dissent notes a Supreme Court statement in Perpich v. Department of Defense, 496 A M E R I C A N
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U.S. 334, 110 S.Ct. 2418, 110 L.Ed.2d 312 (1990), that “there was a widespread fear that a national standing Army posed an intolerable threat to individual liberty and to the sovereignty of the separate States.” Id. at 340, 110 S.Ct. 2418 (emphasis added in dissent). However, the dissent overlooks the other concern with standing armies—that they would pose a threat to individual liberty. The language from Perpich is entirely consistent, then, with the view that the American people at large (including the residents of the District) would be equally threatened by the presence of a standing army. And it directly contradicts the dissent’s position that the Second Amendment was concerned exclusively with the preservation of state power. Our dissenting colleague-in order to give a meaning to “the people” in the Second Amendment consistent with her interpretation-analogizes to “the people” in the Tenth Amendment. Dissent at 403 n. 5. Contrary to her suggestion, however, the Tenth Amendment does not limit “the people” to state citizens. Rather, the Tenth Amendment reserves powers to “the States respectively, or to the people.” The dissent provides no case holding that “the people,” as used in the Tenth Amendment, are distinct from “the people” referred to elsewhere in the Bill of Rights. The one case relied upon, Lee v. Flintkote, 593 F.2d 1275, 1278 n. 14 (D.C. Cir.1979), is inapposite. That case merely contrasts the District, on the one hand, with the states, on the other; the meaning of “the people” as used in the Tenth Amendment was not at issue. Indeed, Verdugo-Urquidez, 494 U.S. at 265, 110 S.Ct. 1056, directly contradicts the dissent’s reading of “the people” in the Tenth Amendment, just as it contradicts the restrictive reading of “the people” in the Second. V
The third alternative argument the District presents is that, even if the Second Amendment protects an individual right and applies to the District, it does not bar the District’s regulation, indeed its virtual prohibition, of handgun ownership. The District contends that modern handguns are not the sort of weapons covered by the Second Amendment. But the District’s claim runs afoul of Miller’s discussion of “Arms.” The Miller Court concluded that the defendants, who did not appear in the Supreme Court, G A L E
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provided no showing that short-barreled (or sawed-off) shotguns-banned by federal statutebore “some reasonable relationship to the preservation or efficiency of a well regulated militia.” Miller, 307 U.S. at 178, 59 S.Ct. 816. However, the Court also observed that militiamen were expected to bring their private arms with them when called up for service. Those weapons would be “of the kind in common use at the time.” Id. at 179, 59 S.Ct. 816. There can be no question that most handguns (those in common use) fit that description then and now. See Emerson, 270 F.3d at 227 n. 22 (assuming that a Beretta pistol passed the Miller test). By the terms of the second Militia Act of 1792, all militiamen were given six months from the date of their enrollment to outfit themselves with “a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch, with a box therein, to contain not less than twenty four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball: or with a good rifle, knapsack, shot-pouch, and powder-horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder. . . .” Act of May 8, 1792, ch. XXXIII, 1 Stat. 271 (emphasis added). Commissioned officers had somewhat more onerous requirements. The Act demanded that, in addition to the foregoing, they “shall severally be armed with a sword or hanger and espontoon. . . .” Id. at 271-72. Still further demands were placed on the artillery officers, who were to be “armed with a sword or hanger, a fusee, bayonet and belt, with a cartridge-box to contain twelve cartridges. . . .” Id. at 272. But commissioned cavalry officers and dragoons had to assume an even greater expense, perhaps due to the fact that these were volunteer positions reserved for the well-off. The cavalry officers were required to procure “good horses of at least fourteen hands and a half high, and to be armed with a sword and pair of pistols, the holsters of which to be covered with bearskin caps.” The dragoon had it even worse, being required to furnish himself “a serviceable horse, at least fourteen hands and a half high, a good saddle, bridle, mailpillion and valise, holsters, and a breast-plate and crupper, a pair of boots and spurs, a pair of pistols, a sabre, and a cartouch-box, to contain twelve cartridges for pistols.” Id. at 272 (emphasis added). A M E R I C A N
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These items were not mere antiques to be hung above the mantle. Immediately following the list of required weapons purchases, the Act provided that militiamen “shall appear so armed, accoutred and provided, when called out to exercise, or into service. . . .” Id. (emphasis added). The statute even planned phased-in upgrades in the quality of the militia’s firearms: “[F]rom and after five years from the passing of this act, all muskets for arming the militia as herein required, shall be of bores sufficient for balls of the eighteenth part of a pound.” Id. at 271-72. It follows that the weapons described in the Act were in “common use” at the time, particularly when one considers the widespread nature of militia duty. Included among these militia weapons were long guns (i.e., muskets and rifles) and pistols. Moreover, the Act distinguishes between the weapons citizens were required to furnish themselves and those that were to be supplied by the government. For instance, with respect to an artillery private (or “matross”), the Act provides that he should “furnish himself with all the equipments of a private in the infantry, until proper ordnance and field artillery is provided.” Id. at 272. The Act required militiamen to acquire weapons that were in common circulation and that individual men would be able to employ, such as muskets, rifles, pistols, sabres, hangers, etc., but not cumbersome, expensive, or rare equipment such as cannons. We take the outfitting requirements of the second Militia Act to list precisely those weapons that would have satisfied the two prongs of the Miller arms test. They bore a “reasonable relationship to the preservation or efficiency of a well regulated militia,” because they were the very arms needed for militia service. And by the terms of the Act, they were to be personally owned and “of the kind in common use at the time.” The modern handgun-and for that matter the rifle and long-barreled shotgun-is undoubtedly quite improved over its colonial-era predecessor, but it is, after all, a lineal descendant of that founding-era weapon, and it passes Miller’s standards. Pistols certainly bear “some reasonable relationship to the preservation or efficiency of a well regulated militia.” They are also in “common use” today, and probably far more so than in 1789. Nevertheless, it has been G A L E
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suggested by some that only colonial-era firearms (e.g., single-shot pistols) are covered by the Second Amendment. But just as the First Amendment free speech clause covers modern communication devices unknown to the founding generation, e.g., radio and television, and the Fourth Amendment protects telephonic conversation from a “search,” the Second Amendment protects the possession of the modern-day equivalents of the colonial pistol. See, e.g., Kyllo v. United States, 533 U.S. 27, 31-41, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001) (applying Fourth Amendment standards to thermal imaging search). That is not to suggest that the government is absolutely barred from regulating the use and ownership of pistols. The protections of the Second Amendment are subject to the same sort of reasonable restrictions that have been recognized as limiting, for instance, the First Amendment. See Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989) (“[G]overnment may impose reasonable restrictions on the time, place, or manner of protected speech. . . .”). Indeed, the right to keep and bear arms-which we have explained pre-existed, and therefore was preserved by, the Second Amendment-was subject to restrictions at common law. We take these to be the sort of reasonable regulations contemplated by the drafters of the Second Amendment. For instance, it is presumably reasonable “to prohibit the carrying of weapons when under the influence of intoxicating drink, or to a church, polling place, or public assembly, or in a manner calculated to inspire terror. . . .” State v. Kerner, 181 N.C. 574, 107 S.E. 222, 225 (1921). And as we have noted, the United States Supreme Court has observed that prohibiting the carrying of concealed weapons does not offend the Second Amendment. Robertson, 165 U.S. at 281-82, 17 S.Ct. 326. Similarly, the Court also appears to have held that convicted felons may be deprived of their right to keep and bear arms. See Lewis v. United States, 445 U.S. 55, 65 n. 8, 100 S.Ct. 915, 63 L.Ed.2d 198 (1980) (citing Miller, 307 U.S. at 178, 59 S.Ct. 816). These regulations promote the government’s interest in public safety consistent with our common law tradition. Just as importantly, however, they do not impair the core conduct upon which the right was premised. A M E R I C A N
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Reasonable restrictions also might be thought consistent with a “well regulated Militia.” The registration of firearms gives the government information as to how many people would be armed for militia service if called up. Reasonable firearm proficiency testing would both promote public safety and produce better candidates for military service. Personal characteristics, such asinsanity or felonious conduct, that make gun ownership dangerous to society also make someone unsuitable for service in the militia. Cf. D.C.Code § 49-401 (excluding “idiots, lunatics, common drunkards, vagabonds, paupers, and persons convicted of any infamous crime” from militia duty). On the other hand, it does not follow that a person who is unsuitable for militia service has no right to keep and bear arms. A physically disabled person, for instance, might not be able to participate in even the most rudimentary organized militia. But this person would still have the right to keep and bear arms, just as men over the age of forty-five and women would have that right, even though our nation has traditionally excluded them from membership in the militia. As we have explained, the right is broader than its civic purpose. See Volokh, supra, at 801-07.17
more,” and thus its prohibition does not implicate the Second Amendment because it does not threaten total disarmament. We think that argument frivolous. It could be similarly contended that all firearms may be banned so long as sabers were permitted. Once it is determinedas we have done-that handguns are “Arms” referred to in the Second Amendment, it is not open to the District to ban them. See Kerner, 107 S.E. at 225 (“To exclude all pistols . . . is not a regulation, but a prohibition, of . . . ‘arms’ which the people are entitled to bear.”). Indeed, the pistol is the most preferred firearm in the nation to “keep” and use for protection of one’s home and family. See Gary Kleck & Marc Gertz, Armed Resistance to Crime: The Prevalence and Nature of Self-Defense with a Gun, 86 J. CRIM. L. & CRIMINOLOGY 150, 182-83 (1995). And, as we have noted, the Second Amendment’s premise is that guns would be kept by citizens for self-protection (and hunting).
D.C.Code § 7-2502.0218 prohibits the registration of a pistol not registered in the District by the applicant prior to 1976.19 The District contends that since it only bans one type of firearm, “residents still have access to hundreds
D.C.Code § 22-450420 restricts separately the carrying of a pistol. Appellant Heller challenges this provision and a companion provision, § 22-4506, insofar as they appear to ban moving a handgun from room to room in one’s own house, even if one has lawfully registered the firearm (an interpretation the District does not dispute). In order to carry a pistol anywhere in the District (inside or outside the home), one must apply for and obtain an
17
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Of course, the District’s virtual ban on handgun ownership is not based on any militia purpose. It is justified solely as a measure to protect public safety. As amici point out, and as D.C. judges are well aware, the black market for handguns in the District is so strong that handguns are readily available (probably at little premium) to criminals. It is asserted, therefore, that the D.C. gun control laws irrationally prevent only law abiding citizens from owning handguns. It is unnecessary to consider that point, for we think the D.C. laws impermissibly deny Second Amendment rights. 18 The relevant text of the provision reads as follows: (a) A registration certificate shall not be issued for a: ... (4) Pistol not validly registered to the current registrant in the District prior to September 24, 1976, except that the provisions of this section shall not apply to any organization that employs at least 1 commissioned special police officer or other employee licensed to carry a firearm and that arms the employee with a firearm during the employee’s duty hours or to a police officer who has retired from the Metropolitan Police Department. D.C. Code § 7-2502.02.
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Although not relevant here, there is also an exception to the registration restriction for retired police officers of the Metropolitan Police Department. See D.C.Code § 7-2502.02(b). 20 The relevant text of the provision reads as follows: (a) No person shall carry within the District of Columbia either openly or concealed on or about their person, a pistol, without a license issued pursuant to District of Columbia law, or any deadly or dangerous weapon capable of being so concealed. Whoever violates this section shall be punished as provided in § 22-4515, except that: (1) A person who violates this section by carrying a pistol, without a license issued pursuant to District of Columbia law, or any deadly or dangerous weapon, in a place other than the person’s dwelling place, place of business, or on other land possessed by the person, shall be fined not more than $5,000 or imprisoned for not more than 5 years, or both. . . . D.C.Code § 22-4504.
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additional license from the Chief of Police, whom the Code gives complete discretion to deny license applications. Heller does not claim a legal right to carry a handgun outside his home, so we need not consider the more difficult issue whether the District can ban the carrying of handguns in public, or in automobiles. It is sufficient for us to conclude that just as the District may not flatly ban the keeping of a handgun in the home, obviously it may not prevent it from being moved throughout one’s house. Such a restriction would negate the lawful use upon which the right was premised—i.e, self-defense. Finally, there is the District’s requirement under D.C.Code § 7-2507.02 that a registered firearm be kept “unloaded and disassembled or bound by trigger lock or similar device, unless such firearm is kept at [a] place of business, or while being used for lawful recreational purposes within the District of Columbia.” This provision bars Heller from lawfully using a handgun for self protection in the home because the statute allows only for use of a firearm during recreational activities. As appellants accurately point out, § 7-2507.02 would reduce a pistol to a useless hunk of “metal and springs.” Heller does not appear to challenge the requirement that a gun ordinarily be kept unloaded or even that a trigger lock be attached under some circumstances. He simply contends that he is entitled to the possession of a “functional” firearm to be employed in case of a threat to life or limb. The District responds that, notwithstanding the broad language of the Code, a judge would likely give the statute a narrowing construction when confronted with a self-defense justification. That might be so, but judicial lenity cannot make up for the unreasonable restriction of a constitutional right. Section 7-2507.02, like the bar on carrying a pistol within the home, amounts to a complete prohibition on the lawful use of handguns for self-defense. As such, we hold it unconstitutional. VI
For the foregoing reasons, the judgment of the district court is reversed and the case is remanded. Since there are no material questions of fact in dispute, the district court is ordered to grant summary judgment to Heller consistent with the prayer for relief contained in appellants’ complaint. G A L E
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KAREN LECRAFT HENDERSON, Circuit Judge, dissenting. As has been noted by Fifth Circuit Judge Robert M. Parker in United States v. Emerson, 270 F.3d 203, 272 (2001) (“The fact that the 84 pages of dicta contained in [the majority opinion] are interesting, scholarly, and well written does not change the fact that they are dicta and amount to at best an advisory treatise on this long-running debate.”) (Parker, J., concurring), exhaustive opinions on the origin, purpose and scope of the Second Amendment to the United States Constitution have proven to be irresistible to the federal judiciary. See, e.g., Silveira v. Lockyer, 312 F.3d 1052, 1060-87 (9th Cir.2003) (as amended); Emerson, 270 F.3d at 218-72. The result has often been page after page of “dueling dicta”-each side of the debate offering law review articles and obscure historical texts to support an outcome it deems proper. Today the majority adds another fiftyplus pages to the pile.21 Its superfluity is even more pronounced, however, because the meaning of the Second Amendment in the District of Columbia (District) is purely academic. Why? As Judge Walton declared in Seegars v. Ashcroft, 297 F.Supp.2d 201, 239 (D.D.C.2004), aff’d in part, rev’d in part sub nom. Seegars v. Gonzales, 396 F.3d 1248, reh’g en banc denied, 413 F.3d 1 (2005), “the District of Columbia is not a state within the meaning of the Second Amendment and therefore the Second Amendment’s reach does not extend to it.” For the following reasons, I respectfully dissent. I.
As our court has recognized, the United States Supreme Court’s guidance on the Second 21
In declaring the District’s challenged firearms ordinances unconstitutional, the majority takes over 45 pages, Maj. Op. at 377-401, explaining that the Second Amendment establishes an unrestricted individual right to keep and bear arms, see id. at 395. Its analysis can be summarized as follows: The Second Amendment’s guarantee clause-“the right of the people to keep and bear Arms, shall not be infringed”-endows “the people” with a right analogous to the individual rights guaranteed in the First and Fourth Amendments. Id. at 380-82 (citing United States v. Verdugo-Urquidez, 494 U.S. 259, 265, 110 S.Ct. 1056, 108 L.Ed.2d 222 (1990)). That right is unrestricted by the prefatory clause-“A well regulated Militia, being necessary to the security of a free State”-which simply enunciates the Amendment’s “civic purpose,” Maj. Op. at 395, and modifies only the word “Arms” in the operative clause, id. at 390-91 (citing United States v. Miller, 307 U.S. 174, 59 S.Ct. 816, 83 L.Ed. 1206 (1939)).
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Amendment is “notoriously scant.” Fraternal Order of Police v. United States, 173 F.3d 898, 906 (D.C.Cir.1999) (FOP). While scant it may be, it is, at least to me, unmistakable in one respect. And in that one respect, it dooms appellant Heller’s challenge.22 In United States v. Miller, 307 U.S. 174, 59 S.Ct. 816, 83 L.Ed. 1206 (1939), the only twentieth-century United States Supreme Court decision that analyzes the scope of the Second Amendment, the Government appealed the district court’s quashing of an indictment that charged Miller (and one other) with a violation of section 11 of the National Firearms Act, Pub.L. No. 474, 48 Stat. 1236, 26 U.S.C. §§ 1132 et seq. (1934), by transporting in interstate commerce an unregistered, short-barreled shotgun. Miller, 307 U.S. at 175 & n. 1, 59 S.Ct. 816. The district court had quashed the indictment because it concluded that section 11 of the National Firearms Act violated the Second Amendment. Id. at 177, 59 S.Ct. 816. The High Court disagreed, declaring: In the absence of any evidence tending to show that possession or use of a ‘shotgun having a barrel of less than eighteen inches in length’ at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military
equipment or that its use could contribute to the common defense.
Id. at 178, 59 S.Ct. 816 (emphases added). Then, quoting Article I, § 8 of the Constitution,23 the Court succinctly-but unambiguously-set down its understanding of the Second Amendment: “With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.” Id. (emphases added). By these words, it emphatically declared that the entire Second Amendment-both its “declaration” and its “guarantee”-“must be interpreted and applied” together. Id.24 Construing its two clauses together so that, as Miller declares, the right of the people25 TO KEEP AND BEAR ARMs relates to THOSE MILITIA WHOSE continued vitality is required to safeguard the individual States, I believe that, under Miller, the District is inescapably excluded from the Second Amendment because it is not a State.26 However the Second Amendment right has been subsequently labeled by others-whether collective, individual or a modified version of either-Miller’s label is the only one that matters.27 And until and unless the Supreme Court revisits Miller, its reading of the Second Amendment is the one we are obliged to follow. See Welch v. Tex. Dep’t of Highways & Pub. Transp., 483 U.S. 468, 47879, 107 S.Ct. 2941, 97 L.Ed.2d 389 (1987) (“The
22
The other five appellants lack standing, see Seegars v. Gonzalez, 396 F.3d 1248 (D.C.Cir.2005), and Heller has standing to challenge only D.C.Code § 7-2502.02(a)(4), under which he applied for, and was denied, a pistol permit. The only difference between the standing of the appellants in this case and that of the Seegars appellants relates to Heller’s permit denial. That is, none of the appellants here, including Heller, faces imminent injury from D.C.Code § 7-2507.02, which requires that any registered firearm be kept unloaded and disassembled or bound by a trigger lock or similar device, or section 22-4504, which prohibits carrying an unregistered pistol. They “allege no prior threats against them [based on those provisions] or any characteristics indicating an especially high probability of enforcement [of those provisions] against them.” Seegars, 396 F.3d at 1255. Although the appellants lack an administrative remedy with respect to the trigger lock provision, we have already decided “its absence is not enough to render [their] claim[s] justiciable if the imminence of the threatened injury is inadequate.” Id. at 1256. 23 Article I, section 8 of the Constitution provides: The Congress shall have Power . . . To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
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To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.U.S. Const., Art. I, § 8, cls. 15-16. 24
Nine of our sister circuits have noted that the declaratory clause modifies the guarantee clause. See Silveira, 312 F.3d at 1066 (“The amendment protects the people’s right to maintain an effective state militia, and does not establish an individual right to own or possess firearms for personal or other use.”); Gillespie v. City of Indianapolis, 185 F.3d 693, 711 (7th Cir.1999) (“Because Gillespie has no reasonable prospect of being able to demonstrate . . . a nexus between the firearms disability imposed by the statute and the operation of state militias, [the district court judge] was right to dismiss his Second Amendment claim.”); United States v. Wright, 117 F.3d 1265, 1273 (11th Cir.1997) (“[T]he Miller Court understood the Second Amendment to protect only the possession or use of weapons that is reasonably related to a militia actively maintained and trained by the states.”); United States v. Rybar, 103 F.3d 273,
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rule of law depends in large part on adherence to the doctrine of stare decisis.”); United States v. Rybar, 103 F.3d 273, 286 (3d Cir.1996) (“As one of the inferior federal courts subject to the Supreme Court’s precedents, we have neither the license nor the inclination to engage in such freewheeling presumptuousness.” (responding to argument that Miller is “wrong in its superficial (and one-sided) analysis of the Second Amendment” (internal quotation omitted))).28 II.
The Supreme Court has long held that “State” as used in the Constitution refers to one of the States of the Union. Chief Justice John Marshall, in rejecting the argument that the District constitutes a “State” under Article III, section 2 of the Constitution and, derivatively, the Judiciary Act of 1789, explained: [I]t has been urged that Columbia is a distinct political society; and is therefore “a state” according to the definitions of writers on general law. This is true. But as the act of congress obviously uses the word “state” in reference to that term as used in the constitution, it becomes necessary to inquire whether Columbia is a state in the sense of that instrument. The result of that examination is a conviction that the members of the American confederacy only are the states contemplated in the constitution . . . . [T]he word state is used in the constitution as designating a member of the union, and excludes from the term the signification attached to it by writers on the law of nations. 286 (3d Cir.1996) (“[T]he Miller Court assigned no special importance to the character of the weapon itself, but instead demanded a reasonable relationship between its ‘possession or use’ and militia-related activity.”(quoting Miller, 307 U.S. at 178, 59 S.Ct. 816)); Love v. Pepersack, 47 F.3d 120, 124 (4th Cir.1995) (“The courts have consistently held that the Second Amendment only confers a collective right of keeping and bearing arms which must bear a ‘reasonable relationship to the preservation or efficiency of a well-regulated militia.’ ” (quoting Miller, 307 U.S. at 178, 59 S.Ct. 816)); United States v. Hale, 978 F.2d 1016, 1020 (8th Cir.1992) (“Whether the ‘right to bear arms’ for militia purposes is ‘individual’ or ‘collective’ in nature is irrelevant where, as here, the individual’s possession of arms is not related to the preservation or efficiency of a militia.”); United States v. Oakes, 564 F.2d 384, 387 (10th Cir.1977) (“The purpose of the second amendment as stated by the Supreme Court in United States v. Miller . . . was to preserve the effectiveness and assure the continuation of the state militia. The Court stated that the amendment must be interpreted and applied with that purpose in view.”); United States v. Warin, 530 F.2d 103, 106 (6th Cir.1976) (“[T]he Second Amendment right ‘to keep and bear Arms’ applies only to the right of the State to
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Hepburn & Dundas v. Ellzey, 2 Cranch 445, 6 U.S. 445, 452-53, 2 L.Ed. 332 (1805) (emphasis added); see also De Geofroy v. Riggs, 133 U.S. 258, 269, 10 S. Ct. 295, 33 L.Ed. 642 (1890). In fact, the Constitution uses “State” or “States” 119 times apart from the Second Amendment and in 116 of the 119, the term unambiguously refers to the States of the Union.29 U.S. Const., passim. Accepted statutory construction directs that we give “State” the same meaning throughout the Constitution. Cf. Sorenson v. Sec’y of the Treasury, 475 U.S. 851, 860, 106 S.Ct. 1600, 89 L.Ed.2d 855 (1986) (“The normal rule of statutory construction assumes that identical words used in different parts of the same act are intended to have the same meaning.” (internal quotations omitted)).30 Although “the Constitution is in effect . . . in the District,” O’Donoghue v. United States, 289 U.S. 516, 541, 53 S.Ct. 740, 77 L.Ed. 1356 (1933), as it is in the States, “[a] citizen of the district of Columbia is not a citizen of a state within the meaning of the constitution.” Hepburn, 6 U.S. at 445 (emphasis in original). Accordingly, both the Supreme Court and this court have consistently held that several constitutional provisions explicitly referring to citizens of “States” do not apply to citizens of the District. See id. at 452-53; see also Bolling v. Sharpe, 347 U.S. 497, 498-99, 74 S.Ct. 693, 98 L. Ed. 884 (1954) (District not “State” under Fourteenth Amendment); Adams v. Clinton, 531 U.S. 941, 121 S.Ct. 336, 148 L.Ed.2d 270 (2000), maintain a militia and not to the individual’s right to bear arms. . . .” (internal quotation omitted)); Cases v. United States, 131 F.2d 916, 923 (1st Cir.1942) (“[T]here is no evidence that the appellant was or ever had been a member of any military organization or that his use of the weapon under the circumstances disclosed was in preparation for a military career.”). In Cases, the First Circuit considered, inter alia, a Puerto Rican criminal defendant’s Second Amendment challenge to the Federal Firearms Act. Significantly, the court qualified its Second Amendment analysis as follows: The applicability of the restriction imposed by the Second Amendment upon the power of Congress to legislate for Puerto Rico, or for that matter any territory, raises questions of no little complexity. However, we do not feel called upon to consider them because we take the view that the Federal Firearms Act does not unconstitutionally infringe the appellant’s right, if any one in a territory has any right at all, to keep and bear arms. Cases, 131 F.2d at 920. I have not overlooked the language in United States v. Verdugo-Urquidez, 494 U.S. 259, 265, 110 S.Ct. 1056, 108 25
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aff ’g 90 F.Supp.2d 35 (D.D.C.2000) (threejudge district court held that Constitution does not guarantee District citizens right to vote for members of Congress because District does not constitute “State” within Constitution’s voting clauses31); LaShawn v. Barry, 87 F.3d 1389, 1394 n. 4 (D.C.Cir.1996) (“The District of Columbia is not a state. It is the seat of our national government. . . . Thus, [the Eleventh Amendment] has no application here.”); Lee v. Flintkote Co., 593 F.2d 1275, 1278 n. 14 (D.C. Cir. 1979) (“[T]he District, unlike the states, has no reserved power to be guaranteed by the Tenth Amendment.”). On the other hand, the Supreme Court and this court have held that the District can parallel a “State” within the meaning of some constitutional provisions. Loughran v. Loughran, 292 U.S. 216, 228, 54 S. Ct. 684, 78 L.Ed. 1219 (1934) (Full Faith and Credit Clause binds “courts of the District . . . equally with courts of the states”); Milton S. Kronheim & Co. v. District of Columbia, 91 F.3d 193, 198-99 (D.C.Cir.1996) (while “D.C. is not a state,” Commerce Clause and Twenty-first Amendment apply to District). Ultimately, “[w] hether 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.” District of Columbia v. Carter, 409 U.S. 418, 419-20, 93 S.Ct. 602, 34 L.Ed.2d 613 (1973) (emphasis added).
The Second Amendment’s “character and aim” does not require that we treat the District as a State. The Amendment was drafted in response to the perceived threat to the “free [dom]” of the “State[s]” posed by a national standing army controlled by the federal government. See, e.g., Emerson, 270 F.3d at 237-40, 259; Silveira, 312 F.3d at 1076. In Miller, the Supreme Court explained that “[t]he sentiment of the time [of the Amendment’s drafting] strongly disfavored standing armies; the common view was that adequate defense of country and laws could be secured through the Militia” composed of men who “were expected to appear bearing arms supplied by themselves.” 307 U.S. at 179, 59 S.Ct. 816. Indeed, at the time of the Constitutional Convention, “there was a widespread fear that a national standing Army posed an intolerable threat to individual liberty and to the sovereignty of the separate States.” Perpich v. Dep't of Defense, 496 U.S. 334, 340, 110 S. Ct. 2418, 110 L.Ed.2d 312 (1990) (emphasis added). The Second Amendment, then, “aimed” to secure a military balance of power between the States on the one hand and the federal government on the other.32 Unlike the States, the District had-and has-no need to protect itself from the federal government because it is a federal entity created as the seat of that government.
L.Ed.2d 222 (1990), to the effect that “the people” as used in various of the first Ten Amendments refers to “a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.” But just as the Tenth Amendment ties the rights reserved thereunder to “the people” of the individual “States,” thereby excluding “the people” of the District, cf. Lee v. Flintkote Co., 593 F.2d 1275, 1278 n. 14 (D.C.Cir.1979) (“[T]he District, unlike the states, has no reserved power to be guaranteed by the Tenth Amendment.”), the Second Amendment similarly limits “the people” to those of the States, cf. Adams v. Clinton, 90 F. Supp.2d 35, 45 (D.D.C.2000) (“Although standing alone the phrase ‘people of the several States’ [in Article I, § 2, cl.1] could be read as meaning all the people of the ‘United States’ and not simply those who are citizens of individual states, [Article 1’s] subsequent and repeated references to ‘state[s]’ . . . make clear that the former was not intended.”); see also Verdugo-Urquidez, 494 U.S. at 265, 110 S.Ct. 1056 (citing U.S. Const. Art. I, § 2, cl. 1). 26 Nor do the Militia Clauses (U.S. Const.Art. I, § 8, cls.15, 16) conflict with the view that the “Militia” of the Second Amendment means those of the States. As used in the Militia Clauses, “Militia” is plural. Indeed, Article I, section 8, clause
16 states that the Congress shall have the power “[t]o provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them.” (emphasis added). Article II, section 2 also indicates the Militia Clauses refer to “the Militia of the several States.” U.S. Const. Art. II, § 2, cl. 1 (emphasis added); cf. Oxford English Dictionary 768 (2d ed. 1989) (“Militia” “4. spec. a. Orig., the distinctive name of a branch of the British military service, forming, together with the volunteers, what are known as ‘the auxiliary forces’ as distinguished from the regular army. . . . (Construed either as sing. or plural.)”). 27 Our court has previously “assume[d]” the Miller “test” to mean that the guarantee must be read in light of the declaration. See FOP, 173 F.3d at 906. 28 One nineteenth-century Supreme Court precedent, United States v. Cruikshank, 92 U.S. 542, 23 L.Ed. 588 (1875), is included in almost every discussion of the Second Amendment. Miller, however, does not cite Cruikshank, and for good reason. In that case, several criminal defendants challenged their convictions under the Enforcement Act of 1870 making it unlawful to threaten or intimidate “ ‘any citizen, with intent to prevent or hinder his free exercise and enjoyment of any right or privilege granted or secured to him by the constitution or laws of the United
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[T]he Second Amendment was included in the Bill of Rights to ensure that the people would have the ability to defend themselves
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against a potentially oppressive federal government, which had just been given the authority to maintain a national standing army in Article I of the Constitution. But, the drafters of the Constitution having provided for a ‘District . . . [to] become the Seat of the Government of the United States,’ and having given Congress ‘exclusive’ authority both to legislate over this District and to exercise control over ‘the Erection of Forts, Magazines, [and] Arsenals . . . ,’ surely it was not intended for the protection afforded by the Second Amendment to apply to an entity that had been created to house the national seat of government. In other words, there is no reason to believe that the First Congress thought that the federal seat of government needed to be protected from itself when the Second Amendment was adopted.
Seegars, 297 F.Supp.2d at 238-39 (internal citations omitted) (emphasis and alterations in original);33 see also Sandidge v.United States, 520 A.2d 1057, 1058 (D.C.1987) (“assuming the second amendment applies to the District of Columbia,” majority holds “the Second Amendment guarantees a collective rather than an individual right” (internal quotation omitted)); see also id. at 1059 (Nebeker, J., concurring) (“I conclude first that [the Second Amendment] does not apply to the Seat of the Government of the United States.”). III.
In its origin and operation, moreover, the District is plainly not a “State” of the Union. It is, instead, “an exceptional community,” District of Columbia States.’ ” Id. at 548 (quoting 16 Stat. 141). In setting aside their convictions, the Supreme Court declared: [The right to bear arms for any lawful purpose] is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress. Id. at 553. This language does not conflict with Miller—as I read Miller—because it does not define the right but simply recognizes that the right, whatever its content, cannot be infringed by the federal government. More interesting is the nineteenth-century case Miller does cite, Presser v. Illinois, 116 U.S. 252, 6 S.Ct. 580, 29 L.Ed. 615 (1886). There, the Court upheld state legislation against a Second Amendment challenge, relying on Cruikshank’s holding that the Second Amendment constrains the national government only. The Court then included the following language: [T]he states cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms, so as to
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v. Murphy, 314 U.S. 441, 452, 62 S.Ct. 303, 86 L.Ed. 329 (1941), that “[u]nlike either the States or Territories, . . . is truly sui generis in our governmental structure.” Carter, 409 U.S. at 432, 93 S.Ct. 602. The Constitution provides for the creation of the District in Article I, granting the Congress the power “[t]o exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States.” U.S. Const. Art. I, § 8, cl. 17. As the Supreme Court explained in O’Donoghue, “The object of the grant of exclusive legislation over the district was . . . national in the highest sense, and the city organized under the grant became the city, not of a state, not of a district, but of a nation.” 289 U.S. at 539-40, 53 S.Ct. 740 (internal quotations and citations omitted). In other words, the District is “the capital-the very heart-of the Union itself . . . within which the immense powers of the general government were destined to be exercised for the great and expanding population of forty-eight states.” Id. at 539, 53 S.Ct. 740. The Congress possesses plenary power over the District and its officers. Id. “Indeed, ‘[t]he power of Congress over the District of Columbia includes all the legislative powers which a state may exercise over its affairs.’” Carter, 409 U.S. at 429, 93 S.Ct. 602 (quoting Berman v. Parker, 348 U.S. 26, 31, 75 S.Ct. 98, 99 L.Ed. 27 (1954)). deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government. Id. at 584. 29 In three instances the Constitution refers to a “foreign State,” see U.S. Const. Art. I, § 9, cl. 8; id. Art. III, § 2, cl. 1; id. amend. XI. “State” with a plainly different meaning also appears in reference to the President’s “State of the Union.” Id. Art. II, § 3, cl. 1. The Constitution refers to “a” State five times. See id. Art. III, § 2, cls. 1, 2; id. amend. XXIII, § 1, cl. 2. A descriptive adjective precedes “State” two times. See id. Art. IV, § 3, cl. 1 (“no new State”); id. amend. XXIII, § 1, cl. 2 (“the least populous State”). 30 The legislative history of the Second Amendment also supports the interpretation of “State” as one of the States of the Union. In the First Congress, James Madison proposed language that a well-regulated militia was “the best security of a free country.” David Yassky, The Second Amendment: Structure, History, and Constitutional Change, 99 Mich. L. Rev. 588, 610 (2000) (citing Creating the Bill of Rights: The Documentary Record from the First Federal Congress 12 (Helen E. Veit, Kenneth R. Bowling & Charlene Bangs
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Although the Congress delegated certain authority to the District’s local government in the Home Rule Act of 1973, D.C.Code §§ 1-201.01 et seq., it reserved the authority to enact legislation “on any subject,” D.C.Code § 1-206.01, and to repeal legislation enacted by the local government, id. § 1-206.02(c)(1). See Bliley v. Kelly, 23 F.3d 507, 508 (D.C.Cir.1994) (describing Home Rule Act). As do the States, the District maintains a “militia” of “[e]very able-bodied male citizen . . . of the age 18 years and under the age of 45 years” residing in the District, D.C.Code § 49-401, which includes an “organized” division that is “designated the National Guard of the District of Columbia,” D.C.Code § 49-406. Nevertheless, the District is again unique in that its militia “is essentially a component of the federal government.” Seegars, 297 F.Supp.2d at 241. That is, it is controlled by the federal government and acts only on the order of the President.34 Executive Order 11,485 authorizes the Secretary of the United States Department of Defense to “supervise, administer and control” the District’s National Guard “while in militia status” and to “order out the National Guard . . . to aid the civil authorities of the District of Columbia.” Exec. Order No. 11,485, 34 Fed.Reg. 15,411 § 1 (Oct. 1, 1969). The Executive Order also provides that the “Commanding General and the Adjutant General of the National Guard will be appointed by the President,” id. § 3, and that the Commanding General “shall report to the Secretary of Bickford eds., 1991) (Documentary Record)) (emphasis added). After the proposal was submitted to an eleven-member House of Representatives committee (including Madison), however, “country” was changed to “State.” Id. (citing Documentary Record, supra, at 30). As Judge Walton noted: Anti-Federalist Elbridge Gerry explained that changing the language to “necessary to the security of a free State” emphasized the primacy of the state militia over the federal standing army: “A wellregulated militia being the best security of a free state, admitted an idea that a standing army was a secondary one.” Seegars, 297 F.Supp.2d at 229 (internal quotation omitted) (citing Yassky, supra (quoting The Congressional Register, August 17, 1789)). Indeed, in light of the meaning of “State” as used throughout the Constitution, see supra p. 5, and the care the drafters are presumed to have taken in selecting specific language, see Holmes v. Jennison, 39 U.S. 540, 570-71, 14 Pet. 540, 10 L.Ed. 579 (1840) (“Every word [in the Constitution] appears to have been weighed with the utmost deliberation, and its force and effect to have been fully understood.”), the change plainly suggests that
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Defense,” id. § 1; see also D.C.Code § 49-301 (a)-(b) (“There shall be appointed and commissioned by the President of the United States a Commanding General of the militia of the District of Columbia . . . . [T]he Commanding General of the militia of the District of Columbia shall be considered to be an employee of the Department of Defense.”). Unlike a State Governor who can mobilize the State militia during civil unrest,35 the Mayor of the District must request the President to mobilize the District’s militia. D.C.Code § 49-103 (“[I]t shall be lawful for the Mayor of the District of Columbia . . . to call on the Commander-inChief to aid . . . in suppressing . . . violence and enforcing the laws; the Commander-in-Chief shall thereupon order out so much and such portion of the militia as he may deem necessary to suppress the same. . . .”). See generally Seegars, 297 F.Supp.2d at 240-41 (discussing structure of District’s militia). To sum up, there is no dispute that the Constitution, case law and applicable statutes all establish that the District is not a State within the meaning of the Second Amendment. Under United States v. Miller, 307 U.S. at 178, 59 S.Ct. 816, the Second Amendment’s declaration and guarantee that “the right of the people to keep and bear Arms, shall not be infringed” relates to the Militia of the States only. That the Second Amendment does not apply to the District, then, is, to me, an unavoidable conclusion. the drafters intended to clarify that the right established in the Second Amendment was intended to protect the “free[dom]” of the “State [s]” of the Union rather than the “country.” 31 32
U.S. Const. Art. I, §§ 2-4. As noted in Seegars: [I]n his efforts to convince the people of the advantages of the Constitution in The Federalist Papers, James Madison noted that although the federal government had a standing army, the people would have the use of militias, stating: Let a regular army, fully equal to the resources of the country, be formed; and let it be entirely at the devotion of the federal government: still it would not be going too far to say that the State governments with the people on their side would be able to repel the danger. . . . Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than
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For the foregoing reasons, I would affirm the district court’s dismissal of Heller’s Second Amendment challenge to section 7-2502.02(a) (4) for failure to state a claim for relief under Federal Rule of Civil Procedure 12(b)(6).
I would affirm its dismissal of the other five appellants’ claims as well as Heller’s other claims for lack of standing under Federal Rule of Civil Procedure 12(b)(1). Accordingly, I respectfully dissent.
any which a simple government of any form can admit of.Seegars, 297 F.Supp.2d at 235 (internal quotation omitted) (quoting The Federalist No. 46, at 267 (Clinton Rossiter ed., 1961)).
federal government and the federal government only from infringing that right.” (citing Cruikshank, 92 U.S. at 553)). Thus, the Amendment does not apply to gun laws enacted by the States. Because the Second Amendment “was specifically included by the drafters of the Bill of Rights to protect the states against a potentially oppressive federal government,” Seegars, 297 F.Supp.2d at 230, it would make little sense to incorporate the Amendment. Although the District is a federal enclave and thus the Second Amendment might seem to apply without regard to incorporation, to hold that the District constitutes a “State” under the Amendment and yet, at the same time, to treat its laws as federal is a selfcontradiction. In other words, either the District, as a federal enclave, enacts federal law, including D.C.Code § 7-2502.02 (a)(4), or the District is a “State” and D.C.Code § 7-2502.02 (a)(4) is state legislation to which the unincorporated Second Amendment does not apply. 34 “The President of the United States shall be the Commander-in-Chief of the militia of the District of Columbia.” D.C.Code § 49-409 (emphasis added); see also id. § 49-404 (“The enrolled militia shall not be subject to any duty except when called into the service of the United States, or to aid the civil authorities in the execution of the laws or suppression of riots.”); id. § 49-405 (“Whenever it shall be necessary to call out any portion of the enrolled militia the Commander-in-Chief shall order out, by draft or otherwise, or accept as volunteers as many as required.”). 35 See, e.g., 4 Pa.Code § 7.211(a) (“The Governor will retain command of State peacekeeping forces during a civil disorder.”) (emphasis added), (d) (“In the event of disorder, . . . [w]eapons carried by the National Guard will not be loaded nor will bayonets be fixed without the specific order of the Governor.”) (emphasis added).
Even if the District were to be considered a “State” under the Second Amendment, I do not believe D.C.Code § 72502.02(a)(4) could be challenged thereunder. When adopted, the Bill of Rights protected individuals only against the federal government. See, e.g., Barron v. City of Baltimore, 32 U.S. 243, 247, 7 Pet. 243, 8 L.Ed. 672 (1833). Under the “incorporation” doctrine, however, “many of the rights guaranteed by the first eight Amendments to the Constitution have been held [by the Supreme Court] to be protected against state action by the Due Process Clause of the Fourteenth Amendment.” Duncan v. Louisiana, 391 U.S. 145, 149, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968) (Sixth Amendment right to jury trial in criminal case protected against state action); see also Benton v. Maryland, 395 U.S. 784, 795, 89 S. Ct. 2056, 23 L.Ed.2d 707 (1969) (“Once it is decided that a particular Bill of Rights guarantee is fundamental to the American scheme of justice, the same constitutional standards apply against both the State and Federal Governments.” (internal quotation and citation omitted)). But the Supreme Court has never held that the Second Amendment has been incorporated. Cf. United States v. Cruikshank, 92 U.S. 542, 553, 23 L.Ed. 588 (1875) (“[The Second Amendment] is one of the amendments that has no other effect than to restrict the powers of the national government. . . .”); see also Love, 47 F.3d at 123 (“The Second Amendment does not apply to the states.” (citing Cruikshank, 92 U.S. 542, 23 L.Ed. 588)); Cases, 131 F.2d at 921-22 (“Whatever rights . . . the people may have [under the Second Amendment] depend upon local legislation; the only function of the Second Amendment being to prevent the
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DISTRICT OF COLUMBIA V. HELLER
Bearing Of Arms Only In Service Of A WellRegulated Militia
BRIEF FOR PETITIONERS 07-290 DISTRICT OF COLUMBIA AND ADRIAN M. FENTY, MAYOR OF THE DISTRICT OF COLUMBIA, PETITIONERS, V. DICK ANTHONY HELLER, RESPONDENT.
NO. 07-290. JANUARY 4, 2008. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
Thomas C. Goldstein Christopher M. Egleson Akin Gump Strauss Hauer & Feld LLP 1333 New Hampshire Avenue, NW Washington, DC 20036 Walter Dellinger Matthew M. Shors Mark S. Davies Geoffrey M. Wyatt O’Melveny & Myers LLP 1625 Eye Street, NW Washington, DC 20006 Linda Singer, Attorney General Alan B. Morrison, Special Counsel to the Attorney General Todd S. Kim, Solicitor General Counsel of Record Donna M. Murasky, Deputy Solicitor General Lutz Alexander Prager Office of the Attorney General for the District of Columbia 441 Fourth Street, NW Washington, DC 20001 (202) 724-6609 Attorneys for Petitioners
B. The Historical Context And Drafting History Of The Second Amendment Confirm The Framers’ Military Purpose II.
THE SECOND AMENDMENT DOES NOT APPLY TO LAWS LIMITED TO THE DISTRICT OF COLUMBIA
III. THE DISTRICT’S REASONABLE GUN-CONTROL LAWS DO NOT INFRINGE THE RIGHT TO KEEP AND BEAR ARMS A. The Constitution Permits Reasonable Restrictions On The Ownership And Use Of Guns B. The Court Of Appeals Applied The Wrong Standard, Created An Unworkable Test, And Misconstrued Relevant Precedent C. The District’s Gun Regulations Satisfy The Reasonableness Standard 1. The Handgun Ban Limits The Unique Harms Posed By Handguns In An Urban Environment 2. The Trigger-Lock Requirement Is A Reasonable Safety Regulation 3. The Licensing Requirement Does No More Than Properly Limit Those Who May Carry Handguns CONCLUSION QUESTION PRESENTED
Whether the following provisions - D.C. Code §§ 7-2502.02(a)(4), 22-4504(a), and 7-2507.02 violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes? PARTIES TO THE PROCEEDING
TABLE OF CONTENTS
Petitioners District of Columbia and Mayor Adrian M. Fenty were defendants-appellees below. Mayor Fenty was substituted automatically for the previous Mayor, Anthony A. Williams, under Federal Rule of Appellate Procedure 43(c)(2).
QUESTION PRESENTED PARTIES TO THE PROCEEDINGS DECISIONS BELOW JURISDICTION
Respondent Dick Anthony Heller was the only plaintiff-appellant below held by the court of appeals to have standing. The other plaintiffsappellants were Shelly Parker, Tom G. Palmer, Gillian St. Lawrence, Tracey Ambeau, and George Lyon.
RELEVANT CONSTITUTIONAL AND STATUTORY PROVISIONS STATEMENT OF THE CASE SUMMARY OF ARGUMENT ARGUMENT I.
THE SECOND AMENDMENT PROTECTS ONLY MILITIA-RELATED FIREARM RIGHTS
DECISIONS BELOW
A. The Language Of The Entire Amendment Is Naturally Read To Protect The Keeping And
The decisions below are reported at 478 F.3d 370 and 311 F. Supp. 2d 103 and reprinted in
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the Appendix to the Petition for Certiorari (PA) at PA1a and PA71a.
being used for lawful recreational purposes within the District of Columbia.
JURISDICTION
§ 22-4504. Carrying concealed weapons; possession of weapons during commission of crime of violence; penalty. (a) No person shall carry within the District of Columbia either openly or concealed on or about their person, a pistol, without a license issued pursuant to District of Columbia law, or any deadly or dangerous weapon capable of being so concealed. . . .
***
The court of appeals entered judgment on March 9, 2007, and denied en banc review on May 8, 2007. PA89a. A petition for certiorari was filed on September 4, 2007, and granted on November 20, 2007. This Court has jurisdiction under 28 U.S.C. § 1254(1). RELEVANT CONSTITUTIONAL AND STATUTORY PROVISIONS
The Second Amendment provides: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” The Militia Clauses of the Constitution, art. I, § 8, cls. 15-16, empower Congress “[t]o provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions” and “[t]o provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.” Relevant portions of the D.C. Code provide: § 7-2502.02. Registration of certain firearms prohibited. (a) A registration certificate shall not be issued for a: (1) Sawed-off shotgun; (2) Machine gun; (3) Short-barreled rifle; or (4) Pistol not validly registered to the current registrant in the District prior to September 24, 1976, except that the provisions of this section shall not apply to any organization that employs at least 1 commissioned special police officer or other employee licensed to carry a firearm and that arms the employee with a firearm during the employee’s duty hours or to a police officer who has retired from the Metropolitan Police Department. (b) Nothing in this section shall prevent a police officer who has retired from the Metropolitan Police Department from registering a pistol. ***
§ 7-2507.02. Firearms required to be unloaded and disassembled or locked. Except for law enforcement personnel described in § 7-2502.01 (b)(1), each registrant shall keep any firearm in his possession unloaded and disassembled or bound by a trigger lock or similar device unless such firearm is kept at his place of business, or while G A L E
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STATEMENT OF THE CASE
This case involves a Second Amendment challenge to the District of Columbia’s longstanding gun-control laws. The divided court below was the first federal court of appeals ever to invalidate a law under that Amendment. Its decision is wrong for three separate reasons, each of which independently warrants reversal and entry of judgment for the District. 1. The Nation’s capital has regulated guns for two centuries. In 1801, the then-Town of Georgetown forebade firing guns in its “inhabited parts.” Town of Georgetown Ordinance of Oct. 24, 1801. In 1809, the City of Washington similarly made it unlawful to fire guns “within four hundred yards of any house . . . or on the Sabbath.” Act of the Corporation of the City of Washington (“City Act”) of Dec. 9, 1809. The city later exempted militiamen “on days of mustering, training or rejoicing, when ordered so to shoot or fire by their commanding officer.” City Act of Mar. 30, 1813. In 1857, the city made it unlawful to carry “deadly or dangerous weapons, such as . . . pistol[s].” City Act of Nov. 8, 1857; see City Act of Nov. 18, 1858. In 1892, Congress similarly barred persons throughout the District from having such weapons “concealed about their person” outside of the person’s “place of business, dwelling house, or premises.” Act of July 13, 1892, ch. 159, 27 Stat. 116. In 1932 and 1943, Congress prohibited possession of machine guns and sawed-off shotguns in the District and required licenses for carrying pistols and other concealable weapons outside one’s home or place of business. Act of July 8, 1932, ch. 465, 47 Stat. 650; Act of Nov. 4, 1943, ch. 296, 57 Stat. 586. Police regulations subsequently required registration of all firearms, including pistols. D.C. Police Regs. art. 50-55 (1968). In 1976, the Council of the District of Columbia concluded that existing laws did A M E R I C A N
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not adequately curb gun-related violence. As a consequence, it enacted a comprehensive new law regulating firearms. The principal provision at issue here prohibits most residents from registering (and thus possessing) any pistol not registered before the law became effective. D.C. Code §§ 72502.01, 7-2502.02. “Pistol” is defined as a gun “originally designed to be fired by use of a single hand.” Id. § 7-2501.01(12). As Mayor Walter Washington emphasized in signing the law, it “does not bar ownership or possession of shotguns and rifles.” PA116a. Resolutions to disapprove the act were introduced in the House of Representatives but were unsuccessful. See McIntosh v. Washington, 395 A.2d 744, 747 (D.C. 1978). The Council targeted handguns because they are disproportionately linked to violent and deadly crime. In its report accompanying the bill, the Council cited national statistics showing that “handguns are used in roughly 54% of all murders, 60% of robberies, 26% of assaults and 87% of all murders of law enforcement officials.” PA102a. Handguns were also particularly deadly in other contexts: “A crime committed with a pistol is 7 times more likely to be lethal than a crime committed with any other weapon.” Id. These dangers were even more pronounced in the District, where handguns were used in 88% of armed robberies and 91% of armed assaults. PA102a, 104a. In 1974, handguns were used to commit 155 of 285 murders in the District. PA102a. In the same year, every rapist in the District who used a firearm to facilitate his crime used a handgun. Evening Council Sess. Tr. 11:4-5, June 15, 1976. The Council also recognized that the dangers of handguns extend beyond acts of determined criminals. It found that guns “are more frequently involved in deaths and violence among relatives and friends than in premeditated criminal activities,” and that many “murders are committed by previously law-abiding citizens, in situations where spontaneous violence is generated by anger, passion, or intoxication.” PA102a. The Council also focused on the link between handguns and accidental deaths and injuries, particularly to young children who can wield only smaller weapons: of the “[c]lose to 3,000 accidental deaths . . . caused by firearms” annually, children were particularly vulnerable - “1/4 of the victims are under 14 years of age.” PA101a-02a. In enacting the handgun ban, the Council found that less restrictive approaches would G A L E
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not be adequate. Safe-storage provisions standing alone would be insufficient to accomplish the District’s goal of reducing gun injuries and deaths. Guns stolen from even the most law-abiding citizens enable criminal gun violence. Afternoon Council Sess. Tr. 35:10-20, 42:4-10, May 3, 1976. Ready availability of guns in the home also made them “easy for juveniles to obtain.” PA103a. The legislature concluded that “the ultimate resolution of the problems of gun created crimes and gun created accidents . . . is the elimination of the availability of handguns.” Afternoon Council Sess. Tr. 3:22-24, May 18, 1976. The Council thus chose to “freez[e] the pistol . . . population within the District of Columbia.” PA104a. As the Council summed up, “the bill reflects a legislative decision” that handguns “have no legitimate use in the purely urban environment of the District of Columbia.” PA112a. As part of its gun-control program, the Council also enacted a trigger-lock provision to promote gun safety at home. D.C. Code § 72507.02. A firearm must be kept “unloaded and disassembled or bound by a trigger lock or similar device unless such firearm is kept at [a] place of business, or while being used for lawful recreational purposes.” The provision’s author noted not only that 3,000 deaths resulted annually from firearm accidents, but also that loaded weapons are often misused against family members in moments of passion. Evening Council Sess. Tr. 21:1-15, Jun. 15, 1976. He explained that trigger locks may be unlocked in less than a minute. Id. at 42:11-18, 49:8-16. In 1994, the Council extended the prior requirement that those who “carry” concealable weapons in public be licensed. A license is now required regardless of where such a weapon is carried. D.C. Code § 22-4504(a). The licensing requirement, which enables the District to prevent felons and other dangerous persons from keeping concealable weapons, is separate from the registration requirement applicable to all firearms. Absent the handgun ban, District residents could register handguns and then apply for licenses to “carry” them. 2. Respondent Heller owns handguns and long guns (i.e., rifles and shotguns) but stores them outside the District. Joint Appendix 77a. He and five other individuals challenged the District’s longstanding laws as infringements of their asserted right to possess guns for A M E R I C A N
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self-defense. Because they did not assert membership in any organized militia, the district court granted the District’s motion to dismiss the complaint. “[I]n concert with the vast majority of circuit courts,” it concluded that this Court’s decision in United States v. Miller, 307 U.S. 174 (1939), “reject[s] an individual right to bear arms separate and apart from Militia use.” PA75a. The district court also noted that this Court “has twice been presented with the opportunity to re-examine Miller and has twice refused to upset its holding.” PA75a.
and bear arms relates to those Militia whose continued vitality is required to safe-guard the individual States.” PA57a-60a (footnote omitted). She also emphasized that the Amendment was intended to guard against a perceived threat to the states from the federal government. PA65a. She noted that if the District’s militia is treated as a state militia, then the Amendment would not apply because it “does not apply to gun laws enacted by the States.” PA66a n. 13.
3. A divided panel of the court of appeals reversed. After finding that only respondent had standing, the majority held that “the Second Amendment protects a right of individuals to possess arms for private use.” PA14a-17a, 44a. The majority also rejected the District’s argument that the Second Amendment is not implicated by local legislation governing only the Nation’s capital. PA44a-48a.
1. The text and history of the Second Amendment conclusively refute the notion that it entitles individuals to have guns for their own private purposes. Instead, it protects the possession and use of guns only in service of an organized militia.
The court then held that, because a handgun is an “Arm” under the Amendment, banning handguns is per se invalid. PA53a. The majority dismissed as “frivolous” the District’s contention that its regulatory scheme is reasonable because other weapons, such as shotguns and rifles, fully vindicate residents’ interests in self-defense. PA53a. The majority also invalidated the licensing law. It ruled that individuals have not only a constitutional right to possess a handgun, but also an ancillary right to move it about their homes for self-defense. PA54a. Although the District construes D.C. Code § 22-4504(a) as a licensing provision, not a flat prohibition on the use (“carrying”) of handguns, the majority held it facially unconstitutional on its contrary reading. The majority further invalidated the triggerlock requirement. The District construes D.C. Code § 7-2507.02, which has never been interpreted by local courts and appears never to have been enforced, to permit a lawfully owned gun to be used for self-defense. The majority nevertheless read it to forbid that use and on that reading held the provision facially unconstitutional. PA55a. Judge Henderson dissented. In her view, Miller - “the only twentieth-century United States Supreme Court decision that analyzes the scope of the Second Amendment” - compels the conclusion that “the right of the people to keep G A L E
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SUMMARY OF ARGUMENT
The first clause - “[a] well regulated Militia, being necessary to the security of a free State” speaks only of militias, with not a hint about private uses of firearms. A well-regulated militia is the antithesis of an unconnected group of individuals, each choosing unilaterally whether to own a firearm, what kind to own, and for what purposes. The second clause - “the right of the people to keep and bear Arms, shall not be infringed” equally addresses the possession and use of weapons in connection with militia service. In 1791, “Arms” and “bear Arms” were military terms describing the use of weapons in the common defense, and the word “keep” was used in connection with militiamen’s possession of the arms necessary for militia service. Taken together, the two clauses permit only a militia-related reading. To conclude that the Framers intended to protect private uses of weapons, the majority below read the entire first clause to be extraneous and the second to be in tension with the natural, military meaning of “bear Arms.” If that had been the Framers’ intent, they would have omitted the first clause and used non-military language in the second. History confirms the District’s reading. The primary concerns that animated those who supported the Second Amendment were that a federal standing army would prove tyrannical and that the power given to the federal government in the Constitution’s Militia Clauses could enable it not only to federalize, but also to disarm state militias. There is no suggestion that the need to protect private uses of weapons A M E R I C A N
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against federal intrusion ever animated the adoption of the Second Amendment. The drafting history and recorded debate in Congress confirm that the Framers understood its military meaning and ignored proposals to confer an express right to weapon possession unrelated to militia service. 2. The court of appeals erred for the independent reason that the Second Amendment does not apply to District-specific legislation. Such legislation cannot implicate the Amendment’s purpose of protecting states and localities from the federal government. That conclusion follows from the history underlying the Constitution’s Seat of Government Clause. In 1783, disgruntled soldiers surrounded the State House in Philadelphia, causing the Continental Congress to flee because the local authorities would not protect it. The Framers created a federal enclave to ensure federal protection of federal interests. They could not have intended the Second Amendment to prevent Congress from establishing such gun-control measures as it deemed necessary to protect itself, the President, and this Court when similar state legislative authority was not constrained. 3. Finally, the judgment must be reversed for the separate reason that the laws at issue here are reasonable and therefore permissible. This Court has long recognized that constitutional rights are subject to limitations. Indeed, the majority below purported to recognize that gun-control laws are constitutional if they are “reasonable regulations.” The majority nevertheless found that the Council’s findings regarding handguns’ unique dangers in an urban environment were irrelevant because, in its view, a ban on handguns is per se unreasonable under the Second Amendment. Equally irrelevant was the fact that the District allows residents to keep rifles and shotguns for private purposes. The majority instead concluded that the Second Amendment precludes the District from limiting a resident’s choice of firearms so long as the firearm chosen is in common use, has a military application, and is a lineal descendant of a type of arm used in 1791. That test is unworkable. It also has no basis in the Second Amendment and would implausibly give the right to keep and bear arms a uniquely privileged position in the Bill of Rights.
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The District’s gun-control measures should be upheld under a proper reasonableness analysis. In enacting the laws at issue here, the Council responded to the serious dangers created by ownership of guns, considered various alternatives, and sensibly concluded that the handgun ban, plus trigger-lock and licensing requirements, would reduce crime, suicide, domestic violence, and accidental shootings. Preventing those harms is not just a legitimate goal; it is a governmental duty of the highest order. Moreover, those regulations do not disarm the District’s citizens, who may still possess operational rifles and shotguns. The laws at issue, adopted after extensive debate and consideration, represent the District’s reasoned judgment about how best to meet its duty to protect the public. Because that predictive judgment about how best to reduce gun violence was reasonable and is entitled to substantial deference, it should be upheld. ARGUMENT I. THE SECOND AMENDMENT PROTECTS ONLY MILITIA-RELATED FIREARM RIGHTS.
Almost seventy years ago, this Court held that “[w]ith obvious purpose to assure the continuation and render possible the effectiveness of [the state-regulated militias] the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.” Miller, 307 U.S. at 178. The text and history of the Second Amendment confirm that the right it protects is the right to keep and bear arms as part of a well-regulated militia, not to possess guns for private purposes. The Second Amendment does not support respondent’s claim of entitlement to firearms for self-defense. A. The Language Of The Entire Amendment Is Naturally Read To Protect The Keeping And Bearing Of Arms Only In Service Of A Well-Regulated Militia. 1. Both clauses of the Second Amendment, read separately or together, establish the Amendment’s exclusively military purpose.
“A well regulated Militia, being necessary to the security of a free State, . . . ” Unique in the Bill of Rights, the Second Amendment begins by stating the reason for its existence: to support a “well regulated Militia.” A M E R I C A N
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Militias are the state- and congressionallyregulated military forces described in the Militia Clauses (art. I, § 8, cls.15-16). Their function is to safeguard the states and to be available “to execute the Laws of the Union, suppress Insurrections and repel Invasions.” Id.; Miller, 307 U.S. at 178; see also U.S. Const. art. II, § 2 (President commands “the Militia of the several States, when called into the actual Service of the United States”), amend. V (cases arising in “the Militia, when in actual service in time of War or public danger” excepted from grand jury requirement). The words “well regulated” underscore that the “Militia” contemplated by the Framers were organized and trained fighting forces. As Miller explained, a militia is a “body of citizens enrolled for military discipline.” 307 U.S. at 179. The language chosen in the Second Amendment was not new. The Articles of Confederation had required “every State” to “keep up a wellregulated and disciplined militia, sufficiently armed and accoutered.” Articles of Confederation art. VI. Most states passed detailed laws setting forth requirements for membership and discipline, generally requiring men of certain ages to appear periodically for muster and training under the supervision of state-appointed officers.1 The laws called for highly organized bodies, specifying company and regiment size, number and rank of commissioned and noncommissioned officers, and the like. E.g., Georgia Militia Law 4-5. Those men were expected to obtain specified weaponry, normally muskets 1 Prior to the drafting of the Second Amendment, twelve of the thirteen original colonies and Vermont had enacted legislation regulating their state militia along similar lines. See An Act for forming, regulating, and conducting the military Force of this State (1786) (Connecticut) [herein after Connecticut Militia Law, with subsequent citations similarly abbreviated]; Act for Establishing a Militia, 1785 Laws of Delaware 57 (June 4, 1785); Act for Regulating the Militia of the State, and for Repealing the Several Laws Heretofore Made for That Purpose, 1786 Georgia Session Laws (Aug. 15, 1786); Act to Regulate the Militia, 1777 Maryland Laws Chap. XVII (June 16, 1777); Act of Nov. 3, 1783, 1783 Maryland Laws Chap. I; Act of Mar. 10, 1785, 1785 Mass. Acts 1; Act of June 24, 1786, 1786 N.H. Laws 1; Act of Jan. 8, 1781, 1781 N.J. Laws, Chap. CCXLII; Act to Regulate the Militia of New York, 1786 N.Y. Laws 1 (Apr. 4, 1786); Act for Establishing a Militia, N.C. Sess. Laws, Chap. XXII (Nov. 18, 1786); Act for the Regulation of the Militia, 1780 Pa. Laws 1 (Mar. 20, 1780); Act for the Regulation of the Militia, 1784 S.C. Acts 68 (1784); Act Regulating the Militia, 1787 Vt. Acts & Resolves 1 (Mar. 8, 1787); Act of Oct. 17, 1785, 1785 Va. Acts, Chap. I.
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and rifles, and present them when directed. See Miller, 307 U.S. at 179-82. Failure to appear for training, properly armed, was punishable. E.g., Georgia Militia Law 1; New Hampshire Militia Law 8. The Second Militia Act, enacted by Congress a year after the Second Amendment’s ratification, shows that the Framers similarly understood a “well regulated Militia” to be an organized and trained military force, led by state-chosen officers. It called for musters and training, and it specified particular weaponry all militia members were required to possess. See Act of May 8, 1792, ch. XXXIII, 1 Stat. 271. It placed special emphasis on military discipline. See id. §§ 6-7, 10-11.2 The remaining words of the first clause further support the point that the Second Amendment contemplates service in a military organization. The Framers specified that a wellregulated militia exists for the common defense “being necessary” (not optional) “to the security of a free State.” This language recognizes that the militia forces exist not only to help the federal government “execute the Laws of the union, suppress Insurrections and repel invasions” (art. I, § 8, c1.15), but also to serve as the primary protectors of the states. Nothing about this language or the opening clause as a whole so much as hints that the Amendment is about protecting weapons for private purposes.3 “ . . . the right of the people to keep and bear Arms, shall not be infringed.”
Congress’s power under the Militia Clauses to “organiz[e]” the militias buttresses the point that the Second Amendment applies to participants in organized military entities. Since 1903, the militia has consisted of two parts, the National Guard and an “unorganized militia” including all ablebodied males, and some females, of certain ages. Perpich v. Dep’t of Defense, 496 U.S. 334, 341-46 (1990); 10 U.S.C. § 311. The unorganized militia has no duties and receives no training, discipline, or supervision by state-appointed officers. Id.; see also D.C. Code § 49-401 (District militia law). If language is to have meaning, membership in an unorganized militia is not membership in a “well regulated” militia. Because he is sixty-six (PA120a), respondent is not a member of any statutory militia. 3 Some read the “free State” language to mean that the Amendment was intended to ensure that people could rise up outside the context of any governmental organization against a tyrannical federal army in order to be “free.” Fear of federal abuse animated some opponents of the Constitution, but construing the Second Amendment as a right to rebel is inconsistent with the Treason Clause and the Militia Clauses, which specifically authorize the use of militias to 2
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The second clause standing alone also has a distinctly military cast. The crucial words are those that define the “right of the people” that the Amendment protects: “to keep and bear Arms.” “Arms” are military weapons. The term historically meant “[i]nstruments of offence used in war; weapons,” and the Oxford English Dictionary notes a 1794 dictionary that understood “arms” as “those instruments of offence generally made use of in war.” 1 Oxford English Dictionary 634 (J.A. Simpson & E.S.C. Weiner eds., 2d ed. 1989). In Miller, this Court held that a weapon is not a protected “Arm” absent proof that “at this time [it] has some reasonable relationship to the preservation or efficiency of a well regulated militia.” 307 U.S. at 178. The Court rejected a Second Amendment challenge to an indictment for possession of a short-barreled shotgun because the defendant had not provided that proof. At a minimum, the weapon must be “part of the ordinary military equipment” or have the potential to “contribute to the common defense.” Id. The Court discussed eighteenthcentury militias at length (id. at 179-82) but made no mention of weapons for personal uses. Moreover, “bear Arms” refers idiomatically to using weapons in a military context. This was the only sense in which the young Congress and its predecessors ever used the phrase. Paragraph 28 of the Declaration of Independence notably castigated George III for “constrain[ing] our fellow citizens . . . to bear arms against their country.” And in recorded congressional debates from 1774 through 1821, every one of the thirty uses of the phrase matched the idiomatic meaning of the day. David Yassky, The Second Amendment: Structure, History and Constitutional Change, 99 Mich. L. Rev. 588, 618-21 (2000). For decades after the adoption of the Second Amendment, the military sense of “bear arms” was “overwhelmingly dominant.” Id. “suppress Insurrections.” The Framers of this “more perfect Union” did not include the Second Amendment to “undo [their] hard work at Philadelphia.” Paul Finkelman, “A Well Regulated Militia”: The Second Amendment in Historical Perspective, 76 Chi.-Kent L. Rev. 195, 222 (2000). The reference to “State” in the Amendment is to a governmental unit, as elsewhere in the text of the Constitution, including its amendments. It was also common in that era for legislatures to declare the need for a militia to secure a “free government,” “the Commonwealth,” or a “free State.” See Delaware Militia Law; Maryland Militia Law; Virginia Militia Law.
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The word “keep” is consistent with that military sense. As noted above, the expectation of the Framers was that members of militias would bring the weapons required for service. When the Second Amendment was ratified, numerous state militia laws used the word “keep” to refer to the requirement that militiamen have arms so they could bring them to musters. E.g., Delaware Militia Law at 3; New Jersey Militia Law at 169; Virginia Militia Law at 2. Securing their right to “keep” those arms would ensure that they could “bear” them. See, e.g., Mass. Const., art. XVII (“The people have a right to keep and to bear arms for the common defense.”). 2. In concluding that the Second Amendment protects a right to gun ownership for private uses, the majority below misread the Amendment’s text in multiple ways.
First, the majority read the opening clause out of the Amendment. But “[i]t cannot be presumed that any clause in the constitution is intended to be without effect.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 174 (1803). That is particularly true for this clause, which is unique in the Bill of Rights. The Framers plainly expected it to give meaning to the whole Amendment. See 1 William Blackstone, Commentaries on the Laws of England 60 (1765) (“If words happen to be still dubious, we may establish their meaning from the context . . . . Thus the proeme, or preamble, is often called in to help the construction . . . .”); see also David T. Konig, The Second Amendment: A Missing Transatlantic Context for the Historical Meaning of “The Right of the People to Bear Arms”, 22 Law & Hist. Rev. 119, 154-57 (2004) (discussing eighteenth’ century uses of preambles). The majority nevertheless proposed that the first clause merely states “the right’s most salient political benefit.” PA35a. Treating the Amendment’s first clause as merely stating a benefit of the Amendment - as opposed to the benefit the Amendment was enacted to realize - is both a historical and inconsistent with Miller’s directive that the “declaration and guarantee of the Second Amendment” be read in light of its “obvious purpose.” 307 U.S. at 178 (emphasis added). Second, despite the contemporaneous evidence of what the Framers understood a “well regulated Militia” to be, the majority below implausibly asserted that a well-regulated militia can consist of people who are merely “subject A M E R I C A N
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to organization by the states (as distinct from actually organized).” PA33a. Everyone is potentially subject to organization, but an unorganized group is not regulated at all, let alone well-regulated. Under the majority’s understanding, even those who refused to appear for muster would still be part of a well-regulated militia. That is not how the words were understood. See, e.g., The Federalist No. 29, at 180-81 (Alexander Hamilton) (Clinton Rossiter ed., 1961) (citizens must “go[] through military exercises and evolutions” before “acquir[ing] the degree of perfection which would entitle them to the character of a well-regulated militia”). Indeed, states that set forth the discipline and organization required of their militias did so while specifically invoking their need for “well regulated” militias. E.g., Maryland Militia Law Chap. I (“Whereas a well regulated militia is the proper and natural defence of a free government . . . .”). Third, the majority read the phrase “bear Arms” unnaturally. “[T]he enlightened patriots who framed our constitution, and the people who adopted it, must be understood to have employed words in their natural sense,” Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 188 (1824), and “[o] ne does not bear Arms against a rabbit” or an intruder, Garry Wills, To Keep and Bear Arms, N.Y. Rev. of Books, Sept. 21, 1995, at 63; see Aymette v. State, 21 Tenn. (1 Hum.) 154, 157 (1840). The majority did not dispute that in 1791 this phrase normally meant carrying weapons in military service; rather, it stated that this usage was not “exclusive[]” or “absolute.” PA23a. The majority then held that the words should not be read based on their common meaning because of supposed tension with the word “keep” in the second clause. PA26a-27a. But the notion that these capable draftsmen meant to create an Amendment with such internal tensions that it could not be read naturally and harmoniously as a whole is unpersuasive. There is no tension in the text if “bear Arms” is read in its military sense. The District does not contend that individuals may not “keep” their “Arms,” but that they may keep them only if they have a militia-related reason for doing so. The majority’s assertion that “keep” must mean “keep for private use,” id., simply begs the question of whether the Second Amendment protects only militia-related rights. Fourth, the majority below also emphasized that the Second Amendment protects a “preG A L E
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existing right” and that guns were used in the founding era for private purposes. PA20a-22a. There is no persuasive reason, however, to believe that the Amendment protects all such uses, rather than retaining that role for the common law or state constitutions. See United States v. Cruikshank, 92 U.S. 542, 553 (1876) (the right to bear arms “is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence.”). Fifth, the majority relied on the words “right of the people” (PA18a-19a, 27a), but recognizing such a right does not define its scope. The question is not whether individuals can enforce the right protected by the Second Amendment. The question instead is whether this right is limited to the possession of militiarelated weapons.4 The majority suggested that the language chosen was “passing strange” if the “sole concern [was] for state militias.” PA14a. Far “strange[r],” however, was the majority’s supposition that the Framers would have written the Amendment this way to protect private uses of weapons. Respondent seeks to own a handgun for selfdefense in his home. If the Framers had intended the Amendment to protect that use beyond whatever rights existed at common law or in state constitutions, they would have omitted the opening clause entirely and used non-military language rather than “bear Arms.” The Framers’ phrasing of the Second Amendment was in fact a natural way to protect a militia-related right. As the majority itself emphasized, the surrounding amendments are part of “a catalogue of cherished individual liberties.” PA22a. Given the context, it made perfect sense to speak of “the right of the people” to describe what rights the people held against the federal government. Entitling individuals to exercise this right only as part of a state-regulated militia was consistent with the Framers’ recognition that the states and the people would defend each others’ interests. See The Federalist No. 29 (Hamilton), No. 45, (James Madison), No. 46 (Madison). 4
As the majority noted, this Court has on several occasions referred to the Second Amendment in passing when construing other constitutional provisions and statutes. PA37a-39a. The District’s position is fully consistent with the dicta cited to the effect that the Amendment protects a “right of the people.” The dicta do not speak to the nature of the right.
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That understanding is also consistent with the Militia Clauses in the body of the Constitution, Art. I, § 8, cls.15-16. Clause 15 allows Congress to call forth the militia into federal service, while Clause 16 makes clear that the federal government shall provide for “organizing, arming [as in “bear Arms”], and disciplining, the Militia [so that they will be well-regulated].” They further reserve to the states the appointment of officers and the training of the Militia “according to the discipline prescribed by Congress.” The natural reading of the Second Amendment in light of these clauses is that it ensures that, despite the broad powers given to Congress, it could not disarm the people serving in state militias. The history discussed next confirms that reading. The Bill of Rights limited the federal government to protect both individual liberty and states’ rights. In the context of the Second Amendment, both causes were served by establishing a check on a powerful new federal government that might otherwise disarm the people serving in state militias under the powers granted by the Militia Clauses. Of equal significance, history also shows that the Framers made deliberate drafting choices to address this particular concern, while evidencing no support for any other purpose. B. The Historical Context And Drafting History Of The Second Amendment Confirm The Framers’ Military Purpose.
Reading the text of the Second Amendment as a unified whole to protect only militia-related firearm rights reflects the concerns expressed by the Framers from the time of the Constitutional Convention through adoption of the Amendment by the First Congress. The Amendment was a response to related fears raised by opponents of the Constitution: that Congress would use its powers under the Militia Clauses to disarm the state militias; and that states and their citizens would be forced to rely for protection on a national standing army, widely feared as a potential oppressor. The District focuses on the development of the Amendment’s language. It traces the Amendment from proposals by the Virginia ratifying convention through James Madison’s adaptation of that language and later revisions in the First Congress. This approach avoids the unsound use of remote events and widely scattered G A L E
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expressions by individuals not directly involved in drafting the language. This properly focused review of the history confirms that the Second Amendment is only a militia-related provision. 1. The Second Amendment was a response to the Constitutional Convention’s decision to permit Congress both to establish a standing army and to exert substantial control over state militias. The Confederation militia system had proven to be a source of instability, most notably during Shays’s Rebellion in 1786. Angry farmers, joined by militia units drawn from the area, threatened civil war in Massachusetts. The rebellion was suppressed using state-officered militia units, but it gravely concerned the men at the Constitutional Convention in 1787. See Finkelman, supra, at 211-12; 1 Records of the Federal Convention of 1757, at 18-19 (Max Farrand ed., Yale Univ. Press 1937) (1911); 2 id. at 332; cf. The Federalist No. 21, at 140 (Hamilton) (citing rebellion as forerunner of ruin of law and order). Accordingly, the Framers provided that the national government would have a professional army and gave Congress powers over state militias, including the power to “provide for organizing, arming, and disciplining” them. U.S. Const. art. I, § 8, cls. 12-16; see Perpich, 496 U.S. at 340 (Framers “recogni[zed] . . . the danger of relying on inadequately trained [militia] soldiers as the primary means of providing for the common defense”). The Militia Clauses were denounced by Anti-Federalist delegates to the Constitutional Convention and produced a “storm of violent opposition” at state ratifying conventions. Frederick B. Wiener, Militia Clauses of the Constitution, 54 Harv. L. Rev. 181, 185 (1940); I Records, supra, at 330-31, 385, 387, 388; 3 id. at 209. One particular concern was that a federal standing army would prove tyrannical, especially if the state militias became ineffective counterweights,. Saul Cornell, A Well-Regulated Militia: The Founding Fathers and the Origins of Gun Control in America 41-50 (Oxford Univ. Press 2006). American experiences under the Crown had made standing armies objects of fear and revulsion. Id. at 9-13; see The Declaration of Independence para. 13 (“He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures.”). The shift from total state control of the militias to concurrent A M E R I C A N
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control with federal preeminence disturbed convention delegates, but “there is precious little evidence that advocates of local control of the militia shared an equal or even secondary concern for gun ownership” for personal Uses. R. Don Higginbotham, The Federalized Militia: A Neglected Aspect of Second Amendment Scholarship, 55 Wm. & Mary Q. 39, 40 (1998); see Jack N. Rakove, The Second Amendment.’ The Highest Stage of Originalism, 76 Chi.-Kent L. Rev. 103, 153-54 (2000); H. Richard Uviller & William G. Merkel, The Second Amendment in Context: The Case of the Vanishing Predicate, 76 Chi.-Kent L. Rev. 403, 480-95 (2000). The fear that the Militia Clauses give Congress exclusive power to arm the militias and thus the power to “disarm” them, by failing to provide arms, engendered particularly contentious debates at the Virginia ratifying convention. George Mason warned that Congress could use its militia powers to compel reliance on a standing army: The militia may be here destroyed . . . by disarming them. Under various pretences, Congress may neglect to provide for arming and disciplining the militia; and the state governments cannot do it, for Congress has an exclusive right to arm them . . . . Should the national government wish to render the militia useless, they may neglect them and let them perish. . . .
John Elliot, Debates in the Several State Conventions on the Adoption of the Constitution, as Recommended by the General Convention at Philadelphia, in 1787, at 379 (2d ed. 1836). Patrick Henry concurred (id. at 51-52, 257) and Mason asked for “art express declaration that the state governments might arm and discipline them.” Id. at 380. When Madison responded that Congress’s power to provide for arming the militias posed no threat to the militia because the states shared authority to arm the militia under the Militia Clauses (id.), Henry disagreed. Id. at 386. To deflect demands to convene a second constitutional convention before ratification, the Virginia Federalist delegates agreed to append proposals for changes to the Constitution for Congress to consider at the first opportunity. Kenneth R. Bowling, “A Tub to the Whale”: The Founding Fathers and the Adoption of the Federal Bill of Rights, 8 J. Early Republic 223, 227 (1988); 3 Elliot, supra, at 65762. Without debate, the convention unanimously adopted forty additions and changes G A L E
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presented by a committee (to which Madison, Mason, and Henry belonged) including: 17th. That the people have a right to keep and bear arms; that a well regulated militia composed of the body of the people trained to arms is the proper, natural and safe defence of a free state; that standing armies in time of peace are dangerous to liberty, and therefore ought to be avoided as far as the circumstances and protection of the community will admit; and that, in all cases, the military should be under strict subordination to, and be governed by, the civil power. *** 19th. That any person religiously scrupulous of bearing arms ought to be exempted, upon payment of an equivalent to employ another to bear arms in his stead.
Id. at 659. Separately, the convention proposed amending the Militia Clauses directly: “11th. That each state respectively shall have the power to provide for organizing, arming, and disciplining its own militia, whensoever Congress shall omit or neglect to provide for the same.” Id. at 660.5 No one at the Virginia ratifying convention mentioned a need to protect weapons for personal use from federal (or state) regulation. Instead, the persistent Anti-Federalist theme concerned arms to protect the state and its citizens against domestic and foreign enemies, including (in 1789) a potentially oppressive federal government using a standing army. 2. When the Anti-Federalists failed to prevent ratification of the Constitution, they shifted tactics and urged the addition of a Bill of Rights that they hoped would limit federal power, including the power over state militias. The Federalists in control of the First Congress were unwilling to undo what they had achieved, but were willing to make clear that the federal government could not violate certain rights or trump reserved state powers. With respect to the Second Amendment, that meant clarifying that the federal government could not deny the people the right to keep and bear arms in service of state militias.
5 The Virginia convention’s concerns with arms for the militia and the perceived threat from a standing army were mirrored at the North Carolina and New York conventions, which suggested similarly worded amendatory language. 4 id at 242-47; The Bill of Rights: A Documentary History 912 (Bernard Schwartz ed., 1971).
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The language used in the Second Amendment originated from the amendments proposed at the Virginia ratifying convention, but the wording changed during the drafting process in the First Congress. Madison, the initial drafter of the Amendment, made several changes to the Virginia proposals, notably merging the conscientious objector provision (19th) with the right to bear arms and militia provisions (17th): The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country: but no person religiously scrupulous of bearing arms, shall be compelled to render military service in person.
Gales & Seaton’s History of Debates in Congress (“Debates”) 451 (1789). Although the conscientious-objector clause did not survive, the initial inclusion of the “bear arms” phrase in both the first and third clauses strongly supports the conclusion that Madison understood the Amendment as a whole to relate to military service alone. Madison’s draft was revised to make the Amendment’s exclusively military focus even clearer. A select House committee meeting in executive session transposed the first two clauses, making the reference to a “well regulated Militia” more prominent, and substituted a comma for the semicolon, underscoring the connection between the two clauses. Id. at 170. The new structure and punctuation reflected the fact that the need to protect the right followed from the need for the militias. The committee shifted the militia’s role from ensuring “the security of a free country” to “the security of a free State,” highlighting the role of the militia in defending the state. Id. All remarks recorded in the House’s debate related to military service; none pertained to private use of weapons, including self-defense. 1 Debates, supra, at 778-81; see Roy G. Weatherup, Standing Armies and Armed Citizens: An Historical Analysis of the Second Amendment, 2 Hastings Const. L.Q. 961, 995 (1975). Members of the House also debated the conscientiousobjector clause, and their comments show that House members understood the Amendment as a whole to relate to military service. 1 Debates, supra, at 778-80. For instance, Elbridge Gerry opined: “If we give a discretionary power to exclude those from militia duty who have religious scruples, we may as well make no provision on this head.” Id. at 779. G A L E
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The Senate, meeting in closed session without recorded debate, altered the House draft to the present language and retained the direct connection between explicit purpose and right. Beyond striking the conscientious-objector clause, the Senate eliminated the House’s description of the militia as “composed of the body of the people.” 1 Journal of the First Session of the Senate (“Journal”) 71 (Gales and Seaton 1789). That phrase might have been seen to undermine Congress’s power under the Militia Clauses to decide how to organize the state militias. Rakove, supra, at 125. The Senate substituted “necessary for the security” in place of “the best security” (Journal, supra, at 77) but that substitution changed neither the clause’s subject (the militia) nor its object (the security of a free State) and so left the military import intact. The Senate rejected an amendment to add “for the common defence” after “Arms.” Journal, supra, at 77. Such an amendment, while consistent with one purpose of the Militia Clauses, could have been thought inconsistent with another purpose: using the militias for law enforcement. Rakove, supra, at 126. The change also could have been understood to refer to common defense of the Nation and thus to detract from the guarantee that the militia also existed to protect the security of individual states. In any event, especially given the opening clause, the Amendment’s “military sense is the obvious sense. It does not cease to be the obvious sense if something that might have been added was not added.” Garry Wills, A Necessary Evil: A History of American Distrust of Government 64 (Simon & Schuster 1999).6
6 The Senate defeated a proposal that would have amended the Militia Clauses to make explicit that states could not only arm but also regulate and discipline their militias if Congress failed to do so. 2 Schwartz, supra, at 1151-1153. That was one of twenty unsuccessful amendments offered by Virginia’s two Anti-Federalist senators. Id. at 1151-53, 1186-87. Respondent has argued that this proposal shows that the Second Amendment was not directed at ensuring the availability of arms for the militia; otherwise the two senators would have considered its inclusion unnecessary. Whatever Virginia’s senators may have contemplated, their proposal went much farther than the Second Amendment. It would not only have revised the body of the Constitution, which the Federalists opposed doing, but also have provoked disputes about whether Congress had regulated and disciplined the militias so insufficiently as to warrant state intervention. The Senate may also have concluded that the Second Amendment made the minority’s proposal redundant.
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3. In addition to this affirmative history of what was said and done, common understandings of state arms provisions at the time further support the conclusion that the right recognized by the Second Amendment relates only to arms for the common defense. In 1789, several state constitutions and declarations of rights included provisions recognizing a right to arms only for that purpose. Massachusetts explicitly recognized the right of the people to “keep and bear arms for the common defence.” The Complete Bill of Rights: The Drafts, Debates, Sources, and Origins 183 (Neil H. Cogan ed., 1997). North Carolina had materially similar wording. Id. at 184. These provisions were coupled with declarations that standing armies are “dangerous to liberty” and should not be “maintained” or “kept up.” Id. Other state constitutions did not address arms possession directly but stressed the need for militia - and, by extension, privately owned military arms - for the common defense in place of a standing army. With minor variations, the Delaware, Maryland, and Virginia constitutions recognized that “well-regulated militia” provide “the proper, natural, and safe defence” of a “free State” or “free government” and that “standing armies are dangerous to liberty.” Id. at 183-85. New York’s constitution stated that it was the “Duty of every Man to be prepared and willing to defend [the State]” and therefore the “Militia of the State at all times . . . shall be armed and disciplined and in Readiness for Service.” Id. at 183. If there was a right associated with these declarations, it was only to have arms for common defense, making a standing army unnecessary. Robert Hardaway, The Inconvenient Militia Clause of the Second Amendment, 16 St. John’s J. Legal Comment. 41, 82 (2002).7 Article XIII of Pennsylvania’s 1776 declaration of rights is another example of the dominant focus of these provisions on communal defense: That the people have a right to bear arms for the defense of themselves and the state; and as standing armies in the time of peace are 7 New Hampshire’s 1783 constitution exempted persons “conscientiously scrupulous of bearing arms” for the common defense from being “compelled thereto” but had no other provision on arms. Id. at 183. Georgia’s constitution directed that each county with men “liable to bear arms” should form battalions or companies. Id. New Jersey’s and South Carolina’s constitutions did not mention either arms or militias. Connecticut and Rhode Island had no constitutions.
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dangerous to liberty, they ought not to be kept up: And that the military should be kept under strict subordination to, and governed by, the civil power.
Cogan, supra, at 184. There is strong support for the proposition that Article XIII protects only a right to bear arms for communal (rather than personal) selfdefense. Nathan Kozuskanich, Defending Themselves: The Original Understanding of the Right to Bear Arms, 39 Rutgers L.J. 1041 (forthcoming 2008) (discussing how Article XIII originated from dispute between frontiersmen seeking state support for community self-defense organizations and Quaker-dominated legislature that refused to provide it); see Saul Cornell & Nathan DeDino, A Well-Regulated Right: The Early American Origins of Gun Control, 73 Fordham L. Rev. 487, 495-96, 498 (2004). More significantly, the specific language in Article XIII - “defense of themselves” - is not in the Second Amendment.8 While state provisions differed, “the meaning was the same. Only the citizenry, trained, armed, and organized in the militia, could be depended on to preserve republican liberties for ‘themselves’ and to ensure the constitutional stability of ‘the state.’” Lawrence D. Cress, An Armed Community, 71 J. Am. Hist. 22, 29 (1984). Subsequently, many states adopted constitutions that protect some right to bear arms. See generally Eugene Volokh, State Constitutional Rights to Keep and Bear Arms, 11 Tex. Rev. L. & Pol. 191 (2006). They are far from uniform, with a few tracking the Second Amendment, others explicitly protecting self-defense, others focusing on common defense, and some specifically including a right to hunt. These provisions illustrate how easy it would have been to provide for a right to own guns for private use and to decouple that right from the preservation of state militias. They also illustrate how guaranteeing some right to gun ownership has been considered vital in some, but not all, jurisdictions. 4. Not only were there extant state constitutional provisions that informed the drafters of the Second Amendment, but three proposals were introduced at state ratifying conventions 8
Vermont was not yet a state, but its 1777 and 1786 declarations of rights had similar language. Cogan, supra, at 184-85.
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that would have expressly protected a right to arms for personal use. See 2 Schwartz, supra, at 761 (“Congress shall never disarm any Citizen unless such as are or have been in Actual Rebellion”) (New Hampshire); id. at 658-59 (“That the people have a right to bear arms for the defence of themselves and their own state, or the United States, or for the purpose of killing game; and no law shall be passed for disarming the people or any of them, unless for crimes committed, or real danger of public injury from individuals . . . .”) (Pennsylvania minority); id. at 675, 707 (“that the said Constitution be never construed to authorize Congress . . . to prevent the people of the United States, who are peaceable citizens, from keeping their own arms”) (Massachusetts minority). Only New Hampshire’s proposal gained ratifying convention approval. Madison culled his proposals from a 1788 pamphlet entitled The Ratifications of the New Federal Constitution, Together with the Amendments, Proposed by the Federal States. 11 The Papers of James Madison 299 (C.F. Hobson et al. eds., 1977). Had any of these alternative formulations been used by Congress, a right to weapons possession for private purposes would have been established, but none was debated, much less adopted. That Congress ignored these alternatives and instead tied the right to the militia strongly suggests that Congress’s exclusive intent was to protect a militia-related right. 5. This history firmly supports the District’s reading of the Second Amendment: seeing a problem - the possibility of disarmed state militias - the Framers acted to address it. They did so by protecting the right of citizens to own guns to support those militias, but they never saw private gun ownership as a need to be addressed, and they did not accept those proposals that would have expressly protected a right to self-defense. The majority below suggested that its view was also compatible with this history, on the theory that securing a broad right to possess weapons for private purposes would enable states to summon armed militiamen to muster. PA44a. But the fear that Congress might disarm the citizenry outside the context of militia service was never expressed by any person known to be involved with the passage of the Second Amendment. Indeed, it is doubtful that Congress’s limited powers, as understood in 1791, G A L E
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would have been thought to encompass any power over firearms outside the militia context. See United States v. Lopez, 514 U.S. 549 (1995). If the majority were correct, that would imply that the Framers held a surprising view of congressional authority and adopted an over-broad solution to the problem that they identified. Moreover, the Framers likely would have feared that a broad constitutional right to possess weapons for private purposes might undermine their avowed end. Actions by individuals, unilaterally deciding what weapons to keep and how and when to use them for one’s own purposes, do not ordinarily promote “the security of a free State.” Events like Shays’s Rebellion were vivid reminders that such actions could endanger state security. The Framers of the Second Amendment therefore placed their trust specifically in the “well regulated Militia” rather than armed individuals acting on their own. That decision is apparent not only from the Amendment’s text, but also the care both the House and the Senate took in crafting it. They were particularly meticulous regarding what became the first clause; indeed, the second clause as enacted has the same words as Madison’s draft. Their efforts surely were purposeful, and should not be ignored two centuries later. History refutes the view of the majority below that all this attention was directed to a clause that does no more than announce one of the purposes of the Second Amendment. *** In sum, in light of the language and history, the best construction of the Second Amendment is one that is consistent with Miller’s interpretive principle and that recognizes a right having “some reasonable relationship to the preservation or efficiency of a well regulated militia.” 307 U.S. at 178. The Amendment does not protect - and was never intended to protect a right to own guns for purely private use. Because respondent does not assert a right to keep or bear arms in connection with militia duties, he has no Second Amendment claim. II. THE SECOND AMENDMENT DOES NOT APPLY TO LAWS LIMITED TO THE DISTRICT OF COLUMBIA.
The judgment must be reversed for the independent reason that the Second Amendment was intended as a federalism protection to prevent Congress, using its powers under the A M E R I C A N
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Militia Clauses, from disarming state militias. The Amendment thus “is a limitation only upon the power of Congress and the National government” and does not constrain states. Presser v. Illinois, 116 U.S. 252, 265 (1886). Laws limited to the District similarly raise no federalism-type concerns, whether passed by Congress or the Council, and so do not implicate the Second Amendment. The majority concluded otherwise by asserting that the entire Bill of Rights applies to the District, but that reason does not support its conclusion. Although many of the concerns expressed in the Bill of Rights apply to the actions of governments generally, the primary goal of those who demanded it as a condition of ratification of the Constitution was to control the federal government, which had been given powers previously belonging to the states. That is especially true with respect to the inclusion of the Second Amendment, which was prompted by fear of the federal government’s standing army and control over state militias. There was no expressed concern that states might disarm their citizens; the Amendment was enacted to protect states’ prerogatives, not constrain them. Thus, even if this Court were to read the Second Amendment to protect private uses of firearms, the right should be limited in application to constraining federal legislation that could implicate the Amendment’s “obvious purpose to assure the continuation and render possible the effectiveness of ” state militias. Miller, 307 U.S. at 178. Legislation limited to the District, where federal-state relations are not at issue, cannot implicate this obvious purpose. National limitations on what firearms may be possessed privately could conflict with a state’s ability to call forth a militia armed as the state sees fit. As the majority below recognized, the Amendment ensures “that citizens would not be barred from keeping the arms they would need when called forth for militia duty.” PA44a. But for the District there could be no conflict because Congress retains ultimate legislative power over whether and how to arm any militia, even when it delegates power to the District’s local government. See Sandidge v. United States, 520 A.2d 1057, 1059 (D.C. 1987) (Nebeker, J., concurring). Whatever the scope of the Second Amendment’s protections in other contexts, its Framers could not have intended Congress to be more G A L E
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constrained in the seat of federal power than a state would be in its own territory. The Framers established a federal enclave in large part because of an incident in 1783 in which disgruntled, armed soldiers surrounded the State House in Philadelphia, forcing the Continental Congress to flee. Kenneth R. Bowling, The Creation of Washington D.C.: The Idea and Location of the American Capital 30-34, 76 (1991). Congress then depended on its host government for protection, and when “an angry regiment of the Continental Army demanding back pay” disrupted its proceedings, it asked Pennsylvania’s Executive council to “call out the militia” to restore control. Lawrence Delbert Cress, Whither Columbia? Congressional Residence and the Politics of the New Nation, 1776 to 1787, 32 Wm. & Mary Q. 581, 588 (1975). The council refused, and Congress had to leave the city. Id. In response, Madison declared that the federal government needed “complete authority over the seat of government” because, without it, “the public authority might be insulted and its proceedings interrupted.” The Federalist No. 43, at 272 (Madison). The Framers therefore included the Seat of Government Clause, U.S. Const. art. I, § 8, cl.17, which provides Congress with plenary authority over this jurisdiction and explicitly allows the “Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings,” to ensure that the new government could defend itself. Particularly given that concern, the Framers could not have intended to deprive the federal government of the most important power of self-protection it has under the Seat of Government Clause by disabling Congress from enacting firearms regulations. To the contrary, they would have expected that Congress had the power to enact the types of laws at issue here under that clause. It is not plausible to think that Congress intended to restrict itself in regulating firearms in the jurisdiction in which federal interests like the White House, the Capitol, and this Court had to be most secure. That view is particularly illogical because it suggests that the Framers uniquely disabled firearm regulation in the District and other federal enclaves, such as the territories and military bases. This Court has squarely held that the Second Amendment was adopted as a limitation on only federal, not state, legislation. Presser, 116 U.S. at 265. Although the majority A M E R I C A N
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below suggested that the Second Amendment may subsequently have been incorporated against the states through the Fourteenth Amendment (PA37a-38a n.13), there is no dispute that the Second Amendment did not limit the states’ regulatory authority over firearms when enacted.9 As noted above, some states have chosen to adopt constitutional provisions on gun rights and some have not. If the majority below were correct, neither Congress nor the Council would have comparable ability to choose whether similar constraints on legislative authority to enact gun-control laws are appropriate for the District. There is no reason for Congress and the Council to have less authority in the District than a state legislature would have. Indeed, the claim below that every provision of the Constitution that restricts the national powers of Congress automatically applies when it acts pursuant to the Seat of Government Clause is simply wrong. See Loughboro v. Blake, 18 U.S. (5 Wheat.) 317, 318 (1820). For instance, before the Sixteenth Amendment was ratified, this Court enforced the limitation on Congress’s power to impose a “Capitation, or other direct, Tax” in Article I, § 9, Clause 4, just as it enforces the Bill of Rights. Pollock v. Farmers’ Loan & Trust Co., 157 U.S. 429 (1895). Nonetheless, the Court held that the limitation did not apply to a real estate tax enacted by Congress limited to the District. Gibbons v. District of Columbia, 116 U.S. 404 (1886). And if precise parallelism were a constitutional mandate, it would suggest that the judges of the District’s local court system would merit the protections of Article III, although this Court has held otherwise. Palmore v. United States, 411 U.S. 389, 397-98, 407-10 (1973). If the Second Amendment is read in light of the Constitution as a whole and in historical context, it too does not constrain Congress’s authority over the District.
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Although this case does not present the question of incorporation, there is no reason to think that a right to possess guns for personal use is a “principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental” and “implicit in the concept of ordered liberty.” Palko v. Connecticut, 302 U.S. 319, 325 (1937). Moreover, incorporation against the states would be curious since the Second Amendment was enacted to protect state prerogatives.
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The fact that the laws in question here were enacted by the Council rather than Congress makes all the more clear that the laws do not implicate the concerns animating the Second Amendment. Congress established the Council as a local legislature that may enact legislation only for the District. D.C. Code § 1203.02. The Council lacks the power to raise and maintain a standing army, let alone to affect militias or gun rights in the states. There is no reason to think that the Framers were worried about local entities like the District, acting through locally elected legislators, disarming their citizens, with no impact beyond their borders. The Second Amendment thus has no bearing on what the District can do in the area of firearms regulation, just as it has no bearing on what the states can do. The routes to those conclusions differ, because the applicable constitutional doctrines are different. But the result should be the same: the District is subject to no more restrictions under the Second Amendment than are the states and localities acting under them. Thus, even if the Second Amendment protects possession of guns for personal purposes, that protection does not extend to a law limited to the District. III. THE DISTRICT’S REASONABLE GUN-CONTROL LAWS DO NOT INFRINGE THE RIGHT TO KEEP AND BEAR ARMS.
In any event, the laws at issue should be upheld for the independent reason that they represent a permissible regulation of any asserted right. The rights protected by the Bill of Rights have “from time immemorial been subject to certain well-recognized exceptions arising from the necessities of the case.” Robertson v. Baldwin, 165 U.S. 275, 281 (1897). After concluding that existing laws were insufficient, the Council reasonably found that it could substantially reduce the tragic harms caused by guns by regulating which weapons are available to District residents, how residents should store lawfully owned weapons, and who should be licensed to carry concealable weapons. The Council properly acted to reduce those harms without functionally disarming residents. Its reasonable legislative judgment should be upheld even if the Second Amendment is construed to protect the possession of firearms for self-defense in the District. A M E R I C A N
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A. The Constitution Permits Reasonable Restrictions On The Ownership And Use Of Guns.
As the majority below purported to accept, governments may impose “reasonable restrictions” on the exercise of any Second Amendment right. PA51a. The United States agrees that “reasonable restrictions designed to prevent possession by unfit persons or to restrict the possession of types of firearms that are particularly suited to criminal misuse” are constitutional. Brief for the United States in Opposition at 20 n.3, Emerson v. United States, 536 U.S. 907 (2002) (No. 01-8780). State courts interpreting their state constitutions uniformly uphold reasonable regulations as well.10 Adam Winkler, Scrutinizing the Second Amendment, 105 Mich. L. Rev. 683, 686-87 (2007). As one court explained, the constitutional text is subject to a rule of reason because the common law right to self-defense is subject to that rule. Benjamin v. Bailey, 662 A.2d 1226, 1232-35 (Conn. 1995). To strike down reasonable regulations of guns would flout a long legal tradition. Our legal system has historically permitted reasonable regulation of guns for public safety purposes. That was true in England and in the colonies, and remains true in the states. See Lois G. Schwoerer, To Hold and Bear Arms: The English Perspective, 76 Chi.-Kent L. Rev. 27, 35-36 (2000); Cornell, supra, at 26-30. For example, Pennsylvania and Delaware passed acts prohibiting the firing of guns in cities and towns. Act of Feb. 9, 1750, ch. CCCLXXXVIII, 1750-1751 Pa. Laws 108; Act of Feb. 2, 1812, ch. CXCV, 1812 Del. Laws 522. Massachusetts prohibited Boston citizens from keeping loaded firearms in their homes. Act of Mar. 1, 1783, ch. XIII, 1783 Mass. Acts 218. State and local legislatures (including in the District) later began to regulate weapons more heavily, banning concealed weapons or even the sale of concealable weapons. E.g., Act of Feb. 1, 1839, no. 77, 1839 Ala. Laws 67; Act of Feb. 10, 1831, ch. XXVI, § 58, 1831 Rev’d Laws of Ind. 180, 192; Act of Jan. 27, 1838, 10
See, e.g., State v. Cole, 665 N.W.2d 328, 336-37 (Wisc. 2003); Robertson v. Denver, 874 P.2d 325, 328 & nn.15-16 (Colo. 1994); Arnold v. Cleveland, 616 N.E.2d 163, 172-73 (Ohio 1993); State v. LaChapelle, 451 N.W.2d 689, 690-91 (Neb. 1990); State v. Hamlin, 497 So. 2d 1369, 1371 (La. 1986); State v. McAdams, 714 P.2d 1236, 1237-38 (Wyo. 1986); Kalodimos v. Morton Grove, 470 N.E.2d 266, 273 (Ill. 1984).
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ch. 137, 1837-1838 Tenn. Pub. Acts 200; see supra pages 2-3. Federal regulation of gun possession and use was added in the twentieth century. E.g., National Firearms Act, Act of June 26, 1934, Pub. L. No. 73-474, 48 Stat. 1236. As the authorities, history, and practical realities all indicate, the Second Amendment affords elected officials substantial discretion to regulate guns. As guns have become cheaper and more lethal, state and local governments and Congress have matched the threat with increased regulation. The government must be allowed to respond appropriately to the threats posed by guns. That is particularly so regarding local laws like this one. Even if the Second Amendment were intended to apply to such laws, the Framers’ overarching desire to support state prerogatives (consistent with basic concepts of federalism) requires that the Amendment at a minimum allow local governments to make different tradeoffs based on local conditions.11 The District does not suggest that gun regulations should be subject to mere rational basis review. Instead, if the Second Amendment is found to protect a right of gun ownership for purposes of self-defense, a reasonableness inquiry would consider the legislature’s actual reasons for enacting a law limiting exercise of the right. Furthermore, whatever those reasons, a law that purported to eliminate that right - for instance, by banning all gun possession, or allowing only a firearm that was so ineffective that the law effected functional disarmament could not be reasonable. Cf. Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992) (land use regulation constitutes “taking” only when it eliminates essentially all use for property); People v. Blue, 544 P.2d 385, 391 (Colo. 1975) (state may not render state constitutional right to bear arms “nugatory”). But at least where a legislature has articulated proper reasons for enacting a gun-control law, with meaningful 11
Heightened scrutiny might be appropriate if Congress overrode the explicit command of the Second Amendment by barring a member of a well-regulated militia from possessing a weapon required to meet militia obligations. The asserted right to own and use a gun for private purposes is, however, not a fundamental right, see supra note 9, and individuals who wish to own and use guns for their own purposes are not a suspect class, see Lewis v. United States, 445 U.S. 55, 65 n.8 (1980); United States v. Carolene Products Co., 304 U.S. 144, 152 n.4 (1938). They have no difficulty in protecting their interests in political arenas.
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supporting evidence, and that law does not deprive the people of reasonable means to defend themselves, it should be upheld. See Winkler, supra, at 716-19 (describing how state courts apply this type of deferential standard). B. The Court Of Appeals Applied The Wrong Standard, Created An Unworkable Test, And Misconstrued Relevant Precedent.
Although the majority below purported to recognize the “reasonableness” standard, the rule it adopted makes the reasonableness of the legislature’s judgment irrelevant: “Once it is determined . . . that handguns are ‘Arms’ referred to in the Second Amendment, it is not open to the District to ban them.” PA53. But this Court has never adopted such a per se rule for any provision in the Bill of Rights. The rights it protects are not absolute, and the “necessities of the case” - particularly public safety concerns may justify the regulation of a protected right. Robertson, 165 U.S. at 281; see also Maryland v. Buie, 494 U.S. 325 (1990) (Fourth Amendment does not require endangering safety of law enforcement officers); New York v. Quarles, 467 U.S. 649 (1984) (same for Fifth Amendment). “[W]hile the Constitution protects against invasions of individual rights, it is not a suicide pact.” Kennedy v. Mendoza-Martinez, 372 U.S. 144, 160 (1963). Nothing in the Second Amendment’s text or history suggests that it precludes legislatures from protecting their citizens by banning particularly dangerous types of weapons. Rather than consider the “necessities of the case” or the legislature’s careful judgment, respondent argues that any weapon “in common use” that has a “military application” is an arm that cannot be banned no matter what other weapons remain available for self-defense. Response to Petition for Certiorari 24-26. The court of appeals’ equally inflexible and categorical rule would also require that the weapon be a “lineal descendant” of a “founding-era weapon.” PA51. This test is neither meaningful nor workable. Is the assault rifle a lineal descendant of the musket? How “common” must the weapon’s use be, and in what locations and in what populations would the test be run? Because every firearm has some military application, how well-suited must it be? If the majority’s test had any limits to it, handguns might not be “arms.” See United States v. Parker, 362 F.3d 1279, 1284 G A L E
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(10th Cir. 2004); Quilici v. Village of Morton Grove, 695 F.2d 261, 270 n.8 (7th Cir. 1982). More important, the test leads to tragic results. It suggests, for instance, that Congress could ban the private ownership of a particularly dangerous weapon right after its invention, before it grows into common use, yet not if its dangerousness becomes clear only after its use becomes widespread. This impractical and coldhearted result does not follow even from a self-defense reading of the Second Amendment. As the majority below recognized, “the government’s interest in public safety” allows it to bar certain members of “the people” (such as felons) from exercising any Second Amendment rights. PA52a. The same interest should allow the government to bar particularly dangerous arms, whether or not they are “lineal descendants” of far less powerful “Arms” from 1791. The majority below was mistaken in its view that Miller supports the per se test it crafted. The logical result of the holding in Miller - that Congress may ban all short-barreled shotguns in fact suggests that the District’s handgun ban is constitutional. It is hard to see why shortbarreled shotguns would not have some military application, and they were in sufficiently common use then for Congress to see a need to ban them. As for the lineal-descendant requirement, a short-barreled shotgun seems at least as related to its forebears as modern automatic handguns are to the pistols used by the militia in 1792. Miller did not in fact define certain categories of “arms” that are entitled to Second Amendment protection; rather, it required that “possession or use” of the weapon in question “at this time ha[ve] some reasonable relationship to the preservation or efficiency of a well regulated militia.” 307 U.S. at 178. This establishes that a weapon must have at least potential militia use for the Second Amendment even to be implicated. Miller says nothing, however, about what are protected “arms” under a self-defense theory of the Amendment never mentioned in the case. Moreover, Miller never suggests that if a weapon is of the type that might be kept by someone in the militia, its potential status as an “arm” would be sufficient to render the weapon immune to proscription. Indeed, the holding below that the Constitution bars the District from choosing which particular arms to allow is precisely backwards, as the Militia Clauses and the Second A M E R I C A N
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Amendment contemplate that choosing among arms is the government’s duty. Again, those mustering for militia service were required to bring those weapons chosen by the legislature. See supra pages 13-14. If the opening clause of the Second Amendment has any meaning, the rule adopted below—which pays no heed to whether a particular arm would meet a militiaman’s obligations—cannot stand. The majority’s attempt to draw support by analogy to the First Amendment also fails. PA51a-52a. On a fundamental level, the analogy is inapt. Regulating dangerous weapons is at the heart of any government’s traditional police power. Unlike speech restrictions, gun regulations raise no risk of viewpoint discrimination and no specter of silencing the views of the opposition. And, of course, the First Amendment does not have an opening clause comparable to that in the Second. But even if the First Amendment analogy were applicable, it would confirm that the District’s gun regulations are entitled to great deference and are constitutional. The decision below anomalously provides that no arm may be banned under the Second Amendment even though some forms of speech and some religious practices can be banned under the First. See, e.g., United States v. O’Brien, 391 U.S. 367 (1968) (speech mixed with conduct); Roth v. United States, 354 U.S. 476 (1957) (obscenity); Employment Div. v. Smith, 494 U.S. 872, 876-82 (1990) (ingesting peyote). In particular, speech can be banned when it creates sufficient risks to public order or safety. See, e.g., Brandenburg v. Ohio, 395 U.S. 444 (1969) (incitement to “imminent lawless action”); Chaplinsky v. New Hampshire, 315 U.S. 568 (1942) (“fighting words”). It is difficult to imagine that the practical men who wrote the Bill of Rights meant to allow banning potentially harmful speech, but not particularly dangerous firearms. Moreover, as the panel majority recognized, protected speech may be subjected to “time, place, or manner” restrictions. PA51a (citing Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989)). Although handguns are banned in the District, rifles and shotguns are not. So long as homeowners have a means of defending themselves, the handgun ban can be understood to be the Second Amendment analog to a time, place, or manner restriction properly tailored to the District’s unique status as an urban G A L E
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jurisdiction. Indeed, First Amendment jurisprudence makes clear that “alternative” means of exercising a right need not be precisely equivalent to the banned or burdened means. See, e.g., Renton v. Playtime Theatres, Inc., 475 U.S. 41, 53-54 (1986). If the Second Amendment has a self-defense purpose, it is concerned with the practical realities of functional disarmament not guaranteeing a choice among whatever weapons fit the labels in the court of appeals’ test. Cf. NAACP v. Button, 371 U.S. 415, 429 (1963). C. The District’s Gun Regulations Satisfy The Reasonableness Standard.
In 1976, the District’s elected representatives determined that existing gun-control laws needed to be made more effective. The muchdebated and carefully-crafted legislative solution included both a ban on handguns and a triggerlock requirement for firearms kept at home. It was the reasonable judgment of the District’s political representatives that such a comprehensive package best promoted public safety while respecting private gun ownership. In addition, the District has a longstanding gun licensing requirement that works with these provisions to promote public safety. The Second Amendment should not be read to give the courts the authority to overturn those reasoned judgments. 1. The Handgun Ban Limits The Unique Harms Posed by Handguns in an Urban Environment.
a. The Council adopted a focused firearm restriction: it banned private possession of handguns, but not rifles and shotguns. Based on the evidence before it, the Council reasonably found that a handgun ban would mitigate the very serious problem of handgun violence in the District, including the use of handguns in crimes and their misuse by normally lawabiding citizens. By their nature, handguns are easy to steal and conceal, and especially effective for robberies and murders. The dangers those weapons cause are particularly acute in the District. As Council-member Clarke noted, “The District of Columbia is a unique place. . . . [O]ur area is totally urban. There is no purpose in this city for . . . handguns other than to shoot somebody else with.” Morning Council Sess. Tr. 73:9-12, May 3, 1976; see also Morning Council Sess. Tr. 47:20-21, May 18, 1976. The evidence on which the Council relied was more than sufficient to justify its decision A M E R I C A N
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to act. See supra pages 4-6. The Council had a manifestly reasonable basis to conclude that handguns are uniquely dangerous, and that the dangers to others, both in the home and outside of it, justify the handgun ban. Moreover, its predictive judgment - that the deaths and serious injuries that handguns would cause would more than offset any benefits from allowing residents to keep handguns in their homes - is precisely the kind of reasoned assessment that legislatures rather than courts are tasked with making in our democracy. The Council carefully balanced the costs and benefits of its regulations, see supra pages 4-5, and its determinations are entitled to substantial deference. See Gonzales v. Carhart, 127 S. Ct. 1610, 1636 (2007) (legislature should receive deference in absence of expert consensus). This Court “accord[s] substantial deference” to legislatures’ predictive judgments. Turner Broad. Sys. v. FCC, 520 U.S. 180, 195 (1997) (quoting Turner Broad. Sys. v. FCC (Turner I), 512 U.S. 622, 665 (1994) (plurality opinion)). Its “sole obligation is ‘to assure that, in formulating its judgments, [the legislature] has drawn reasonable inferences based on substantial evidence.”’ Id. (quoting Turner I, 512 U.S. at 666). The Council has done so here. b. In any event, subsequent evidence supports the Council’s judgment that banning handguns saves lives. Many cities, states, and nations regulate or ban handguns based on the unique dangers of those deadly weapons.12 Those dangers exist even when the gun is kept at home and the owner is generally law-abiding and responsible. First, handguns are vulnerable to theft, and thus often fall into the hands of criminals. Far more handguns than other firearms are stolen hundreds of thousands per year. Caroline W. Harlow, U.S. Dep’t of Justice, Bureau of Justice Statistics, Survey of Inmates in State and Federal Correctional Facilities: Firearm Use by Offenders 1-3 (Special Rep. Nov. 2001), http:// www.ojp. usdoj.gov/bjs/pub/pdf/fuo.pdf; Marianne W. Zawitz, U.S. Dep’t of Justice, Bureau of Justice 12
E.g., Chicago Mun. Code §§ 8-20-040, 8-20-050(c); Legal Community Against Violence, Regulating Guns in America: An Evaluation and Comparative Analysis of Federal, State and Selected Local Gun Laws (2006), http://www.lcav.org/library/ reports_analyses/regulating_guns.asp; Wendy Cukier & Victor W. Sidel, The Global Gun Epidemic: From Saturday Night Specials to AK-47s 144 (2006).
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Inmates report (and statistics demonstrate) that the handgun is their “preferred firearm.” Harlow, supra, at 1-3. Handguns are the weapon most likely to be used in street crimes. Although only a third of the Nation’s firearms are handguns, they are responsible for far more killings, woundings, and crimes than all other types of firearms combined. Zawitz, supra, at 2. Eighty-seven percent of all guns used in crime are handguns. Craig Perkins, U.S. Dep’t of Justice, Bureau of Justice Statistics, National Crime Victimization Survey, 1993-2001: Weapon Use and Violent Crime 3 (Special Rep. Sept. 2003), http://www.ojp.usdoj.gov/bjs/pub/pdf/ wuvc01.pdf.
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Handguns pose particular dangers to police officers, including when executing warrants, pursuing felons, quelling domestic violence, and otherwise entering into private homes. Of the 55 police officers killed in felonies in 2005, 42 deaths were from handguns. See Federal Bureau of Investigation, Uniform Crime Report - Law Enforcement Officers Killed and Assaulted, at tbl.28 (2005), http://www.fbi.gov/ucr/killed/ 2005/table28.htm. A study of the District’s handgun ban concluded that it coincided with an abrupt decline in firearm-caused homicides in the District but no comparable decline elsewhere in the region. Colin Loftin et al., Effects of Restrictive Licensing in Handguns on Homicide and Suicide in the District of Columbia, 325 New Eng. J. Med. 1615 (1991). More recently, researchers found that a 10% increase in handgun ownership increases the homicide rate by 2%. See Mark Duggan, More Guns, More Crime, 109 J. Pol. Econ. 1086, 1095-98 (2001). Not surprisingly, other countries have had success with handgun bans and near-bans. Cukier & Sidel, supra, at 178-205. Second, all too often, in the heat of anger, handguns turn domestic violence into murder. Seventy-two percent of women killed in firearm homicides in 2004 were killed by handguns. Violence Policy Center, When Men Murder Women: An Analysis of 2004 Homicide Data, at 3 (Sept. 2006), http://www.vpc.org/studies/ wmmw2006.pdf. People who live in houses with firearms, particularly handguns, are almost three times more likely to die in a homicide, A M E R I C A N
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and much more likely to die at the hands of a family member or intimate acquaintance than people who do not. See Arthur L. Kellermann et al., Gun Ownership as a Risk Factor for Homicide in the Home, 329 New Eng. J. Med, 1084 (1993). Third, handguns cause accidents, frequently involving children. The smaller the weapon, the more likely a child can use it, and children as young as three years old are strong enough to fire today’s handguns. David Hemenway, Private Guns, Public Health 32 (2004). Every year, the majority of people killed in handgun accidents are young adults and children, including dozens under the age of 14. See National Center for Health Statistics, Trend C Table 292: Deaths for 282 Selected Causes, at 1888 (2006), http://www.cdc.gov/nchs/data/statab/ gm292_3.pdf. Fourth, handguns are easy to bring to schools, where their concealability and capacity to fire multiple rounds in quick succession make them especially dangerous. In urban areas, as many as 25% of junior high school boys carry or have carried a gun. Jack M. Bergstein et al., Guns in Young Hands: A Survey of Urban Teenagers’ Attitudes and Behaviors Related to Handgun Violence, 41 J. Trauma 794 (1996). In the recent Virginia Tech shooting, a single student with two handguns discharged over 170 rounds in nine minutes, killing 32 people and wounding 25 more. Reed Williams & Shawna Morrison, Police: No Motive Found, Roanoke Times, Apr. 26, 2007, at A1. Fifth, handguns enable suicide. A study was conducted comparing the District to nearby Maryland and Virginia immediately after the District’s handgun ban was enacted, when no changes were made in the Maryland and Virginia laws. There was a 23% drop in suicides by firearms in the District and no increase in other suicide methods. Loftin, supra. Moreover, the District’s overall, youth, and firearms-related suicide rates have consistently been the lowest in the Nation. See National Center for Injury Prevention and Control, WISQARS Injury Mortality Reports, 1999-2004, http://webappa. cdc.gov/sasweb/ncipc/mortrate10_sy.html (interactive database). Handguns pose a higher suicide risk than other firearms; indeed, purchasing a handgun correlates to a doubled risk that the buyer will die in a homicide or a suicide. See Hemenway (Private Guns), supra, at 41; Peter Cummings et al., The Association Between the G A L E
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Purchase of a Handgun and Homicide or Suicide, 87 Am. J. Pub. Health, 974, 976-77 (1997). The Council had good reason to conclude that other less restrictive measures were insufficient by themselves. PA104a. Safety mechanisms, while helpful, do not always work as designed, and compliance, even with mandatory safety laws, is imperfect. See Cynthia Leonardatos et al., Smart Guns/Foolish Legislators: Finding the Right Public Safety Laws, and Avoiding the Wrong Ones, 34 Conn. L. Rev. 157, 169-70, 17880 (2001). Furthermore, safe-storage policies are of no help where the handgun owner is determined to kill a family member or himself. Although there are competing views today, just as in 1976, the Council acted based on plainly reasonable grounds. It adopted a focused statute that continues to allow private home possession of shotguns and rifles, which some gun rights’ proponents contend are actually the weapons of choice for home defense. Dave Spaulding, Shotguns for Home Defense: Here’s How to Choose and Use the Most Effective Tool for Stopping an Attack, Guns & Ammo, Sept. 2006, at 42; Clint Smith, Home Defense, Guns Mag., July 2005, at 50 (preferring rifles). The Second Amendment inquiry requires no more.13 2. The Trigger-Lock Requirement Is A Reasonable Safety Regulation.
Like the handgun ban, the trigger-lock requirement in D.C. Code § 7-2507.02 is a reasonable regulation designed to prevent accidental and unnecessary shootings, while preserving citizens’ ability to possess safely stored firearms. And as with the ban, the Council debated the trigger-lock requirement extensively and carefully considered opposing viewpoints. Kg., Afternoon Council Sess. Tr., May 18, 1976, at 31-33; Evening Council Sess. Tr., Jun. 15, 1976, at 33-34. Only then did it enact a trigger-lock 13
The majority independently erred in its determination of the proper relief to be accorded respondent. Finding no disputed issue of material fact, it ordered that summary judgment be entered in favor of respondent. PA55a. The facts it found relevant depended, however, on its mistaken adoption of a per se rule. If it had properly considered the challenged laws’ reasonableness, it should have affirmed the dismissal of the complaint given the facts as found by the Council, as confirmed by subsequent studies. At a minimum it should have remanded for further proceedings to allow the parties and the district court to address reasonableness in the first instance. In any event, the record is sufficient for this Court to order entry of judgment for the District.
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requirement based on the predictive judgment that it would save lives. See supra page 6. That conclusion is confirmed by subsequent studies. In 1991 the U.S. General Accounting Office found that 8% of accidental shooting deaths resulted from shots fired by children under the age of six, which could have been prevented by child-proof safety locks. U.S. Gen Accounting Office, Accidental Shootings: Many Deaths and Injuries Caused by Firearms Could Be Prevented 17-19 (1991), http://161.203.16.4/ d20t9/143619.pdf. Nor are adults immune from the kind of accidental shootings that send 15,000 people per year to hospital emergency rooms. Karen D. Gotsch et al., CDC Surveillance Summary No. SS-2, Surveillance for Fatal and Nonfatal Firearm-Related Injuries - United States 1993-1998 2 (Apr. 13, 2001), http://www.cdc. gov/mmwr/pdf/ss/ss5002.pdf. Respondent does not argue, and the majority below did not find, that it is unconstitutional for the District to require trigger locks on guns under normal circumstances. C.A. Br. 59; PA55a. Rather, respondent’s argument - which the panel embraced as a corollary of its invalidation of the handgun ban - is that the trigger-lock requirement is unconstitutional because it does not specifically contain a self-defense exception. According to respondent, even if he lawfully possessed a handgun, the District would prohibit him from unlocking it to defend himself against a sudden intruder in his home. If respondent were correct, the District agrees that the law would be unreasonable. Respondent is wrong. Such an exception is fairly implied in the trigger lock requirement, just as it is in many of the District’s other laws. See, e.g., United States v. Bailey, 444 U.S. 394, 410-11 (1980) (noting existence of duress and necessity defenses in common law); Griffin v. United States, 447 A.2d 776, 777 (D.C. 1982) (recognizing the necessity defense in criminal cases). As Council-member Wilson noted, “it would have to be a very irresponsible and unintelligent judge” who would punish a person for unlocking and using a gun to defend herself against a rapist. Evening Council Sess. Tr. 26:22’28:8, Jun. 15, 1976. This Court should not accept respondent’s invitation to create an unnecessary constitutional question. Federal courts should construe statutes to avoid serious constitutional problems unless doing so would be “plainly contrary” to the intent of the legislature. Edward J. DeBartolo G A L E
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Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575 (1988). Furthermore, the District’s courts have not yet interpreted section 7-2507.02, and local courts normally should have the first opportunity “to avoid constitutional infirmities.” New York v. Ferber, 458 U.S. 747, 768 (1982). Moreover, respondent’s assertion that the law might have unconstitutional consequences under some narrow and hypothetical circumstances is insufficient to render it wholly invalid in this facial challenge. The law may be struck down only if there is “no set of circumstances” under which it would be constitutional, United States v. Salerno, 481 U.S. 739, 745 (1987), a burden that respondent cannot meet. In any event, even if the lack of a specifically enumerated self-defense exception were enough to render the trigger-lock requirement unconstitutional, the proper remedy would be for this Court to disapprove only that limited application of the trigger-lock requirement and leave the remainder of the District’s laws intact. Ayotte v. Planned Parenthood, 546 U.S. 320, 32830 (2006). 3. The Licensing Requirement Does No More Than Properly Limit Those Who May Carry Handguns.
As an additional corollary to its holding on the handgun ban, the majority invalidated D.C. Code § 22-4504(a), which requires a license to carry concealable weapons in the District, seemingly on the theory that it eliminates respondent’s right to use handguns for self-defense in his home. However, licensing laws ensure that only law-abiding, competent individuals have access to dangerous weapons. The majority recognized that the Second Amendment permits governments to deny firearms to felons and the insane and to test for firearm proficiency and responsibility. PA52a; see Lewis, 445 U.S. at 65 n.8 (felons). Such laws legitimately “promote the government’s interest in public safety” and are “consistent with a ‘well regulated militia.”’ PA52a. Nonetheless, the majority concluded that section 22-4504(a) functions as a complete ban on using handguns for self-defense at home because one cannot obtain a license for a handgun. PA54a-55a. But if the handgun ban is struck down and respondent registers a handgun, he could obtain a license, assuming he is not otherwise disqualified. Once he did, nothing in A M E R I C A N
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District law would prevent him from “carrying” his gun in his home when needed for self-defense. ***
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The Second Amendment was not intended to tie the hands of government in providing for public safety. Reasonable regulations of firearms have been commonplace since the founding of the Republic. Consistent with this tradition, the Council enacted gun-control legislation
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tailored to the unique problems presented by the District’s urban environment. The contrary holdings of the court of appeals were premised upon reasoning with no basis in law or logic. This Court should restore the District’s laws. CONCLUSION
The judgment of the court of appeals should be reversed.
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RESPONDENT’S BRIEF 07-290 DISTRICT OF COLUMBIA AND ADRIAN M. FENTY, MAYOR OF THE DISTRICT OF COLUMBIA, PETITIONERS, V. DICK ANTHONY HELLER, RESPONDENT.
NO. 07-290. JANUARY 4, 2008. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
ALAN GURA ROBERT A. LEVY CLARK M. NEILY III GURA & POSSESSKY, PLLC 101 N. COLUMBUS STREET, SUITE 405 ALEXANDRIA, VIRGINIA 22314 703.835.9085
No state, and only one other major city (Chicago), bans handguns outright. The other two provisions appear unique to Washington, D.C.
Counsel of Record TABLE OF CONTENTS
STATEMENT OF THE CASE SUMMARY OF ARGUMENT ARGUMENT I. THE SECOND AMENDMENT PROTECTS AN INDIVIDUAL RIGHT TO KEEP ORDINARY FIREARMS, UNRELATED TO GOVERNMENT MILITARY SERVICE A. Preambles Cannot Negate Operative Text B.The Second Amendment’s Plain Text Secures an Individual Right C. The Framers Secured an Individual Right to Keep and Bear Arms in Reaction to the British Colonial Experience II. WASHINGTON, D.C.’S HANDGUN BANS ARE UNCONSTITUTIONAL III. WASHINGTON, D.C.’S FUNCTIONAL, FIREARMS BAN IS UNCONSTITUTIONAL IV. THE STANDARD OF REVIEW IN SECOND AMENDMENT CASES IS STRICT SCRUTINY V. THE GOVERNMENT OF THE NATION’S CAPITAL MUST OBEY THE CONSTITUTION CONCLUSION STATEMENT OF THE CASE
Respondent Dick Anthony Heller successfully challenged the Nation’s three most draconian infringements of Second Amendment rights. D.C. Code section 7-2502.02(a)(4) forbids G A L E
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registration of handguns, thereby effecting a ban on the possession of handguns within the home. D.C. Code section 7-2507.02 forbids the possession of any functional firearms within the home, without exception. D.C. Code section 22-4504(a) forbids the carrying of a handgun without a license. This section was amended in 1994 to criminalize the unlicensed caning of a handgun within one’s home. “It is common knowledge . . . that with very rare exceptions licenses to carry pistols have not been issued in the District of Columbia for many years and are virtually unobtainable.” Bsharah v. United States, 646 A.2d 993, 996 n.12 (D.C. 1994). Respondent challenges this provision only as it relates to his home.
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In reviewing the handgun ban, the D.C. Circuit correctly applied this Court’s test for determining which “arms” are constitutionally protected. United States v. Miller, 307 U.S. 174 (1939). The court found that handguns pass the Miller test, as they are arms of the type in common use by individuals, the possession of which can contribute to the common defense. PA53a. The D.C. Circuit further held, correctly, that as home possession of handguns is constitutionally protected, Petitioners may not prohibit their movement within the home. The court struck down the license provision for carrying handguns as applied to home possession. PA54a-55a. Finally, the D.C. Circuit correctly found that the literal text of section 7-2507.02 “amounts to a complete prohibition on the lawful use of handguns for self-defense,” PA55a, and is thus unconstitutional. SUMMARY OF ARGUMENT
The Second Amendment plainly protects “the right of the people” - an individual right - “to keep and bear arms.” However else Petitioners might regulate the possession and use of arms, their complete ban on the home possession of all functional firearms, and their prohibition against home possession and movement of handguns, are unconstitutional. A M E R I C A N
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The Amendment’s structure and etymology are not overly mysterious. The first clause, referencing the importance of “[a] well regulated Militia,” provides a non-exclusive yet perfectly sensible justification for securing the people’s right to keep and bear arms. In any event, the Second Amendment’s preamble cannot limit, transform, or negate its operative rights-securing text. The Second Amendment was engendered by the Framers’ bitter experience with the King’s disarmament of the population. That disarmament was especially pernicious to the colonists, who fervently believed they possessed an individual right to arms. In resisting British tyranny, the militia were not directed by the government officials they sought to overthrow, but certainly depended on the citizenry’s familiarity with, and private possession of, firearms. The Second Amendment’s text thus reflects two related, non-exclusive concerns: it confirms the people’s right to arms and explains that the right is necessary for free people to guarantee their security by acting as militia. The Second Amendment’s drafting and ratification history demonstrates it was designed to secure individual rights, consistent with the demands of the Anti-Federalists, whom the Bill of Rights was intended to mollify. Petitioners’ militia theory was specifically addressed and rejected - by the Framers, and that rejection is confirmed by centuries of precedent. Precedent likewise confirms the individual nature of Second Amendment rights. Under this Court’s precedent, the arms whose individual possession is protected by the Second Amendment are those arms that (1) are of the kind in common use, such that civilians would be expected to have them for ordinary purposes, and (2) would have military utility in time of need. A weapon that satisfies only one of these requirements would not be protected by the Second Amendment. Handguns indisputably satisfy both requirements. Petitioners concede that a functional firearms ban would be inconsistent with an individual right to arms. The dispute surrounding D.C. Code section 7-2507.02 thus merely concerns statutory interpretation. The D.C. Circuit’s interpretation of this section’s language is correct. Although this case does not call upon the Court to determine the standard of review G A L E
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applicable to regulations of Second Amendment rights, Respondent observes that the right to arms protects two of the most fundamental rights - the defense of one’s life inside one’s home, and the defense of society against tyrannical usurpation of authority. Petitioners’ casual use of social science sharply underscores the importance of securing Second Amendment rights with a meaningful standard of review. Finally, Petitioners’ contention that the Second Amendment is not binding law within the Nation’s capital is spurious. ARGUMENT I. THE SECOND AMENDMENT PROTECTS AN INDIVIDUAL RIGHT TO KEEP ORDINARY FIREARMS, UNRELATED TO GOVERNMENT MILITARY SERVICE. A. Preambles Cannot Negate Operative Text.
By its own terms, the rationale of the Second Amendment’s preamble is not exclusive. The operative rights-securing clause is grammatically and logically independent of the preamble. Skilled diplomacy, a powerful army, or adherence to the constitution may sufficiently provide for “the security of a free state,” and still the people would enjoy their right to arms. Most critically, the preamble cannot contradict or render meaningless the operative text. As Petitioners note, preambles are examined only “[i]f words happen to still be dubious.” Pet. Br. 17 (quotation and citation omitted). “[B]ut when the words of the enacting clause are clear and positive, recourse must not be had to the preamble.” James Kent, 1 Commentaries on American Law 516 (9th ed. 1858). “The preamble can neither limit nor extend the meaning of a statute which is clear. Similarly, it cannot be used to create doubt or uncertainty.” Norman Singer, 2A Sutherland on Statutory Construction § 47.04, at 295 (7th ed. 2007). The Framers were familiar with these rules of construction. One influential English precedent held: I can by no means allow of the notion that the preamble shall restrain the operation of the enacting clause; and that, because the preamble is too narrow or defective, therefore the enacting clause, which has general words, shall be restrained from its full A M E R I C A N
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latitude, and from doing that good which the words would otherwise, and of themselves, import; which (with some heat) his Lordship said was a ridiculous notion.
Copeman v. Gallant, i P. Wms. 314, 320 (Ch. 1716); see also Edward Wilberforce, Statute Law: The Principles Which Govern the Construction and Operation of Statutes 288-89 (1881). [G]eneral words in the enacting part, shall never be restrained by any words introducing that part; for it is no rule in the exposition of statutes to confine the general words of the enacting part to any particular words either introducing it, or to any such words even in the preamble itself.
King v. Athos, 8 Mod. Rep. 136, 144 (K.B. 1723); see also Mace v. Cadell, 1 Cowp. 232, 233 (K.B. 1774) (“if the statute meant to comprehend nothing more than is contained in the preamble, it means nothing at all”). Preambles are “properly resorted to, where doubts or ambiguities arise upon the words of the enacting part; for if they are clear and unambiguous, there seems little room for interpretation, except in cases leading to an obvious absurdity, or to a direct overthrow of the intention expressed in the preamble.” 1 Joseph Stow, Commentaries on the, Constitution of the United States 326-27 (2d ed. 1851). Accordingly, the Constitution’s other preambles are given no weight. “Although that [opening] Preamble indicates the general purposes for which the people ordained and established the Constitution, it has never been regarded as the source of any substantive power . . . .” Jacobson v. Massachusetts, 197 U.S. 11, 22 (1905). The Copyright and Patent Clause preamble would arguably possess greater operative force than that of the Second Amendment, as it begins with the infinitive that introduces most powers of Congress. The power “[t]o promote the Progress of Science and the useful Arts,” U.S. Const. art. I, § 8, cl. 8, viewed with the same breadth as the power “[t]o regulate Commerce,” U.S. Const. art. I, § 8, cl. 3, could stand alone absent the text that follows. In contrast, the Second Amendment’s preamble merely declares a concept. Yet “Congress need not ‘require that each copyrighted work be shown to promote the useful arts.’” Schnapper v. Foley, 667 F.2d 102, 112 (D.C. Cir. 1981) (citations omitted). And this Court does not question whether copyright and patent laws serve G A L E
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the preambular purpose of promoting progress, though some laws might fail such examination. Eldred v. Ashcroft, 537 U.S. 186, 212 (2003).
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That the Second Amendment contained a declaration of purpose was not unusual for its day. But such declarative language was never given the transformative effect urged by Petitioners. E.g., Eugene Volokh, The Commonplace Second Amendment, 73 N.Y.U.L. Rev. 793, 794-95 (1998). The same Congress that passed the Second Amendment also reauthorized the Northwest Ordinance of 1787, containing this language: “Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.” Act of Aug. 7, 1789, ch. 8, 1 Stat. 50, 52. But nobody would seriously contend that were religion, morality, or knowledge one day found unnecessary for good government, schools should no longer be encouraged in the states of the former Northwest Territory.
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Petitioners argue that the preamble should be given controlling weight because “‘it cannot be presumed that any clause in the constitution is intended to be without effect.’” Pet. Br. 17 (quoting Marbury v. Madison, 5 U.S. (1 Cranch) 137, 174 (1803)). But their citation to Marbury is incomplete - the passage concludes: “unless the words require it.” Marbury, 5 U.S. (1 Cranch) at 174. Because Petitioners urge an interpretation of the preamble inconsistent with the plain meaning of the operative text, and considering the established rules of construction governing preambular language, the “presumption” urged by Petitioners is rebutted. Notwithstanding Marbury, the Court did not give force to the opening preamble in Jacobson or to the Copyright preamble in Eldred. No doubts or ambiguities arise from the words “the right of the people to keep and bear arms shall not be infringed.” The words cannot be rendered meaningless by resort to their preamble. Any preamble-based interpretive rationale demanding an advanced degree in linguistics for its explication is especially suspect in this context. “A bill of rights may be considered, not only as intended to give law, and assign limits to government . . . , but as giving information to the people [so that] every man of the meanest capacity and understanding may learn his own rights, and know when they are violated. . . . ” 1 St. George Tucker, Blackstone’s Commentaries, app. 308 (1803). A M E R I C A N
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B. The Second Amendment’s Plain Text Secures an Individual Right.
“The first ten amendments and the original Constitution were substantially contemporaneous and should be construed in pari materia.” Patton v. United States, 281 U.S. 276, 298 (1930), overruled on other grounds, Williams v. Florida, 399 U.S. 78 (1970). There should be no distinction among “‘the people’ protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments. . . . ” United States v. Verdugo-Urquidez, 494 U.S. 259, 265 (1990) (citation omitted). Conceding that the Second Amendment secures individual rights, Petitioners nonetheless argue that the term “bear arms” is exclusively military, such that the Second Amendment right can be exercised only under the direction of a governmental military organization. Putting aside this rather strange concept of rights—a “right” to particular weapons in an environment where the individual is obliged to obey orders, or a “right” to defend the government but not oneself or one’s family—the text does not support this notion. “Keep and bear” embody distinct concepts in the Second Amendment, just as “speedy and public” reflect separate rights in the Sixth Amendment. Had the Framers eliminated either “speedy” or “public” from the Sixth Amendment, they would have significantly narrowed the right’s scope. Cf. U.S. Const. amend. VIII (proscribing “cruel and unusual punishments”). This case concerns the right to “keep” arms in the ordinary sense of the verb: to possess at home.1 “Keep” has no exclusive military connotation. “Ordinarily courts do not construe words used in the Constitution so as to give them a meaning more narrow than one which they had in the common parlance of the times in which the Constitution was written.” United States v. South-Eastern Underwriters Ass’n, 322 U.S. 533, 539 (1944). When the Constitution was written, English law had “settled and determined” that “a man may keep a gun for the defence of his house and family.” Mallock v. Eastly, 87 Eng. Rep. 1370, 1374, 7 Mod. Rep. 482 (C.P. 1744). Legislatures in England and America employed “keep” in the purely individual sense - especially when disarming minorities. See Question Presented. The “bearing” of arms implicates different interests and concerns not at issue here.
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See, e.g., 1 W. & M., Sess. 1, c. 15, § 4 (1689) (“no papist . . . shall or may have or keep in his house . . . any arms. . . .”); 4 Hening’s Statutes at Large (Va.) 131 (“no negro, mulatto, or Indian . . . shall hereafter presume to keep, or carry any gun, powder, shot, or any club, or other weapon whatsoever. . . .”). Neither did the term “bear arms” have a uniquely military application. See, e.g., Muscarello v. United States, 524 U.S. 125, 143 (1998) (Ginsburg, J., dissenting). Johnson and Webster defined “bear” primarily as “to carry.” 1 Samuel Johnson, A Dictionary of the English Language (1755) (not paginated); Noah Webster, An American Dictionary of the English Language (1st ed. 1828) (not paginated) (also “To wear . . . bear arms in a coat”). Accordingly, “bear arms” often had purely civilian connotations. For example, Parliament forbade Scottish Highlanders to “use or bear . . . side-pistols, or guns, or any other warlike weapons, in the fields, or in the way coming or going to, from or at any church, market, fair, burials, huntings, meetings, or any occasion whatsoever. . . .” 9 Geo. I Chap. 26 (1724), 15 Statutes at Large 246-47 (1765);2 cf. Scott v. Sandford, 60 U.S. (19 How.) 393, 417 (1857) (Constitution secured citizens’ right “to keep and carry arms wherever they went,” along with rights of speech and assembly).3 Eighteenth-century constitutional drafters used “bearing arms” in the individual sense. See Pa. Const. of 1776, art. X-III (“That the people have a right to bear arms for the defence of themselves and the state. . . . .”); Vt. Const. of 1777, Ch. 1, art. XV (same). Petitioners’ claim that Pennsylvania’s drafters used “themselves” collectively not only defies the word’s normal meaning, but would also render it redundant of “the state.”4 See Clayton Cramer & Joseph Olson, What Does “Bear Arms” Imply?, Geo. J.L. & Pub. Pol’y (forthcoming 2008), http://papers.ssrn.com/abstract=1081201 (supplying numerous examples). 3 That early congressional references to “bearing arms” related to military matters was a function of (1) the issues facing Congress in those years, (2) the perception that Congress did not have broad regulatory powers over private arms, and, of course, (3) the Second Amendment’s limitation on those powers. Randy Barnett, Was the Right to Keep and Bear Arms Conditioned on Service in an Organized Militia?, 83 Tex. L. Rev. 237, 260-62 (2004). 4 “Themselves” as otherwise used by the Pennsylvania drafters is self-evidently not collective: “[T]he people have a right to hold themselves, their houses, papers, and possessions free from search or seizure. . . . ” Pa. Const. of 1776, art. X. 2
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Pennsylvania reiterated “the right of citizens to bear arms, in defence of themselves and the State” in its 1790 constitution. James Wilson, delegate to Pennsylvania’s 1790 constitutional convention and later Associate Justice of this Court, explained: [W]hen it is necessary for the defence of one’s person or house . . . it is the great natural law of self-preservation, which . . . cannot be repealed, or superseded, or suspended by any human institution [but] is expressly recognized in the constitution of Pennsylvania.
3 Works of the Honourable James Wilson, L.L.D. 84 (Bird Wilson ed., 1804) (citing Pa. Const. of 1790, art. IX, sec. XXI); see also Ortiz v. Commonwealth, 681 A.2d 152, 156 (Pa. 1996). “The constitutions of most of our States assert that all power is inherent in the people; that . . . it is their right and duty to be at all times armed . . . .” Letter from Thomas Jefferson to Justice John Cartwright (June 5, 1824), 16 Writings of Thomas Jefferson 45 (A.A. Lipscomb ed., 1907). Perhaps the most instructive 18th-century usage of “bear arms” is that of James Madison, author of the Second Amendment. In 1785, Madison introduced in ‘Virginia’s legislature a hunting bill drafted by Jefferson. The bill stated, in part: [I]f, within twelve months after the date of the recognizance he shall bear a gun out of his inclosed ground, unless whilst performing military duty, it shall be deemed a breach of the recognizance, and be good cause to bind him a new, and every such bearing of a gun shall be a breach of the new recognizance. . . .
A Bill for Preservation of Deer (1785), in 2 Papers of Thomas Jefferson 443-44 (J. Boyd ed., 1950) (emphases added). Madison’s usage of “bear” was no personal idiosyncrasy. St. George Tucker, the leading legal scholar of the early Republic, observed: The bare circumstance of having arms . . . of itself, creates a presumption of warlike force in England . . . . But ought that circumstance, of itself, to create any such presumption in America, where the right to bear arms is recognized and secured in the constitution itself?
5 Tucker, Blackstone’s Commentaries, app. B at 19 (Concerning Treason). “An individual could bear arms without being a soldier or militiaman.” Leonard Lewy, Origins of the Bill of Rights 135 (1999). But even if “bear G A L E
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arms” had a purely military connotation, that idiomatic meaning would itself be transformed by inclusion of the word “keep.” For example, “Mary knows how to stir the pot” conveys a meaning (i.e., cause trouble) very different from, “Mary knows how to hold and stir the pot” (i.e., cook). *** To the extent the Second Amendment’s preamble informs the nature of the operative rights-securing provision, the necessity of a “well regulated Militia” does not negate, but rather advances the individual character of the right to arms. The Militia is constitutionally defined as a preexisting entity, separate and apart from an army or navy that might be raised. U.S. Const. amend. V (“. . . in the land or naval forces, or in the Militia”). “Congress was authorized both to raise and support a national army and also to organize ‘the Militia.’” Perpich v. Dep’t of Def., 496 U.S. 334, 340 (1990). “[T]he militia” are not “troops” or “standing armies,” but “civilians primarily” - “all males physically capable of acting in concert for the common defense . . . .” Miller, 307 U.S. at 179. “Who are the Militia? They consist now of the whole people . . . .” 3 Jonathan Elliot, Debates in the Several State Conventions 425 (2d ed. 1836) (George Mason). That “the ‘militia’ is identical to ‘the people,” ’ Akhil Amar, The Bill of Rights 51 (1998), is evident from Madison’s description of “a militia amounting to near half a million of citizens with arms in their hands,” who could resist an oppressive standing army. The Federalist No. 46, 244 (James Madison) (Carey & McClellan eds., 1990). This militia reflected “the advantage of being armed, which the Americans possess over the people of almost every other nation,” in contrast to “governments [that] are afraid to trust the people with arms.” Id.; Boston Evening Post, Nov. 21, 1768, at 2, col. 3 (“The total number of the Militia, in the large province of New England, is upwards of 150,000 men, who all have and can use arms . . . .”); New York Packet And American Advertiser, Apr. 4, 1776, at 2, cols. 1-2 (“Whoever asserts that 10 or 12,000 soldiers would be sufficient to control the militia of this Continent, consisting of 500,000 brave men, pays but a despicable compliment to the spirit and ability of Americans”). That “the militia” was broadly composed of the general population, and expected to check A M E R I C A N
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government force, belies the notion that “militia” refers only to specific forces organized by government. The American militia’s broad composition set it apart from its far narrower English counterpart. “[T]he Militia, in this country, is not a Select part of the People, as it is in England, set apart for that purpose, under Officers . . . employed and paid at the publick charge; but the Whole body of the people from sixteen years of age to fifty.” Speech of Gov. Morris, June 29, 1744, in 6 Documents Relating to the Colonial History of New Jersey 187 (William Whitehead ed., 1882). “Select militia members in England were required to have qualifications even higher than those required to be a member of the House of Commons.” David Young, The Founders’ View of the Right to Bear Arms 11 n.6 (2007) (citation omitted). The broad civilian understanding of who constitutes “the Militia” continues today. Congress defines “the militia of the United States” as comprising all able-bodied males from 17 to 45, who are or intend to become citizens; and members of the National Guard up to age 64. 10 U.S.C. §§ 311, 313.5 Excluded from this definition of Militia, among others, are “members of the armed forces, except members who are not on active duty.” 10 U.S.C. § 312(a) (3); accord D.C. Code § 49-401 (District of Columbia required to enroll most able-bodied males age 18 to 45 in militia). In order that the ordinary civilians constituting the Militia might function effectively, it was necessary that the people possess arms and be familiar with their use. After all, individuals called for militia duty were “expected to appear bearing arms supplied by themselves and of the kind in common use at the time.” Miller, 307 U.S. at 179. Thus, the “militia system . . . implied the general obligation of all adult male inhabitants to possess arms, and, with certain exceptions, to cooperate in the work of defence.” Id. at 179-80 (citation omitted); see also New York Journal, May 11, 1775, at 1, cols. 2-3 (recommending “to the inhabitants of this country, capable of bearing arms, to provide themselves with arms and ammunition, to defend their country in case of any invasion”).
That a militia be “well regulated” does not mean that it must necessarily be the subject of state control. With respect to troops, “regulated” is defined as “properly disciplined.” 7 Oxford English Dictionary 380 (1933). In turn, “discipline” in relation to arms is defined as “training in the practice of arms.” 3 Oxford English Dictionary 416 (1933). Notably, prerevolutionary Americans forming voluntary associations for the purpose of resisting British rule, including Washington and Mason, employed the term “well regulated militia” to describe their associations. 1 Kate Mason Rowland, Life of George Mason 428 (1892). These organizations were decidedly not sanctioned by any governmental authority. George Mason succinctly explained the logic underlying the relationship of the Second Amendment’s preamble to its operative text when he warned Virginia’s ratifying convention that absent a Bill of Rights, “[t]he militia may be here destroyed by that method which has been practised in other parts of the world before; that is, by rendering them useless - by disarming them.” 2 Rowland, at 408. The Second Amendment secures the preexisting right of the people to keep and bear arms.6 And it does so, in part, because a militia comprised of the body of ordinary people proficient in the use of their private arms - was deemed necessary. Were the people denied their right to keep and bear arms, they could not function as a well regulated militia. C. The Framers Secured an Individual Right to Keep and Bear Arms in Reaction to the British Colonial Experience.
“[C]onstitutional limitations arise from grievances, real or fancied, which their makers have suffered, and should go pari passu with the supposed evil. They withstand the winds of logic by the depth and toughness of their roots in the past.” United States v. Kirschenblatt, 16 F.2d 202, 203 (2d Cir. 1926) (L. Hand, J.). The rights secured by the first eight amendments were not conjured at random, but in reaction to specific outrages of the King’s rule. The Second Amendment is no exception. While Petitioners
5
Congress may define that part of the Militia to which it wishes to apply its Article I powers, but Petitioners defy logic in suggesting that the protection of a right against the federal government may thus be legislated away by Congress. Pet. Br. 14 n.2.
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6 United States v. Cruikshank, 92 U.S. 542, 553 (1875) (right to arms “not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence”).
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and their amici may not believe that English law secured an individual right to arms for selfdefense, colonial Americans certainly did, and it was the repeated, wanton violation of that right that led them to demand and ratify the Second Amendment. As British troops arrived in Boston to enforce the Townshend Acts in 1768, a call went out for the people to arm themselves. Responding to British criticism of the civilian armament, Samuel Adams declared that “it is certainly beyond human art and sophistry, to prove the British subjects, to whom the privilege of possessing arms is expressly recognized by the Bill of Rights . . . are guilty of an illegal act, in calling upon one another to be provided with them, as the law directs.” 1 Writings of Samuel Adams 299 (Harry Cushing ed., 1904). Citing Blackstone’s “right of having and using arms for self-preservation and defence,” Adams added, “[h]ow little do those persons attend to the rights of the constitution, if they know anything about them, who find fault with a late vote of this town, calling upon the inhabitants to provide themselves with arms for their defence at any time. . . . ” Id. at 317-18 (emphasis in original). The “Journal of the Times” concurred: It is a natural right which the people have reserved to themselves, confirmed by the [English] Bill of Rights, to keep arms for their own defence; and as Mr. Blackstone observes, it is to be made use of when the sanctions of society and law are found insufficient to restrain the violence of oppression.
New York Journal, Supplement, Apr. 13, 1769, at 1, col. 3. So accepted was the notion that Americans had the right to arms that Crown prosecutors of the soldiers charged in the Boston Massacre invoked the victims’ right to armed resistance against abusive Redcoats. 3 Legal Papers of John Adams 149, 274 (L. Wroth & H. Zobel eds., 1965). John Adams, in his successful defense of the soldiers, concurred: “Here every private person is authorized to arm himself, and on the strength of this authority, I do not deny the inhabitants had a right to arm themselves at that time, for their defence, not for offence. . . .” Id. at 248. Nonetheless, reports of British troops disarming Americans surfaced as early as February G A L E
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1769. New York Journal, Feb. 2, 1769, at 2, col. 2. And much to the dismay of the colonists, the governing council newly appointed for Massachusetts came to propose “the disarming of the town of Boston, and as much of the province as might be.” Boston Gazette, Sept. 5, 1774, at 3, col. 2. The following day, Lt. General Thomas Gage, commander of the British military in America and Massachusetts Royal Governor, moved the powder stored at Charlestown to Castle William and forbade the release of privately owned powder from the Boston magazine. The ensuing unrest came to be known as “the Powder Alarm.” Young, Founders’ View, at 37.7 The citizens of Suffolk County, Massachusetts promptly issued a proclamation denouncing the powder seizure (among other outrages). The Continental Congress quickly approved the “Suffolk Resolves.” Id. at 38. In addition to the powder seizure, “[t]he Crown forcibly purchased arms and ammunition held in the inventory of merchants, and an order went out that the inhabitants must turn in their arms.” Stephen Halbrook, The Founders’ Second Amendment: Origins of the Right to Bear Arms 45 (2008) (citation omitted). The order to disarm was apparently ignored, but British seizure of private arms continued. “They keep a constant search for every thing which will be serviceable in battle; and whenever they espy any instruments which may serve or disserve them, - whether they are the property of individuals or the public is immaterial, - they are seized. . . .” Letter of Joseph Warren to Samuel Adams, Sept. 29, 1774, in Richard Frothingham, Life and Times of Joseph Warren 381 (1865). The colonists expressed their displeasure over firearms seizures. Worcester County 7 Owing to the instability of black powder used in colonial times, fire safety measures of the day mandated that large stores of gunpowder, as those belonging to merchants, be stored in “powder houses” away from other structures, as were powder and other arms purchased by a community for the benefit of its citizens. The 1783 Massachusetts statute allegedly “prohibit [ing] Boston citizens from keeping loaded firearms in their homes,” Pet. Br. 42, was a fire safety measure intended to regulate the storage of gunpowder: “An Act in Addition to the several Acts already made for the prudent storage of GunPowder within the Town of Boston.” Act of Mar. 1, 1783, ch. XIII, 1783 Mass. Acts 218. The act opens with, “Whereas the depositing of loaded Arms . . . is dangerous to the Lives of those who are disposed to exert themselves when a Fire happens to break out,” with no reference to firearms qua firearms being inherently dangerous. Id.
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complained to Gage that although “the People [are] justified in providing for their own Defense,” passing through Boston Neck entailed having “many places searched, where Arms and Ammunition were suspected to be; and if found seized; yet as the People have never acted offensively, nor discovered any disposition so to do, as above related, the County apprehend this can never justify the seizure of private Property.” Boston Gazette, Oct. 17, 1774, at 2, cols. 2-3. “It is said that the troops, under your command, have seized a number of cartridges which were carrying out of the town of Boston, into the country; and as you were pleased to deny that you had meddled with private property . . . I would gladly be informed on what different pretence you now meddled with those cartridges. . . . ” Newport Mercury (Rhode Island), Apr. 10, 1775, at 2, col. 1. The British also prohibited importation of guns and powder, prompting further outcry. “Could they [the Ministry] not have given up their Plan for enslaving America without seizing . . . all the Arms and Ammunition? and without soliciting and finally obtaining an Order to prohibit the Importation of warlike Stores in the Colonies?” New Hampshire Gazette and Historical Chronicle, Jan. 13, 1775, at 1, col. 1 (reprinted in 1 American Archives, 4th series 1065 (Peter Force ed., 1837)). South Carolina’s General Committee protested that “by the late prohibition of exporting arms and ammunition from England, it too clearly appears a design of disarming the people of America, in order the more speedily to dragoon and enslave them. . . . ” 1 John Drayton, Memoirs of the American Revolution 166 (1821). Notwithstanding the import prohibition and occasional seizure of private weapons, Gage understood that complete disarmament of the population required military domination. Halbrook, The Founders’ Second Amendment at 49 (collecting sources). The colonists agreed: “[I]f they should come to disarming the inhabitants, the matter is settled with the town at once; for blood and carnage must inevitably ensue . . . .” Letter of John Andrews, Sept. 12, 1774, in Proceedings of the Massachusetts Historical Society 359 (1866). Not surprisingly, the Revolution’s first battle opened on April 19, 1775, with an ill-conceived British expedition to seize weapons from private property in Concord. Fear of arms seizures G A L E
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prompted Americans to transfer publicly stored weapons to their homes, and when Redcoats came to seize public and private arms alike, war erupted. The immediate aftermath of Lexington and Concord found Boston cut off from the remainder of the province. Gage offered Bostonians free passage from the city provided they would deliver their arms for safekeeping. A vote was taken and the people agreed to Gage’s terms, surrendering “1778 fire-arms, 634 pistols, 973 bayonets, and 38 blunderbusses.” Richard Frothingham, History of the Siege of Boston 95 (1851) (emphasis added).8 Gage quickly reneged on his promise of safe passage. Young, Founders’ View, at 52. Americans reacted strongly to the disarmament of Boston. Thomas Jefferson and John Dickinson drafted a “Declaration of the Causes and Necessity of Taking Up Arms,” issued by the Second Continental Congress on July 6, 1775. Gage’s disarmament scheme figured prominently among the “Causes” for armed revolt: [I]t was stipulated that the said inhabitants having deposited their arms . . . should have liberty to depart, taking with them their other effects. They accordingly delivered up their arms, but . . . the governor ordered the arms . . . seized by a body of soldiers; detained the greatest part of the inhabitants in the town, and compelled the few who were permitted to retire, to leave their most valuable effects behind.
2 Journals of the Continental Congress 136-37 (1905) (emphases added). Disarmament as a grievance became a common theme among the Patriots. For example, addressing Indian tribes in search of alliance, Samuel Adams complained that the British “have told us we shall have no more guns, no powder to use. . . . How can you live without powder and guns? But we hope to supply you soon with both, of our own making.” 3 Writings of Samuel Adams 212-13. That the colonists cared little about the prospect of having their guns seized is not the only ahistorical concept underlying Petitioners’ repudiation of the Second Amendment. Redcoats and Patriots alike would have puzzled 8
Another account repeats these numbers, save for 700 fewer bayonets. 1 David Ramsay, History of the American Revolution 176 (1789). Boston’s 1765 population totaled 15,520. Early Census Making in Massachusetts, 1643-1765, 102 (1902).
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at Petitioners’ notion that the Revolution produced an exclusive governmental right to operate an organized militia. The “well regulated militia” of the American Revolution operated not merely beyond the control of, but in direct challenge to, the King’s governors. In Massachusetts, as in other colonies, militia officers were elected from among the militiamen. This “meant that [officers] appointed by the Royal governor would be thrown out. The Provincial Congress further usurped the Crown’s militia power by appointing a Committee of Safety that could call out the militia when necessary.” Halbrook, Founders’ Second Amendment at 48 (citation omitted). Gage recognized this process as a threat to British rule: The Officers of the Militia have in most Places been forced to resign their Commissions, And the Men choose their Officers, who are frequently made and unmade; and I shall not be surprized, as the Provincial Congress seems to proceed higher and higher in their Determinations, if Persons should be Authorized by them to grant Commissions and Assume every Power of a legal Government . . . .
1 Parliamentary Register, 14th Parliament, 1st Session 58 (1802). North Carolina’s colonial governor, Josiah Martin, decried the new militias that “submit to the illegal and usurped authorities of [patriotic] Committees.” William Hoyt, The Mecklenburg Declaration of Independence 44 (1907); see also Vernon Stumpf, Josiah Martin 112 (1986) (“they are now actually endeavoring to form what they call independent Companies under my nose”). Virginia’s Governor, Lord Dunmore, complained that “[e]very County is now Arming a Company of men whom they call an independent Company for the avowed purpose of protecting their Committee, and to be employed against Government if occasion require.” Letter to Earl of Dartmouth, Dec. 24, 1774, in 2 Writings of George Washington 445 n. 1 (Worthington Ford ed., 1889). Loyalists were horrified by the rise of extra-governmental militias, but Patriots such as John Adams would have none of the criticism: “The new-fangled militia,” as the specious [Loyalist] calls it, is such a militia as he never saw. They are commanded through the province, not by men who procured their commissions from a governor as a reward for making themselves pimps to his tools, and G A L E
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by discovering a hatred of the people, but by gentlemen, whose estates, abilities, and benevolence have rendered them the delight of the soldiers . . . .
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4 Works of John Adams 40-41 (1865). Indeed, extra-governmental militias existed even in times of good relations with the Crown. Pennsylvania, owing to Quaker influence, was alone among the colonies in not having a governmentally organized militia for most of its history. But this did not mean that a militia was unneeded in Pennsylvania, or that the colony lacked for means of defense. Responding to the depredations of privateers on the Delaware River, Benjamin Franklin published Plain Truth in 1747, warning of dire consequences were the people, though well-armed, to remain unprepared. 3 Works of Benjamin Franklin 1-21 (Jared Sparks ed., 1882). Franklin quickly followed Plain Truth with Form of Association, laying out a vision of voluntary mutual self-defense “Associations” palatable to the religiously scrupulous. The Associations would be freely formed by individuals electing their own officers, with neither offensive intent nor governmental compulsion or oversight. 3 Papers of Benjamin Franklin 205 (Leonard Labaree ed., 1961). Franklin’s vision triumphed, the 1747 Association enrolling 10,000 men. William Shepherd, 6 History of Proprietary Government in Pennsylvania 530 (1896). But not everyone was comfortable with the arrangement: It strongly resembles treason. The people should have desired the president and council to appoint officers for their training, and put themselves under their direction . . . . This is erecting a government within a government, and rebelling against the king’s authority.
Id. (quoting Letter of Thomas Penn to Mr. Peters (March 30, 1748)). The King in Council disallowed a 1755 law granting formal recognition of the voluntary associations, but Pennsylvanians continued their voluntary armed association in times of need. Young, Founders’ View, 20-23. John Adams explicitly clarified that militia forces served their purpose regardless of whether they were organized pursuant to law. In the First Continental Congress, Adams proposed a resolution that it be recommended to all the Colonies, to establish by Provincial Laws, where it can be done, a regular well furnished, and A M E R I C A N
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disciplined Militia, and where it cannot be done by Law, by voluntary Associations, and private Agreements. 1 Letters of Delegates to Congress 132 (Paul Smith ed., 1976).
for restoring the Constitution in the event of usurpation. See The Federalist No. 46 (James Madison), supra; The Federalist No. 29 (Alexander Hamilton).
As war approached, clashes between voluntary militias and colonial governors became not merely philosophical, but physical. When Governor Dunmore seized the powder at Williamsburg, Patrick Henry’s Hanover Independent Militia Company forced restitution. R.D. Meade, Patrick Henry 50-51 (1969). One paper reported that as a “party of the militia being at exercise on Boston common, a party of the army surrounded them and took away their fire arms; immediately thereupon a larger party of the militia assembled, pursued the Army, and retook their fire arms.” Massachusetts Gazette, Dec. 29, 1774, at 2, col. 2.
The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and it will generally, even if these are successful in the first instance, enable the people to resist and triumph over them.
Militia forces operating without the government’s blessing would prove critical to the American war effort. For example, the first American military offensive of the Revolution, Ethan Allen’s capture of Fort Ticonderoga, was accomplished by “two hundred undisciplined men, with small arms, without a single bayonet . . . .” Ira Allen, The Natural and Political History of the State of Vermont 44 (reprint 1969). Respondent does not suggest that members of private paramilitary organizations have a right to commit violent acts under the auspices of acting as a citizen militia. See, e.g., Va. Code § 18.2-433.2; Cal. Penal Code § 11460. The Framers, who organized the militia under the new constitution, doubtless agreed that citizens should not compete with legitimate government authority. “Prudence, indeed, will dictate that Governments long established should not be changed for light and transient Causes. . . . Mankind are more disposed to suffer, while Evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed.” The Declaration of Independence, para. 2 (U.S. 1776). But as expressed in the Declaration, the Framers saw no tension between accepting the lawful authority of an imperfect and even frequently unjust government, while retaining the ability to resist tyranny. The notion that independent, armed militia would engage in the treason and insurrection forbidden by the Constitution is spurious. The Framers, who used militia organized in direct defiance of the government they deposed, envisioned the militia as a tool G A L E
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2 Story, Commentaries, supra, at 607. Cooley agreed, explaining that the Second Amendment “is significant as having been reserved by the people as a possible and necessary resort for the protection of self-government against usurpation, and against any attempt on the part of those who may for the time be in possession of State authority or resources to set aside the constitution and substitute their own rule for that of the people.” Thomas Cooley, The Abnegation of Self-Government, 12 Princeton Rev. 209, 213-14 (1883). The individual use of Second-Amendment-protected arms to check despotism, “far from being revolutionary, would be in strict accord with popular right and duty.” Id. The Second Amendment is a doomsday provision, one designed for those exceptionally rare circumstances where all other rights have failed - where the government refuses to stand for reelection and silences those who protest; where courts have lost the courage to oppose, or can find no one to enforce their decrees. However improbable these contingencies may seem today, facing them unprepared is a mistake a free people get to make only once.
Silveira v. Lockyer, 328 F. 3d 567, 570 (9th Cir. 2003) (Kozinski, J., dissenting from denial of rehearing en banc). The Framers intended the Second Amendment to guard against “[o]ne of the ordinary modes, by which tyrants accomplish their purposes without resistance [which is] by disarming the people, and making it an offence to keep arms, and by substituting a regular army in the stead of a resort to the militia.” Joseph Story, A Familiar Exposition on the Constitution of the United States 264 (1847). Certainly Petitioners would not dispute Americans’ justification for revolting against Great Britain, an event that would not have been possible without the private ownership A M E R I C A N
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of firearms. And should, our Nation someday suffer tyranny again, preservation of the right to keep and bear arms would enhance the people’s ability to act as militia in the manner practiced by the Framers. That the Second Amendment was designed to secure a personal right of the citizens is clear from Madison’s notes for the speech introducing the Bill of Rights. “They [the proposed amendments] relate first to private rights,” 12 Papers of James Madison 193-94 (C. Hobson et al. eds., 1979). Madison thus initially proposed placing the Second Amendment along-side other provisions securing individual rights in Article I, sec. 9 - following the habeas corpus privilege and the proscriptions against bills of attainder and ex post facto laws, together with his proposed protections for speech, press, and assembly. The Complete Bill of Rights: The Drafts, Debates, Sources, and Origins 169 (N. Cogan ed., 1997). If “bear arms” had the exclusively military connotation urged by Petitioners, no one would have proposed qualifying the phrase with “for the common defence.” But the Senate rejected just that proposal. Journal of the First Session of the Senate of the United States of America 77 (1820). Some collective rights adherents speculate that “common defence” was considered redundant, but more plausibly the Senate did not wish to narrow “bear arms” to a purely military usage. After all, the first Congress knew how to condition individual rights on militia service. E.g., U.S. Const. amend. V (no presentment or indictment right “in cases arising in . . . the Militia, when in actual service. . . . ”)9 Indeed, House debates on the Second Amendment reveal the Framers’ reluctance to adopt text that might denigrate the individual character of the right to arms. Collectivists assert that a proposal to include a conscientious objector clause in the Second Amendment confirms the military character of “bear arms.” But the proposal was defeated after Rep. Gerry warned “that this clause would give an opportunity to the people in power to destroy the constitution itself. They can declare who are those Petitioners claim that the “common defence” language was scrapped as an excessive and controversial revision to the Constitution’s body, Pet. Br. at 29 n.6, contradicting their claim that the Second Amendment was intended to remedy deficiencies in the Constitution’s militia clauses. E.g., Pet. Br. 22, 33.
religiously scrupulous, and prevent them from bearing arms.” 1 Annals of Congress 778 (1834). Representative Scott’s objection to the conscientious objector language not only reflected the individual character of the Second Amendment, but also the distinct nature of “keep” and “bear”: He said the language would “lead to the violation of another article in the constitution, which secures to the people the right of keeping arms . . . .” Id. at 796. Petitioners’ claim that “[a]ll remarks recorded in the House’s debate related to military service; none pertained to private use of weapons, including self-defense,” Pet. Br. 28 (citations omitted), is conclusory true only if one accepts that “bear arms” as used by Gerry, and the people’s “right of keeping arms” as used by Scott, referred to military service. But that construction is insupportable. Equally unpersuasive is the notion that the defeated conscientious objector clause’s military nature imparted a military flavor to what remained and passed as the Second Amendment. Other amendments, as passed, contain unrelated concepts. The First Amendment secures various rights of expression and conscience, yet nobody would contend Madison intended to protect only religious speech or assembly. Likewise, the Fifth Amendment’s Grand Jury Clause appears only tenuously related to the Takings Clause. No particular intent can be gleaned from a legislative combination of seemingly unrelated subjects, especially when anomalous provisions are omitted before final passage.10 Petitioners claim that the Second Amendment is derived from the seventeenth of certain amendments proposed by Virginia, and that Virginia “[s]eparately . . . proposed amending the Militia Clauses directly: ‘11th - That each state respectively shall have the power to provide for organizing, arming, and disciplining its own militia, whensoever Congress shall omit or neglect to provide for the same.’” Pet. Br. 26 (citation omitted). Yet both proposals originated in the same document, the Second Amendment’s precursor among provisions “constituting the bill of rights,” and the militia amendment among what the convention labeled “[t]he
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Notably, Madison’s initial Second Amendment draft starts with the fight to keep and bear arms, separated from the remaining provisions with a semicolon - the same punctuation Madison used to distinguish unrelated concepts in the First and Fifth Amendments.
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other amendments.” David Young, The Origin of the Second Amendment 462 (2d ed. 2001). If guaranteeing the people’s “fight to keep and bear arms,” with reference to a “well regulated militia” and “a free state,” were intended to secure the states a fight to arm their militias, the Virginia Convention would not have separately proposed an explicit reservation of the states’ militia powers. That the Second Amendment’s direct precursor came to Congress in a “bill of rights,” alongside a state militia power among “other amendments,” strongly suggests the two are not identical. Indeed, if rejected language is any clue as to the meaning of that which was accepted, perhaps the most telling example was the Framers’ rejection of the following proposed amendment: “That each State respectively shall have the power to provide for organizing, arming, and disciplining its own militia, whensoever Congress shall omit or neglect to provide for the same. . . . ” First Senate Journal 126. This proposal stated, in unmistakably direct and concise fashion, exactly that meaning which Petitioners would divine in the Second Amendment through tortured linguistics, fanciful explanations, and “hidden history.” And it was rejected by the Framers. “[H]istory does not warrant concluding that it necessarily follows from the pairing of the concepts that a person has a right to bear arms solely in his function as a member of the militia.” Robert Sprecher, The Lost Amendment, 51 Am. Bar Ass’n J. 554, 557 (1965).11 The Bill of Rights was never thought necessary by the Federalists, other than as a tool to placate/ Anti-Federalist resistance to the new constitution. While rejection of militia-powers amendments demonstrates that the Bill of Rights did not address each and every AntiFederalist concern, the Second Amendment did at least address a different concern: the individual right to arms. Demands for a bill of rights prevailed in five of seven constitutional ratifying conventions. The only provisions common to all were freedom of religion and the right to arms. New Hampshire’s convention demanded recognition
that “Congress shall never disarm any citizen, unless such as are or have been in actual rebellion.” 1 Elliot, Debates at 326. Pennsylvania Anti-Federalists demanded that the people have a right to bear arms for the defense of themselves and their own State, or the United States, or for the purpose of killing game; and no law shall be passed for disarming the people or any of them, unless for crimes committed, or real danger of public injury from individuals.
Law, Origins, supra at 143-44.12 In Massachusetts, Samuel Adams demanded that “the said constitution be never construed . . ., to prevent the people of the United States who are peaceable citizens, from keeping their own arms.” Debates and Proceedings in the Convention of the Commonwealth of Massachusetts 86 (1856). These were the sentiments Madison addressed in the Second Amendment. Petitioners’ notion that the Second Amendment secures state prerogatives to control their militia free of federal interference - as a limitation or repudiation of congressional militia powers - also contradicts the substantial body of precedent interpreting Congress’s authority over the militia. As early as 1820, this Court held that Congress had preempted the field of militia regulation: Upon the subject of the militia, Congress has exercised the powers conferred on that body by the constitution, as fully as was thought right, and has thus excluded the power of legislation by the States on these subjects, except so far as it has been permitted by Congress; although it should be conceded, that important provisions have been omitted, or that others which have been made might have been more extended, or more wisely devised. Houston v. Moore, 18 U.S. (5 Wheat.) 1, 24 (1820) (Washington, J.). Dissenting from Houston’s conclusion that state courts had concurrent jurisdiction over militia courts-martial, Justice Story (joined by Chief Justice Marshall) nevertheless observed that “a State might organize, arm, and discipline its own militia in the absence of, or subordinate to, the regulations of Congress. . . .” Houston, 18 U.S. (5 Wheat.) at 52 (Story, J., dissenting). The Second Amendment “may not, perhaps, be thought to have any important bearing on this point. If it have, it
11
The ABA, founded in 1878, notes it has taken the opposite view “[f]or more than forty years.” ABA Br. 2. Sprecher’s article won the ABA’s 1964 Samuel Pool Weaver Constitutional Law Essay Competition.
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As did the Virginia majority, the Anti-Federalist Pennsylvania minority proposed a separate state-militia-powers amendment. Id.
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confirms and illustrates, rather than impugns the reasoning already suggested.” Id. at 52-53. This Court would later make clear that with the adoption of the Constitution, “[t]here was left therefore under the sway of the States undelegated the control of the militia to the extent that such control was not taken away by the exercise by Congress of its power to raise armies.” Selective Draft Law Cases, 245 U.S. 366, 383 (1918). And just as Congress may pre-empt the regulation of the states’ militias under Article I, it likewise enjoys the exclusive power to call the states’ militias into federal service, which has been delegated to the President since 1795. Martin v. Mott, 25 U.S. (12 Wheat.) 19, 30 (1827); Luther v. Borden, 48 U.S. (7 How.) 1, 43-44 (1849). Indeed, while Congress permits the states to maintain a voluntary defense force immune from federal conscription, 32 U.S.C. § 109(c), that part of the militia organized into the National Guard is under plenary federal control, such that a state’s governor may not object to the President’s training of Guard units overseas. Perpich, 496 U.S. 334. Petitioners’ Second Amendment theory defies each of these precedents. Petitioners are not the first to make this mistake. In 1863, Pennsylvania’s Supreme Court enjoined the conscription of Union soldiers, theorizing that the Civil War draft violated the state’s militia powers. Kneedler v. Lane, 45 Pa. 238, 259 (1863). One Justice invoked Petitioners’ view of the Second Amendment to support the decision. Id. at 271-72 (Thompson, J., concurring). The court quickly reversed itself. Id. at 295. If Petitioners’ derision of the individual right to arms as proposing treason or insurrection, Pet. Br. 15 n.3, questions the legitimacy of America’s Revolution, their view of the Second Amendment’s impact on the allocation of federalstate power would threaten the Union itself. Petitioners’ collective-purpose interpretation is also at odds with this Court’s only direct Second Amendment opinion in Miller. In examining whether Miller had a right to possess his sawed-off shotgun, this Court never asked whether Miller was part of any state-authorized military organization. “Had the lack of [militia] membership or engagement been a ground of the decision in Miller, the Court’s opinion would obviously have made mention of it. But it did not.” United States v. Emerson, 270 F.3d 203, 224 (5th Cir. 2001) (footnote omitted). Indeed, G A L E
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the government advanced the collectivist theory as its first argument in Miller, PA40a, but the Court ignored it. The Court asked only whether the gun at issue was of a type Miller would be constitutionally privileged in possessing. II. WASHINGTON, D.C.’S HANDGUN BANS ARE UNCONSTITUTIONAL.
To determine whether a particular weapon falls within the Second Amendment’s protection, the Court need not apply any particular standard of review. The question is categorical, identical in kind to the questions courts routinely answer in determining what constitutes “religion” or “speech” under the First Amendment, or what constitutes a “search” or “seizure” under the Fourth. Answering such questions is often a requisite first step in evaluating the constitutionality of governmental action. Only if protected speech is found will a court examine the permissibility of a particular burden on it; only if an officer has searched or seized a citizen will the reasonableness of the action be examined. With respect to Petitioners’ handgun ban, answering the threshold question resolves the case. If the possession of handguns is protected by the Second Amendment, handguns cannot be completely banned, however else the government may regulate their possession and use.13 The fact that a type of arm is protected by the Second Amendment defeats Petitioners’ attempt to position this case as a “standard of review” question, such that the government may ban any arms it deems too dangerous even if such arms are traditionally used for lawful civilian purposes. After all, Petitioners can conjure a rationale for banning any “arm.”14 Certainly the government may ban arms that are not protected by the Second Amendment and regulate those that are, but the threshold question of whether
Petitioners’ claim that no “per se” categorical restrictions exist within the Bill of Rights, Pet. Br. at 44, is false. Cf. Gideon v. Wainwright, 372 U.S. 335 (1963); Ashcroft v. Free Speech Coalition, 535 U.S. 234, 244 (2002) (“a law imposing criminal penalties on protected speech is a stark example of speech suppression”); cf. Simon & Schuster, Inc. v. Members of the N.Y. State Crime Victims Bd., 502 U.S. 105, 127 (1991) (Kennedy, J., concurring in judgment) (noting that “traditional legal categories” are “preferable to . . . ad hoc balancing”). 14 Indeed, until 1993, the city even banned mace. Now legal, “self-defense sprays” must be registered with the police. D.C. Code § 7-2502.14. 13
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an arm falls into the former or latter category cannot be avoided. Nor may the government justify a ban on a particular firearm simply by claiming to allow the possession of others. While it is a dubious proposition that Petitioners allow individuals any firearms for private home use, the government’s compliance with the Constitution by allowing rifles would not permit the government to violate the Constitution by banning handguns - any more than the government could prohibit books because it permits newspapers and considers them an “adequate substitute.” The court below properly termed this argument “frivolous.” PA53a.15 The test for whether a particular weapon is or is not within the Second Amendment’s protection was established in Miller. For all the claims that the D.C. Circuit failed to follow Miller, it is Petitioners and their amici - including the Solicitor General - who reject that precedent. Miller’s conceptual framework is plain. First, this Court inquires whether a weapon “at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia,” meaning that the weapon is “any part of the ordinary military equipment or that its use could contribute to the common defense.” Miller, 307 U.S. at 178. Second, the Court explained that when fulfilling the Second Amendment’s militia rationale, people “were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.” Id. at 179. The assumption is that at least some arms of the kind people would use for ordinary civilian purposes - arms in “common use at the time” - would also be the arms used in militia service. This is fully consistent with the historical record, supra at 29.16 It is also consistent with the understanding of “arms” at the time. 15
Petitioners implicitly concede the point in admitting that “banning all gun possession” - presumably without impacting the possession of other “arms” - would violate the Second Amendment. Pet. Br. 43. 16 Miller’s earlier use of “at this time,” id. at 178, makes clear that the relevant time period is the present, not 1791. The Framers clearly intended to preserve people’s ability to act as militia, and would not have expected future generations to have obsolete weapons in “common use” any more than the Framers would have expected to secure only 18th-century religions or media. The lineal descendants of personal arms of the type in predictable civilian usage are thus protected, but modern weapons of the type that serve no ordinary civilian function are not.
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“In law, arms are any thing which a man takes in his hand in anger, to strike or assault another.” Webster’S Dictionary, supra at 11 (“Arms”). In sum, an “arm” is protected under the Miller test if it is of the type that (1) civilians would use, such that they could be expected to possess it for ordinary lawful purposes (in the absence of, or even despite, legal prohibition), and (2) would be useful in militia service. The latter requirement may be in tension with the pre-existing right to keep and bear arms, which is not always related to militia service.17 In that respect, Miller may be in tension with itself. There is no justification to limit the Second Amendment’s protection to arms that have military utility. But as a practical matter, the second prong adds nothing to the analysis in virtually all cases, including this one. Categorically, firearms “in common use” for civilian purposes - rifles, shotguns, and handguns - are plainly “part of the ordinary military equipment,” and their “use could contribute to the common defense.” Miller, 307 U.S. at 178. The D.C. Circuit’s opinion is thus compatible with Miller, because handguns meet both Miller criteria. Arms that may have great military utility but which are inappropriate for civilian purposes are still sensibly excluded from the Second Amendment’s protection, as civilians would not commonly use them. The Miller test for whether a particular arm is constitutionally protected is hardly “unworkable.” Pet. Br. 44. To the contrary, Miller presents a straightforward constitutional question, lending itself to practical application far more readily than questions of whether a search is “reasonable” under the Fourth Amendment, or at what point “government entanglement” with religion becomes so “excessive” as to violate the First Amendment. Lemon v. Kurtzman, 403 U.S. 602, 613 (1971). To the extent Miller can be read as establishing a “lineal descent” rule, this Court already applies precisely that framework in its Seventh Amendment jurisprudence. For example, parties in discrimination lawsuits are not denied access to “Attempting to draw a line between the ownership and use of ‘Arms’ for private purposes and the ownership and use of ‘Arms’ for militia purposes would have been an extremely silly exercise on the part of the First Congress if indeed the very survival of the militia depended on men who would bring their commonplace, private arms with them to muster.” PA43a (emphasis in original). 17
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civil juries simply because discrimination claims were unknown in 1791. Curtis v. Loether, 415 U.S. 189, 193-94 (1974). In cases of unusual or exotic arms, or where the court lacks familiarity with a particular weapon, e.g., Miller, 307 U.S. at 178, courts may wish to receive evidence regarding whether a weapon has ordinary civilian application and can be traced to a form historically used by militia forces. But in most cases, as here, the answer will be clear. No court has questioned that a handgun, generally, is an arm “of the kind in common use” by the public and is either “ordinary military equipment” or otherwise useful in a manner that “could contribute to the common defense.” Miller, 307 U.S. at 178. As below, the Fifth Circuit experienced no difficulty applying the Miller test to handguns. Emerson, 270 F.3d at 227 n.22. Even courts hostile to the Second Amendment’s individual nature likewise accept that handguns are the type of arms referenced in the Amendment. In adopting the collectiverights theory “without further analysis or citation of authority,” Emerson, 270 F. 3d at 224, the First Circuit conceded that a revolver would fall within the Miller test’s ambit, as a handgun “may be capable of military use [and] familiarity with it might be regarded as of value in training a person to use a comparable weapon of military type and caliber.” Cases v. United States, 131 F.2d 916, 922-23 (1st Cir. 1942); see also Quilici v. Village of Morton Grove, 695 F.2d 261, 266 (7th Cir. 1982) (“Handguns are undisputedly the type of arms commonly used for recreation or the protection of person and property”) (internal citations omitted). Indeed, this Court has not required any evidentiary hearing to determine that “pistols . . . may be supposed to be needed occasionally for self-defence.” Patsone v. Pennsylvania, 232 U.S. 138, 143 (1914). That handguns are appropriate tools for lawful self-defense and are a class of weapon “of the kind in common use,” Miller, 307 U.S. at 179, has been within the judicial notice of this Court and lower federal courts for nearly a century. Nearly forty percent of firearms produced today are handguns. See BATFE Report, http://www.atf.treas.gov/firearms/stats/afmer/afmer2006.pdf. Congress’s specific description of pistols as militia weapons in the Second Militia Act, so soon following passage of the Second Amendment, offers conclusive proof that handguns are G A L E
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within the Second Amendment’s protection. PA50a-51a. In defining handguns as militia weapons, Congress broke no new ground. The Continental Congress likewise reported pistols as acceptable militia weapons, 25 Journals of the Continental Congress 741-42 (1922), as had the various states. See, e.g., Acts and Laws of the State of Connecticut 150 (1784); Statutes of the State of North Carolina 592 (1791). Eighteenth-century American governments recognized handguns as militia arms not only due to their military utility, but also owing to the deep roots of civilian handgun ownership from the dawn of the Nation’s settlement. Thirteen percent of firearms listed in the Plymouth Colony’s probate records from the 1670s were pistols, “and 54.5 percent of lead projectiles recovered from Plymouth Colony digs were pistol ammunition.” Clayton Cramer and Joseph Olson, Pistols, Crime, and Public Safety in Early America, Willamette L. Rev. (forthcoming 2008), http://ssrn.com/abstract= 1081403 (citation omitted). Two weeks before the Boston Tea Party, John, Andrews observed “‘twould puzzle any person to purchase a pair of p___ls [pistols] in town, as they are all bought up, with a full determination to repell force by force.” Letter of December 1, 1773 in Letters of John Andrews, Esq., of Boston, 1772-1776, 12 (Winthrop Sargent ed., 1866). Some of those pistols might have been purchased by the Tea Party Indians, “each arm’d with a hatchet or axe, and pair pistoles.” Id. Letter of December 18, 1773. The 634 pistols confiscated by General Gage constituted a full 18.25% of the firearms whose seizure the Continental Congress declared a causus belli. Petitioners and their amici greatly overstate our Nation’s history of handgun regulation. Washington, D.C.’s complete handgun ban was the first such prohibition on American soil since the Revolution. The fact that “never before in the more than two hundred years of our Republic has a gun law been struck down by the federal courts as a violation of the Second Amendment,” Brady Br. 29, is a testament to the extreme nature of Petitioners’ enactments. Notably, Petitioners’ state amici do not defend or endorse a total handgun ban, which none of them maintains. New York Br. 1, 2. The oft-cited case of Aymette v. State, 21 Tenn. 154 (1840), upheld prohibition of carrying certain knives and daggers, not guns, as A M E R I C A N
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suggested by some. E.g., ABA Br. 9; Chicago Br. 14 n. 15, 32; LDF Br. 15-16.18 When Tennessee’s Supreme Court considered the constitutionality of banning (as opposed to regulating) the carrying of handguns, it struck down the law. State v. Andrews, 50 Tenn. 165 (1871). On occasion, the carrying of guns has been required in this country. See, e.g., 19 Colonial Records of the State of Georgia, Part 1, 138 (1911) (churchgoer “shall carry with him a gun, or a pair of pistols, in good order and fit for service, with at least six charges of gun-powder and ball, and shall take the said gun or pistols with him to the pew or seat”). Various briefs invoke Georgia’s 1837 ban on the sale of certain pistols, Appleseed Br. 13; Law Professors Br. 18; Chicago Br. 14, but none mentions that the act was struck down–on Second Amendment grounds - in an as-applied challenge by a man who openly wore a prohibited pistol. Nunn v. State, 1 Ga. 243 (1846). Oakland does not ban all handguns, LDF Br. 20, a measure that would be impermissible under California law. Fiscal v. City and County of San Francisco, ___ P.3d ___, 2008 Cal. App. LEXIS 21 (Cal. Ct. App. Jan. 9, 2008). The cited measure addressed a specific type of handgun thought unsuitable for legitimate purposes. Major Cities Br. 9. No trial is required to establish that handguns continue to be in common use for legitimate purposes and that their possession can contribute to the common defense. Handguns are therefore protected arms under Miller, and the right to “keep” them “shall not be infringed.” U.S. Const. amend. II. That the “keeping” at issue here relates to the home is significant. Even obscene materials not otherwise protected by the First Amendment may be viewed in the privacy of one’s home. Stanley v. Georgia, 394 U.S. 557 (1969). The exercise of Second Amendment rights within the home is entitled to no less protection. “The government bears a heavy burden when attempting to justify an expansion, as in gun control, of the ‘limited circumstances’ in which intrusion into the privacy of a home is permitted.” Quilici, 695 F. 2d at 280 (Coffey, J., dissenting). *** Aymette expressly upheld the “unqualified right to keep” arms. Aymette, 21 Tenn. at 160.
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“ATF’s interest is not in determining why a law-abiding individual wishes to possess a certain firearm or device, but rather in ensuring that such objects are not criminally misused.” Testimony of Stephen Higgins, BATF Director, in Hearings on H.R. 641 and Related Bills, House Judiciary Committee Subcommittee on Crime, 98th Congress 111 (1986). To that end, federal law subjects machinegun possession to the same stringent regulatory regime considered in Miller. 26 U.S.C. § 5801, et seq.; 27 C.F.R. §§ 478.98, 479.84, et seq. These regulations work: “it is highly unusual - and in fact, it is very, very rare,” that legally owned machineguns are criminally misused. Higgins, supra, at 117. Had Miller possessed a machinegun, this Court would presumably have had little trouble finding that the weapon had militia utility. The Court might nonetheless have held that machineguns fall outside the scope of the Second Amendment’s protection as they were not “in common use at the time” such that civilians could be expected to have possessed them for ordinary lawful purposes. Miller, 307 U.S. at 179. And even if this Court had accepted that some machineguns are protected by the Second Amendment, their current tight regulation under federal law could well pass any level of scrutiny devised by this Court for the regulation 19
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The Solicitor General greatly overstates the D.C. Circuit decision’s implications for laws governing machineguns. Courts understand that the decision below striking down the handgun bans “address[es] only the possession of handguns, not machine guns.” Somerville v. United States, 2008 U.S. Dist. LEXIS 412 at *4 (W.D. Mich. Jan. 3, 2008). And unlike the laws at issue here banning handguns,19 federal law does not ban the private possession of machineguns, of which approximately 120,000 are in lawful civilian possession. Bureau of Justice Statistics, Selected Findings: Guns Used in Crime 4 (July 1995), http://www.ojp.usdoj.gov/bjs/pub/ pdf/guic.pdf (240,000 registered machineguns); Gary Fleck, Targeting Guns: Firearms and Their Control 108 (1997) (half of registered machineguns are in civilian use) (citing BATF, Statistics Listing of Registered Weapons, Apr. 19, 1989).20
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This case does not address Petitioners’ machinegun ban, D.C. Code § 22-4514(a). 20 Title 18 U.S.C. § 922(0) prohibits the civilian transfer or possession of machineguns not lawfully possessed by May 19, 1986, exempting previously authorized machineguns.
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of protected arms. Of course, Respondent’s simple revolver is no machinegun, and the types of restrictions imposed by the National Firearms Act - including an FBI background check, $200 tax, authorization from one’s local chief law enforcement officer, and a statement of “reasonable necessity” - would be inappropriate to apply to a common handgun.
507, 514 (D.C. Cir. 1982), and thereby add a saving exemption for home self-defense. “[T]his court will not read into a statute language that is clearly not there. . . . The express inclusion of one (or more) thing(s) implies the exclusion of other things from similar treatment.” Castellon v. United States, 864 A.2d 141, 148-49 (D.C. 2004) (internal quotations and citations omitted).
But this case is not about what regulations ought to govern machineguns. The question is whether the arms at issue - including handguns are protected at all. They are.
Indeed, the city successfully asserted a reason for “distinguish[ing] between a home and a business establishment in the Act.” McIntosh v. Washington, 395 A.2d 744, 755 (D.C. 1978). Petitioners cannot now be heard to argue for judicial alteration of the home-business distinction, especially as they can offer no guidelines as to when, exactly, a citizen might render her firearm operational to respond to a perceived threat. Resp. to Pet. for Cert. at 19-21.
III. WASHINGTON, D.C.’S FUNCTIONAL FIREARMS BAN IS UNCONSTITUTIONAL.
Petitioners concede that if the Second Amendment protects an individual right, “a law that put-ported to eliminate that right - for instance, by banning all gun possession, or allowing only a firearm that was so ineffective that the law effected functional disarmament,” would be unconstitutional. Pet. Br. 43-44.21 The only dispute is whether D.C. Code section 7-2507.02 “effects functional disarmament.” Determining whether section 7-2507.02 effects functional disarmament requires no fact-finding. And as Petitioners concede, a functional firearms ban would be unconstitutional “whatever [a Legislature’s] reasons” might be for enacting it. Pet. Br. 43. Making matters easier, Petitioners agree that section 7-2507.02 “would be unreasonable” if it offered no provision for home selfdefense. Pet. Br. 56. The statutory language is unequivocal: without exception, individuals may never possess a functional firearm at home. If Petitioners had wished to create an exception for home self-defense, they knew how to do so. Section 7-2507.02 permits functional firearms “at [a] place of business, or while being used for lawful recreational purposes.” Petitioners cannot “turn a few passages in the legislative history that are partially contrary to the statutory language into a justification for this court to rewrite the statute,” Chem. Mfrs. Ass’n v. EPA, 673 F. 2d 21
Cf. McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970) (“the right to counsel is the right to the effective assistance of counsel”) (citation omitted); Planned Parenthood v. Casey, 505 U.S. 833, 878 (1992) (O’Connor, Kennedy, and Souter, JJ.) (“undue burden exists” if law’s “purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability”).
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Respondent would not quarrel with a true “safe storage” law, properly crafted to address Petitioners’ stated concerns. But as McIntosh reveals, the city said what it meant and meant what it said in prohibiting armed self-defense inside private homes. The law, as written and defended by the city, is unconstitutional. IV. THE STANDARD OF REVIEW IN SECOND AMENDMENT CASES IS STRICT SCRUTINY.
Although Petitioners “do[] not suggest that gun regulations should be subject to mere rational basis review,” Pet. Br. 43, the true nature of their proposed “reasonableness” standard is exposed by their claims that the Nation’s most draconian gun laws are constitutional. The Solicitor General’s supposed “heightened” scrutiny standard is scarcely better, demanding that judges weigh conflicting and disputable scientific claims to determine the constitutionality of disarming law-abiding individuals, apparently on an as-applied basis.22 As explained supra and accepted by the court below, this case does not require the application The Solicitor General’s “reasonable alternative” test would demand that individuals wishing to exercise a fundamental constitutional right demonstrate their need to do so, subject to the skeptical review of officials hostile to the right. For example, a would-be handgun owner might have to show that she was physically incapable of using a rifle or shotgun. The Miller test anticipates this problem: Because handguns are in common use they are constitutionally protected, meaning aN individual has the right to choose a handgun as the type of weapon she would keep at home for lawful purposes.
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of any standard of review, because it involves a ban on a class of weapons protected under Miller, and a statutory interpretation dispute concerning whether a particular provision enacts a functional firearms ban. Nonetheless, should the Court venture to comment on the standard of review governing the regulation of Second Amendment rights, it should do so consistent with well-established precedent. United States v. Carolene Prods. Co., 304 U.S. 144, 153 n.4 (1938); cf. San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 33 (1973) (fundamental rights are those “explicitly or implicitly guaranteed by the Constitution”). Fundamental rights are those “so rooted in the traditions and conscience of our people as to be ranked as fundamental [and] implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed.” Washington v. Glucksberg, 521 U.S. 702, 721 (1997) (citations and quotation marks omitted). Justice Story’s “palladium of the liberties” ought to qualify, whether the Second Amendment entails the right to defend one’s life, the right to resist tyrannical usurpation of constitutional authority, or even, as Petitioners would have it, a right guaranteeing states freedom and security. See Eugene Volokh, Necessary to the Security of a Free State, 83 Notre Dame L. Rev. 1 (2007). Today the Court is told that private gun ownership is too dangerous to be counted among first-tier enumerated rights. Americans who suffered British rule might disagree. Boston Gazette, Dec. 5, 1774, at 4, col. 1 (“But what most irritated the People next to seizing their Arms and Ammunition, was the apprehending [of ] six gentlemen . . . who had assembled a Town meeting. . . .”). As our Nation continues to face the scourges of crime and terrorism, no provision of the Bill of Rights would be immune from demands that perceived governmental necessity overwhelm the very standard by which enumerated rights are secured. Exorbitant claims of authority to deny basic constitutional rights are not unknown. See, e.g., Hamdi v. Rumsfeld, 542 U.S. 507 (2004). Demoting the Second Amendment to some lower tier of enumerated rights is unwarranted. The Second Amendment has the distinction of securing the most fundamental rights of all enabling the preservation of one’s life and guaranteeing our liberty. These are not secondclass concerns. Yet preservation of human life G A L E
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is also the government’s chief regulatory interest in arms. Constitutional review of gun laws thus finds both individual and governmental interests at their zenith. If a gun law is to be upheld, it should be upheld precisely because the government has a compelling interest in its regulatory impact. Because the governmental interest is so strong in this arena, applying the ordinary level of strict scrutiny for enumerated rights to gun regulations will not result in wholesale abandonment of the country’s basic firearm safety laws. Strict scrutiny is context-sensitive and is “far from the inevitably deadly test imagined by the Gunther myth.” Adam Winkler, Fatal in Theory and Strict in Fact: An Empirical Analysis of Strict Scrutiny in the Federal Courts, 59 Vanderderbilt L. Rev. 793, 795 (2006). The prohibition on possession of guns by felons, 18 U.S.C. § 922(g), and the requirement that gun buyers undergo a background check for history of criminal activity or mental illness, 18 U.S.C. § 922(t), would easily survive strict scrutiny. Searching for a lower level of review, the Solicitor General would look to “the practical impact of the challenged restriction,” U.S. Br. 8, 24, as courts do at the outset of examining the constitutionality of election regulations. But voting is a poor analog to gun possession. Each exercise of the right to vote burdens state resources and implicates a direct interest in operating an election, which states have an express grant of authority to regulate. U.S. Const. art. I, § 4, cl. 1. And not all election laws are subject to the government’s endorsed level of scrutiny. If the Court finds the burden to be “severe,” then strict scrutiny is applied. Timmons v. Twin Cities Area New Party, 520 U.S. 351, 358 (1997); Burdick v. Takushi, 504 U.S. 428, 434 (1992). The Solicitor General assumes that no gun regulations including those at issue here - can impose “severe” burdens on Second Amendment rights. But no such presumption exists in the election field. Considering the severity of the challenged gun laws, the correct standard, per the Solicitor General’s precedent, would be strict scrutiny. The government’s fears of a meaningful Second Amendment standard are unfounded. Seven years ago, the Fifth Circuit announced a version of strict scrutiny to evaluate gun laws under the Second Amendment, permitting regulations that are “limited, narrowly tailored A M E R I C A N
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specific exceptions or restrictions for particular cases that are reasonable and not inconsistent with the right of Americans generally to individually keep and bear their private arms as historically understood in this country.” Emerson, 270 F.3d at 261; United States v. Patterson, 431 F.3d 832, 836 (5th Cir. 2005) (applying Emerson, restrictions are “limited” and “narrowly tailored” but “[p]rohibiting unlawful drug users from possessing firearms is not inconsistent with the right to bear arms guaranteed by the Second Amendment”). Large cities in the Fifth Circuit remain generally more peaceful than Washington, D.C. The careless handling of social science by Petitioners and their amici underscores the impropriety of adopting anything but the highest level of scrutiny for regulations implicating Second Amendment rights. The matter is only peripheral to the case, but some remarks are in order. The ABA asserts that “the most notable risk factor for mortality among abused women is the presence of a gun,” and argues that “[h]ow to weigh these risks against the desire to own a gun for self defense is a policy judgment, not a constitutional one.” ABA Br. 21 n.8 (citing Jane Koziol-McLain, et al., Risk Factors for FemicideSuicide in Abusive Relationships: Results From a Multisite Case Control Study, in Assessing Dangerousness: Violence by Batterers and Child Abusers 143 (J.C. Campbell ed., 2d ed. 2007)) (other citation omitted). Putting aside the likelihood that the Constitution embodies at least some policy choices the ABA finds uncongenial, the cited study does not support the conclusion. The study reports an adjusted odds ratio of 13.0 for “abuser gun access,” not victim gun access. The study does not address, much less refute, “the desire to own a gun for self defense.”23 Petitioners also persist in relying upon a deeply flawed study claiming their handgun ban reduced deaths. Colin Loftin, et al., Effects of Restrictive Licensing of Handguns on Homicide and Suicide in the District of Columbia, 325 New Eng. J. Med. 23 (1991).24 Putting aside that 23
A different study indicates that women living alone with a gun face a statistically insignificant odds ratio for increased femicide of 0.22. Jacquelyn Campbell, et al., Risk Factors for Femicide in Abusive Relationships, 93 AM. J. Pub. Health 1089, 1090-92 (2003). 24 The study constituted the bulk of Petitioners’ evidence on summary judgment.
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correlation does not equal causation, even the correlative relationship is dubious. The study measures death with raw numbers rather than rates, thus ignoring the city’s dramatic depopulation through the studied period. Between the two ten-year periods examined in the study, Washington’s average annual population declined 15%. U.S. Bureau of the Census, Statistical Abstracts of the United States. When one examines homicide rates, the supposed benefits disappear. The suicide prevention benefits are likewise overstated. Moreover, the study ends in 1988, a year in which the murder rate doubled pre-ban levels, and one year before a severe crime increase. In 1991, the peak year, the homicide rate tripled pre-ban levels. FBI UCR Data compiled by Rothstein Catalog on Disaster Recovery and The Disaster Center, available at http://www.disastercenter.com/crime/dccrime.htm. Gun crimes, suicides, and accidents were not unknown in early America. E.g., Cramer & Olson, Pistols, supra. The same newspaper containing admonishments from Continental Congress representatives that “It is the Right of every English Subject to be prepared with Weapons for his Defense,” N.C. Gazette (Newburn), July 7, 1775, at 2, col. 3, also reported that “a Demoniac” shot three and wounded one with a sword before being shot by others. Id. at 3, col. 1. Petitioners’ sophistic “reasonableness” arguments were likewise familiar to the Framers - and rejected. Colonial Americans were conversant with the works of Cesare Beccaria, whose 1764 treatise On Crimes and Punishments founded the science of criminology. John Adams cited Beccaria to open his argument at the Boston Massacre trial. 3 Legal Parers of John Adams 242. In a passage Jefferson copied into his “Commonplace Book” of wise excerpts from philosophers and poets, Beccaria decried the “False Utility” of laws that disarm those only who are neither inclined nor determined to commit crimes. Can it be supposed that those who have the courage to violate the most sacred laws of humanity, the most important of the code . . . will respect the less important and arbitrary ones, which can be violated with ease and impunity, and which, if strictly obeyed, would put an end to personal liberty. . . . Such laws make things worse for the assaulted and better for the assailants. . . . [These] laws [are] not preventive but fearful of crimes, produced by the tumultuous impression of a few isolated A M E R I C A N
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facts, and not by thoughtful consideration of the inconveniences and advantages of a universal decree. . . .
Thomas Jefferson, Commonplace Book 314 (1926). “If it be thought that the privilege is outmoded in the conditions of this modern age, then the thing to do is to take it out of the Constitution, not to whittle it down by the subtle encroachments of judicial opinion.” Ullman v. United States, 350 U.S. 422, 42728 (1956) (citation omitted). Petitioners plainly disagree with the Framers’ Second Amendment policy choices. Petitioners’ remedy must be found within the Constitution’s Fifth Article, not with linguistic sophistries or an anemic standard of review that would deprive the right of any real force. V. THE GOVERNMENT OF THE NATION’S CAPITAL MUST OBEY THE CONSTITUTION.
The Constitution, and its Bill of Rights - including the Second Amendment - are the supreme law of the land. U.S. CONST. art. VI, cl. 1. “That the Constitution is in effect . . . in the District has been so often determined in the affirmative that it is no longer an open question.” O’Donoghue v. United States, 289 U.S. 516, 541 (1933). Petitioners’ legislative authority is not above the Constitution, but derived from it; a delegation of Congress’s authority to legislate for the District. U.S. CONST. art. I, § 8, cl. 17. That power “is plenary; but it does not . . . authorize a denial to the inhabitants of any constitutional guaranty not plainly inapplicable.” O’Donoghue, 289 U.S. at 539. “If, before the District was set off, Congress had passed an unconstitutional act, affecting its inhabitants, it would have been void. If done after the District was created, it would have been equally void.” Id. at 541 (citation omitted). Accordingly, Congress can exercise general police powers within the District, “so long as it does not contravene any provision of the Constitution of the United States.” Palmore v. United States, 411 U.S. 389, 397 (1973) (citation omitted). For example, Congress may operate public schools in the District of Columbia, a power otherwise reserved to the states. But such schools cannot be segregated. Bolling v. Sharpe, 347 U.S. 497 (1954). G A L E
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Indeed, because the Constitution with its Bill of Rights applies directly to the federal government, of which the city is a creature, Petitioners are bound to respect even those rights that are not incorporated as against the states through the Fourteenth Amendment. See Pernell v. Southall Realty, 416 U.S. 363 (1974) (Seventh Amendment right to civil jury trial); United States v. Moreland, 258 U.S. 433 (1922) (Fifth Amendment right to grand jury indictment).25 Even were the pre-incorporation holding of Presser v. Illinois, 116 U.S. 252 (1886) still good law, which is doubtful,26 the fact remains that the District of Columbia is not a state. Hepburn v. Ellzey, 6 U.S. (2 Cranch) 445 (1805). The question of incorporation is therefore not before the Court. Nothing in Petitioners’ precedent suggests that the District is free to ignore constitutional restrictions. The judges of the District’s local court system do not merit Article III protection because they are Article I judges. D.C. Code § 11-101; Palmore, 411 U.S. at 398. When the District’s judges were Article III judges, they enjoyed Article III protection. O’Donoghue, supra (Congress could not reduce pay of District of Columbia judges). And pre-Sixteenth Amendment tax limitations did not apply within the District of Columbia because Article I’s District Clause grants Congress the broad power of “exclusive Legislation” for the city, including the power to tax “in like manner as the legislature of a State may tax the people of a State for State purposes.” Gibbons v. District of Columbia, 116 U.S. 404, 407 (1886). Washington was not planned as a “Forbidden City” in which federal officials would be shielded from the hazards of interaction with the otherwise-free people of the United States. Quite the contrary: It is important to bear constantly in mind that the District was made up of portions of two of the original states of the Union, and was not taken out of the Union by the cession. Prior thereto its inhabitants were 25
Petitioners distinguish the Second Amendment as relating only to federal authority over the states, rather than securing individual rights; but that argument assumes their conclusion. Pet. Br. 38. 26 As Judge Reinhardt recognizes, “Presser rest[s] on a principle that is now thoroughly discredited,” Silveira v. Lockyer, 312 F. 3d 1052, 1067 n. 17 (9th Cir. 2002) (citing Emerson, 270 F. 3d at 221 n. 13).
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entitled to all the rights, guaranties, and immunities of the Constitution. . . . [I]t is not reasonable to assume that the cession stripped them of these rights . . . .
O’Donoghue, 289 U.S. at 540. Finally, there is no logic to Petitioners’ extraordinary claim that gun control “is the most important power of self-protection” for the seat of government. Pet. Br. 38. The District Clause, after all, allows Congress to “[erect] Forts, Magazines, Arsenals, dock-Yards and other needful Buildings.” U.S. COW, ST. art. I, § 8, cl. 17. Congress surely has the power to regulate
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firearms in Washington; but if Congress felt that disarming Americans at home were necessary for its security, it might have attempted to do so in the first 177 years of the city’s service as the seat of government. As recent history demonstrates, those who would attack our capital are hardly deterred by Petitioners’ ban on handguns and functional firearms in the home. CONCLUSION
The decision below is correct with respect to the merits of Respondent’s substantive claims, and should be affirmed in that regard.
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Opinion of the U.S. Supreme Court, June 26, 2008 SYLLABUS*
District of Columbia law bans handgun possession by making it a crime to carry an unregistered firearm and prohibiting the registration of handguns; provides separately that no person may carry an unlicensed handgun, but authorizes the police chief to issue 1-year licenses; and requires residents to keep lawfully owned firearms unloaded and dissembled or bound by a trigger lock or similar device. Respondent Heller, a D.C. special policeman, applied to register a handgun he wished to keep at home, but the District refused. He filed this suit seeking, on Second Amendment grounds, to enjoin the city from enforcing the bar on handgun registration, the licensing requirement insofar as it prohibits carrying an unlicensed firearm in the home, and the trigger-lock requirement insofar as it prohibits the use of functional firearms in the home. The District Court dismissed the suit, but the D.C. Circuit reversed, holding that the Second Amendment protects an individual’s right to possess firearms and that the city’s total ban on handguns, as well as its requirement that firearms in the home be kept nonfunctional even when necessary for self-defense, violated that right. Held: 1. The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. Pp. 2788 - 2816. (a) The Amendment’s prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause. The operative clause’s text and history demonstrate that it connotes an individual right to keep and bear arms. Pp. 2788 - 2799. (b) The prefatory clause comports with the Court’s interpretation of the operative clause. The “militia” comprised all males physically
*The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337, 26 S.Ct. 282, 50 L. Ed. 499.
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capable of acting in concert for the common defense. The Antifederalists feared that the Federal Government would disarm the people in order to disable this citizens’ militia, enabling a politicized standing army or a select militia to rule. The response was to deny Congress power to abridge the ancient right of individuals to keep and bear arms, so that the ideal of a citizens’ militia would be preserved. Pp. 2799 - 2803. (c) The Court’s interpretation is confirmed by analogous arms-bearing rights in state constitutions that preceded and immediately followed the Second Amendment. Pp. 2802 - 2804. (d) The Second Amendment’s drafting history, while of dubious interpretive worth, reveals three state Second Amendment proposals that unequivocally referred to an individual right to bear arms. P. 2804. (e) Interpretation of the Second Amendment by scholars, courts and legislators, from immediately after its ratification through the late 19th century also supports the Court’s conclusion. Pp. 2804 - 2812. (f) None of the Court’s precedents forecloses the Court’s interpretation. Neither United States v. Cruikshank, 92 U.S. 542, 553, 23 L.Ed. 588, nor Presser v. Illinois, 116 U.S. 252, 264265, 6 S.Ct. 580, 29 L.Ed. 615, refutes the individual-rights interpretation. United States v. Miller, 307 U.S. 174, 59 S.Ct. 816, 83 L.Ed. 1206, does not limit the right to keep and bear arms to militia purposes, but rather limits the type of weapon to which the right applies to those used by the militia, i.e., those in common use for lawful purposes. Pp. 2812 - 2816. 2. Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. Miller’s holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical A M E R I C A N
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tradition of prohibiting the carrying of dangerous and unusual weapons. Pp. 2816 - 2817. 3. The handgun ban and the trigger-lock requirement (as applied to self-defense) violate the Second Amendment. The District’s total ban on handgun possession in the home amounts to a prohibition on an entire class of “arms” that Americans overwhelmingly choose for the lawful purpose of self-defense. Under any of the standards of scrutiny the Court has applied to enumerated constitutional rights, this prohibition-in the place where the importance of the lawful defense of self, family, and property is most acutewould fail constitutional muster. Similarly, the requirement that any lawful firearm in the home be disassembled or bound by a trigger lock makes it impossible for citizens to use arms for the core lawful purpose of self-defense and is hence unconstitutional. Because Heller conceded at oral argument that the D.C. licensing law is permissible if it is not enforced arbitrarily and capriciously, the Court assumes that a license will satisfy his prayer for relief and does not address the licensing requirement. Assuming he is not disqualified from exercising Second Amendment rights, the District must permit Heller to register his handgun and must issue him a license to carry it in the home. Pp. 2817 - 2822. 478 F.3d 370, affirmed. SCALIA, J., delivered the opinion of the Court, in which ROBERTS, C.J., and KENNEDY, THOMAS, and ALITO, JJ., joined. STEVENS, J., filed a dissenting opinion, in which SOUTER, GINSBURG, and BREYER, JJ., joined. BREYER, J., filed a dissenting opinion, in which STEVENS, SOUTER, and GINSBURG, JJ., joined. Walter Dellinger, for petitioners. Paul D. Clement, for the United States as amicus curiae, by special leave of the Court. Alan Gura, for respondent. Thomas C. Goldstein, Christopher M. Egleson, Akin Gump Strauss Hauer & Feld LLP, Washington, DC, Walter Dellinger, Matthew M. Shors, Mark S. Davies, Brianne J. Gorod, Not admitted in D.C.; supervised by principals of the firm, Joseph Blocher, Not admitted in D.C.; supervised by principals of the firm, O’Melveny & Myers LLP, Washington, DC, Peter J. Nickles, Interim Attorney General, Todd S. Kim, Solicitor General, Counsel of Record, Donna M. Murasky, Deputy Solicitor, General, Lutz Alexander Prager, Office of the Attorney General for the District of G A L E
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Columbia, Washington, DC, Robert A. Long, Jonathan L. Marcus, Covington & Burling LLP, Washington, DC, for Petitioners. Alan Gura, Counsel of Record, Robert A. Levy, Clark M. Neily III, Gura & Possessky, PLLC, Alexandria, Virginia, for Respondents. Frederick L. Whitmer, Thelen Reid Brown, Raysman & Steiner LLP, New York, NY, Charles M. Dyke, Counsel of Record, Thelen Reid Brown, Raysman & Steiner LLP, San Francisco, CA, Charles M. English, Jeffrey R. Gans, Elizabeth M. Walsh, Emily A. Jones, Laura P. Bourgeois, Thelen Reid Brown, Raysman & Steiner LLP, Washington, DC, for Professors of Linguistics and English DennisE. Baron, Ph.D., Richard W. Bailey, Ph.D. and Jeffrey P. Kaplan, Ph.D. in Support of Petitioners. Justice SCALIA delivered the opinion of the Court. We consider whether a District of Columbia prohibition on the possession of usable handguns in the home violates the Second Amendment to the Constitution. I
The District of Columbia generally prohibits the possession of handguns. It is a crime to carry an unregistered firearm, and the registration of handguns is prohibited. See D.C.Code §§ 7-2501.01(12), 7-2502.01(a), 7-2502.02(a)(4) (2001). Wholly apart from that prohibition, no person may carry a handgun without a license, but the chief of police may issue licenses for 1-year periods. See §§ 22-4504(a), 22-4506. District of Columbia law also requires residents to keep their lawfully owned firearms, such as registered long guns, “unloaded and dissembled or bound by a trigger lock or similar device” unless they are located in a place of business or are being used for lawful recreational activities. See § 7-2507.02.1 Respondent Dick Heller is a D.C. special police officer authorized to carry a handgun while on duty at the Federal Judicial Center. He applied for a registration certificate for a handgun that he wished to keep at home, but the District refused. He thereafter filed a lawsuit in the Federal District Court for the District of
1 There are minor exceptions to all of these prohibitions, none of which is relevant here.
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Columbia seeking, on Second Amendment grounds, to enjoin the city from enforcing the bar on the registration of handguns, the licensing requirement insofar as it prohibits the carrying of a firearm in the home without a license, and the trigger-lock requirement insofar as it prohibits the use of “functional firearms within the home.” App. 59a. The District Court dismissed respondent’s complaint, see Parker v. District of Columbia, 311 F.Supp.2d 103, 109 (2004). The Court of Appeals for the District of Columbia Circuit, construing his complaint as seeking the right to render a firearm operable and carry it about his home in that condition only when necessary for self-defense,2 reversed, see Parker v. District of Columbia, 478 F.3d 370, 401 (2007). It held that the Second Amendment protects an individual right to possess firearms and that the city’s total ban on handguns, as well as its requirement that firearms in the home be kept nonfunctional even when necessary for self-defense, violated that right. See id., at 395, 399-401. The Court of Appeals directed the District Court to enter summary judgment for respondent. We granted certiorari. 552 U.S. ——, 128 S. Ct. 645, 169 L.Ed.2d 417 (2007). II
We turn first to the meaning of the Second Amendment. A
The Second Amendment provides: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” In interpreting this text, we are guided by the principle that “[t]he Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning.” United States v. Sprague, 282 U.S. 716, 731, 51 S.Ct. 220, 75 L.Ed. 640 (1931); see also Gibbons v. Ogden, 9 Wheat. 1, 188, 6 L. Ed. 23 (1824). Normal meaning may of course include an idiomatic meaning, but it excludes secret or technical meanings that would not have been known to ordinary citizens in the founding generation.
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That construction has not been challenged here.
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The two sides in this case have set out very different interpretations of the Amendment. Petitioners and today’s dissenting Justices believe that it protects only the right to possess and carry a firearm in connection with militia service. See Brief for Petitioners 11-12; post, at 2822 (STEVENS, J., dissenting). Respondent argues that it protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. See Brief for Respondent 2-4. The Second Amendment is naturally divided into two parts: its prefatory clause and its operative clause. The former does not limit the latter grammatically, but rather announces a purpose. The Amendment could be rephrased, “Because a well regulated Militia is necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.” See J. Tiffany, A Treatise on Government and Constitutional Law § 585, p. 394 (1867); Brief for Professors of Linguistics and English as Amici Curiae 3 (hereinafter Linguists’ Brief). Although this structure of the Second Amendment is unique in our Constitution, other legal documents of the founding era, particularly individual-rights provisions of state constitutions, commonly included a prefatory statement of purpose. See generally Volokh, The Commonplace Second Amendment, 73 N.Y.U.L. Rev. 793, 814-821 (1998). Logic demands that there be a link between the stated purpose and the command. The Second Amendment would be nonsensical if it read, “A well regulated Militia, being necessary to the security of a free State, the right of the people to petition for redress of grievances shall not be infringed.” That requirement of logical connection may cause a prefatory clause to resolve an ambiguity in the operative clause (“The separation of church and state being an important objective, the teachings of canons shall have no place in our jurisprudence.” The preface makes clear that the operative clause refers not to canons of interpretation but to clergymen.) But apart from that clarifying function, a prefatory clause does not limit or expand the scope of the operative clause. See F. Dwarris, A General Treatise on Statutes 268-269 (P. Potter ed. 1871) (hereinafter Dwarris); T. Sedgwick, The Interpretation and Construction of Statutory and Constitutional Law 42-45 (2d A M E R I C A N
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ed. 1874).3 “‘It is nothing unusual in acts . . . for the enacting part to go beyond the preamble; the remedy often extends beyond the particular act or mischief which first suggested the necessity of the law.’” J. Bishop, Commentaries on Written Laws and Their Interpretation § 51, p. 49 (1882) (quoting Rex v. Marks, 3 East, 157, 165 (K.B.1802)). Therefore, while we will begin our textual analysis with the operative clause, we will return to the prefatory clause to ensure that our reading of the operative clause is consistent with the announced purpose.4 1. Operative Clause.
a. “Right of the People.” The first salient feature of the operative clause is that it codifies a “right of the people.” The unamended Constitution and the Bill of Rights use the phrase “right of the people” two other times, in the First Amendment’s Assembly-and-Petition Clause and in the Fourth Amendment’s Search-andSeizure Clause. The Ninth Amendment uses very similar terminology (“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people”). All three of these instances unambiguously refer to individual rights, not “collective” rights, or rights that may be exercised only through participation in some corporate body.5
“rights”-the famous preamble (“We the people”), § 2 of Article I (providing that “the people” will choose members of the House), and the Tenth Amendment (providing that those powers not given the Federal Government remain with “the States” or “the people”). Those provisions argu-ably refer to “the people” acting collectively-but they deal with the exercise or reservation of powers, not rights. Nowhere else in the Constitution does a “right” attributed to “the people” refer to anything other than an individual right.6 What is more, in all six other provisions of the Constitution that mention “the people,” the term unambiguously refers to all members of the political community, not an unspecified subset. As we said in United States v. VerdugoUrquidez, 494 U.S. 259, 265, 110 S.Ct. 1056, 108 L.Ed.2d 222 (1990): ‘[T]he people’ seems to have been a term of art employed in select parts of the Constitution . . . . [Its uses] sugges[t] that ‘the people’ protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.
Three provisions of the Constitution refer to “the people” in a context other than
This contrasts markedly with the phrase “the militia” in the prefatory clause. As we
3 As Sutherland explains, the key 18th-century English case on the effect of preambles, Copeman v. Gallant, 1 P. Wms. 314, 24 Eng. Rep. 404 (1716), stated that “the preamble could not be used to restrict the effect of the words of the purview.” J. Sutherland, Statutes and Statutory Construction, 47.04 (N. Singer ed. 5th ed.1992). This rule was modified in England in an 1826 case to give more importance to the preamble, but in America “the settled principle of law is that the preamble cannot control the enacting part of the statute in cases where the enacting part is expressed in clear, unambiguous terms.” Ibid. Justice STEVENS says that we violate the general rule that every clause in a statute must have effect. Post, at 2826. But where the text of a clause itself indicates that it does not have operative effect, such as “whereas” clauses in federal legislation or the Constitution’s preamble, a court has no license to make it do what it was not designed to do. Or to put the point differently, operative provisions should be given effect as operative provisions, and prologues as prologues. 4 Justice STEVENS criticizes us for discussing the prologue last. Post, at 2826. But if a prologue can be used only to clarify an ambiguous operative provision, surely the first step must be to determine whether the operative provision is ambiguous. It might be argued, we suppose, that the
prologue itself should be one of the factors that go into the determination of whether the operative provision is ambiguous-but that would cause the prologue to be used to produce ambiguity rather than just to resolve it. In any event, even if we considered the prologue along with the operative provision we would reach the same result we do today, since (as we explain) our interpretation of “the right of the people to keep and bear arms” furthers the purpose of an effective militia no less than (indeed, more than) the dissent’s interpretation. See infra, at 2801-2802. 5 Justice STEVENS is of course correct, post, at 2827, that the right to assemble cannot be exercised alone, but it is still an individual right, and not one conditioned upon membership in some defined “assembly,” as he contends the right to bear arms is conditioned upon membership in a defined militia. And Justice STEVENS is dead wrong to think that the right to petition is “primarily collective in nature.” Ibid. See McDonald v. Smith, 472 U.S. 479, 482-484, 105 S.Ct. 2787, 86 L.Ed.2d 384 (1985) (describing historical origins of right to petition). 6 If we look to other founding-era documents, we find that some state constitutions used the term “the people” to refer to the people collectively, in contrast to “citizen,” which was used to invoke individual rights. See Heyman, Natural
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will describe below, the “militia” in colonial America consisted of a subset of “the people”those who were male, able bodied, and within a certain age range. Reading the Second Amendment as protecting only the right to “keep and bear Arms” in an organized militia therefore fits poorly with the operative clause’s description of the holder of that right as “the people.” We start therefore with a strong presumption that the Second Amendment right is exercised individually and belongs to all Americans. b. “Keep and bear Arms.” We move now from the holder of the right-“the people”-to the substance of the right: “to keep and bear Arms.” Before addressing the verbs “keep” and “bear,” we interpret their object: “Arms.” The 18th-century meaning is no different from the meaning today. The 1773 edition of Samuel Johnson’s dictionary defined “arms” as “weapons of offence, or armour of defence.” 1 Dictionary of the English Language 107 (4th ed.) (hereinafter Johnson). Timothy Cunningham’s important 1771 legal dictionary defined “arms” as “any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another.” 1 A New and Complete Law Dictionary (1771); see also N. Webster, American Dictionary of the English Language (1828) (reprinted 1989) (hereinafter Webster) (similar). The term was applied, then as now, to weapons that were not specifically designed for military use and were not employed in a military capacity. For instance, Cunningham’s legal dictionary gave as an example of usage: “Servants and labourers shall use bows and arrows on Sundays, & c. and not bear other arms.” See also, e.g., An Act for the trial of Negroes, 1797 Del. Laws ch. XLIII, § 6, p. 104, in 1 First Laws of the Rights and the Second Amendment, in The Second Amendment in Law and History 179, 193-195 (C. Bogus ed.2000) (hereinafter Bogus). But that usage was not remotely uniform. See, e.g., N.C. Declaration of Rights § XIV (1776), in 5 The Federal and State Constitutions, Colonial Charters, and Other Organic Laws 2787, 2788 (F. Thorpe ed.1909) (hereinafter Thorpe) (jury trial); Md. Declaration of Rights § XVIII (1776), in 3 id., at 1686, 1688 (vicinage requirement); Vt. Declaration of Rights ch. 1, § XI (1777), in 6 id., at 3737, 3741 (searches and seizures); Pa. Declaration of Rights § XII (1776), in 5 id., at 3081, 3083 (free speech). And, most importantly, it was clearly not the terminology used in the Federal Constitution, given the First, Fourth, and Ninth Amendments.
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State of Delaware 102, 104 (J. Cushing ed.1981 (pt. 1)); see generally State v. Duke, 42 Tex. 455, 458 (1874) (citing decisions of state courts construing “arms”). Although one founding-era thesaurus limited “arms” (as opposed to “weapons”) to “instruments of offence generally made use of in war,” even that source stated that all firearms constituted “arms.” 1 J. Trusler, The Distinction Between Words Esteemed Synonymous in the English Language 37 (1794) (emphasis added). Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications, e.g., Reno v. American Civil Liberties Union, 521 U.S. 844, 849, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997), and the Fourth Amendment applies to modern forms of search, e.g., Kyllo v. United States, 533 U.S. 27, 35-36, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001), the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding. We turn to the phrases “keep arms” and “bear arms.” Johnson defined “keep” as, most relevantly, “[t]o retain; not to lose,” and “[t]o have in custody.” Johnson 1095. Webster defined it as “[t]o hold; to retain in one’s power or possession.” No party has apprised us of an idiomatic meaning of “keep Arms.” Thus, the most natural reading of “keep Arms” in the Second Amendment is to “have weapons.” The phrase “keep arms” was not prevalent in the written documents of the founding period that we have found, but there are a few examples, all of which favor viewing the right to “keep Arms” as an individual right unconnected with militia service. William Blackstone, for example, wrote that Catholics convicted of not attending service in the Church of England suffered certain penalties, one of which was that they were not permitted to “keep arms in their houses.” 4 Commentaries on the Laws of England 55 (1769) (hereinafter Blackstone); see also 1 W. & M., c. 15, § 4, in 3 Eng. Stat. at Large 422 (1689) (“[N]o Papist . . . shall or may have or keep in his House . . . any Arms . . . ”); 1 Hawkins, Treatise on the Pleas of the Crown 26 (1771) (similar). Petitioners point to militia laws of the founding period that required A M E R I C A N
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militia members to “keep” arms in connection with militia service, and they conclude from this that the phrase “keep Arms” has a militiarelated connotation. See Brief for Petitioners 16-17 (citing laws of Delaware, New Jersey, and Virginia). This is rather like saying that, since there are many statutes that authorize aggrieved employees to “file complaints” with federal agencies, the phrase “file complaints” has an employment-related connotation. “Keep arms” was simply a common way of referring to possessing arms, for militiamen and everyone else.7
(dissenting opinion) (quoting Black’s Law Dictionary 214 (6th ed.1998)). We think that Justice GINSBURG accurately captured the natural meaning of “bear arms.” Although the phrase implies that the carrying of the weapon is for the purpose of “offensive or defensive action,” it in no way connotes participation in a structured military organization.
At the time of the founding, as now, to “bear” meant to “carry.” See Johnson 161; Webster; T. Sheridan, A Complete Dictionary of the English Language (1796); 2 Oxford English Dictionary 20 (2d ed.1989) (hereinafter Oxford). When used with “arms,” however, the term has a meaning that refers to carrying for a particular purpose-confrontation. In Muscarello v. United States, 524 U.S. 125, 118 S.Ct. 1911, 141 L.Ed.2d 111 (1998), in the course of analyzing the meaning of “carries a firearm” in a federal criminal statute, Justice GINSBURG wrote that “[s]urely a most familiar meaning is, as the Constitution’s Second Amendment . . . indicate[s]: ‘wear, bear, or carry . . . upon the person or in the clothing or in a pocket, for the purpose . . . of being armed and ready for offensive or defensive action in a case of conflict with another person.’” Id., at 143, 118 S.Ct. 1911
From our review of founding-era sources, we conclude that this natural meaning was also the meaning that “bear arms” had in the 18th century. In numerous instances, “bear arms” was unambiguously used to refer to the carrying of weapons outside of an organized militia. The most prominent examples are those most relevant to the Second Amendment: Nine state constitutional provisions written in the 18th century or the first two decades of the 19th, which enshrined a right of citizens to “bear arms in defense of themselves and the state” or “bear arms in defense of himself and the state.”8 It is clear from those formulations that “bear arms” did not refer only to carrying a weapon in an organized military unit. Justice James Wilson interpreted the Pennsylvania Constitution’s arms-bearing right, for example, as a recognition of the natural right of defense “of one’s person or house”-what he called the law of “self preservation.” 2 Collected Works of James Wilson 1142, and n. x (K. Hall & M. Hall eds.2007) (citing Pa. Const., Art. IX, § 21 (1790)); see also T. Walker, Introduction to American Law 198 (1837) (“Thus
7 See, e.g., 3 A Compleat Collection of State-Tryals 185 (1719) (“Hath not every Subject power to keep Arms, as well as Servants in his House for defence of his Person?”); T. Wood, A New Institute of the Imperial or Civil Law 282 (1730) (“Those are guilty of publick Force, who keep Arms in their Houses, and make use of them otherwise than upon Journeys or Hunting, or for Sale . . . ”); A Collection of All the Acts of Assembly, Now in Force, in the Colony of Virginia 596 (1733) (“Free Negros, Mulattos, or Indians, and Owners of Slaves, seated at Frontier Plantations, may obtain Licence from a Justice of Peace, for keeping Arms, & c.”); J. Ayliffe, A New Pandect of Roman Civil Law 195 (1734) (“Yet a Person might keep Arms in his House, or on his Estate, on the Account of Hunting, Navigation, Travelling, and on the Score of Selling them in the way of Trade or Commerce, or such Arms as accrued to him by way of Inheritance”); J. Trusler, A Concise View of the Common Law and Statute Law of England 270 (1781) (“if [papists] keep arms in their houses, such arms may be seized by a justice of the peace”); Some Considerations on the Game Laws 54 (1796) (“Who has been deprived by [the law] of keeping arms for his own defence? What law forbids the veriest pauper, if he can raise a sum sufficient for the purchase of
it, from mounting his Gun on his Chimney Piece . . . ?”); 3 B. Wilson, The Works of the Honourable James Wilson 84 (1804) (with reference to state constitutional right: “This is one of our many renewals of the Saxon regulations. ‘They were bound,’ says Mr. Selden, ‘to keep arms for the preservation of the kingdom, and of their own person’”); W. Duer, Outlines of the Constitutional Jurisprudence of the United States 31-32 (1833) (with reference to colonists’ English rights: “The right of every individual to keep arms for his defence, suitable to his condition and degree; which was the public allowance, under due restrictions of the natural right of resistance and selfpreservation”); 3 R. Burn, Justice of the Peace and the Parish Officer 88 (1815) (“It is, however, laid down by Serjeant Hawkins, . . . that if a lessee, after the end of the term, keep arms in his house to oppose the entry of the lessor, . . . ”); State v. Dempsey, 31 N.C. 384, 385 (1849) (citing 1840 state law making it a misdemeanor for a member of certain racial groups “to carry about his person or keep in his house any shot gun or other arms”). 8 See Pa. Declaration of Rights § XIII, in 5 Thorpe 3083 (“That the people have a right to bear arms for the defence of themselves and the state . . . ”); Vt. Declaration of Rights § XV, in 6 id., at 3741 (“That the people have a right to bear
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the right of self-defence [is] guaranteed by the [Ohio] constitution”); see also id., at 157 (equating Second Amendment with that provision of the Ohio Constitution). That was also the interpretation of those state constitutional provisions adopted by pre-Civil War state courts.9 These provisions demonstrate-again, in the most analogous linguistic context-that “bear arms” was not limited to the carrying of arms in a militia. The phrase “bear Arms” also had at the time of the founding an idiomatic meaning that was significantly different from its natural meaning: “to serve as a soldier, do military service, fight” or “to wage war.” See Linguists’ Brief 18; post, at 2827 - 2828 (STEVENS, J., dissenting). But it unequivocally bore that idiomatic meaning only when followed by the preposition “against,” which was in turn followed by the target of the hostilities. See 2 Oxford 21. (That is how, for example, our Declaration of Independence 28, used the phrase: “He has constrained our fellow Citizens taken Captive on the high Seas to bear Arms against their Country . . . .”) Every example given by petitioners’ amici for the idiomatic meaning of “bear arms” from the founding period either includes the preposition “against” or is not clearly idiomatic. See Linguists’ Brief 18-23. Without the preposition, “bear arms” normally meant (as it continues to mean today) what Justice GINSBURG’s opinion in Muscarello said.
apprised of no source that indicates that it carried that meaning at the time of the founding. But it is easy to see why petitioners and the dissent are driven to the hybrid definition. Giving “bear Arms” its idiomatic meaning would cause the protected right to consist of the right to be a soldier or to wage war-an absurdity that no commentator has ever endorsed. See L. Levy, Origins of the Bill of Rights 135 (1999). Worse still, the phrase “keep and bear Arms” would be incoherent. The word “Arms” would have two different meanings at once: “weapons” (as the object of “keep”) and (as the object of “bear”) one-half of an idiom. It would be rather like saying “He filled and kicked the bucket” to mean “He filled the bucket and died.” Grotesque.
In any event, the meaning of “bear arms” that petitioners and Justice STEVENS propose is not even the (sometimes) idiomatic meaning. Rather, they manufacture a hybrid definition, whereby “bear arms” connotes the actual carrying of arms (and therefore is not really an idiom) but only in the service of an organized militia. No dictionary has ever adopted that definition, and we have been
Petitioners justify their limitation of “bear arms” to the military context by pointing out the unremarkable fact that it was often used in that context-the same mistake they made with respect to “keep arms.” It is especially unremarkable that the phrase was often used in a military context in the federal legal sources (such as records of congressional debate) that have been the focus of petitioners’ inquiry. Those sources would have had little occasion to use it except in discussions about the standing army and the militia. And the phrases used primarily in those military discussions include not only “bear arms” but also “carry arms,” “possess arms,” and “have arms”-though no one thinks that those other phrases also had special military meanings. See Barnett, Was the Right to Keep and Bear Arms Conditioned on Service in an Organized Militia?, 83 Tex. L.Rev. 237, 261 (2004). The common references to those “fit to bear arms” in congressional discussions about the militia are matched by use of the same phrase in the few nonmilitary federal contexts where the concept would be relevant. See, e.g.,
arms for the defence of themselves and the State . . . ”); Ky. Const., Art. XII, cl. 23 (1792), in 3 id., at 1264, 1275 (“That the right of the citizens to bear arms in defence of themselves and the State shall not be questioned”); Ohio Const., Art. VIII, § 20 (1802), in 5 id., at 2901, 2911 (“That the people have a right to bear arms for the defence of themselves and the State . . . ”); Ind. Const., Art. I, § 20 (1816), in 2 id., at 1057, 1059 (“That the people have a right to bear arms for the defense of themselves and the State . . . ”); Miss. Const., Art. I, § 23 (1817), in 4 id., at 2032, 2034 (“Every citizen has a right to bear arms, in defence of himself and the State”); Conn. Const., Art. I, § 17 (1818), in 1 id., at 536, 538 (“Every citizen has a right to bear arms in defence of himself and the state”); Ala. Const., Art. I, § 23 (1819), in 1 id., at 96, 98
(“Every citizen has a right to bear arms in defence of himself and the State”); Mo. Const., Art. XIII, § 3 (1820), in 4 id., at 2150, 2163 (“[T]hat their right to bear arms in defence of themselves and of the State cannot be questioned”). See generally Volokh, State Constitutional Rights to Keep and Bear Arms, 11 Tex. Rev. L. & Politics 191 (2006). 9 See Bliss v. Commonwealth, 12 Ky. 90, 2 Litt. 90, 91-92 (1822); State v. Reid, 1 Ala. 612, 616-617 (1840); State v. Schoultz, 25 Mo. 128, 155 (1857); see also Simpson v. State, 13 Tenn. 356, 5 Yer. 356, 360 (1833) (interpreting similar provision with “common defence” purpose); State v. Huntly, 25 N.C. 418, 422-423 (1843) (same); cf. Nunn v. State, 1 Ga. 243, 250-251 (1846) (construing Second Amendment); State v. Chandler, 5 La. Ann. 489, 489-490 (1850) (same).
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30 Journals of Continental Congress 349-351 (J. Fitzpatrick ed.1934). Other legal sources frequently used “bear arms” in nonmilitary contexts.10 Cunningham’s legal dictionary, cited above, gave as an example of its usage a sentence unrelated to military affairs (“Servants and labourers shall use bows and arrows on Sundays, & c. and not bear other arms”). And if one looks beyond legal sources, “bear arms” was frequently used in nonmilitary contexts. See Cramer & Olson, What Did “Bear Arms” Mean in the Second Amendment?, 6 Georgetown J.L. & Pub. Pol’y (forthcoming Sept. 2008), online at http:// papers.ssrn.com/abstract=1086176 (as visited June 24, 2008, and available in Clerk of Court’s case file) (identifying numerous nonmilitary uses of “bear arms” from the founding period). Justice STEVENS points to a study by amici supposedly showing that the phrase “bear arms” was most frequently used in the military context. See post, at 2828 - 2829, n. 9; Linguists’ Brief 24. Of course, as we have said, the fact that the phrase was commonly used in a particular context does not show that it is limited to that context, and, in any event, we have given many sources where the phrase was used in nonmilitary contexts. Moreover, the study’s collection appears to include (who knows how many times) the idiomatic phrase “bear arms against,” which is irrelevant. The amici also dismiss examples such as “‘bear arms . . . for the purpose of killing game’” because those uses are “expressly qualified.” Linguists’ Brief 24. (Justice STEVENS uses the same excuse for 10
See J. Brydall, Privilegia Magnatud apud Anglos 14 (1704) (Privilege XXXIII) (“In the 21st Year of King Edward the Third, a Proclamation Issued, that no Person should bear any Arms within London, and the Suburbs”); J. Bond, A Compleat Guide to Justices of the Peace 43 (1707) (“Sheriffs, and all other Officers in executing their Offices, and all other persons pursuing Hu[e] and Cry may lawfully bear arms”); 1 An Abridgment of the Public Statutes in Force and Use Relative to Scotland (1755) (entry for “Arms”: “And if any person above described shall have in his custody, use, or bear arms, being thereof convicted before one justice of peace, or other judge competent, summarily, he shall for the first offense forfeit all such arms” (quoting 1 Geo. 1, c. 54, § 1)); Statute Law of Scotland Abridged 132-133 (2d ed. 1769) (“Acts for disarming the highlands” but “exempting those who have particular licenses to bear arms”); E. de Vattel, The Law of Nations, or, Principles of the Law of Nature 144 (1792) (“Since custom has allowed persons of rank and gentlemen of the army to bear arms in time of peace, strict care should be taken that none but these should be allowed to wear swords”); E. Roche, Proceedings of a Court-Martial, Held
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dismissing the state constitutional provisions analogous to the Second Amendment that identify private-use purposes for which the individual right can be asserted. See post, at 2828.) That analysis is faulty. A purposive qualifying phrase that contradicts the word or phrase it modifies is unknown this side of the looking glass (except, apparently, in some courses on Linguistics). If “bear arms” means, as we think, simply the carrying of arms, a modifier can limit the purpose of the carriage (“for the purpose of self-defense” or “to make war against the King”). But if “bear arms” means, as the petitioners and the dissent think, the carrying of arms only for military purposes, one simply cannot add “for the purpose of killing game.” The right “to carry arms in the militia for the purpose of killing game” is worthy of the mad hatter. Thus, these purposive qualifying phrases positively establish that “to bear arms” is not limited to military use.11 Justice STEVENS places great weight on James Madison’s inclusion of a conscientiousobjector clause in his original draft of the Second Amendment: “but no person religiously scrupulous of bearing arms, shall be compelled to render military service in person.” Creating the Bill of Rights 12 (H. Veit, K. Bowling, & C. Bickford eds.1991) (hereinafter Veit). He argues that this clause establishes that the drafters of the Second Amendment intended “bear Arms” to refer only to military service. See post, at 2836. It is always perilous to derive the meaning of an adopted provision from another provision at the Council-Chamber, in the City of Cork 3 (1798) (charge VI: “With having held traitorous conferences, and with having conspired, with the like intent, for the purpose of attacking and despoiling of the arms of several of the King’s subjects, qualified by law to bear arms”); C. Humphreys, A Compendium of the Common Law in force in Kentucky 482 (1822) (“[I]n this country the constitution guaranties to all persons the right to bear arms; then it can only be a crime to exercise this right in such a manner, as to terrify people unnecessarily”). 11 Justice STEVENS contends, post, at 2830, that since we assert that adding “against” to “bear arms” gives it a military meaning we must concede that adding a purposive qualifying phrase to “bear arms” can alter its meaning. But the difference is that we do not maintain that “against” alters the meaning of “bear arms” but merely that it clarifies which of various meanings (one of which is military) is intended. Justice STEVENS, however, argues that “[t]he term ‘bear arms’ is a familiar idiom; when used unadorned by any additional words, its meaning is ‘to serve as a soldier, do military service, fight.’” Post, at 2828. He therefore must establish that adding a contradictory purposive phrase can alter a word’s meaning.
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deleted in the drafting process.12 In any case, what Justice STEVENS would conclude from the deleted provision does not follow. It was not meant to exempt from military service those who objected to going to war but had no scruples about personal gunfights. Quakers opposed the use of arms not just for militia service, but for any violent purpose whatsoeverso much so that Quaker frontiersmen were forbidden to use arms to defend their families, even though “[i]n such circumstances the temptation to seize a hunting rifle or knife in self-defense . . . must sometimes have been almost overwhelming.” P. Brock, Pacifism in the United States 359 (1968); see M. Hirst, The Quakers in Peace and War 336-339 (1923); 3 T. Clarkson, Portraiture of Quakerism 103-104 (3d ed. 1807). The Pennsylvania Militia Act of 1757 exempted from service those “scrupling the use of arms”-a phrase that no one contends had an idiomatic meaning. See 5 Stat. at Large of Pa. 613 (J. Mitchell & H. Flanders eds. 1898) (emphasis added). Thus, the most natural interpretation of Madison’s deleted text is that those opposed to carrying weapons for potential violent confrontation would not be “compelled to render military service,” in which such carrying would be required.13 Finally, Justice STEVENS suggests that “keep and bear Arms” was some sort of term of art, presumably akin to “hue and cry” or “cease and desist.” (This suggestion usefully evades the problem that there is no evidence whatsoever to support a military reading of “keep arms.”) Justice STEVENS believes that the unitary meaning of “keep and bear Arms” is established by the Second Amendment’s calling 12
Justice STEVENS finds support for his legislative history inference from the recorded views of one Antifederalist member of the House. Post, at 2836 n. 25. “The claim that the best or most representative reading of the [language of the] amendments would conform to the understanding and concerns of [the Antifederalists] is . . . highly problematic.” Rakove, The Second Amendment: The Highest Stage of Originalism, Bogus 74, 81. 13 The same applies to the conscientious-objector amendments proposed by Virginia and North Carolina, which said: “That any person religiously scrupulous of bearing arms ought to be exempted upon payment of an equivalent to employ another to bear arms in his stead.” See Veit 19; 4 J. Eliot, The Debates in the Several State Constitutions on the Adoption of the Federal Constitution 243, 244 (2d ed. 1836) (reprinted 1941). Certainly their second use of the phrase (“bear arms in his stead”) refers, by reason of context, to compulsory bearing of arms for military duty. But their first use of the phrase (“any
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it a “right” (singular) rather than “rights” (plural). See post, at 2830 - 2831. There is nothing to this. State constitutions of the founding period routinely grouped multiple (related) guarantees under a singular “right,” and the First Amendment protects the “right [singular] of the people peaceably to assemble, and to petition the Government for a redress of grievances.” See, e.g., Pa. Declaration of Rights §§ IX, XII, XVI, in 5 Thorpe 3083-3084; Ohio Const., Arts. VIII, §§ 11, 19 (1802), in id., at 2910-2911.14 And even if “keep and bear Arms” were a unitary phrase, we find no evidence that it bore a military meaning. Although the phrase was not at all common (which would be unusual for a term of art), we have found instances of its use with a clearly nonmilitary connotation. In a 1780 debate in the House of Lords, for example, Lord Richmond described an order to disarm private citizens (not militia members) as “a violation of the constitutional right of Protestant subjects to keep and bear arms for their own defense.” 49 The London Magazine or Gentleman’s Monthly Intelligencer 467 (1780). In response, another member of Parliament referred to “the right of bearing arms for personal defence,” making clear that no special military meaning for “keep and bear arms” was intended in the discussion. Id., at 467-468.15 c. Meaning of the Operative Clause. Putting all of these textual elements together, we find that they guarantee the individual right to possess and carry weapons in case of confrontation. This meaning is strongly confirmed by the historical background of the Second Amendment. We look to this because it has always been widely person religiously scrupulous of bearing arms”) assuredly did not refer to people whose God allowed them to bear arms for defense of themselves but not for defense of their country. 14 Faced with this clear historical usage, Justice STEVENS resorts to the bizarre argument that because the word “to” is not included before “bear” (whereas it is included before “petition” in the First Amendment), the unitary meaning of “to keep and bear” is established. Post, at 2830, n. 13. We have never heard of the proposition that omitting repetition of the “to” causes two verbs with different meanings to become one. A promise “to support and to defend the Constitution of the United States” is not a whit different from a promise “to support and defend the Constitution of the United States.” 15 Cf. 3 Geo., 34, § 3, in 7 Eng. Stat. at Large 126 (1748) (“That the Prohibition contained . . . in this Act, of having, keeping, bearing, or wearing any Arms or Warlike Weapons . . . shall not extend . . . to any Officers or their Assistants, employed in the Execution of Justice . . . ”).
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understood that the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right. The very text of the Second Amendment implicitly recognizes the preexistence of the right and declares only that it “shall not be infringed.” As we said in United States v. Cruikshank, 92 U.S. 542, 553, 23 L.Ed. 588 (1876), “[t]his is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The Second amendment declares that it shall not be infringed . . . .”16 Between the Restoration and the Glorious Revolution, the Stuart Kings Charles II and James II succeeded in using select militias loyal to them to suppress political dissidents, in part by disarming their opponents. See J. Malcolm, To Keep and Bear Arms 31-53 (1994) (hereinafter Malcolm); L. Schwoerer, The Declaration of Rights, 1689, p. 76 (1981). Under the auspices of the 1671 Game Act, for example, the Catholic James II had ordered general disarmaments of regions home to his Protestant enemies. See Malcolm 103-106. These experiences caused Englishmen to be extremely wary of concentrated military forces run by the state and to be jealous of their arms. They accordingly obtained an assurance from William and Mary, in the Declaration of Right (which was codified as the English Bill of Rights), that Protestants would never be disarmed: “That the subjects which are Protestants may have arms for their defense suitable to their conditions and as allowed by law.” 1 W. & M., c. 2, § 7, in 3 Eng. Stat. at Large 441 (1689). This right has long been understood to be the predecessor to our Second Amendment. See E. Dumbauld, The Bill of Rights and What It Means Today 51 (1957); W. Rawle, A View of the Constitution of the United States of America 122 (1825) (hereinafter Rawle). It was clearly an individual right, having nothing whatever to do with service in a militia. To be sure, it was an individual right not available to the whole population, given that it was restricted to Protestants, and like all written English rights it was held only against the Crown, not Parliament. See Schwoerer, To Hold and Bear Arms: The English Perspective, in Bogus 207, 218; but see 3 J. Story, Commentaries on the Constitution of 16
Contrary to Justice STEVENS’ wholly unsupported assertion, post, at 2831, there was no pre-existing right in English law “to use weapons for certain military purposes” or to use arms in an organized militia.
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the United States § 1858 (1833) (hereinafter Story) (contending that the “right to bear arms” is a “limitatio[n] upon the power of parliament” as well). But it was secured to them as individuals, according to “libertarian political principles,” not as members of a fighting force. Schwoerer, Declaration of Rights, at 283; see also id., at 78; G. Jellinek, The Declaration of the Rights of Man and of Citizens 49, and n. 7 (1901) (reprinted 1979). By the time of the founding, the right to have arms had become fundamental for English subjects. See Malcolm 122-134. Blackstone, whose works, we have said, “constituted the preeminent authority on English law for the founding generation,” Alden v. Maine, 527 U.S. 706, 715, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999), cited the arms provision of the Bill of Rights as one of the fundamental rights of Englishmen. See 1 Blackstone 136, 139-140 (1765). His description of it cannot possibly be thought to tie it to militia or military service. It was, he said, “the natural right of resistance and self-preservation,” id., at 139, and “the right of having and using arms for self-preservation and defence,” id., at 140; see also 3 id., at 2-4 (1768). Other contemporary authorities concurred. See G. Sharp, Tracts, Concerning the Ancient and Only True Legal Means of National Defence, by a Free Militia 17-18, 27 (3d ed. 1782); 2 J. de Lolme, The Rise and Progress of the English Constitution 886-887 (1784) (A. Stephens ed. 1838); W. Blizard, Desultory Reflections on Police 59-60 (1785). Thus, the right secured in 1689 as a result of the Stuarts’ abuses was by the time of the founding understood to be an individual right protecting against both public and private violence. And, of course, what the Stuarts had tried to do to their political enemies, George III had tried to do to the colonists. In the tumultuous decades of the 1760’s and 1770’s, the Crown began to disarm the inhabitants of the most rebellious areas. That provoked polemical reactions by Americans invoking their rights as Englishmen to keep arms. A New York article of April 1769 said that “[i]t is a natural right which the people have reserved to themselves, confirmed by the Bill of Rights, to keep arms for their own defence.” A Journal of the Times: Mar. 17, New York Journal, Supp. 1, Apr. 13, 1769, in Boston Under Military Rule 79 (O. Dickerson ed.1936); see also, e.g., Shippen, Boston Gazette, Jan. 30, 1769, in 1 The Writings of Samuel Adams 299 (H. Cushing ed.1968). They understood the right to enable A M E R I C A N
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individuals to defend themselves. As the most important early American edition of Blackstone’s Commentaries (by the law professor and former Antifederalist St. George Tucker) made clear in the notes to the description of the arms right, Americans understood the “right of selfpreservation” as permitting a citizen to “repe[l] force by force” when “the intervention of society in his behalf, may be too late to prevent an injury.” 1 Blackstone’s Commentaries 145-146, n. 42 (1803) (hereinafter Tucker’s Blackstone). See also W. Duer, Outlines of the Constitutional Jurisprudence of the United States 31-32 (1833). There seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms. Of course the right was not unlimited, just as the First Amendment’s right of free speech was not, see, e.g., United States v. Williams, 553 U.S. ——, 128 S.Ct. 1830, 170 L.Ed.2d 650 (2008). Thus, we do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation, just as we do not read the First Amendment to protect the right of citizens to speak for any purpose. Before turning to limitations upon the individual right, however, we must determine whether the prefatory clause of the Second Amendment comports with our interpretation of the operative clause. 2. Prefatory Clause.
The prefatory clause reads: “A well regulated Militia, being necessary to the security of a free State . . . .” a. “Well-Regulated Militia.” In United States v. Miller, 307 U.S. 174, 179, 59 S.Ct. 816, 83 L.Ed. 1206 (1939), we explained that “the Militia comprised all males physically capable of acting in concert for the common defense.” That definition comports with founding-era sources. See, e.g., Webster (“The militia of a country are the able bodied men organized into companies, regiments and brigades . . . and required by law to attend military exercises on certain days only, but at other times left to pursue their usual occupations”); The Federalist No. 46, pp. 329, 334 (B. Wright ed.1961) (J. Madison) (“near half a million of citizens with arms in their hands”); Letter to Destutt de Tracy (Jan. 26, 1811), in The Portable Thomas Jefferson 520, 524 (M. Peterson ed. 1975) (“[T]he militia of the State, that is to say, of every man in it able to bear arms”). G A L E
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Petitioners take a seemingly narrower view of the militia, stating that “[m]ilitias are the stateand congressionally-regulated military forces described in the Militia Clauses (art. I, § 8, cls. 15-16).” Brief for Petitioners 12. Although we agree with petitioners’ interpretive assumption that “militia” means the same thing in Article I and the Second Amendment, we believe that petitioners identify the wrong thing, namely, the organized militia. Unlike armies and navies, which Congress is given the power to create (“to raise . . . Armies”; “to provide . . . a Navy,” Art. I, § 8, cls. 12-13), the militia is assumed by Article I already to be in existence. Congress is given the power to “provide for calling forth the militia,” § 8, cl. 15; and the power not to create, but to “organiz[e]” it-and not to organize “a” militia, which is what one would expect if the militia were to be a federal creation, but to organize “the” militia, connoting a body already in existence, ibid., cl. 16. This is fully consistent with the ordinary definition of the militia as all able-bodied men. From that pool, Congress has plenary power to organize the units that will make up an effective fighting force. That is what Congress did in the first militia Act, which specified that “each and every free able-bodied white male citizen of the respective states, resident therein, who is or shall be of the age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia.” Act of May 8, 1792, 1 Stat. 271. To be sure, Congress need not conscript every able-bodied man into the militia, because nothing in Article I suggests that in exercising its power to organize, discipline, and arm the militia, Congress must focus upon the entire body. Although the militia consists of all able-bodied men, the federally organized militia may consist of a subset of them. Finally, the adjective “well-regulated” implies nothing more than the imposition of proper discipline and training. See Johnson 1619 (“Regulate”: “To adjust by rule or method”); Rawle 121-122; cf. Va. Declaration of Rights § 13 (1776), in 7 Thorpe 3812, 3814 (referring to “a well-regulated militia, composed of the body of the people, trained to arms”). b. “Security of a Free State.” The phrase “security of a free state” meant “security of a free polity,” not security of each of the several States as the dissent below argued, see 478 F.3d, at 405, and n. 10. Joseph Story wrote in his treatise on the Constitution that “the word A M E R I C A N
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‘state’ is used in various senses [and in] its most enlarged sense, it means the people composing a particular nation or community.” 1 Story § 208; see also 3 id., § 1890 (in reference to the Second Amendment’s prefatory clause: “The militia is the natural defence of a free country”). It is true that the term “State” elsewhere in the Constitution refers to individual States, but the phrase “security of a free state” and close variations seem to have been terms of art in 18th-century political discourse, meaning a “‘free country’” or free polity. See Volokh, “Necessary to the Security of a Free State,” 83 Notre Dame L. Rev. 1, 5 (2007); see, e.g., 4 Blackstone 151 (1769); Brutus Essay III (Nov. 15, 1787), in The Essential Antifederalist 251, 253 (W. Allen & G. Lloyd eds., 2d ed.2002). Moreover, the other instances of “state” in the Constitution are typically accompanied by modifiers making clear that the reference is to the several States-“each state,” “several states,” “any state,” “that state,” “particular states,” “one state,” “no state.” And the presence of the term “foreign state” in Article I and Article III shows that the word “state” did not have a single meaning in the Constitution. There are many reasons why the militia was thought to be “necessary to the security of a free state.” See 3 Story § 1890. First, of course, it is useful in repelling invasions and suppressing insurrections. Second, it renders large standing armies unnecessary-an argument that Alexander Hamilton made in favor of federal control over the militia. The Federalist No. 29, pp. 226, 227 (B. Wright ed.1961) (A. Hamilton). Third, when the able-bodied men of a nation are trained in arms and organized, they are better able to resist tyranny. 3. Relationship between Prefatory Clause and Operative Clause
We reach the question, then: Does the preface fit with an operative clause that creates an individual right to keep and bear arms? It fits perfectly, once one knows the history that the founding generation knew and that we have described above. That history showed that the way tyrants had eliminated a militia consisting of all the able-bodied men was not by banning the militia but simply by taking away the people’s arms, enabling a select militia or standing army to suppress political opponents. This is what had occurred in England that prompted codification of the right to have arms in the English Bill of Rights. G A L E
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The debate with respect to the right to keep and bear arms, as with other guarantees in the Bill of Rights, was not over whether it was desirable (all agreed that it was) but over whether it needed to be codified in the Constitution. During the 1788 ratification debates, the fear that the federal government would disarm the people in order to impose rule through a standing army or select militia was pervasive in Antifederalist rhetoric. See, e.g., Letters from The Federal Farmer III (Oct. 10, 1787), in 2 The Complete Anti-Federalist 234, 242 (H. Storing ed.1981). John Smilie, for example, worried not only that Congress’s “command of the militia” could be used to create a “select militia,” or to have “no militia at all,” but also, as a separate concern, that “[w]hen a select militia is formed; the people in general may be disarmed.” 2 Documentary History of the Ratification of the Constitution 508-509 (M. Jensen ed.1976) (hereinafter Documentary Hist.). Federalists responded that because Congress was given no power to abridge the ancient right of individuals to keep and bear arms, such a force could never oppress the people. See, e.g., A Pennsylvanian III (Feb. 20, 1788), in The Origin of the Second Amendment 275, 276 (D. Young ed., 2d ed.2001) (hereinafter Young); White, To the Citizens of Virginia, Feb. 22, 1788, in id., at 280, 281; A Citizen of America, (Oct. 10, 1787) in id., at 38, 40; Remarks on the Amendments to the federal Constitution, Nov. 7, 1788, in id., at 556. It was understood across the political spectrum that the right helped to secure the ideal of a citizen militia, which might be necessary to oppose an oppressive military force if the constitutional order broke down. It is therefore entirely sensible that the Second Amendment’s prefatory clause announces the purpose for which the right was codified: to prevent elimination of the militia. The prefatory clause does not suggest that preserving the militia was the only reason Americans valued the ancient right; most undoubtedly thought it even more important for self-defense and hunting. But the threat that the new Federal Government would destroy the citizens’ militia by taking away their arms was the reason that right-unlike some other English rights-was codified in a written Constitution. Justice BREYER’s assertion that individual selfdefense is merely a “subsidiary interest” of the right to keep and bear arms, see post, at 2841, is A M E R I C A N
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profoundly mistaken. He bases that assertion solely upon the prologue-but that can only show that self-defense had little to do with the right’s codification; it was the central component of the right itself. Besides ignoring the historical reality that the Second Amendment was not intended to lay down a “novel principl[e]” but rather codified a right “inherited from our English ancestors,” Robertson v. Baldwin, 165 U.S. 275, 281, 17 S.Ct. 326, 41 L.Ed. 715 (1897), petitioners’ interpretation does not even achieve the narrower purpose that prompted codification of the right. If, as they believe, the Second Amendment right is no more than the right to keep and use weapons as a member of an organized militia, see Brief for Petitioners 8-if, that is, the organized militia is the sole institutional beneficiary of the Second Amendment’s guaranteeit does not assure the existence of a “citizens’ militia” as a safeguard against tyranny. For Congress retains plenary authority to organize the militia, which must include the authority to say who will belong to the organized force.17 That is why the first Militia Act’s requirement that only whites enroll caused States to amend their militia laws to exclude free blacks. See Siegel, The Federal Government’s Power to Enact ColorConscious Laws, 92 Nw. U.L.Rev. 477, 521-525 (1998). Thus, if petitioners are correct, the Second Amendment protects citizens’ right to use a gun in an organization from which Congress has plenary authority to exclude them. It guarantees a select militia of the sort the Stuart kings found useful, but not the people’s militia that was the concern of the founding generation. 17
Article I, § 8, cl. 16 of the Constitution gives Congress the power [t]o provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.” It could not be clearer that Congress’s “organizing” power, unlike its “governing” power, can be invoked even for that part of the militia not “employed in the Service of the United States.” Justice STEVENS provides no support whatever for his contrary view, see post, at 2832 n. 20. Both the Federalists and Anti-Federalists read the provision as it was written, to permit the creation of a “select” militia. See The Federalist No. 29, pp. 226, 227 (B. Wright ed.1961); Centinel, Revived, No. XXIX, Philadelphia Independent Gazetteer, Sept. 9, 1789, in Young 711, 712.
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Our interpretation is confirmed by analogous arms-bearing rights in state constitutions that preceded and immediately followed adoption of the Second Amendment. Four States adopted analogues to the Federal Second Amendment in the period between independence and the ratification of the Bill of Rights. Two of themPennsylvania and Vermont-clearly adopted individual rights unconnected to militia service. Pennsylvania’s Declaration of Rights of 1776 said: “That the people have a right to bear arms for the defence of themselves, and the state. . . . ” § XIII, in 5 Thorpe 3082, 3083 (emphasis added). In 1777, Vermont adopted the identical provision, except for inconsequential differences in punctuation and capitalization. See Vt. Const., ch. 1, § 15, in 6 id., at 3741. North Carolina also codified a right to bear arms in 1776: “That the people have a right to bear arms, for the defence of the State . . . .” Declaration of Rights § XVII, in id., at 2787, 2788. This could plausibly be read to support only a right to bear arms in a militia-but that is a peculiar way to make the point in a constitution that elsewhere repeatedly mentions the militia explicitly. See §§ 14, 18, 35, in 5 id., 2789, 2791, 2793. Many colonial statutes required individual arms-bearing for publicsafety reasons-such as the 1770 Georgia law that “for the security and defence of this province from internal dangers and insurrections” required those men who qualified for militia duty individually “to carry fire arms” “to places of public worship.” 19 Colonial Records of the State of Georgia 137-139 (A. Candler ed.1911 (pt. 2)) (emphasis added). That broad publicsafety understanding was the connotation given to the North Carolina right by that State’s Supreme Court in 1843. See State v. Huntly, 25 N.C. 418, 3 Ired. 418, 422-423. The 1780 Massachusetts Constitution presented another variation on the theme: “The people have a right to keep and to bear arms for the common defence . . . .” Pt. First, Art. XVII, in 3 Thorpe 1888, 1892. Once again, if one gives narrow meaning to the phrase “common defence” this can be thought to limit the right to the bearing of arms in a state-organized military force. But once again the State’s highest court thought otherwise. Writing for the court in an 1825 libel case, Chief Justice Parker wrote: “The liberty of the press was to be unrestrained, A M E R I C A N
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but he who used it was to be responsible in cases of its abuse; like the right to keep fire arms, which does not protect him who uses them for annoyance or destruction.” Commonwealth v. Blanding, 20 Mass. 304, 313-314. The analogy makes no sense if firearms could not be used for any individual purpose at all. See also Kates, Handgun Prohibition and the Original Meaning of the Second Amendment, 82 Mich. L.Rev. 204, 244 (1983) (19th-century courts never read “common defence” to limit the use of weapons to militia service). We therefore believe that the most likely reading of all four of these pre-Second Amendment state constitutional provisions is that they secured an individual right to bear arms for defensive purposes. Other States did not include rights to bear arms in their pre-1789 constitutions-although in Virginia a Second Amendment analogue was proposed (unsuccessfully) by Thomas Jefferson. (It read: “No freeman shall ever be debarred the use of arms [within his own lands or tenements].”18 1 The Papers of Thomas Jefferson 344 (J. Boyd ed.1950)). Between 1789 and 1820, nine States adopted Second Amendment analogues. Four of themKentucky, Ohio, Indiana, and Missouri-referred to the right of the people to “bear arms in defence of themselves and the State.” See n. 8, supra. Another three States-Mississippi, Connecticut, and Alabama-used the even more individualistic phrasing that each citizen has the “right to bear arms in defence of himself and the State.” See ibid. Finally, two StatesTennessee and Maine-used the “common defence” language of Massachusetts. See Tenn. Const., Art. XI, § 26 (1796), in 6 Thorpe 3414, 3424; Me. Const., Art. I, § 16 (1819), in 3 id., at 1646, 1648. That of the nine state constitutional protections for the right to bear arms enacted immediately after 1789 at least seven unequivocally protected an individual citizen’s right to self-defense is strong evidence that that is how the founding generation conceived of the right. And with one possible exception that we discuss in Part II-D-2, 19th-century courts and commentators interpreted these state constitutional 18
Justice STEVENS says that the drafters of the Virginia Declaration of Rights rejected this proposal and adopted “instead” a provision written by George Mason stressing the importance of the militia. See post, at 2835, and n. 24. There is no evidence that the drafters regarded the Mason proposal as a substitute for the Jefferson proposal.
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provisions to protect an individual right to use arms for self-defense. See n. 9, supra; Simpson v. State, 13 Tenn. 356, 5 Yer. 356, 360 (1833). The historical narrative that petitioners must endorse would thus treat the Federal Second Amendment as an odd outlier, protecting a right unknown in state constitutions or at English common law, based on little more than an overreading of the prefatory clause. C
Justice STEVENS relies on the drafting history of the Second Amendment—the various proposals in the state conventions and the debates in Congress. It is dubious to rely on such history to interpret a text that was widely understood to codify a pre-existing right, rather than to fashion a new one. But even assuming that this legislative history is relevant, Justice STEVENS flatly misreads the historical record. It is true, as Justice STEVENS says, that there was concern that the Federal Government would abolish the institution of the state militia. See post, at 2832 - 2833. That concern found expression, however, not in the various Second Amendment precursors proposed in the State conventions, but in separate structural provisions that would have given the States concurrent and seemingly nonpre-emptible authority to organize, discipline, and arm the militia when the Federal Government failed to do so. See Veit 17, 20 (Virginia proposal); 4 J. Eliot, The Debates in the Several State Conventions on the Adoption of the Federal Constitution 244, 245 (2d ed. 1836) (reprinted 1941) (North Carolina proposal); see also 2 Documentary Hist. 624 (Pennsylvania minority’s proposal). The Second Amendment precursors, by contrast, referred to the individual English right already codified in two (and probably four) State constitutions. The Federalist-dominated first Congress chose to reject virtually all major structural revisions favored by the Antifederalists, including the proposed militia amendments. Rather, it adopted primarily the popular and uncontroversial (though, in the Federalists’ view, unnecessary) individual-rights amendments. The Second Amendment right, protecting only individuals’ liberty to keep and carry arms, did nothing to assuage Antifederalists’ concerns about federal control of the militia. See, e.g., Centinel, Revived, No. XXIX, Philadelphia Independent Gazetteer, Sept. 9, 1789, in Young 711, 712. Justice STEVENS thinks it significant that the Virginia, New York, and North Carolina Second A M E R I C A N
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Amendment proposals were “embedded . . . within a group of principles that are distinctly military in meaning,” such as statements about the danger of standing armies. Post, at 28332834. But so was the highly influential minority proposal in Pennsylvania, yet that proposal, with its reference to hunting, plainly referred to an individual right. See 2 Documentary Hist. 624. Other than that erroneous point, Justice STEVENS has brought forward absolutely no evidence that those proposals conferred only a right to carry arms in a militia. By contrast, New Hampshire’s proposal, the Pennsylvania minority’s proposal, and Samuel Adams’ proposal in Massachusetts unequivocally referred to individual rights, as did two state constitutional provisions at the time. See Veit 16, 17 (New Hampshire proposal); 6 Documentary Hist. 1452, 1453 (J. Kaminski & G. Saladino eds. 2000) (Samuel Adams’ proposal). Justice STEVENS’ view thus relies on the proposition, unsupported by any evidence, that different people of the founding period had vastly different conceptions of the right to keep and bear arms. That simply does not comport with our longstanding view that the Bill of Rights codified venerable, widely understood liberties. D
We now address how the Second Amendment was interpreted from immediately after its ratification through the end of the 19th century. Before proceeding, however, we take issue with Justice STEVENS’ equating of these sources with postenactment legislative history, a comparison that betrays a fundamental misunderstanding of a court’s interpretive task. See post, at 2837, n. 28. “Legislative history,” of course, refers to the preenactment statements of those who drafted or voted for a law; it is considered persuasive by some, not because they reflect the general understanding of the disputed terms, but because the legislators who heard or read those statements presumably voted with that understanding. Ibid. “Postenactment legislative history,” ibid., a deprecatory contradiction in terms, refers to statements of those who drafted or voted for the law that are made after its enactment and hence could have had no effect on the congressional vote. It most certainly does not refer to the examination of a variety of legal and other sources to determine the public understanding of a legal text in the period after its enactment or ratification. That sort of inquiry is a critical tool of G A L E
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constitutional interpretation. As we will show, virtually all interpreters of the Second Amendment in the century after its enactment interpreted the amendment as we do. 1. Post-Ratification Commentary
Three important founding-era legal scholars interpreted the Second Amendment in published writings. All three understood it to protect an individual right unconnected with militia service. St. George Tucker’s version of Blackstone’s Commentaries, as we explained above, conceived of the Blackstonian arms right as necessary for self-defense. He equated that right, absent the religious and class-based restrictions, with the Second Amendment. See 2 Tucker’s Blackstone 143. In Note D, entitled, “View of the Constitution of the United States,” Tucker elaborated on the Second Amendment: “This may be considered as the true palladium of liberty . . . . The right to self-defence is the first law of nature: in most governments it has been the study of rulers to confine the right within the narrowest limits possible. Wherever standing armies are kept up, and the right of the people to keep and bear arms is, under any colour or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction.” 1 id., at App. 300 (ellipsis in original). He believed that the English game laws had abridged the right by prohibiting “keeping a gun or other engine for the destruction of game.” Ibid; see also 2 id., at 143, and nn. 40 and 41. He later grouped the right with some of the individual rights included in the First Amendment and said that if “a law be passed by congress, prohibiting” any of those rights, it would “be the province of the judiciary to pronounce whether any such act were constitutional, or not; and if not, to acquit the accused . . . .” 1 id., at App. 357. It is unlikely that Tucker was referring to a person’s being “accused” of violating a law making it a crime to bear arms in a state militia.19 19 JUSTICE STEVENS quotes some of Tucker’s unpublished notes, which he claims show that Tucker had ambiguous views about the Second Amendment. See post, at 31, and n. 32. But it is clear from the notes that Tucker located the power of States to arm their militias in the Tenth Amendment, and that he cited the Second Amendment for the proposition that such armament could not run afoul of any power of the federal government (since the amendment prohibits Congress from ordering disarmament). Nothing in the passage implies that the Second Amendment pertains only to the carrying of arms in the organized militia.
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In 1825, William Rawle, a prominent lawyer who had been a member of the Pennsylvania Assembly that ratified the Bill of Rights, published an influential treatise, which analyzed the Second Amendment as follows: The first [principle] is a declaration that a well regulated militia is necessary to the security of a free state; a proposition from which few will dissent . . . . “The corollary, from the first position is, that the right of the people to keep and bear arms shall not be infringed. The prohibition is general. No clause in the constitution could by any rule of construction be conceived to give to congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretence by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both.” Rawle 121-122.20
Like Tucker, Rawle regarded the English game laws as violating the right codified in the Second Amendment. See id., 122-123. Rawle clearly differentiated between the people’s right to bear arms and their service in a militia: “In a people permitted and accustomed to bear arms, we have the rudiments of a militia, which properly consists of armed citizens, divided into military bands, and instructed at least in part, in the use of arms for the purposes of war.” Id., at 140. Rawle further said that the Second Amendment right ought not “be abused to the disturbance of the public peace,” such as by assembling with other armed individuals “for an unlawful purpose”-statements that make no sense if the right does not extend to any individual purpose. Joseph Story published his famous Commentaries on the Constitution of the United States in 1833. Justice STEVENS suggests that “[t]here is not so much as a whisper” in Story’s explanation of the Second Amendment that favors the individual-rights view. Post, at 2840. That is wrong. Story explained that the English Bill of Rights had also included a “right to bear arms,” a right that, as we have discussed, had 20
Rawle, writing before our decision in Barron ex rel. Tiernan v. Mayor of Baltimore, 7 Pet. 243, 8 L.Ed. 672 (1833), believed that the Second Amendment could be applied against the States. Such a belief would of course be nonsensical on petitioners’ view that it protected only a right to possess and carry arms when conscripted by the State itself into militia service.
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nothing to do with militia service. 3 Story § 1858. He then equated the English right with the Second Amendment: § 1891. A similar provision [to the Second Amendment] in favour of protestants (for to them it is confined) is to be found in the bill of rights of 1688, it being declared, ‘that the subjects, which are protestants, may have arms for their defence suitable to their condition, and as allowed by law.’ But under various pretences the effect of this provision has been greatly narrowed; and it is at present in England more nominal than real, as a defensive privilege.” (Footnotes omitted.)
This comparison to the Declaration of Right would not make sense if the Second Amendment right was the right to use a gun in a militia, which was plainly not what the English right protected. As the Tennessee Supreme Court recognized 38 years after Story wrote his Commentaries, “[t]he passage from Story, shows clearly that this right was intended . . . and was guaranteed to, and to be exercised and enjoyed by the citizen as such, and not by him as a soldier, or in defense solely of his political rights.” Andrews v. State, 50 Tenn. 165, 183 (1871). Story’s Commentaries also cite as support Tucker and Rawle, both of whom clearly viewed the right as unconnected to militia service. See 3 Story § 1890, n. 2; § 1891, n. 3. In addition, in a shorter 1840 work Story wrote: “One of the ordinary modes, by which tyrants accomplish their purposes without resistance, is, by disarming the people, and making it an offence to keep arms, and by substituting a regular army in the stead of a resort to the militia.” A Familiar Exposition of the Constitution of the United States § 450 (reprinted in 1986). Antislavery advocates routinely invoked the right to bear arms for self-defense. Joel Tiffany, for example, citing Blackstone’s description of the right, wrote that “the right to keep and bear arms, also implies the right to use them if necessary in self defence; without this right to use the guaranty would have hardly been worth the paper it consumed.” A Treatise on the Unconstitutionality of American Slavery 117-118 (1849); see also L. Spooner, The Unconstitutionality of Slavery 116 (1845) (right enables “personal defence”). In his famous Senate speech about the 1856 “Bleeding Kansas” conflict, Charles Sumner proclaimed: The rifle has ever been the companion of the pioneer and, under God, his tutelary protector against the red man and the beast of the
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forest. Never was this efficient weapon more needed in just self-defence, than now in Kansas, and at least one article in our National Constitution must be blotted out, before the complete right to it can in any way be impeached. And yet such is the madness of the hour, that, in defiance of the solemn guarantee, embodied in the Amendments to the Constitution, that ‘the right of the people to keep and bear arms shall not be infringed,’ the people of Kansas have been arraigned for keeping and bearing them, and the Senator from South Carolina has had the face to say openly, on this floor, that they should be disarmed-of course, that the fanatics of Slavery, his allies and constituents, may meet no impediment.” The Crime Against Kansas, May 19-20, 1856, in American Speeches: Political Oratory from the Revolution to the Civil War 553, 606-607 (2006).
We have found only one early 19th-century commentator who clearly conditioned the right to keep and bear arms upon service in the militiaand he recognized that the prevailing view was to the contrary. “The provision of the constitution, declaring the right of the people to keep and bear arms, & c. was probably intended to apply to the right of the people to bear arms for such [militiarelated] purposes only, and not to prevent congress or the legislatures of the different states from enacting laws to prevent the citizens from always going armed. A different construction however has been given to it.” B. Oliver, The Rights of an American Citizen 177 (1832). 2. Pre-Civil War Case Law
The 19th-century cases that interpreted the Second Amendment universally support an individual right unconnected to militia service. In Houston v. Moore, 5 Wheat. 1, 24, 5 L.Ed. 19 (1820), this Court held that States have concurrent power over the militia, at least where not pre-empted by Congress. Agreeing in dissent that States could “organize, discipline, and arm” the militia in the absence of conflicting federal regulation, Justice Story said that the Second Amendment “may not, perhaps, be thought to have any important bearing on this point. If it have, it confirms and illustrates, rather than impugns the reasoning already suggested.” Id., at 51-53. Of course, if the Amendment simply “protect[ed] the right of the people of each of the several States to maintain a well-regulated militia,” post, at 2822 (STEVENS, J., dissenting), it would have enormous and obvious bearing on the point. But the Court and Story derived the G A L E
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States’ power over the militia from the nonexclusive nature of federal power, not from the Second Amendment, whose preamble merely “confirms and illustrates” the importance of the militia. Even clearer was Justice Baldwin. In the famous fugitive-slave case of Johnson v. Tompkins, 13 F. Cas. 840, 850, 852 (CC Pa. 1833), Baldwin, sitting as a circuit judge, cited both the Second Amendment and the Pennsylvania analogue for his conclusion that a citizen has “a right to carry arms in defence of his property or person, and to use them, if either were assailed with such force, numbers or violence as made it necessary for the protection or safety of either.” Many early 19th-century state cases indicated that the Second Amendment right to bear arms was an individual right unconnected to militia service, though subject to certain restrictions. A Virginia case in 1824 holding that the Constitution did not extend to free blacks explained that “numerous restrictions imposed on [blacks] in our Statute Book, many of which are inconsistent with the letter and spirit of the Constitution, both of this State and of the United States as respects the free whites, demonstrate, that, here, those instruments have not been considered to extend equally to both classes of our population. We will only instance the restriction upon the migration of free blacks into this State, and upon their right to bear arms.” Aldridge v. Commonwealth, 4 Va. 447, 2 Va. Cas. 447, 449 (Gen.Ct.). The claim was obviously not that blacks were prevented from carrying guns in the militia.21 See also Waters v. 21
Justice STEVENS suggests that this is not obvious because free blacks in Virginia had been required to muster without arms. See post, at 2837, n. 29 (citing Siegel, The Federal Government’s Power to Enact Color-Conscious Laws, 92 Nw. U.L.Rev. 477, 497 (1998)). But that could not have been the type of law referred to in Aldridge, because that practice had stopped 30 years earlier when blacks were excluded entirely from the militia by the First Militia Act. See Siegel, supra, at 498, n. 120. Justice STEVENS further suggests that laws barring blacks from militia service could have been said to violate the “right to bear arms.” But under Justice STEVENS’ reading of the Second Amendment (we think), the protected right is the right to carry arms to the extent one is enrolled in the militia, not the right to be in the militia. Perhaps Justice STEVENS really does adopt the full-blown idiomatic meaning of “bear arms,” in which case every man and woman in this country has a right “to be a soldier” or even “to wage war.” In any case, it is clear to us that Aldridge’s allusion to the existing Virginia “restriction” upon the right of free blacks “to bear arms” could only have referred to “laws prohibiting blacks from keeping weapons,” Siegel, supra, at 497-498.
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State, 1 Gill 302, 309 (Md.1843) (because free blacks were treated as a “dangerous population,” “laws have been passed to prevent their migration into this State; to make it unlawful for them to bear arms; to guard even their religious assemblages with peculiar watchfulness”). An 1829 decision by the Supreme Court of Michigan said: “The constitution of the United States also grants to the citizen the right to keep and bear arms. But the grant of this privilege cannot be construed into the right in him who keeps a gun to destroy his neighbor. No rights are intended to be granted by the constitution for an unlawful or unjustifiable purpose.” United States v. Sheldon, in 5 Transactions of the Supreme Court of the Territory of Michigan 337, 346 (W. Blume ed.1940) (hereinafter Blume). It is not possible to read this as discussing anything other than an individual right unconnected to militia service. If it did have to do with militia service, the limitation upon it would not be any “unlawful or unjustifiable purpose,” but any nonmilitary purpose whatsoever. In Nunn v. State, 1 Ga. 243, 251 (1846), the Georgia Supreme Court construed the Second Amendment as protecting the “natural right of self-defence” and therefore struck down a ban on carrying pistols openly. Its opinion perfectly captured the way in which the operative clause of the Second Amendment furthers the purpose announced in the prefatory clause, in continuity with the English right: The right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, and not such merely as are used by the militia, shall not be infringed, curtailed, or broken in upon, in the smallest degree; and all this for the important end to be attained: the rearing up and qualifying a well-regulated militia, so vitally necessary to the security of a free State. Our opinion is, that any law, State or Federal, is repugnant to the Constitution, and void, which contravenes this right, originally belonging to our forefathers, trampled under foot by Charles I. and his two wicked sons and successors, re-established by the revolution of 1688, conveyed to this land of liberty by the colonists, and finally incorporated conspicuously in our own Magna Charta!
Likewise, in State v. Chandler, 5 La. Ann. 489, 490 (1850), the Louisiana Supreme Court held that citizens had a right to carry arms openly: “This is the right guaranteed by the G A L E
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Constitution of the United States, and which is calculated to incite men to a manly and noble defence of themselves, if necessary, and of their country, without any tendency to secret advantages and unmanly assassinations.” Those who believe that the Second Amendment preserves only a militia-centered right place great reliance on the Tennessee Supreme Court’s 1840 decision in Aymette v. State, 21 Tenn. 154. The case does not stand for that broad proposition; in fact, the case does not mention the word “militia” at all, except in its quoting of the Second Amendment. Aymette held that the state constitutional guarantee of the right to “bear” arms did not prohibit the banning of concealed weapons. The opinion first recognized that both the state right and the federal right were descendents of the 1689 English right, but (erroneously, and contrary to virtually all other authorities) read that right to refer only to “protect[ion of] the public liberty” and “keep[ing] in awe those in power,” id., at 158. The court then adopted a sort of middle position, whereby citizens were permitted to carry arms openly, unconnected with any service in a formal militia, but were given the right to use them only for the military purpose of banding together to oppose tyranny. This odd reading of the right is, to be sure, not the one we adopt-but it is not petitioners’ reading either. More importantly, seven years earlier the Tennessee Supreme Court had treated the state constitutional provision as conferring a right “of all the free citizens of the State to keep and bear arms for their defence,” Simpson, 13 Tenn. 356, 5 Yer., at 360; and 21 years later the court held that the “keep” portion of the state constitutional right included the right to personal selfdefense: “[T]he right to keep arms involves, necessarily, the right to use such arms for all the ordinary purposes, and in all the ordinary modes usual in the country, and to which arms are adapted, limited by the duties of a good citizen in times of peace.” Andrews, 50 Tenn., at 178; see also ibid. (equating state provision with Second Amendment). 3. Post-Civil War Legislation.
In the aftermath of the Civil War, there was an outpouring of discussion of the Second Amendment in Congress and in public discourse, as people debated whether and how to secure constitutional rights for newly free slaves. See A M E R I C A N
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generally S. Halbrook, Freedmen, the Fourteenth Amendment, and the Right to Bear Arms, 18661876 (1998) (hereinafter Halbrook); Brief for Institute for Justice as Amicus Curiae. Since those discussions took place 75 years after the ratification of the Second Amendment, they do not provide as much insight into its original meaning as earlier sources. Yet those born and educated in the early 19th century faced a widespread effort to limit arms ownership by a large number of citizens; their understanding of the origins and continuing significance of the Amendment is instructive. Blacks were routinely disarmed by Southern States after the Civil War. Those who opposed these injustices frequently stated that they infringed blacks’ constitutional right to keep and bear arms. Needless to say, the claim was not that blacks were being prohibited from carrying arms in an organized state militia. A Report of the Commission of the Freedmen’s Bureau in 1866 stated plainly: “[T]he civil law [of Kentucky] prohibits the colored man from bearing arms . . . . Their arms are taken from them by the civil authorities . . . . Thus, the right of the people to keep and bear arms as provided in the Constitution is infringed.” H.R. Exec. Doc. No. 70, 39th Cong., 1st Sess., 233, 236. A joint congressional Report decried: in some parts of [South Carolina], armed parties are, without proper authority, engaged in seizing all fire-arms found in the hands of the freemen. Such conduct is in clear and direct violation of their personal rights as guaranteed by the Constitution of the United States, which declares that ‘the right of the people to keep and bear arms shall not be infringed.’ The freedmen of South Carolina have shown by their peaceful and orderly conduct that they can safely be trusted with fire-arms, and they need them to kill game for subsistence, and to protect their crops from destruction by birds and animals.” Joint Comm. on Reconstruction, H.R.Rep. No. 30, 39th Cong., 1st Sess., pt. 2, p. 229 (1866) (Proposed Circular of Brigadier General R. Saxton).
The view expressed in these statements was widely reported and was apparently widely held. For example, an editorial in The Loyal Georgian (Augusta) on February 3, 1866, assured blacks that “[a]ll men, without distinction of color, have the right to keep and bear arms to defend their homes, families or themselves.” Halbrook 19. G A L E
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Congress enacted the Freedmen’s Bureau Act on July 16, 1866. Section 14 stated: [T]he right . . . to have full and equal benefit of all laws and proceedings concerning personal liberty, personal security, and the acquisition, enjoyment, and disposition of estate, real and personal, including the constitutional right to bear arms, shall be secured to and enjoyed by all the citizens . . . without respect to race or color, or previous condition of slavery . . . .” 14 Stat. 176-177.
The understanding that the Second Amendment gave freed blacks the right to keep and bear arms was reflected in congressional discussion of the bill, with even an opponent of it saying that the founding generation “were for every man bearing his arms about him and keeping them in his house, his castle, for his own defense.” Cong. Globe, 39th Cong., 1st Sess., 362, 371 (1866) (Sen. Davis). Similar discussion attended the passage of the Civil Rights Act of 1871 and the Fourteenth Amendment. For example, Representative Butler said of the Act: “Section eight is intended to enforce the well-known constitutional provision guaranteeing the right of the citizen to ‘keep and bear arms,’ and provides that whoever shall take away, by force or violence, or by threats and intimidation, the arms and weapons which any person may have for his defense, shall be deemed guilty of larceny of the same.” H.R. Rep. No. 37, 41st Cong., 3d Sess., pp. 7-8 (1871). With respect to the proposed Amendment, Senator Pomeroy described as one of the three “indispensable” “safeguards of liberty . . . under the Constitution” a man’s “right to bear arms for the defense of himself and family and his homestead.” Cong. Globe, 39th Cong., 1st Sess., 1182 (1866). Representative Nye thought the Fourteenth Amendment unnecessary because “[a]s citizens of the United States [blacks] have equal right to protection, and to keep and bear arms for self-defense.” Id., at 1073 (1866). It was plainly the understanding in the postCivil War Congress that the Second Amendment protected an individual right to use arms for self-defense. 4. Post-Civil War Commentators.
Every late-19th-century legal scholar that we have read interpreted the Second Amendment to secure an individual right unconnected with militia service. The most famous was the judge and professor Thomas Cooley, who wrote a A M E R I C A N
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massively popular 1868 Treatise on Constitutional Limitations. Concerning the Second Amendment it said: Among the other defences to personal liberty should be mentioned the right of the people to keep and bear arms . . . . The alternative to a standing army is ‘a well-regulated militia,’ but this cannot exist unless the people are trained to bearing arms. How far it is in the power of the legislature to regulate this right, we shall not undertake to say, as happily there has been very little occasion to discuss that subject by the courts.” Id., at 350.
That Cooley understood the right not as connected to militia service, but as securing the militia by ensuring a populace familiar with arms, is made even clearer in his 1880 work, General Principles of Constitutional Law. The Second Amendment, he said, “was adopted with some modification and enlargement from the English Bill of Rights of 1688, where it stood as a protest against arbitrary action of the overturned dynasty in disarming the people.” Id., at 270. In a section entitled “The Right in General,” he continued: It might be supposed from the phraseology of this provision that the right to keep and bear arms was only guaranteed to the militia; but this would be an interpretation not warranted by the intent. The militia, as has been elsewhere explained, consists of those persons who, under the law, are liable to the performance of military duty, and are officered and enrolled for service when called upon. But the law may make provision for the enrolment of all who are fit to perform military duty, or of a small number only, or it may wholly omit to make any provision at all; and if the right were limited to those enrolled, the purpose of this guaranty might be defeated altogether by the action or neglect to act of the government it was meant to hold in check. The meaning of the provision undoubtedly is, that the people, from whom the militia must be taken, shall have the right to keep and bear arms; and they need no permission or regulation of law for the purpose. But this enables government to have a well-regulated militia; for to bear arms implies something more than the mere keeping; it implies the learning to handle and use them in a way that makes those who keep them ready for their efficient use; in other words, it implies the right to meet for voluntary discipline in arms, observing in doing so the laws of public order. Id., at 271.
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example from each decade will convey the general flavor: [The purpose of the Second Amendment is] to secure a well-armed militia . . . . But a militia would be useless unless the citizens were enabled to exercise themselves in the use of warlike weapons. To preserve this privilege, and to secure to the people the ability to oppose themselves in military force against the usurpations of government, as well as against enemies from without, that government is forbidden by any law or proceeding to invade or destroy the right to keep and bear arms . . . . The clause is analogous to the one securing the freedom of speech and of the press. Freedom, not license, is secured; the fair use, not the libellous abuse, is protected.
J. Pomeroy, An Introduction to the Constitutional Law of the United States 152-153 (1868) (hereinafter Pomeroy). As the Constitution of the United States, and the constitutions of several of the states, in terms more or less comprehensive, declare the right of the people to keep and bear arms, it has been a subject of grave discussion, in some of the state courts, whether a statute prohibiting persons, when not on a journey, or as travellers, from wearing or carrying concealed weapons, be constitutional. There has been a great difference of opinion on the question.”
2 J. Kent, Commentaries on American Law *340, n. 2 (O. Holmes ed., 12th ed. 1873) (hereinafter Kent). Some general knowledge of firearms is important to the public welfare; because it would be impossible, in case of war, to organize promptly an efficient force of volunteers unless the people had some familiarity with weapons of war. The Constitution secures the right of the people to keep and bear arms. No doubt, a citizen who keeps a gun or pistol under judicious precautions, practices in safe places the use of it, and in due time teaches his sons to do the same, exercises his individual right. No doubt, a person whose residence or duties involve peculiar peril may keep a pistol for prudent self-defence.
B. Abbott, Judge and Jury: A Popular Explanation of the Leading Topics in the Law of the Land 333 (1880) (hereinafter Abbott). The right to bear arms has always been the distinctive privilege of freemen. Aside from any necessity of self-protection to the person, it represents among all nations power coupled with the exercise of a certain jurisdiction. . . . [I]t was not necessary that the right to bear arms should be granted in the Constitution, for it had always existed.
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J. Ordronaux, Constitutional Legislation in the United States 241-242 (1891). E
We now ask whether any of our precedents forecloses the conclusions we have reached about the meaning of the Second Amendment. United States v. Cruikshank, 92 U.S. 542, 23 L. Ed. 588, in the course of vacating the convictions of members of a white mob for depriving blacks of their right to keep and bear arms, held that the Second Amendment does not by its own force apply to anyone other than the Federal Government. The opinion explained that the right “is not a right granted by the Constitution [or] in any manner dependent upon that instrument for its existence. The second amendment . . . means no more than that it shall not be infringed by Congress.” 92 U.S., at 553. States, we said, were free to restrict or protect the right under their police powers. The limited discussion of the Second Amendment in Cruikshank supports, if anything, the individual-rights interpretation. There was no claim in Cruikshank that the victims had been deprived of their right to carry arms in a militia; indeed, the Governor had disbanded the local militia unit the year before the mob’s attack, see C. Lane, The Day Freedom Died 62 (2008). We described the right protected by the Second Amendment as “‘bearing arms for a lawful purpose’”22 and said that “the people [must] look for their protection against any violation by their fellow-citizens of the rights it recognizes” to the States’ police power. 92 U.S., at 553. That discussion makes little sense if it is only a right to bear arms in a state militia.23 Justice STEVENS’ accusation that this is “not accurate,” post, at 2843, is wrong. It is true it was the indictment that described the right as “bearing arms for a lawful purpose.” But, in explicit reference to the right described in the indictment, the Court stated that “The second amendment declares that it [i.e., the right of bearing arms for a lawful purpose] shall not be infringed.” 92 U.S., at 553. 23 With respect to Cruikshank’s continuing validity on incorporation, a question not presented by this case, we note that Cruikshank also said that the First Amendment did not apply against the States and did not engage in the sort of Fourteenth Amendment inquiry required by our later cases. Our later decisions in Presser v. Illinois, 116 U.S. 252, 265, 6 S.Ct. 580, 29 L.Ed. 615 (1886) and Miller v. Texas, 153 U.S. 535, 538, 14 S.Ct. 874, 38 L.Ed. 812 (1894), reaffirmed that the Second Amendment applies only to the Federal Government. 22
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Presser v. Illinois, 116 U.S. 252, 6 S.Ct. 580, 29 L.Ed. 615 (1886), held that the right to keep and bear arms was not violated by a law that forbade “bodies of men to associate together as military organizations, or to drill or parade with arms in cities and towns unless authorized by law.” Id., at 264-265, 6 S.Ct. 580. This does not refute the individual-rights interpretation of the Amendment; no one supporting that interpretation has contended that States may not ban such groups. Justice STEVENS presses Presser into service to support his view that the right to bear arms is limited to service in the militia by joining Presseri’s brief discussion of the Second Amendment with a later portion of the opinion making the seemingly relevant (to the Second Amendment) point that the plaintiff was not a member of the state militia. Unfortunately for Justice STEVENS’ argument, that later portion deals with the Fourteenth Amendment; it was the Fourteenth Amendment to which the plaintiff’s nonmembership in the militia was relevant. Thus, Justice STEVENS’ statement that Presser “suggested that . . . nothing in the Constitution protected the use of arms outside the context of a militia,” post, at 2843, is simply wrong. Presser said nothing about the Second Amendment’s meaning or scope, beyond the fact that it does not prevent the prohibition of private paramilitary organizations. Justice STEVENS places overwhelming reliance upon this Court’s decision in United States v. Miller, 307 U.S. 174, 59 S.Ct. 816, 83 L.Ed. 1206 (1939). “[H]undreds of judges,” we are told, “have relied on the view of the amendment we endorsed there,” post, at 2823, and “[e]ven if the textual and historical arguments on both side of the issue were evenly balanced, respect for the well-settled views of all of our predecessors on this Court, and for the rule of law itself . . . would prevent most jurists from endorsing such a dramatic upheaval in the law,” post, at 2824. And what is, according to Justice STEVENS, the holding of Miller that demands such obeisance? That the Second Amendment “protects the right to keep and bear arms for certain military purposes, but that it does not curtail the legislature’s power to regulate the nonmilitary use and ownership of weapons.” Post, at 2823. Nothing so clearly demonstrates the weakness of Justice STEVENS’ case. Miller did not hold that and cannot possibly be read to have held A M E R I C A N
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that. The judgment in the case upheld against a Second Amendment challenge two men’s federal convictions for transporting an unregistered short-barreled shotgun in interstate commerce, in violation of the National Firearms Act, 48 Stat. 1236. It is entirely clear that the Court’s basis for saying that the Second Amendment did not apply was not that the defendants were “bear[ing] arms” not “for . . . military purposes” but for “nonmilitary use,” post, at 2823. Rather, it was that the type of weapon at issue was not eligible for Second Amendment protection: “In the absence of any evidence tending to show that the possession or use of a [short-barreled shotgun] at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.” 307 U.S., at 178, 59 S.Ct. 816 (emphasis added). “Certainly,” the Court continued, “it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.” Ibid. Beyond that, the opinion provided no explanation of the content of the right. This holding is not only consistent with, but positively suggests, that the Second Amendment confers an individual right to keep and bear arms (though only arms that “have some reasonable relationship to the preservation or efficiency of a well regulated militia”). Had the Court believed that the Second Amendment protects only those serving in the militia, it would have been odd to examine the character of the weapon rather than simply note that the two crooks were not militiamen. Justice STEVENS can say again and again that Miller did “not turn on the difference between muskets and sawed-off shotguns, it turned, rather, on the basic difference between the military and nonmilitary use and possession of guns,” post, at 2845, but the words of the opinion prove otherwise. The most Justice STEVENS can plausibly claim for Miller is that it declined to decide the nature of the Second Amendment right, despite the Solicitor General’s argument (made in the alternative) that the right was collective, see Brief for United States, O.T.1938, No. 696, pp. 4-5. Miller stands only for the proposition that the Second Amendment right, whatever its nature, extends only to certain types of weapons. It is particularly wrongheaded to read Miller for more than what it said, because the case did G A L E
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not even purport to be a thorough examination of the Second Amendment. Justice STEVENS claims, post, at 2845, that the opinion reached its conclusion “[a]fter reviewing many of the same sources that are discussed at greater length by the Court today.” Not many, which was not entirely the Court’s fault. The respondent made no appearance in the case, neither filing a brief nor appearing at oral argument; the Court heard from no one but the Government (reason enough, one would think, not to make that case the beginning and the end of this Court’s consideration of the Second Amendment). See Frye, The Peculiar Story of United States v. Miller, 3 N.Y.U.J.L. & Liberty 48, 65-68 (2008). The Government’s brief spent two pages discussing English legal sources, concluding “that at least the carrying of weapons without lawful occasion or excuse was always a crime” and that (because of the class-based restrictions and the prohibition on terrorizing people with dangerous or unusual weapons) “the early English law did not guarantee an unrestricted right to bear arms.” Brief for United States, O.T.1938, No. 696, at 9-11. It then went on to rely primarily on the discussion of the English right to bear arms in Aymette v. State, 21 Tenn. 154, for the proposition that the only uses of arms protected by the Second Amendment are those that relate to the militia, not self-defense. See Brief for United States, O.T.1938, No. 696, at 12-18. The final section of the brief recognized that “some courts have said that the right to bear arms includes the right of the individual to have them for the protection of his person and property,” and launched an alternative argument that “weapons which are commonly used by criminals,” such as sawedoff shotguns, are not protected. See id., at 18-21. The Government’s Miller brief thus provided scant discussion of the history of the Second Amendment-and the Court was presented with no counterdiscussion. As for the text of the Court’s opinion itself, that discusses none of the history of the Second Amendment. It assumes from the prologue that the Amendment was designed to preserve the militia, 307 U.S., at 178, 59 S.Ct. 816 (which we do not dispute), and then reviews some historical materials dealing with the nature of the militia, and in particular with the nature of the arms their members were expected to possess, id., at 178-182, 59 S.Ct. 816. Not a word (not a word) about the history A M E R I C A N
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of the Second Amendment. This is the mighty rock upon which the dissent rests its case.24 We may as well consider at this point (for we will have to consider eventually) what types of weapons Miller permits. Read in isolation, Miller’s phrase “part of ordinary military equipment” could mean that only those weapons useful in warfare are protected. That would be a startling reading of the opinion, since it would mean that the National Firearms Act’s restrictions on machineguns (not challenged in Miller) might be unconstitutional, machineguns being useful in warfare in 1939. We think that Miller’s “ordinary military equipment” language must be read in tandem with what comes after: “[O]rdinarily when called for [militia] service [able-bodied] men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.” 307 U.S., at 179, 59 S.Ct. 816. The traditional militia was formed from a pool of men bringing arms “in common use at the time” for lawful purposes like self-defense. “In the colonial and revolutionary war era, [small-arms] weapons used by militiamen and weapons used in defense of person and home were one and the same.” State v. Kessler, 289 Ore. 359, 368, 614 P.2d 94, 98 (1980) (citing G. Neumann, Swords and Blades of the American Revolution 6-15, 252-254 (1973)). Indeed, that is precisely the way in which the Second Amendment’s operative clause furthers the purpose announced in its preface. We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns. That accords with the historical understanding of the scope of the right, see Part III, infra.25
understanding of the Second Amendment. It should be unsurprising that such a significant matter has been for so long judicially unresolved. For most of our history, the Bill of Rights was not thought applicable to the States, and the Federal Government did not significantly regulate the possession of firearms by law-abiding citizens. Other provisions of the Bill of Rights have similarly remained unilluminated for lengthy periods. This Court first held a law to violate the First Amendment’s guarantee of freedom of speech in 1931, almost 150 years after the Amendment was ratified, see Near v. Minnesota ex rel. Olson, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931), and it was not until after World War II that we held a law invalid under the Establishment Clause, see Illinois ex rel. McCollum v. Board of Ed. of School Dist. No. 71, Champaign Cty. , 333 U.S. 203, 68 S.Ct. 461, 92 L.Ed. 649 (1948). Even a question as basic as the scope of proscribable libel was not addressed by this Court until 1964, nearly two centuries after the founding. See New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). It is demonstrably not true that, as Justice STEVENS claims, post, at 2844 - 2845, “for most of our history, the invalidity of Second-Amendment-based objections to firearms regulations has been well settled and uncontroversial.” For most of our history the question did not present itself. III
We conclude that nothing in our precedents forecloses our adoption of the original
Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. See, e.g., Sheldon, in 5 Blume
As for the “hundreds of judges,” post, at 2823, who have relied on the view of the Second Amendment Justice STEVENS claims we endorsed in Miller: If so, they overread Miller. And their erroneous reliance upon an uncontested and virtually unreasoned case cannot nullify the reliance of millions of Americans (as our historical analysis has shown) upon the true meaning of the right to keep and bear arms. In any event, it should not be thought that the cases decided by these judges would necessarily have come out differently under a proper interpretation of the right. 25 Miller was briefly mentioned in our decision in Lewis v. United States, 445 U.S. 55, 100 S.Ct. 915, 63 L.Ed.2d 198 (1980), an appeal from a conviction for being a felon in possession of a firearm. The challenge was based on the contention that the prior felony conviction had been
unconstitutional. No Second Amendment claim was raised or briefed by any party. In the course of rejecting the asserted challenge, the Court commented gratuitously, in a footnote, that “[t]hese legislative restrictions on the use of firearms are neither based upon constitutionally suspect criteria, nor do they trench upon any constitutionally protected liberties. See United States v. Miller . . . (the Second Amendment guarantees no right to keep and bear a firearm that does not have ‘some reasonable relationship to the preservation or efficiency of a well regulated militia’).” Id. , at 65-66, n. 8, 100 S.Ct. 915. The footnote then cites several Court of Appeals cases to the same effect. It is inconceivable that we would rest our interpretation of the basic meaning of any guarantee of the Bill of Rights upon such a footnoted dictum in a case where the point was not at issue and was not argued.
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346; Rawle 123; Pomeroy 152-153; Abbott 333. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. See, e.g. , State v. Chandler, 5 La. Ann., at 489-490; Nunn v. State, 1 Ga., at 251; see generally 2 Kent *340, n. 2; The American Students’ Blackstone 84, n. 11 (G. Chase ed. 1884). Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.26 We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” 307 U.S., at 179, 59 S.Ct. 816. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.” See 4 Blackstone 148-149 (1769); 3 B. Wilson, Works of the Honourable James Wilson 79 (1804); J. Dunlap, The New-York Justice 8 (1815); C. Humphreys, A Compendium of the Common Law in Force in Kentucky 482 (1822); 1 W. Russell, A Treatise on Crimes and Indictable Misdemeanors 271-272 (1831); H. Stephen, Summary of the Criminal Law 48 (1840); E. Lewis, An Abridgment of the Criminal Law of the United States 64 (1847); F. Wharton, A Treatise on the Criminal Law of the United States 726 (1852). See also State v. Langford, 10 N.C. 381, 383-384 (1824); O’Neill v. State, 16 Ala. 65, 67 (1849); English v. State, 35 Tex. 473, 476 (1871); State v. Lanier, 71 N.C. 288, 289 (1874). It may be objected that if weapons that are most useful in military service-M-16 rifles and the like-may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to 26
We identify these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive.
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militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right. IV
We turn finally to the law at issue here. As we have said, the law totally bans handgun possession in the home. It also requires that any lawful firearm in the home be disassembled or bound by a trigger lock at all times, rendering it inoperable. As the quotations earlier in this opinion demonstrate, the inherent right of self-defense has been central to the Second Amendment right. The handgun ban amounts to a prohibition of an entire class of “arms” that is overwhelmingly chosen by American society for that lawful purpose. The prohibition extends, moreover, to the home, where the need for defense of self, family, and property is most acute. Under any of the standards of scrutiny that we have applied to enumerated constitutional rights,27 banning from the home “the most preferred firearm in the nation to ‘keep’ and use for protection of one’s home and family,” 478 F.3d, at 400, would fail constitutional muster. 27
Justice BREYER correctly notes that this law, like almost all laws, would pass rational-basis scrutiny. Post, at 2850 - 2851. But rational-basis scrutiny is a mode of analysis we have used when evaluating laws under constitutional commands that are themselves prohibitions on irrational laws. See, e.g., Engquist v. Oregon Dept. of Agriculture, 553 U.S. ——, ——, 128 S.Ct. 2146, 2153 - 2154, 2008 WL 2329768, *6-7, 170 L. Ed.2d 975 (2008). In those cases, “rational basis” is not just the standard of scrutiny, but the very substance of the constitutional guarantee. Obviously, the same test could not be used to evaluate the extent to which a legislature may regulate a specific, enumerated right, be it the freedom of speech, the guarantee against double jeopardy, the right to counsel, or the right to keep and bear arms. See United States v. Carolene Products Co., 304 U.S. 144, 152, n. 4, 58 S.Ct. 778, 82 L.Ed. 1234 (1938) (“There may be narrower scope for operation of the presumption of constitutionality [i.e., narrower than that provided by rational-basis review] when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments . . . ”). If all that was required to overcome the right to keep and bear arms was a rational basis, the Second Amendment would be redundant with the separate constitutional prohibitions on irrational laws, and would have no effect.
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Few laws in the history of our Nation have come close to the severe restriction of the District’s handgun ban. And some of those few have been struck down. In Nunn v. State, the Georgia Supreme Court struck down a prohibition on carrying pistols openly (even though it upheld a prohibition on carrying concealed weapons). See 1 Ga., at 251. In Andrews v. State, the Tennessee Supreme Court likewise held that a statute that forbade openly carrying a pistol “publicly or privately, without regard to time or place, or circumstances,” 50 Tenn., at 187, violated the state constitutional provision (which the court equated with the Second Amendment). That was so even though the statute did not restrict the carrying of long guns. Ibid. See also State v. Reid, 1 Ala. 612, 616-617 (1840) (“A statute which, under the pretence of regulating, amounts to a destruction of the right, or which requires arms to be so borne as to render them wholly useless for the purpose of defence, would be clearly unconstitutional”). It is no answer to say, as petitioners do, that it is permissible to ban the possession of handguns so long as the possession of other firearms (i.e., long guns) is allowed. It is enough to note, as we have observed, that the American people have considered the handgun to be the quintessential self-defense weapon. There are many reasons that a citizen may prefer a handgun for home defense: It is easier to store in a location that is readily accessible in an emergency; it cannot easily be redirected or wrestled away by an attacker; it is easier to use for those without the upper-body strength to lift and aim a long gun; it can be pointed at a burglar with one hand while the other hand dials the police. Whatever the reason, handguns are the most popular weapon chosen by Americans for self-defense in the home, and a complete prohibition of their use is invalid. We must also address the District’s requirement (as applied to respondent’s handgun) that firearms in the home be rendered and kept inoperable at all times. This makes it impossible for citizens to use them for the core lawful purpose of self-defense and is hence unconstitutional. The District argues that we should interpret this element of the statute to contain an exception for self-defense. See Brief for Petitioners 56-57. But we think that is precluded by the unequivocal text, and by the presence of certain other enumerated exceptions: “Except for law enforcement personnel . . . , each registrant G A L E
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shall keep any firearm in his possession unloaded and disassembled or bound by a trigger lock or similar device unless such firearm is kept at his place of business, or while being used for lawful recreational purposes within the District of Columbia.” D.C.Code § 7-2507.02. The nonexistence of a self-defense exception is also suggested by the D.C. Court of Appeals’ statement that the statute forbids residents to use firearms to stop intruders, see McIntosh v. Washington, 395 A.2d 744, 755-756 (1978).28 Apart from his challenge to the handgun ban and the trigger-lock requirement respondent asked the District Court to enjoin petitioners from enforcing the separate licensing requirement “in such a manner as to forbid the carrying of a firearm within one’s home or possessed land without a license.” App. 59a. The Court of Appeals did not invalidate the licensing requirement, but held only that the District “may not prevent [a handgun] from being moved throughout one’s house.” 478 F.3d, at 400. It then ordered the District Court to enter summary judgment “consistent with [respondent’s] prayer for relief.” Id., at 401. Before this Court petitioners have stated that “if the handgun ban is struck down and respondent registers a handgun, he could obtain a license, assuming he is not otherwise disqualified,” by which they apparently mean if he is not a felon and is not insane. Brief for Petitioners 58. Respondent conceded at oral argument that he does not “have a problem with . . . licensing” and that the District’s law is permissible so long as it is “not enforced in an arbitrary and capricious manner.” Tr. of Oral Arg. 74-75. We therefore assume that petitioners’ issuance of a license will satisfy respondent’s prayer for relief and do not address the licensing requirement. Justice BREYER has devoted most of his separate dissent to the handgun ban. He says that, even assuming the Second Amendment is a personal guarantee of the right to bear arms, the District’s prohibition is valid. He first tries to establish this by founding-era historical precedent, pointing to various restrictive laws in the 28 McIntosh upheld the law against a claim that it violated the Equal Protection Clause by arbitrarily distinguishing between residences and businesses. See 395 A.2d, at 755. One of the rational bases listed for that distinction was the legislative finding “that for each intruder stopped by a firearm there are four gun-related accidents within the home.” Ibid. That tradeoff would not bear mention if the statute did not prevent stopping intruders by firearms.
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colonial period. These demonstrate, in his view, that the District’s law “imposes a burden upon gun owners that seems proportionately no greater than restrictions in existence at the time the Second Amendment was adopted.” Post, at 2848. Of the laws he cites, only one offers even marginal support for his assertion. A 1783 Massachusetts law forbade the residents of Boston to “take into” or “receive into” “any Dwelling House, Stable, Barn, Out-house, Ware-house, Store, Shop or other Building” loaded firearms, and permitted the seizure of any loaded firearms that “shall be found” there. Act of Mar. 1, 1783, ch. 13, 1783 Mass. Acts p. 218. That statute’s text and its prologue, which makes clear that the purpose of the prohibition was to eliminate the danger to firefighters posed by the “depositing of loaded Arms” in buildings, give reason to doubt that colonial Boston authorities would have enforced that general prohibition against someone who temporarily loaded a firearm to confront an intruder (despite the law’s application in that case). In any case, we would not stake our interpretation of the Second Amendment upon a single law, in effect in a single city, that contradicts the overwhelming weight of other evidence regarding the right to keep and bear arms for defense of the home. The other laws Justice BREYER cites are gunpowder-storage laws that he concedes did not clearly prohibit loaded weapons, but required only that excess gunpowder be kept in a special container or on the top floor of the home. Post, at 2849 - 2850. Nothing about those fire-safety laws undermines our analysis; they do not remotely burden the right of self-defense as much as an absolute ban on handguns. Nor, correspondingly, does our analysis suggest the invalidity of laws regulating the storage of firearms to prevent accidents. Justice BREYER points to other foundingera laws that he says “restricted the firing of guns within the city limits to at least some degree” in Boston, Philadelphia and New York. Post, at 2848 (citing Churchill, Gun Regulation, the Police Power, and the Right to Keep Arms in Early America, 25 Law & Hist. Rev. 139, 162 (2007)). Those laws provide no support for the severe restriction in the present case. The New York law levied a fine of 20 shillings on anyone who fired a gun in certain places (including houses) on New Year’s Eve and the first two days of January, and was aimed at preventing the “great Damages . . . frequently done on [those days] by persons going House to House, G A L E
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with Guns and other Firearms and being often intoxicated with Liquor.” 5 Colonial Laws of New York 244-246 (1894). It is inconceivable that this law would have been enforced against a person exercising his right to self-defense on New Year’s Day against such drunken hooligans. The Pennsylvania law to which Justice BREYER refers levied a fine of 5 shillings on one who fired a gun or set off fireworks in Philadelphia without first obtaining a license from the governor. See Act of Aug. 26, 1721, § 4, in 3 Stat. at Large 253-254. Given Justice Wilson’s explanation that the right to selfdefense with arms was protected by the Pennsylvania Constitution, it is unlikely that this law (which in any event amounted to at most a licensing regime) would have been enforced against a person who used firearms for selfdefense. Justice BREYER cites a Rhode Island law that simply levied a 5-shilling fine on those who fired guns in streets and taverns, a law obviously inapplicable to this case. See An Act for preventing Mischief being done in the town of Newport, or in any other town in this Government, 1731, Rhode Island Session Laws. Finally, Justice BREYER points to a Massachusetts law similar to the Pennsylvania law, prohibiting “discharg[ing] any Gun or Pistol charged with Shot or Ball in the Town of Boston.” Act of May 28, 1746, ch. X, Acts and Laws of Mass. Bay 208. It is again implausible that this would have been enforced against a citizen acting in self-defense, particularly given its preambulatory reference to “the indiscreet firing of Guns.” Ibid. (preamble) (emphasis added). A broader point about the laws that Justice BREYER cites: All of them punished the discharge (or loading) of guns with a small fine and forfeiture of the weapon (or in a few cases a very brief stay in the local jail), not with significant criminal penalties.29 They are akin to modern penalties for minor public-safety infractions like speeding or jaywalking. And although such public-safety laws may not contain exceptions for self-defense, it is inconceivable that the threat of a jaywalking ticket would deter someone from disregarding a “Do
29
The Supreme Court of Pennsylvania described the amount of five shillings in a contract matter in 1792 as “nominal consideration.” Morris’s Lessee v. Smith, 4 Dall. 119, 120, 1 L. Ed. 766 (Pa.1792). Many of the laws cited punished violation with fine in a similar amount; the 1783 Massachusetts gunpowder-storage law carried a somewhat larger fine of £ 10 (200 shillings) and forfeiture of the weapon.
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Not Walk” sign in order to flee an attacker, or that the Government would enforce those laws under such circumstances. Likewise, we do not think that a law imposing a 5-shilling fine and forfeiture of the gun would have prevented a person in the founding era from using a gun to protect himself or his family from violence, or that if he did so the law would be enforced against him. The District law, by contrast, far from imposing a minor fine, threatens citizens with a year in prison (fiveyears for a second violation) for even obtaining a gun in the first place. See D.C.Code § 7-2507.06. Justice BREYER moves on to make a broad jurisprudential point: He criticizes us for declining to establish a level of scrutiny for evaluating Second Amendment restrictions. He proposes, explicitly at least, none of the traditionally expressed levels (strict scrutiny, intermediate scrutiny, rational basis), but rather a judge-empowering “interest-balancing inquiry” that “asks whether the statute burdens a protected interest in a way or to an extent that is out of proportion to the statute’s salutary effects upon other important governmental interests.” Post, at 2852. After an exhaustive discussion of the arguments for and against gun control, Justice BREYER arrives at his interestbalanced answer: because handgun violence is a problem, because the law is limited to an urban area, and because there were somewhat similar restrictions in the founding period (a false proposition that we have already discussed), the interest-balancing inquiry results in the constitutionality of the handgun ban. QED. We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding “interest-balancing” approach. The very enumeration of the right takes out of the hands of government-even the Third Branch of Government-the power to decide on a case-by-case basis whether the right is really worth insisting upon. A constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all. Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad. We would not apply an “interest-balancing” approach to the prohibition of a peaceful neo-Nazi march through Skokie. See National Socialist Party of America v. Skokie, 432 U.S. 43, 97 S.Ct. 2205, 53 L.Ed.2d 96 G A L E
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(1977) per curiam). The First Amendment contains the freedom-of-speech guarantee that the people ratified, which included exceptions for obscenity, libel, and disclosure of state secrets, but not for the expression of extremely unpopular and wrong-headed views. The Second Amendment is no different. Like the First, it is the very product of an interest-balancing by the people-which Justice BREYER would now conduct for them anew. And whatever else it leaves to future evaluation, it surely elevates above all other interests the right of lawabiding, responsible citizens to use arms in defense of hearth and home. Justice BREYER chides us for leaving so many applications of the right to keep and bear arms in doubt, and for not providing extensive historical justification for those regulations of the right that we describe as permissible. See post, at 2869 - 2870. But since this case represents this Court’s first in-depth examination of the Second Amendment, one should not expect it to clarify the entire field, any more than Reynolds v. United States, 98 U.S. 145, 25 L. Ed. 244 (1879), our first in-depth Free Exercise Clause case, left that area in a state of utter certainty. And there will be time enough to expound upon the historical justifications for the exceptions we have mentioned if and when those exceptions come before us. In sum, we hold that the District’s ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense. Assuming that Heller is not disqualified from the exercise of Second Amendment rights, the District must permit him to register his handgun and must issue him a license to carry it in the home. *** We are aware of the problem of handgun violence in this country, and we take seriously the concerns raised by the many amici who believe that prohibition of handgun ownership is a solution. The Constitution leaves the District of Columbia a variety of tools for combating that problem, including some measures regulating handguns, see supra, at 2816-2817, and n. 26. But the enshrinement of constitutional rights necessarily takes certain policy choices off the table. These include the absolute prohibition of handguns held and used A M E R I C A N
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for self-defense in the home. Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem. That is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct. We affirm the judgment of the Court of Appeals. It is so ordered. Justice STEVENS, with whom Justice SOUTER, Justice GINSBURG, and Justice BREYER join, dissenting. The question presented by this case is not whether the Second Amendment protects a “collective right” or an “individual right.” Surely it protects a right that can be enforced by individuals. But a conclusion that the Second Amendment protects an individual right does not tell us anything about the scope of that right. Guns are used to hunt, for self-defense, to commit crimes, for sporting activities, and to perform military duties. The Second Amendment plainly does not protect the right to use a gun to rob a bank; it is equally clear that it does encompass the right to use weapons for certain military purposes. Whether it also protects the right to possess and use guns for nonmilitary purposes like hunting and personal self-defense is the question presented by this case. The text of the Amendment, its history, and our decision in United States v. Miller, 307 U.S. 174, 59 S.Ct. 816, 83 L.Ed. 1206 (1939), provide a clear answer to that question. 1
There was some limited congressional activity earlier: A 10% federal excise tax on firearms was passed as part of the Revenue Act of 1918, 40 Stat. 1057, and in 1927 a statute was enacted prohibiting the shipment of handguns, revolvers, and other concealable weapons through the United States mails. Ch. 75, 44 Stat. 1059-1060 (hereinafter 1927 Act). 2 Until the Fifth Circuit’s decision in United States v. Emerson, 270 F.3d 203 (2001), every Court of Appeals to consider the question had understood Miller to hold that the Second Amendment does not protect the right to possess and use guns for purely private, civilian purposes. See, e.g., United States v. Haney, 264 F.3d 1161, 1164-1166 (C.A.10 2001); United States v. Napier, 233 F.3d 394, 402-404 (C.A.6 2000); Gillespie v. Indianapolis, 185 F.3d 693, 710-711 (C.A.7 1999); United States v. Scanio, No. 97-1584, 1998 WL 802060, *2 (C.A.2, Nov.12, 1998) (unpublished opinion); United States v. Wright, 117 F.3d 1265, 1271-1274 (C.A.11 1997); United States v. Rybar, 103
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The Second Amendment was adopted to protect the right of the people of each of the several States to maintain a well-regulated militia. It was a response to concerns raised during the ratification of the Constitution that the power of Congress to disarm the state militias and create a national standing army posed an intolerable threat to the sovereignty of the several States. Neither the text of the Amendment nor the arguments advanced by its proponents evidenced the slightest interest in limiting any legislature’s authority to regulate private civilian uses of firearms. Specifically, there is no indication that the Framers of the Amendment intended to enshrine the common-law right of self-defense in the Constitution. In 1934, Congress enacted the National Firearms Act, the first major federal firearms law.1 Upholding a conviction under that Act, this Court held that, “[i]n the absence of any evidence tending to show that possession or use of a ‘shotgun having a barrel of less than eighteen inches in length’ at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.” Miller, 307 U.S., at 178, 59 S.Ct. 816. The view of the Amendment we took in Miller- that it protects the right to keep and bear arms for certain military purposes, but that it does not curtail the Legislature’s power to regulate the nonmilitary use and ownership of weapons-is both the most natural reading of the Amendment’s text and the interpretation most faithful to the history of its adoption. Since our decision in Miller, hundreds of judges have relied on the view of the Amendment we endorsed there;2 we ourselves affirmed F.3d 273, 285-286 (C.A.3 1996); Hickman v. Block, 81 F.3d 98, 100-103 (C.A.9 1996); United States v. Hale, 978 F.2d 1016, 1018-1020 (C.A.8 1992); Thomas v. City Council of Portland, 730 F.2d 41, 42 (C.A.1 1984) (per curiam); United States v. Johnson, 497 F.2d 548, 550 (C.A.4 1974) (per curiam); United States v. Johnson, 441 F.2d 1134, 1136 (C.A.5 1971); see also Sandidge v. United States, 520 A.2d 1057, 1058-1059 (D.C. App.1987). And a number of courts have remained firm in their prior positions, even after considering Emerson. See, e.g., United States v. Lippman, 369 F.3d 1039, 1043-1045 (C.A.8 2004); United States v. Parker, 362 F.3d 1279, 1282-1284 (C. A.10 2004); United States v. Jackubowski, 63 Fed.Appx. 959, 961 (C.A.7 2003) (unpublished opinion); Silveira v. Lockyer, 312 F.3d 1052, 1060-1066 (C.A.9 2002); United States v. Milheron, 231 F.Supp.2d 376, 378 (Me.2002); Bach v. Pataki, 289 F.Supp.2d 217, 224-226 (N.D.N.Y.2003); United States v. Smith, 56 M.J. 711, 716 (C.A. Armed Forces 2001).
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it in 1980. See Lewis v. United States, 445 U.S. 55, 65-66, n. 8, 100 S.Ct. 915, 63 L.Ed.2d 198 (1980).3 No new evidence has surfaced since 1980 supporting the view that the Amendment was intended to curtail the power of Congress to regulate civilian use or misuse of weapons. Indeed, a review of the drafting history of the Amendment demonstrates that its Framers rejected proposals that would have broadened its coverage to include such uses. The opinion the Court announces today fails to identify any new evidence supporting the view that the Amendment was intended to limit the power of Congress to regulate civilian uses of weapons. Unable to point to any such evidence, the Court stakes its holding on a strained and unpersuasive reading of the Amendment’s text; significantly different provisions in the 1689 English Bill of Rights, and in various 19th-century State Constitutions; postenactment commentary that was available to the Court when it decided Miller; and, ultimately, a feeble attempt to distinguish Miller that places more emphasis on the Court’s decisional process than on the reasoning in the opinion itself. Even if the textual and historical arguments on both sides of the issue were evenly balanced, respect for the well-settled views of all of our predecessors on this Court, and for the rule of law itself, see Mitchell v. W.T. Grant Co., 416 U.S. 600, 636, 94 S.Ct. 1895, 40 L.Ed.2d 406 (1974) (Stewart, J., dissenting), would prevent most jurists from endorsing such a dramatic upheaval in the law.4 As Justice Cardozo observed years ago, the “labor of judges would be increased almost to the breaking point if 3
Our discussion in Lewis was brief but significant. Upholding a conviction for receipt of a firearm by a felon, we wrote: “These legislative restrictions on the use of firearms are neither based upon constitutionally suspect criteria, nor do they entrench upon any constitutionally protected liberties. See United States v. Miller, 307 U.S. 174, 178 [59 S.Ct. 816, 83 L.Ed. 1206] (1939) (the Second Amendment guarantees no right to keep and bear a firearm that does not have ‘some reasonable relationship to the preservation or efficiency of a well regulated militia’).” 445 U.S., at 65, n. 8, 100 S.Ct. 915. 4 See Vasquez v. Hillery, 474 U.S. 254, 265, 266, 106 S.Ct. 617, 88 L.Ed.2d 598 (1986) (“[Stare decisis] permits society to presume that bedrock principles are founded in the law rather than in the proclivities of individuals, and thereby contributes to the integrity of our constitutional system of government, both in appearance and in fact. While stare decisis is not an inexorable command, the careful observer
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every past decision could be reopened in every case, and one could not lay one’s own course of bricks on the secure foundation of the courses laid by others who had gone before him.” The Nature of the Judicial Process 149 (1921). In this dissent I shall first explain why our decision in Miller was faithful to the text of the Second Amendment and the purposes revealed in its drafting history. I shall then comment on the postratification history of the Amendment, which makes abundantly clear that the Amendment should not be interpreted as limiting the authority of Congress to regulate the use or possession of firearms for purely civilian purposes. I
The text of the Second Amendment is brief. It provides: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” Three portions of that text merit special focus: the introductory language defining the Amendment’s purpose, the class of persons encompassed within its reach, and the unitary nature of the right that it protects. “A well regulated Militia, being necessary to the security of a free State” The preamble to the Second Amendment makes three important points. It identifies the preservation of the militia as the Amendment’s purpose; it explains that the militia is necessary to the security of a free State; and it recognizes that the militia must be “well regulated.” In all three respects it is comparable to provisions in will discern that any detours from the straight path of stare decisis in our past have occurred for articulable reasons, and only when the Court has felt obliged ‘to bring its opinions into agreement with experience and with facts newly ascertained.’ Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 412 [52 S.Ct. 443, 76 L.Ed. 815] (1932) (Brandeis, J., dissenting)”); Pollock v. Farmers’ Loan & Trust Co., 157 U.S. 429, 652, 15 S.Ct. 673, 39 L.Ed. 759 (1895) (White, J., dissenting) (“The fundamental conception of a judicial body is that of one hedged about by precedents which are binding on the court without regard to the personality of its members. Break down this belief in judicial continuity and let it be felt that on great constitutional questions this Court is to depart from the settled conclusions of its predecessors, and to determine them all according to the mere opinion of those who temporarily fill its bench, and our Constitution will, in my judgment, be bereft of value and become a most dangerous instrument to the rights and liberties of the people”).
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several State Declarations of Rights that were adopted roughly contemporaneously with the Declaration of Independence.5 Those state provisions highlight the importance members of the founding generation attached to the maintenance of state militias; they also underscore the profound fear shared by many in that era of the dangers posed by standing armies.6 While the need for state militias has not been a matter of significant public interest for almost two centuries, that fact should not obscure the contemporary concerns that animated the Framers. The parallels between the Second Amendment and these state declarations, and the Second Amendment’s omission of any statement of purpose related to the right to use firearms for hunting or personal self-defense, is especially striking in light of the fact that the Declarations of Rights of Pennsylvania and Vermont did expressly protect such civilian uses at the time. Article XIII of Pennsylvania’s 1776 Declaration of Rights announced that “the people have a right to bear arms for the defence of themselves and the state,” 1 Schwartz 266 (emphasis added); § 43 of the Declaration assured that “the inhabitants of this state shall have the liberty to fowl and hunt in seasonable times on the lands they hold, and on all other lands therein not inclosed,” id., at 274. And Article XV of the 1777 Vermont Declaration of Rights guaranteed “[t]hat the people have a 5
The Virginia Declaration of Rights ¶ 13 (1776), provided: “That a well-regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defence of a free State; that Standing Armies, in time of peace, should be avoided, as dangerous to liberty; and that, in all cases, the military should be under strict subordination to, and governed by, the civil power.” 1 B. Schwartz, The Bill of Rights 235 (1971) (hereinafter Schwartz). Maryland’s Declaration of Rights, Arts. XXV-XXVII (1776), provided: “That a well-regulated militia is the proper and natural defence of a free government”; “That standing armies are dangerous to liberty, and ought not to be raised or kept up, without consent of the Legislature”; “That in all cases, and at all times, the military ought to be under strict sub-ordination to and control of the civil power.” 1 Schwartz 282. Delaware’s Declaration of Rights, §§ 18-20 (1776), provided: “That a well regulated militia is the proper, natural, and safe defence of a free government”; “That standing armies are dangerous to liberty, and ought not to be raised or kept up without the consent of the Legislature”; “That in all cases and at all times the military ought to be under strict subordination to and governed by the civil power.” 1 Schwartz 278.
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right to bear arms for the defence of themselves and the State.” Id., at 324 (emphasis added). The contrast between those two declarations and the Second Amendment reinforces the clear statement of purpose announced in the Amendment’s preamble. It confirms that the Framers’ single-minded focus in crafting the constitutional guarantee “to keep and bear arms” was on military uses of firearms, which they viewed in the context of service in state militias. The preamble thus both sets forth the object of the Amendment and informs the meaning of the remainder of its text. Such text should not be treated as mere surplusage, for “[i]t cannot be presumed that any clause in the constitution is intended to be without effect.” Marbury v. Madison, 1 Cranch 137, 174, 2 L.Ed. 60 (1803). The Court today tries to denigrate the importance of this clause of the Amendment by beginning its analysis with the Amendment’s operative provision and returning to the preamble merely “to ensure that our reading of the operative clause is consistent with the announced purpose.” Ante, at 2790. That is not how this Court ordinarily reads such texts, and it is not how the preamble would have been viewed at the time the Amendment was adopted. While the Court makes the novel suggestion that it need only find some “logical connection” between the preamble and the operative provision, it does acknowledge that a prefatory clause may resolve an ambiguity in the Finally, New Hampshire’s Bill of Rights, Arts. XXIVXXVI (1783), read: “A well regulated militia is the proper, natural, and sure defence of a state”; “Standing armies are dangerous to liberty, and ought not to be raised or kept up without consent of the legislature”; “In all cases, and at all times, the military ought to be under strict subordination to, and governed by the civil power.” 1 Schwartz 378. It elsewhere provided: “No person who is conscientiously scrupulous about the lawfulness of bearing arms, shall be compelled thereto, provided he will pay an equivalent.” Id., at 377 (Art. XIII). 6 The language of the Amendment’s preamble also closely tracks the language of a number of contemporaneous state militia statutes, many of which began with nearly identical statements. Georgia’s 1778 militia statute, for example, began, “[w]hereas a well ordered and disciplined Militia, is essentially necessary, to the Safety, peace and prosperity, of this State.” Act of Nov. 15, 1778, 19 Colonial Records of the State of Georgia 103 (Candler ed.1911 (pt. 2)). North Carolina’s 1777 militia statute started with this language: “Whereas a well regulated Militia is absolutely necessary for the defending and securing the Liberties of a free State.” N. C. Sess. Laws ch. 1, § I, p. 1. And Connecticut’s 1782 “Acts and Laws Regulating the Militia” began, “Whereas the
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text. Ante, at 2789.7 Without identifying any language in the text that even mentions civilian uses of firearms, the Court proceeds to “find” its preferred reading in what is at best an ambiguous text, and then concludes that its reading is not foreclosed by the preamble. Perhaps the Court’s approach to the text is acceptable advocacy, but it is surely an unusual approach for judges to follow. “The right of the people”
The centerpiece of the Court’s textual argument is its insistence that the words “the people” as used in the Second Amendment must have the same meaning, and protect the same class of individuals, as when they are used in the First and Fourth Amendments. According to the Court, in all three provisions-as well as the Constitution’s preamble, section 2 of Article I, and the Tenth Amendment-“the term unambiguously refers to all members of the political community, not an unspecified subset.” Ante, at 2790 - 2791. But the Court itself reads the Second Amendment to protect a “subset” significantly narrower than the class of persons protected by the First and Fourth Amendments; when it finally drills down on the substantive meaning of the Second Amendment, the Court limits the protected class to “law-abiding, responsible citizens,” ante, at 2821. But the class of persons protected by the First and Fourth Amendments is not so limited; for even felons (and presumably irresponsible citizens as well) may invoke the protections of those constitutional provisions. The Court offers no way to harmonize its conflicting pronouncements. Defence and Security of all free States depends (under God) upon the Exertions of a well regulated Militia, and the Laws heretofore enacted have proved inadequate to the End designed.” Conn. Acts and Laws p. 585 (hereinafter 1782 Conn. Acts). These state militia statutes give content to the notion of a “well-regulated militia.” They identify those persons who compose the State’s militia; they create regiments, brigades, and divisions; they set forth command structures and provide for the appointment of officers; they describe how the militia will be assembled when necessary and provide for training; and they prescribe penalties for nonappearance, delinquency, and failure to keep the required weapons, ammunition, and other necessary equipment. The obligation of militia members to “keep” certain specified arms is detailed further, n. 14, infra, and accompanying text. 7 The sources the Court cites simply do not support the proposition that some “logical connection” between the two clauses is all that is required. The Dwarris treatise, for
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The Court also overlooks the significance of the way the Framers used the phrase “the people” in these constitutional provisions. In the First Amendment, no words define the class of individuals entitled to speak, to publish, or to worship; in that Amendment it is only the right peaceably to assemble, and to petition the Government for a redress of grievances, that is described as a right of “the people.” These rights contemplate collective action. While the right peaceably to assemble protects the individual rights of those persons participating in the assembly, its concern is with action engaged in by members of a group, rather than any single individual. Likewise, although the act of petitioning the Government is a right that can be exercised by individuals, it is primarily collective in nature. For if they are to be effective, petitions must involve groups of individuals acting in concert. Similarly, the words “the people” in the Second Amendment refer back to the object announced in the Amendment’s preamble. They remind us that it is the collective action of individuals having a duty to serve in the militia that the text directly protects and, perhaps more importantly, that the ultimate purpose of the Amendment was to protect the States’ share of the divided sovereignty created by the Constitution. As used in the Fourth Amendment, “the people” describes the class of persons protected from unreasonable searches and seizures by Government officials. It is true that the Fourth Amendment describes a right that need not be example, merely explains that “[t]he general purview of a statute is not . . . necessarily to be restrained by any words introductory to the enacting clauses.” F. Dwarris, A General Treatise on Statutes 268 (P. Potter ed. 1871) (emphasis added). The treatise proceeds to caution that “the preamble cannot control the enacting part of a statute, which is expressed in clear and unambiguous terms, yet, if any doubt arise on the words of the enacting part, the preamble may be resorted to, to explain it.” Id., at 269. Sutherland makes the same point. Explaining that “[i]n the United States preambles are not as important as they are in England,” the treatise notes that in the United States “the settled principle of law is that the preamble cannot control the enacting part of the statute in cases where the enacting part is expressed in clear, unambiguous terms.” 2A N. Singer, Sutherland on Statutory Construction § 47.04, p. 146 (rev. 5th ed.1992) (emphasis added). Surely not even the Court believes that the Amendment’s operative provision, which, though only 14 words in length, takes the Court the better part of 18 pages to parse, is perfectly “clear and unambiguous.”
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exercised in any collective sense. But that observation does not settle the meaning of the phrase “the people” when used in the Second Amendment. For, as we have seen, the phrase means something quite different in the Petition and Assembly Clauses of the First Amendment. Although the abstract definition of the phrase “the people” could carry the same meaning in the Second Amendment as in the Fourth Amendment, the preamble of the Second Amendment suggests that the uses of the phrase in the First and Second Amendments are the same in referring to a collective activity. By way of contrast, the Fourth Amendment describes a right against governmental interference rather than an affirmative right to engage in protected conduct, and so refers to a right to protect a purely individual interest. As used in the Second Amendment, the words “the people” do not enlarge the right to keep and bear arms to encompass use or ownership of weapons outside the context of service in a well-regulated militia. “To keep and bear Arms”
Although the Court’s discussion of these words treats them as two “phrases”-as if they read “to keep” and “to bear”-they describe a unitary right: to possess arms if needed for military purposes and to use them in conjunction with military activities. As a threshold matter, it is worth pausing to note an oddity in the Court’s interpretation of “to keep and bear arms.” Unlike the Court of Appeals, the Court does not read that phrase to create a right to possess arms for “lawful, private purposes.” Parker v. District of Columbia, 478 F.3d 370, 382 (C.A.D.C. 2007). Instead, the Court limits the Amendment’s protection to the right “to possess and carry weapons in case of 8
The Court’s repeated citation to the dissenting opinion in Muscarello v. United States, 524 U.S. 125, 118 S.Ct. 1911, 141 L.Ed.2d 111 (1998), ante, at 2793, 2794, as illuminating the meaning of “bear arms,” borders on the risible. At issue in Muscarello was the proper construction of the word “carries” in 18 U.S.C. § 924(c) (2000 ed. and Supp. V); the dissent in that case made passing reference to the Second Amendment only in the course of observing that both the Constitution and Black’s Law Dictionary suggested that something more active than placement of a gun in a glove compartment might be meant by the phrase “carries a firearm.’” 524 U.S., at 143, 118 S.Ct. 1911. 9 Amici professors of Linguistics and English reviewed uses of the term “bear arms” in a compilation of books, pamphlets, and other sources disseminated in the period between the
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confrontation.” Ante, at 2797. No party or amicus urged this interpretation; the Court appears to have fashioned it out of whole cloth. But although this novel limitation lacks support in the text of the Amendment, the Amendment’s text does justify a different limitation: the “right to keep and bear arms” protects only a right to possess and use firearms in connection with service in a state-organized militia. The term “bear arms” is a familiar idiom; when used unadorned by any additional words, its meaning is “to serve as a soldier, do military service, fight.” 1 Oxford English Dictionary 634 (2d ed.1989). It is derived from the Latin arma ferre, which, translated literally, means “to bear [ferre] war equipment [arma].” Brief for Professors of Linguistics and English as Amici Curiae 19. One 18th-century dictionary defined “arms” as “weapons of offence, or armour of defence,” 1 S. Johnson, A Dictionary of the English Language (1755), and another contemporaneous source explained that “[b]y arms, we understand those instruments of offence generally made use of in war; such as firearms, swords, & c. By weapons, we more particularly mean instruments of other kinds (exclusive of fire-arms), made use of as offensive, on special occasions.” 1 J. Trusler, The Distinction Between Words Esteemed Synonymous in the English Language 37 (1794).8 Had the Framers wished to expand the meaning of the phrase “bear arms” to encompass civilian possession and use, they could have done so by the addition of phrases such as “for the defense of themselves,” as was done in the Pennsylvania and Vermont Declarations of Rights. The unmodified use of “bear arms,” by contrast, refers most naturally to a military purpose, as evidenced by its use in literally dozens of contemporary texts.9 The absence of any Declaration of Independence and the adoption of the Second Amendment. See Brief for Professors of Linguistics and English as Amici Curiae 23-25. Amici determined that of 115 texts that employed the term, all but five usages were in a clearly military context, and in four of the remaining five instances, further qualifying language conveyed a different meaning. The Court allows that the phrase “bear Arms” did have as an idiomatic meaning, “‘to serve as a soldier, do military service, fight,’” ante, at 2794, but asserts that it “unequivocally bore that idiomatic meaning only when followed by the preposition ‘against,’ which was in turn followed by the target of the hostilities,” ante, at 2794. But contemporary sources make clear that the phrase “bear arms” was often used to convey a military meaning without those additional words. See, e.g., To The Printer, Providence Gazette, (May
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reference to civilian uses of weapons tailors the text of the Amendment to the purpose identified in its preamble.10 But when discussing these words, the Court simply ignores the preamble. The Court argues that a “qualifying phrase that contradicts the word or phrase it modifies is unknown this side of the looking glass.” Ante, at 2795. But this fundamentally fails to grasp the point. The stand-alone phrase “bear arms” most naturally conveys a military meaning unless the addition of a qualifying phrase signals that a different meaning is intended. When, as in this case, there is no such qualifier, the most natural meaning is the military one; and, in the absence of any qualifier, it is all the more appropriate to look to the preamble to confirm the natural meaning of the text.11 The Court’s objection is particularly puzzling in light of its own contention that the addition of the modifier “against” changes the meaning of “bear arms.” Compare ante, at 2793 (defining “bear arms” to mean “carrying [a weapon] for a particular purposeconfrontation”), with ante, at 2794 (“The phrase ‘bear Arms’ also had at the time of the founding an idiomatic meaning that was significantly different from its natural meaning: to serve as a soldier, do military service, fight or to wage war. But it unequivocally bore that idiomatic meaning only when followed by the preposition ‘against.’” (citations and some internal quotation marks omitted)). The Amendment’s use of the term “keep” in no way contradicts the military meaning
conveyed by the phrase “bear arms” and the Amendment’s preamble. To the contrary, a number of state militia laws in effect at the time of the Second Amendment’s drafting used the term “keep” to describe the requirement that militia members store their arms at their homes, ready to be used for service when necessary. The Virginia military law, for example, ordered that “every one of the said officers, non-commissioned officers, and privates, shall constantly keep the aforesaid arms, accoutrements, and ammunition, ready to be produced whenever called for by his commanding officer.” Act for Regulating and Disciplining the Militia, 1785 Va. Acts ch. 1, § 3, p. 2 (emphasis added).12 “[K]eep and bear arms” thus perfectly describes the responsibilities of a framing-era militia member.
27, 1775) (“By the common estimate of three millions of people in America, allowing one in five to bear arms, there will be found 600,000 fighting men”); Letter of Henry Laurens to the Mass. Council (Jan. 21, 1778), in Letters of Delegates to Congress 1774-1789, p. 622 (P. Smith ed. 1981) (“Congress were yesterday informed . . . that those Canadians who returned from Saratoga . . . had been compelled by Sir Guy Carleton to bear Arms”); Of the Manner of Making War among the Indians of NorthAmerica, Connecticut Courant (May 23, 1785) (“The Indians begin to bear arms at the age of fifteen, and lay them aside when they arrive at the age of sixty. Some nations to the southward, I have been informed, do not continue their military exercises after they are fifty”); 28 Journals of the Continental Congress 1030 (G. Hunt ed. 1910) (“That hostages be mutually given as a security that the Convention troops and those received in exchange for them do not bear arms prior to the first day of May next”); H.R. J., 9th Cong., 1st Sess., 217 (Feb. 12, 1806) (“Whereas the commanders of British armed vessels have impressed many American seamen, and compelled them to bear arms on board said vessels, and assist in fighting their battles with nations in amity and peace with the United States”); H.R. J., 15th Cong., 2d Sess., 182-183 (Jan. 14, 1819) (“[The petitioners] state that they were residing
in the British province of Canada, at the commencement of the late war, and that owing to their attachment to the United States, they refused to bear arms, when called upon by the British authorities . . . ”). 10 Aymette v. State, 21 Tenn. 154, 156 (1840), a case we cited in Miller, further confirms this reading of the phrase. In Aymette, the Tennessee Supreme Court construed the guarantee in Tennessee’s 1834 Constitution that “‘the free white men of this State, have a right to keep and bear arms for their common defence.’” Explaining that the provision was adopted with the same goals as the Federal Constitution’s Second Amendment, the court wrote: “The words ‘bear arms’ . . . have reference to their military use, and were not employed to mean wearing them about the person as part of the dress. As the object for which the right to keep and bear arms is secured, is of general and public nature, to be exercised by the people in a body, for their common defence, so the arms, the right to keep which is secured, are such as are usually employed in civilized warfare, and that constitute the ordinary military equipment.” 21 Tenn., at 158. The court elaborated: “[W]e may remark, that the phrase ‘bear arms’ is used in the Kentucky Constitution as well as our own, and implies, as has already been suggested, their military use . . . . A man in the pursuit of deer, elk, and
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This reading is confirmed by the fact that the clause protects only one right, rather than two. It does not describe a right “to keep arms” and a separate right “to bear arms.” Rather, the single right that it does describe is both a duty and a right to have arms available and ready for military service, and to use them for military purposes when necessary.13 Different language surely would have been used to protect nonmilitary use and possession of weapons from regulation if such an intent had played any role in the drafting of the Amendment. ***
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When each word in the text is given full effect, the Amendment is most naturally read to secure to the people a right to use and possess arms in conjunction with service in a well-regulated militia. So far as appears, no more than that was contemplated by its drafters or is encompassed within its terms. Even if the meaning of the text were genuinely susceptible to more than one interpretation, the burden would remain on those advocating a departure from the purpose identified in the preamble and from settled law to come forward with persuasive new arguments or evidence. The textual analysis offered by respondent and embraced by the Court falls far short of sustaining that heavy burden.14 And the Court’s emphatic reliance on the claim “that the Second Amendment . . . codified a pre-existing right,” ante, at 2804, is of course beside the point because the right to keep and bear arms for service in a state militia was also a pre-existing right. Indeed, not a word in the constitutional text even arguably supports the Court’s overwrought and novel description of the Second Amendment as “elevat [ing] above all other interests” “the right of law-abiding, responsible citizens to use arms in defense of hearth and home.” Ante, at 2821. II
The proper allocation of military power in the new Nation was an issue of central concern for buffaloes, might carry his rifle every day, for forty years, and, yet, it would never be said of him, that he had borne arms, much less could it be said, that a private citizen bears arms, because he has a dirk or pistol concealed under his clothes, or a spear in a cane.” Id., at 161. 11 As lucidly explained in the context of a statute mandating a sentencing enhancement for any person who “uses” a firearm during a crime of violence or drug trafficking crime: To use an instrumentality ordinarily means to use it for its intended purpose. When someone asks, ‘Do you use a cane?,’ he is not inquiring whether you have your grandfather’s silver-handled walking stick on display in the hall; he wants to know whether you walk with a cane. Similarly, to speak of ‘using a firearm’ is to speak of using it for its distinctive purpose, i.e., as a weapon. To be sure, one can use a firearm in a number of ways, including as an article of exchange, just as one can ‘use’ a cane as a hall decoration-but that is not the ordinary meaning of ‘using’ the one or the other. The Court does not appear to grasp the distinction between how a word can be used and how it ordinarily is used.” Smith v. United States, 508 U.S. 223, 242, 113 S.Ct. 2050, 124 L.Ed.2d 138 (1993)
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the Framers. The compromises they ultimately reached, reflected in Article I’s Militia Clauses and the Second Amendment, represent quintessential examples of the Framers’ “splitting the atom of sovereignty.”15 Two themes relevant to our current interpretive task ran through the debates on the original Constitution. “On the one hand, there was a widespread fear that a national standing Army posed an intolerable threat to individual liberty and to the sovereignty of the separate States.” Perpich v. Department of Defense, 496 U.S. 334, 340, 110 S.Ct. 2418, 110 L.Ed.2d 312 (1990).16 Governor Edmund Randolph, reporting on the Constitutional Convention to the Virginia Ratification Convention, explained: “With respect to a standing army, I believe there was not a member in the federal Convention, who did not feel indignation at such an institution.” 3 J. Elliot, Debates in the Several State Conventions on the Adoption of the Federal Constitution 401 (2d ed. 1863) (hereinafter Elliot). On the other hand, the Framers recognized the dangers inherent in relying on inadequately trained militia members “as the primary means of providing for the common defense,” Perpich, 496 U.S., at 340, 110 S.Ct. 2418; during the Revolutionary War, “[t]his force, though armed, was largely untrained, and its deficiencies were the subject of bitter complaint.” Wiener, The Militia Clause of the Constitution, 54 Harv. L.Rev. 181, 182 (SCALIA, J., dissenting) (some internal marks, footnotes, and citations omitted). 12
See also Act for the regulating, training, and arraying of the Militia, . . . of the State, 1781 N.J. Laws, ch. XIII, § 12, p. 43 (“And be it Enacted, That each Person enrolled as aforesaid, shall also keep at his Place of Abode one Pound of good merchantable Gunpowder and three Pounds of Ball sized to his Musket or Rifle” (emphasis added)); An Act for establishing a Militia, 1785 Del. Laws § 7, p. 59 (“And be it enacted, That every person between the ages of eighteen and fifty . . . shall at his own expense, provide himself . . . with a musket or firelock, with a bayonet, a cartouch box to contain twenty three cartridges, a priming wire, a brush and six flints, all in good order, on or before the first day of April next, under the penalty of forty shillings, and shall keep the same by him at all times, ready and fit for service, under the penalty of two shillings and six pence for each neglect or default thereof on every muster day” (second emphasis added)); 1782 Conn. Acts 590 (“And it shall be the duty of the Regional Quarter-Master to provide and keep a sufficient quantity of Ammunition and warlike stores for the use of their respective regiments, to be kept in such place or places as shall be ordered by the Field Officers” (emphasis added)).
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(1940).17 In order to respond to those twin concerns, a compromise was reached: Congress would be authorized to raise and support a national Army18 and Navy, and also to organize, arm, discipline, and provide for the calling forth of “the Militia.” U.S. Const., Art. I, § 8, cls. 12-16. The President, at the same time, was empowered as the “Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States.” Art. II, § 2. But, with respect to the militia, a significant reservation was made to the States: Although Congress would have the power to call forth,19 organize, arm, and discipline the militia, as well as to govern “such Part of them as may be employed in the Service of the United States,” the States respectively would retain the right to appoint the officers and to train the militia in accordance with the discipline prescribed by Congress. Art. I, § 8, cl. 16.20 But the original Constitution’s retention of the militia and its creation of divided authority over that body did not prove sufficient to allay fears about the dangers posed by a standing army. For it was perceived by some that Article I contained a significant gap: While it empowered Congress to organize, arm, and discipline the militia, it did not prevent Congress from providing for the militia’s disarmament. As George Mason argued during the debates in Virginia on the ratification of the original Constitution: 13
The Court notes that the First Amendment protects two separate rights with the phrase “the ‘right [singular] of the people peaceably to assemble, and to petition the Government for a redress of grievances.’” Ante, at 2797. But this only proves the point: In contrast to the language quoted by the Court, the Second Amendment does not protect a “right to keep and to bear arms,” but rather a “right to keep and bear arms.” The state constitutions cited by the Court are distinguishable on the same ground. 14 The Court’s atomistic, word-by-word approach to construing the Amendment calls to mind the parable of the six blind men and the elephant, famously set in verse by John Godfrey Saxe. The Poems of John Godfrey Saxe 135-136 (1873). In the parable, each blind man approaches a single elephant; touching a different part of the elephant’s body in isolation, each concludes that he has learned its true nature. One touches the animal’s leg, and concludes that the elephant is like a tree; another touches the trunk and decides that the elephant is like a snake; and so on. Each of them, of course, has fundamentally failed to grasp the nature of the creature. 15 By “‘split[ting] the atom of sovereignty,’” the Framers created “‘two political capacities, one state and one federal, each protected from incursion by the other. The resulting
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The militia may be here destroyed by that method which has been practiced in other parts of the world before; that is, by rendering them useless-by disarming them. Under various pretences, Congress may neglect to provide for arming and disciplining the militia; and the state governments cannot do it, for Congress has the exclusive right to arm them.” Elliot 379.
This sentiment was echoed at a number of state ratification conventions; indeed, it was one of the primary objections to the original Constitution voiced by its opponents. The Anti-Federalists were ultimately unsuccessful in persuading state ratification conventions to condition their approval of the Constitution upon the eventual inclusion of any particular amendment. But a number of States did propose to the first Federal Congress amendments reflecting a desire to ensure that the institution of the militia would remain protected under the new Government. The proposed amendments sent by the States of Virginia, North Carolina, and New York focused on the importance of preserving the state militias and reiterated the dangers posed by standing armies. New Hampshire sent a proposal that differed significantly from the others; while also invoking the dangers of a standing army, it suggested that the Constitution should more broadly protect the use and possession of weapons, without tying such a guarantee expressly to the maintenance of the militia. The States of Maryland, Constitution created a legal system unprecedented in form and design, establishing two orders of government, each with its own direct relationship, its own privity, its own set of mutual rights and obligations to the people who sustain it and are governed by it.’” Saenz v. Roe, 526 U.S. 489, 504, n. 17, 119 S.Ct. 1518, 143 L.Ed.2d 689 (1999) (quoting U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 838, 115 S.Ct. 1842, 131 L.Ed.2d 881 (1995) (KENNEDY, J., concurring)). 16 Indeed, this was one of the grievances voiced by the colonists: Paragraph 13 of the Declaration of Independence charged of King George, “He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures.” 17 George Washington, writing to Congress on September 24, 1776, warned that for Congress “[t]o place any dependance upon Militia, is, assuredly, resting upon a broken staff.” 6 Writings of George Washington 106, 110 (J. Fitzpatrick ed.1932). Several years later he reiterated this view in another letter to Congress: “Regular Troops alone are equal to the exigencies of modern war, as well for defence as offence . . . . No Militia will ever acquire the habits necessary to resist a regular force . . . . The firmness requisite for the real business of fighting is only to be
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Pennsylvania, and Massachusetts sent no relevant proposed amendments to Congress, but in each of those States a minority of the delegates advocated related amendments. While the Maryland minority proposals were exclusively concerned with standing armies and conscientious objectors, the unsuccessful proposals in both Massachusetts and Pennsylvania would have protected a more broadly worded right, less clearly tied to service in a state militia. Faced with all of these options, it is telling that James Madison chose to craft the Second Amendment as he did. The relevant proposals sent by the Virginia Ratifying Convention read as follows: 17th, That the people have a right to keep and bear arms; that a well regulated Militia composed of the body of the people trained to arms is the proper, natural and safe defence of a free State. That standing armies are dangerous to liberty, and therefore ought to be avoided, as far as the circumstances and protection of the Community will admit; and that in all cases the military should be under strict subordination to and be governed by the civil power.” Elliot 659. 19th. That any person religiously scrupulous of bearing arms ought to be exempted, upon payment of an equivalent to employ another to bear arms in his stead.
Ibid. North Carolina adopted Virginia’s proposals and sent them to Congress as its own, although it did not actually ratify the original Constitution attained by a constant course of discipline and service.” 20 id., at 49, 49-50 (Sept. 15, 1780). And Alexander Hamilton argued this view in many debates. In 1787, he wrote: Here I expect we shall be told that the militia of the country is its natural bulwark, and would be at all times equal to the national defense. This doctrine, in substance, had like to have lost us our independence . . . . War, like most other things, is a science to be acquired and perfected by diligence, by perseverance, by time, and by practice.” The Federalist No. 25, p. 166 (C. Rossiter ed.1961). “[B]ut no Appropriation of Money to that Use [raising and supporting Armies] shall be for a longer Term than two Years.” U.S. Const., Art I, § 8, cl. 12. 19 This “calling forth” power was only permitted in order for the militia “to execute the Laws of the Union, suppress Insurrections and repel Invasions.” Id., Art. I, § 8, cl. 15. 20 The Court assumes-incorrectly, in my view-that even when a state militia was not called into service, Congress would have had the power to exclude individuals from enlistment in that state militia. See ante, at 2802. That assumption is not supported by the text of the Militia 18
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until Congress had sent the proposed Bill of Rights to the States for ratification. 2 Schwartz 932-933; see The Complete Bill of Rights 182183 (N. Cogan ed. 1997) (hereinafter Cogan). New York produced a proposal with nearly identical language. It read: That the people have a right to keep and bear Arms; that a well regulated Militia, including the body of the People capable of bearing Arms, is the proper, natural, and safe defence of a free State . . . . That standing Armies, in time of Peace, are dangerous to Liberty, and ought not to be kept up, except in Cases of necessity; and that at all times, the Military should be kept under strict Subordination to the civil Power. 2 Schwartz 912.
Notably, each of these proposals used the phrase “keep and bear arms,” which was eventually adopted by Madison. And each proposal embedded the phrase within a group of principles that are distinctly military in meaning.21 By contrast, New Hampshire’s proposal, although it followed another proposed amendment that echoed the familiar concern about standing armies,22 described the protection involved in more clearly personal terms. Its proposal read: “Twelfth, Congress shall never disarm any Citizen unless such as are or have been in Actual Rebellion.” Id., at 758, 761.
The proposals considered in the other three States, although ultimately rejected by their respective ratification conventions, are also relevant
Clauses of the original Constitution, which confer upon Congress the power to “organiz[e], ar[m], and disciplin[e], the Militia,” Art. I, § 8, cl. 16, but not the power to say who will be members of a state militia. It is also flatly inconsistent with the Second Amendment. The States’ power to create their own militias provides an easy answer to the Court’s complaint that the right as I have described it is empty because it merely guarantees “citizens’ right to use a gun in an organization from which Congress has plenary authority to exclude them.” Ante, at 2802. 21 In addition to the cautionary references to standing armies and to the importance of civil authority over the military, each of the proposals contained a guarantee that closely resembled the language of what later became the Third Amendment. The 18th proposal from Virginia and North Carolina read “That no soldier in time of peace ought to be quartered in any house without the consent of the owner, and in time of war in such manner only as the law directs.” Elliott 659. And New York’s language read: “That in time of Peace no Soldier ought to be quartered in any House without the consent of the Owner, and in time of War only by the Civil Magistrate in such manner as the Laws may direct.” 2 Schwartz 912.
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to our historical inquiry. First, the Maryland proposal, endorsed by a minority of the delegates and later circulated in pamphlet form, read: 4. That no standing army shall be kept up in time of peace, unless with the consent of two thirds of the members present of each branch of Congress.
. . . .. “10. That no person conscientiously scrupulous of bearing arms in any case, shall be compelled personally to serve as a soldier.” Id., at 729, 735. The rejected Pennsylvania proposal, which was later incorporated into a critique of the Constitution titled “The Address and Reasons of Dissent of the Pennsylvania Minority of the Convention of the State of Pennsylvania to Their Constituents (1787),” signed by a minority of the State’s delegates (those who had voted against ratification of the Constitution), id., at 628, 662, read: 7. That the people have a right to bear arms for the defense of themselves and their own State, or the United States, or for the purpose of killing game; and no law shall be passed for disarming the people or any of them unless for crimes committed, or real danger of public injury from individuals; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; and that the military shall be kept under strict subordination to, and be governed by the civil powers.
Id., at 665. Finally, after the delegates at the Massachusetts Ratification Convention had compiled a list of proposed amendments and alterations, a motion was made to add to the list the following “Tenth, That no standing Army shall be Kept up in time of Peace unless with the consent of three fourths of the Members of each branch of Congress, nor shall Soldiers in Time of Peace be quartered upon private Houses with out the consent of the Owners.” 23 Madison explained in a letter to Richard Peters, Aug. 19, 1789, the paramount importance of preparing a list of amendments to placate those States that had ratified the Constitution in reliance on a commitment that amendments would follow: “In many States the [Constitution] was adopted under a tacit compact in [favor] of some subsequent provisions on this head. In [Virginia]. It would have been certainly rejected, had no assurances been given by its advocates that such provisions would be pursued. As an honest man I feel my self bound by this consideration.” Creating the Bill of Rights 281, 282 (H. Veit, K. Bowling, & C. Bickford eds.1991) (hereinafter Veit). 22
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language: “[T]hat the said Constitution never be construed to authorize Congress to . . . prevent the people of the United States, who are peaceable citizens, from keeping their own arms.” Cogan 181. This motion, however, failed to achieve the necessary support, and the proposal was excluded from the list of amendments the State sent to Congress. 2 Schwartz 674-675. Madison, charged with the task of assembling the proposals for amendments sent by the ratifying States, was the principal draftsman of the Second Amendment.23 He had before him, or at the very least would have been aware of, all of these proposed formulations. In addition, Madison had been a member, some years earlier, of the committee tasked with drafting the Virginia Declaration of Rights. That committee considered a proposal by Thomas Jefferson that would have included within the Virginia Declaration the following language: “No freeman shall ever be debarred the use of arms [within his own lands or tenements].” 1 Papers of Thomas Jefferson 363 (J. Boyd ed.1950). But the committee rejected that language, adopting instead the provision drafted by George Mason.24 With all of these sources upon which to draw, it is strikingly significant that Madison’s first draft omitted any mention of nonmilitary use or possession of weapons. Rather, his original draft repeated the essence of the two proposed amendments sent by Virginia, combining the substance of the two provisions succinctly into one, which read: “The right of the people to keep and bear arms shall not be infringed; a well armed, and well regulated militia being the best security of a free country; but no person religiously scrupulous of bearing arms, shall be compelled to render military service in person.” Cogan 169. Madison’s decision to model the Second Amendment on the distinctly military Virginia proposal is therefore revealing, since it is clear that he considered and rejected formulations that would have unambiguously protected 24 The adopted language, Virginia Declaration of Rights ¶ 13 (1776), read as follows: “That a well-regulated Militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defence of a free State; that Standing Armies, in time of peace, should be avoided as dangerous to liberty; and that, in all cases, the military should be under strict subordination to, and governed by, the civil power.” 1 Schwartz 234.
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civilian uses of firearms. When Madison prepared his first draft, and when that draft was debated and modified, it is reasonable to assume that all participants in the drafting process were fully aware of the other formulations that would have protected civilian use and possession of weapons and that their choice to craft the Amendment as they did represented a rejection of those alternative formulations. Madison’s initial inclusion of an exemption for conscientious objectors sheds revelatory light on the purpose of the Amendment. It confirms an intent to describe a duty as well as a right, and it unequivocally identifies the military character of both. The objections voiced to the conscientious-objector clause only confirm the central meaning of the text. Although records of the debate in the Senate, which is where the conscientious-objector clause was removed, do not survive, the arguments raised in the House illuminate the perceived problems with the clause: Specifically, there was concern that Congress “can declare who are those religiously scrupulous, and prevent them from bearing arms.”25 The ultimate removal of the clause, therefore, only serves to confirm the purpose of the Amendment-to protect against congressional disarmament, by whatever means, of the States’ militias. The Court also contends that because “Quakers opposed the use of arms not just for militia service, but for any violent purpose whatsoever,” ante, at 2796, the inclusion of a conscientious-objector clause in the original draft of the Amendment does not support the conclusion that the phrase “bear arms” was military in meaning. But that claim cannot be squared with the record. In the proposals cited supra, at 2833 2834, both Virginia and North Carolina included the following language: “That any person religiously scrupulous of bearing arms ought to be exempted, upon payment of an equivalent to 25
Veit 182. This was the objection voiced by Elbridge Gerry, who went on to remark, in the next breath: “What, sir, is the use of a militia? It is to prevent the establishment of a standing army, the bane of liberty . . . . Whenever government mean to invade the rights and liberties of the people, they always attempt to destroy the militia, in order to raise an army upon their ruins.” Ibid. 26 The failed Maryland proposals contained similar language. See supra, at 2834. 27 The Court suggests that this historical analysis casts the Second Amendment as an “odd outlier,” ante, at 2803; if by “outlier,” the Court means that the Second Amendment was enacted in a unique and novel context, and responded to the
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employ another to bear arms in his stead” (emphasis added).26 There is no plausible argument that the use of “bear arms” in those provisions was not unequivocally and exclusively military: The State simply does not compel its citizens to carry arms for the purpose of private “confrontation,” ante, at 2793, or for self-defense. The history of the adoption of the Amendment thus describes an overriding concern about the potential threat to state sovereignty that a federal standing army would pose, and a desire to protect the States’ militias as the means by which to guard against that danger. But state militias could not effectively check the prospect of a federal standing army so long as Congress retained the power to disarm them, and so a guarantee against such disarmament was needed.27 As we explained in Miller: “With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.” 307 U.S., at 178, 59 S.Ct. 816. The evidence plainly refutes the claim that the Amendment was motivated by the Framers’ fears that Congress might act to regulate any civilian uses of weapons. And even if the historical record were genuinely ambiguous, the burden would remain on the parties advocating a change in the law to introduce facts or arguments “‘newly ascertained,’” Vasquez, 474 U.S., at 266, 106 S.Ct. 617; the Court is unable to identify any such facts or arguments. III
Although it gives short shrift to the drafting history of the Second Amendment, the Court dwells at length on four other sources: the 17thcentury English Bill of Rights; Blackstone’s Commentaries on the Laws of England; postenactment commentary on the Second Amendment; and post-Civil War legislative history.28 particular challenges presented by the Framers’ federalism experiment, I have no quarrel with the Court’s characterization. 28 The Court’s fixation on the last two types of sources is particularly puzzling, since both have the same characteristics as postenactment legislative history, which is generally viewed as the least reliable source of authority for ascertaining the intent of any provision’s drafters. As has been explained: The legislative history of a statute is the history of its consideration and enactment. ‘Subsequent legislative history’-which presumably means the post-enactment history of a statute’s consideration and enactment-is a contradiction in terms. The
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All of these sources shed only indirect light on the question before us, and in any event offer little support for the Court’s conclusion.29 The English Bill of Rights
right was qualified in two distinct ways: First, it was restricted to those of adequate social and economic status (“suitable to their Condition”); second, it was only available subject to regulation by Parliament (“as allowed by Law”).31
The Court’s reliance on Article VII of the 1689 English Bill of Rights—which, like most of the evidence offered by the Court today, was considered in Miller30—is misguided both because Article VII was enacted in response to different concerns from those that motivated the Framers of the Second Amendment, and because the guarantees of the two provisions were by no means coextensive. Moreover, the English text contained no preamble or other provision identifying a narrow, militia-related purpose.
The Court may well be correct that the English Bill of Rights protected the right of some English subjects to use some arms for personal self-defense free from restrictions by the Crown (but not Parliament). But that right-adopted in a different historical and political context and framed in markedly different languagetells us little about the meaning of the Second Amendment.
The English Bill of Rights responded to abuses by the Stuart monarchs; among the grievances set forth in the Bill of Rights was that the King had violated the law “[b]y causing several good Subjects being Protestants to be disarmed at the same time when Papists were both armed and Employed contrary to Law.” Article VII of the Bill of Rights was a response to that selective disarmament; it guaranteed that “the Subjects which are Protestants may have Armes for their defence, Suitable to their condition and as allowed by Law.” L. Schwoerer, The Declaration of Rights, 1689 (App. 1, pp. 295, 297) (1981). This grant did not establish a general right of all persons, or even of all Protestants, to possess weapons. Rather, the
The Court’s reliance on Blackstone’s Commentaries on the Laws of England is unpersuasive for the same reason as its reliance on the English Bill of Rights. Blackstone’s invocation of “‘the natural right of resistance and self-preservation,’” ante, at 2798, and “‘the right of having and using arms for self-preservation and defence’” ibid., referred specifically to Article VII in the English Bill of Rights. The excerpt from Blackstone offered by the Court, therefore, is, like Article VII itself, of limited use in interpreting the very differently worded, and differently historically situated, Second Amendment.
phrase is used to smuggle into judicial consideration legislators’ expression not of what a bill currently under consideration means (which, the theory goes, reflects what their colleagues understood they were voting for), but of what a law previously enacted means. . . . In my opinion, the views of a legislator concerning a statute already enacted are entitled to no more weight than the views of a judge concerning a statute not yet passed.” Sullivan v. Finkelstein, 496 U.S. 617, 631632, 110 S.Ct. 2658, 110 L.Ed.2d 563 (1990) (SCALIA, J., concurring in part).
advanced in those cases is not as clear as the Court apparently believes. In Aldridge v. Commonwealth, 4 Va. 447, 2 Va. Cas. 447 (Gen.Ct.1824), for example, a Virginia court pointed to the restriction on free blacks’ “right to bear arms” as evidence that the protections of the State and Federal Constitutions did not extend to free blacks. The Court asserts that “[t]he claim was obviously not that blacks were prevented from carrying guns in the militia.” Ante, at 2808. But it is not obvious at all. For in many States, including Virginia, free blacks during the colonial period were prohibited from carrying guns in the militia, instead being required to “muste[r] without arms”; they were later barred from serving in the militia altogether. See Siegel, The Federal Government’s Power to Enact Color-Conscious Laws: An Originalist Inquiry, 92 Nw. U.L. Rev. 477, 497-498, and n. 120 (1998). But my point is not that the Aldridge court endorsed my view of the Amendment-plainly it did not, as the premise of the relevant passage was that the Second Amendment applied to the States. Rather, my point is simply that the court could have understood the Second Amendment to protect a militia-focused right, and thus that its passing mention of the right to bear arms provides scant support for the Court’s position.
29
The Court stretches to derive additional support from scattered state-court cases primarily concerned with state constitutional provisions. See ante, at 2807 - 2810. To the extent that those state courts assumed that the Second Amendment was coterminous with their differently worded state constitutional arms provisions, their discussions were of course dicta. Moreover, the cases on which the Court relies were decided between 30 and 60 years after the ratification of the Second Amendment, and there is no indication that any of them engaged in a careful textual or historical analysis of the federal constitutional provision. Finally, the interpretation of the Second Amendment
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Blackstone’s Commentaries
What is important about Blackstone is the instruction he provided on reading the sort of text before us today. Blackstone described an
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interpretive approach that gave far more weight to preambles than the Court allows. Counseling that “[t]he fairest and most rational method to interpret the will of the legislator, is by exploring his intentions at the time when the law was made, by signs the most natural and probable,” Blackstone explained that “[i]f words happen to be still dubious, we may establish their meaning from the context; with which it may be of singular use to compare a word, or a sentence, whenever they are ambiguous, equivocal, or intricate. Thus, the proeme, or preamble, is often called in to help the construction of an act of parliament.” 1 Commentaries on the Laws of England 59-60 (1765) (hereinafter Blackstone). In light of the Court’s invocation of Blackstone as “‘the preeminent authority on English law for the founding generation,’” ante, at 2798 (quoting Alden v. Maine, 527 U.S. 706, 715, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999)), its disregard for his guidance on matters of interpretation is striking. Postenactment Commentary
The Court also excerpts, without any real analysis, commentary by a number of additional scholars, some near in time to the framing and others post-dating it by close to a century. Those scholars are for the most part of limited relevance in construing the guarantee of the Second Amendment: Their views are not altogether clear,32 they tended to collapse the Second Amendment with Article VII of the English Bill of Rights, and they appear to have 30
The Government argued in its brief that: [I]t would seem that the early English law did not guarantee an unrestricted right to bear arms. Such recognition as existed of a right in the people to keep and bear arms appears to have resulted from oppression by rulers who disarmed their political opponents and who organized large standing armies which were obnoxious and burdensome to the people. This right, however, it is clear, gave sanction only to the arming of the people as a body to defend their rights against tyrannical and unprincipled rulers. It did not permit the keeping of arms for purposes of private defense. Brief for United States in United States v. Miller, O.T.1938, No. 696, pp. 11-12 (citations omitted). The Government then cited at length the Tennessee Supreme Court’s opinion in Aymette, 21 Tenn. 154, which further situated the English Bill of Rights in its historical context. See n. 10, supra.
31
Moreover, it was the Crown, not Parliament, that was bound by the English provision; indeed, according to some
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been unfamiliar with the drafting history of the Second Amendment.33 The most significant of these commentators was Joseph Story. Contrary to the Court’s assertions, however, Story actually supports the view that the Amendment was designed to protect the right of each of the States to maintain a well-regulated militia. When Story used the term “palladium” in discussions of the Second Amendment, he merely echoed the concerns that animated the Framers of the Amendment and led to its adoption. An excerpt from his 1833 Commentaries on the Constitution of the United States-the same passage cited by the Court in Miller34 -merits reproducing at some length: The importance of [the Second Amendment] will scarcely be doubted by any persons who have duly reflected upon the subject. The militia is the natural defence of a free country against sudden foreign invasions, domestic insurrections, and domestic usurpations of power by rulers. It is against sound policy for a free people to keep up large military establishments and standing armies in time of peace, both from the enormous expenses with which they are attended and the facile means which they afford to ambitious and unprincipled rulers to subvert the government, or trample upon the rights of the people. The right of the citizens to keep and bear arms has justly been considered as the palladium of the liberties of a republic, since it offers a strong moral check against the usurpation and arbitrary power of rulers, and will generally, even if these are successful in prominent historians, Article VII is best understood not as announcing any individual right to unregulated firearm ownership (after all, such a reading would fly in the face of the text), but as an assertion of the concept of parliamentary supremacy. See Brief for Jack N. Rakove et al. as Amici Curiae 6-9. 32 For example, St. George Tucker, on whom the Court relies heavily, did not consistently adhere to the position that the Amendment was designed to protect the “Blackstonian” self-defense right, ante, at 2805. In a series of unpublished lectures, Tucker suggested that the Amendment should be understood in the context of the compromise over military power represented by the original Constitution and the Second and Tenth Amendments: If a State chooses to incur the expense of putting arms into the Hands of its own Citizens for their defense, it would require no small ingenuity to prove that they have no right to do it, or that it could by any means contravene the Authority of the federal Govt. It may be alleged indeed that this might be done for the purpose of resisting the laws of the federal Government, or of shaking off the
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the first instance, enable the people to resist and triumph over them. And yet, though this truth would seem so clear, and the importance of a well-regulated militia would seem so undeniable, it cannot be disguised that, among the American people, there is a growing indifference to any system of militia discipline, and a strong disposition, from a sense of its burdens, to be rid of all regulations. How it is practicable to keep the people duly armed without some organization, it is difficult to see. There is certainly no small danger that indifference may lead to disgust, and disgust to contempt; and thus gradually undermine all the protection intended by the clause of our national bill of rights.” 2 J. Story, Commentaries on the Constitution of the United States § 1897, pp. 620-621 (4th ed. 1873) (footnote omitted).
Story thus began by tying the significance of the Amendment directly to the paramount importance of the militia. He then invoked the fear that drove the Framers of the Second Amendment-specifically, the threat to liberty posed by a standing army. An important check on that danger, he suggested, was a “wellregulated militia,” id., at 621, for which he assumed that arms would have to be kept and, when necessary, borne. There is not so much as a whisper in the passage above that Story believed that the right secured by the Amendment bore any relation to private use or possession of weapons for activities like hunting or personal self-defense.
ibid., he underscored the degree to which he viewed the arming of the people and the militia as indissolubly linked. Story warned that the “growing indifference” he perceived would “gradually undermine all the protection intended by this clause of our national bill of rights,” ibid. In his view, the importance of the Amendment was directly related to the continuing vitality of an institution in the process of apparently becoming obsolete. In an attempt to downplay the absence of any reference to nonmilitary uses of weapons in Story’s commentary, the Court relies on the fact that Story characterized Article VII of the English Declaration of Rights as a “‘similar provision,’” ante, at 2807. The two provisions were indeed similar, in that both protected some uses of firearms. But Story’s characterization in no way suggests that he believed that the provisions had the same scope. To the contrary, Story’s exclusive focus on the militia in his discussion of the Second Amendment confirms his understanding of the right protected by the Second Amendment as limited to military uses of arms.
After extolling the virtues of the militia as a bulwark against tyranny, Story went on to decry the “growing indifference to any system of militia discipline.” Ibid. When he wrote, “[h]ow it is practicable to keep the people duly armed without some organization it is difficult to see,”
Story’s writings as a Justice of this Court, to the extent that they shed light on this question, only confirm that Justice Story did not view the Amendment as conferring upon individuals any “self-defense” right disconnected from service in a state militia. Justice Story dissented from the Court’s decision in Houston v. Moore, 5 Wheat. 1, 24, 5 L.Ed. 19 (1820), which held that a state court “had a concurrent jurisdiction” with the federal courts “to try a militia man who had disobeyed the call of the President, and to enforce the laws of Congress
union: to which the plainest answer seems to be, that whenever the States think proper to adopt either of these measures, they will not be with-held by the fear of infringing any of the powers of the federal Government. But to contend that such a power would be dangerous for the reasons above maintained would be subversive of every principle of Freedom in our Government; of which the first Congress appears to have been sensible by proposing an Amendment to the Constitution, which has since been ratified and has become part of it, viz., ‘That a well regulated militia being necessary to the Security of a free State, the right of the people to keep and bear arms shall not be infringed.’ To this we may add that this power of arming the militia, is not one of those prohibited to the States by the Constitution, and, consequently, is reserved to them under the twelfth Article of the ratified aments.
S. Tucker, Ten Notebooks of Law Lectures, 1790’s, TuckerColeman Papers, pp. 127-128 (College of William and Mary). See also Cornell, St. George Tucker and the Second Amendment: Original Understandings and Modern Misunderstandings, 47 Wm. & Mary L.Rev. 1123 (2006). 33 The Court does acknowledge that at least one early commentator described the Second Amendment as creating a right conditioned upon service in a state militia. See ante, at 2807 - 2808 (citing B. Oliver, The Rights of an American Citizen (1832)). Apart from the fact that Oliver is the only commentator in the Court’s exhaustive survey who appears to have inquired into the intent of the drafters of the Amendment, what is striking about the Court’s discussion is its failure to refute Oliver’s description of the meaning of the Amendment or the intent of its drafters; rather, the Court adverts to simple nose-counting to dismiss his view. 34 Miller, 307 U.S., at 182, n. 3, 59 S.Ct. 816.
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against such delinquent.” Id., at 31-32. Justice Story believed that Congress’ power to provide for the organizing, arming, and disciplining of the militia was, when Congress acted, plenary; but he explained that in the absence of congressional action, “I am certainly not prepared to deny the legitimacy of such an exercise of [state] authority.” Id., at 52. As to the Second Amendment, he wrote that it “may not, perhaps, be thought to have any important bearing on this point. If it have, it confirms and illustrates, rather than impugns the reasoning already suggested.” Id., at 52-53. The Court contends that had Justice Story understood the Amendment to have a militia purpose, the Amendment would have had “enormous and obvious bearing on the point.” Ante, at 2808. But the Court has it quite backwards: If Story had believed that the purpose of the Amendment was to permit civilians to keep firearms for activities like personal self-defense, what “confirm[ation] and illustrat[ion],” Houston, 5 Wheat., at 53, 5 L.Ed. 19, could the Amendment possibly have provided for the point that States retained the power to organize, arm, and discipline their own militias? Post-Civil War Legislative History
The Court suggests that by the post-Civil War period, the Second Amendment was understood to secure a right to firearm use and ownership for purely private purposes like personal selfdefense. While it is true that some of the legislative history on which the Court relies supports that contention, see ante, at 2809 - 2811, such sources are entitled to limited, if any, weight. All of the statements the Court cites were made long after the framing of the Amendment and cannot possibly supply any insight into the intent of the Framers; and all were made during pitched political debates, so that they are better characterized as advocacy than goodfaith attempts at constitutional interpretation. What is more, much of the evidence the Court offers is decidedly less clear than its discussion allows. The Court notes that “[b] lacks were routinely disarmed by Southern States after the Civil War. Those who opposed these injustices frequently stated that they infringed blacks’ constitutional right to keep and bear arms.” Ante, at 2810. The Court hastily concludes that “[n]eedless to say, the claim was not that blacks were being prohibited from carrying arms in an organized state militia,” G A L E
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ibid. But some of the claims of the sort the Court cites may have been just that. In some Southern States, Reconstruction-era Republican governments created state militias in which both blacks and whites were permitted to serve. Because “[t]he decision to allow blacks to serve alongside whites meant that most southerners refused to join the new militia,” the bodies were dubbed “Negro militia[s].” S. Cornell, A WellRegulated Militia 176-177 (2006). The “arming of the Negro militias met with especially fierce resistance in South Carolina . . . . The sight of organized, armed freedmen incensed opponents of Reconstruction and led to an intensified campaign of Klan terror. Leading members of the Negro militia were beaten or lynched and their weapons stolen.” Id., at 177. One particularly chilling account of Reconstruction-era Klan violence directed at a black militia member is recounted in the memoir of Louis F. Post, A “Carpetbagger” in South Carolina, 10 Journal of Negro History 10 (1925). Post describes the murder by local Klan members of Jim Williams, the captain of a “Negro militia company,” id., at 59, this way: [A] cavalcade of sixty cowardly white men, completely disguised with face masks and body gowns, rode up one night in March, 1871, to the house of Captain Williams . . . in the wood [they] hanged [and shot] him . . . [and on his body they] then pinned a slip of paper inscribed, as I remember it, with these grim words: ‘Jim Williams gone to his last muster.’
Id., at 61. In light of this evidence, it is quite possible that at least some of the statements on which the Court relies actually did mean to refer to the disarmament of black militia members. IV
The brilliance of the debates that resulted in the Second Amendment faded into oblivion during the ensuing years, for the concerns about Article I’s Militia Clauses that generated such pitched debate during the ratification process and led to the adoption of the Second Amendment were short lived. In 1792, the year after the Amendment was ratified, Congress passed a statute that purported to establish “an Uniform Militia throughout the United States.” 1 Stat. 271. The statute commanded every able-bodied white male citizen between the ages of 18 and 45 to be enrolled therein and to “provide himself with a good A M E R I C A N
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musket or firelock” and other specified weaponry.35 Ibid. The statute is significant, for it confirmed the way those in the founding generation viewed firearm ownership: as a duty linked to military service. The statute they enacted, however, “was virtually ignored for more than a century,” and was finally repealed in 1901. See Perpich, 496 U.S., at 341, 110 S.Ct. 2418. The postratification history of the Second Amendment is strikingly similar. The Amendment played little role in any legislative debate about the civilian use of firearms for most of the 19th century, and it made few appearances in the decisions of this Court. Two 19th-century cases, however, bear mentioning. In United States v. Cruikshank, 92 U.S. 542, 23 L.Ed. 588 (1876), the Court sustained a challenge to respondents’ convictions under the Enforcement Act of 1870 for conspiring to deprive any individual of “‘any right or privilege granted or secured to him by the constitution or laws of the United States.’” Id., at 548. The Court wrote, as to counts 2 and 10 of respondents’ indictment: The right there specified is that of ‘bearing arms for a lawful purpose.’ This is not a right granted by the Constitution. Neither is it in any manner dependent on that instrument for its existence. The second amendment declares that it shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government.” Id., at 553.
The majority’s assertion that the Court in Cruikshank “described the right protected by the Second Amendment as ‘ “bearing arms for a lawful purpose,” ’ ” ante, at 2813 (quoting Cruikshank, 92 U.S., at 553), is not accurate. The Cruikshank Court explained that the defective indictment contained such language, but the Court did not itself describe the right, or endorse the indictment’s description of the right. Moreover, it is entirely possible that the basis for the indictment’s counts 2 and 10, which charged respondents with depriving the The additional specified weaponry included: “a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch with a box therein to contain not less than twenty-four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball: or with a good rifle, knapsack, shot-pouch and powder-horn, twenty balls suited to the bore of his rifle and a quarter of a pound of powder.” 1 Stat. 271.
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victims of rights secured by the Second Amendment, was the prosecutor’s belief that the victims-members of a group of citizens, mostly black but also white, who were rounded up by the Sheriff, sworn in as a posse to defend the local courthouse, and attacked by a white mobbore sufficient resemblance to members of a state militia that they were brought within the reach of the Second Amendment. See generally C. Lane, The Day Freedom Died: The Colfax Massacre, The Supreme Court, and the Betrayal of Reconstruction (2008). Only one other 19th-century case in this Court, Presser v. Illinois, 116 U.S. 252, 6 S.Ct. 580, 29 L.Ed. 615 (1886), engaged in any significant discussion of the Second Amendment. The petitioner in Presser was convicted of violating a state statute that prohibited organizations other than the Illinois National Guard from associating together as military companies or parading with arms. Presser challenged his conviction, asserting, as relevant, that the statute violated both the Second and the Fourteenth Amendments. With respect to the Second Amendment, the Court wrote: We think it clear that the sections under consideration, which only forbid bodies of men to associate together as military organizations, or to drill or parade with arms in cities and towns unless authorized by law, do not infringe the right of the people to keep and bear arms. But a conclusive answer to the contention that this amendment prohibits the legislation in question lies in the fact that the amendment is a limitation only upon the power of Congress and the National government, and not upon that of the States.
Id., at 264-265, 6 S.Ct. 580. And in discussing the Fourteenth Amendment, the Court explained: The plaintiff in error was not a member of the organized volunteer militia of the State of Illinois, nor did he belong to the troops of the United States or to any organization under the militia law of the United States. On the contrary, the fact that he did not belong to the organized militia or the troops of the United States was an ingredient in the offence for which he was convicted and sentenced. The question is, therefore, had he a right as a citizen of the United States, in disobedience of the State law, to associate with others as a military company, and to drill and parade with arms in the towns and cities of the State? If the plaintiff in error has
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any such privilege he must be able to point to the provision of the Constitution or statutes of the United States by which it is conferred.
Id., at 266, 6 S.Ct. 580. Presser, therefore, both affirmed Cruikshank’s holding that the Second Amendment posed no obstacle to regulation by state governments, and suggested that in any event nothing in the Constitution protected the use of arms outside the context of a militia “authorized by law” and organized by the State or Federal Government.36 In 1901 the President revitalized the militia by creating “‘the National Guard of the several States,’” Perpich, 496 U.S., at 341, and nn. 9-10, 110 S.Ct. 2418; meanwhile, the dominant understanding of the Second Amendment’s inapplicability to private gun ownership continued well into the 20th century. The first two federal laws directly restricting civilian use and possession of firearms-the 1927 Act prohibiting mail delivery of “pistols, revolvers, and other firearms capable of being concealed on the person,” Ch. 75, 44 Stat. 1059, and the 1934 Act prohibiting the possession of sawed-off shotguns and machine guns-were enacted over minor Second Amendment objections dismissed by the vast majority of the legislators who participated in the debates.37 Members of Congress clashed over the wisdom and efficacy of such laws as crimecontrol measures. But since the statutes did not 36
In another case the Court endorsed, albeit indirectly, the reading of Miller that has been well settled until today. In Burton v. Sills, 394 U.S. 812, 89 S.Ct. 1486, 22 L.Ed.2d 748 (1969) (per curiam), the Court dismissed for want of a substantial federal question an appeal from a decision of the New Jersey Supreme Court upholding, against a Second Amendment challenge, New Jersey’s gun control law. Although much of the analysis in the New Jersey court’s opinion turned on the inapplicability of the Second Amendment as a constraint on the States, the court also quite correctly read Miller to hold that “Congress, though admittedly governed by the second amendment, may regulate interstate firearms so long as the regulation does not impair the maintenance of the active, organized militia of the states.” Burton v. Sills, 53 N.J. 86, 98, 248 A.2d 521, 527 (1968). 37 The 1927 statute was enacted with no mention of the Second Amendment as a potential obstacle, although an earlier version of the bill had generated some limited objections on Second Amendment grounds; see 66 Cong. Rec. 725-735 (1924). And the 1934 Act featured just one colloquy, during the course of lengthy Committee debates, on whether the Second Amendment constrained Congress’ ability to legislate in this sphere; see Hearings on House
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infringe upon the military use or possession of weapons, for most legislators they did not even raise the specter of possible conflict with the Second Amendment. Thus, for most of our history, the invalidity of Second-Amendment-based objections to firearms regulations has been well settled and uncontroversial.38 Indeed, the Second Amendment was not even mentioned in either full House of Congress during the legislative proceedings that led to the passage of the 1934 Act. Yet enforcement of that law produced the judicial decision that confirmed the status of the Amendment as limited in reach to military usage. After reviewing many of the same sources that are discussed at greater length by the Court today, the Miller Court unanimously concluded that the Second Amendment did not apply to the possession of a firearm that did not have “some reasonable relationship to the preservation or efficiency of a well regulated militia.” 307 U.S., at 178, 59 S.Ct. 816. The key to that decision did not, as the Court belatedly suggests, ante, at 2813 - 2815, turn on the difference between muskets and sawed-off shotguns; it turned, rather, on the basic difference between the military and nonmilitary use and possession of guns. Indeed, if the Second Amendment were not limited in its coverage to military uses of weapons, why should the Court in Miller have suggested that some Committee on Ways and Means H.R. 9006, before the 73d Cong., 2d Sess., p. 19 (1934). 38 The majority appears to suggest that even if the meaning of the Second Amendment has been considered settled by courts and legislatures for over two centuries, that settled meaning is overcome by the “reliance of millions of Americans” “upon the true meaning of the right to keep and bear arms.” Ante, at 2835, n. 24. Presumably by this the Court means that many Americans own guns for selfdefense, recreation, and other lawful purposes, and object to government interference with their gun ownership. I do not dispute the correctness of this observation. But it is hard to see how Americans have “relied,” in the usual sense of the word, on the existence of a constitutional right that, until 2001, had been rejected by every federal court to take up the question. Rather, gun owners have “relied” on the laws passed by democratically elected legislatures, which have generally adopted only limited gun-control measures. Indeed, reliance interests surely cut the other way: Even apart from the reliance of judges and legislators who properly believed, until today, that the Second Amendment did not reach possession of firearms for purely private activities, “millions of Americans,” have relied on the power of government to protect their safety and
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weapons but not others were eligible for Second Amendment protection? If use for self-defense were the relevant standard, why did the Court not inquire into the suitability of a particular weapon for self-defense purposes? Perhaps in recognition of the weakness of its attempt to distinguish Miller, the Court argues in the alternative that Miller should be discounted because of its decisional history. It is true that the appellee in Miller did not file a brief or make an appearance, although the court below had held that the relevant provision of the National Firearms Act violated the Second Amendment (albeit without any reasoned opinion). But, as our decision in Marbury v. Madison, 1 Cranch 137, 2 L.Ed. 60, in which only one side appeared and presented arguments, demonstrates, the absence of adversarial presentation alone is not a basis for refusing to accord stare decisis effect to a decision of this Court. See Bloch, Marbury Redux, in Arguing Marbury v. Madison 59, 63 (M. Tushnet ed.2005). Of course, if it can be demonstrated that new evidence or arguments were genuinely not available to an earlier Court, that fact should be given special weight as we consider whether to overrule a prior case. But the Court does not make that claim, because it cannot. Although it is true that the drafting history of the Amendment was not discussed in the Government’s brief, see ante, at 2814 - 2815, it is certainly not the drafting history that the Court’s decision today turns on. And those sources upon which the Court today relies most heavily were available to the Miller Court. The Government cited the English Bill of Rights and quoted a lengthy passage from Aymette detailing the history leading to the English guarantee, Brief for United States in United States v. Miller, O.T.1938, No. 696, pp 1213; it also cited Blackstone, id., at 9, n. 2, Cooley, id., at 12, 15, and Story, id., at 15. The Court is reduced to critiquing the number of pages the Government devoted to exploring the English
well-being, and that of their families. With respect to the case before us, the legislature of the District of Columbia has relied on its ability to act to “reduce the potentiality for gun-related crimes and gun-related deaths from occurring within the District of Columbia,” H. Con. Res. 694, 94th Cong., 2d Sess., 25 (1976); see post, at 2854 - 2856 (BREYER, J., dissenting); so, too have the residents of the District.
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legal sources. Only two (in a brief 21 pages in length)! Would the Court be satisfied with four? Ten? The Court is simply wrong when it intones that Miller contained “not a word” about the Amendment’s history. Ante, at 2815. The Court plainly looked to history to construe the term “Militia,” and, on the best reading of Miller, the entire guarantee of the Second Amendment. After noting the original Constitution’s grant of power to Congress and to the States over the militia, the Court explained: With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view. The Militia which the States were expected to maintain and train is set in contrast with Troops which they were forbidden to keep without the consent of Congress. The sentiment of the time strongly disfavored standing armies; the common view was that adequate defense of country and laws could be secured through the Militiacivilians primarily, soldiers on occasion. The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators.
Miller, 307 U.S., at 178-179, 59 S.Ct. 816. The majority cannot seriously believe that the Miller Court did not consider any relevant evidence; the majority simply does not approve of the conclusion the Miller Court reached on that evidence. Standing alone, that is insufficient reason to disregard a unanimous opinion of this Court, upon which substantial reliance has been placed by legislators and citizens for nearly 70 years. V
The Court concludes its opinion by declaring that it is not the proper role of this Court to change the meaning of rights “enshrine[d]” in the Constitution. Ante, at 2822. But the right the Court announces was not “enshrined” in the Second Amendment by the Framers; it is the product of today’s law-changing decision. The majority’s exegesis has utterly failed to establish that as a matter of text or history, “the right of law-abiding, responsible citizens to use A M E R I C A N
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arms in defense of hearth and home” is “elevate [d] above all other interests” by the Second Amendment. Ante, at 2822. Until today, it has been understood that legislatures may regulate the civilian use and misuse of firearms so long as they do not interfere with the preservation of a wellregulated militia. The Court’s announcement of a new constitutional right to own and use firearms for private purposes upsets that settled understanding, but leaves for future cases the formidable task of defining the scope of permissible regulations. Today judicial craftsmen have confidently asserted that a policy choice that denies a “law-abiding, responsible citize [n]” the right to keep and use weapons in the home for self-defense is “off the table.” Ante, at 2822. Given the presumption that most citizens are law abiding, and the reality that the need to defend oneself may suddenly arise in a host of locations outside the home, I fear that the District’s policy choice may well be just the first of an unknown number of dominoes to be knocked off the table.39 I do not know whether today’s decision will increase the labor of federal judges to the “breaking point” envisioned by Justice Cardozo, but it will surely give rise to a far more active judicial role in making vitally important national policy decisions than was envisioned at any time in the 18th, 19th, or 20th centuries. The Court properly disclaims any interest in evaluating the wisdom of the specific policy choice challenged in this case, but it fails to pay 39
It was just a few years after the decision in Miller that Justice Frankfurter (by any measure a true judicial conservative) warned of the perils that would attend this Court’s entry into the “political thicket” of legislative districting. Colegrove v. Green, 328 U.S. 549, 556, 66 S.Ct. 1198, 90 L.Ed. 1432 (1946) (plurality opinion). The equally controversial political thicket that the Court has decided to enter today is qualitatively different from the one that concerned Justice Frankfurter: While our entry into that thicket was justified because the political process was manifestly unable to solve the problem of unequal districts, no one has suggested that the political process is not working exactly as it should in mediating the debate between the advocates and opponents of gun control. What impact the Court’s unjustified entry into this thicket will have on that ongoing debate-or indeed on the Court itself-is a matter that future historians will no doubt discuss at length. It is, however, clear to me that adherence to a policy of judicial restraint would be far wiser than the bold decision announced today.
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heed to a far more important policy choicethe choice made by the Framers themselves. The Court would have us believe that over 200 years ago, the Framers made a choice to limit the tools available to elected officials wishing to regulate civilian uses of weapons, and to authorize this Court to use the common-law process of case-by-case judicial lawmaking to define the contours of acceptable gun control policy. Absent compelling evidence that is nowhere to be found in the Court’s opinion, I could not possibly conclude that the Framers made such a choice. For these reasons, I respectfully dissent. Justice BREYER, with whom Justice STEVENS, Justice SOUTER, and Justice GINSBURG join, dissenting. We must decide whether a District of Columbia law that prohibits the possession of handguns in the home violates the Second Amendment. The majority, relying upon its view that the Second Amendment seeks to protect a right of personal self-defense, holds that this law violates that Amendment. In my view, it does not. I
The majority’s conclusion is wrong for two independent reasons. The first reason is that set forth by Justice STEVENS-namely, that the Second Amendment protects militia-related, not self-defense-related, interests. These two interests are sometimes intertwined. To assure 18th-century citizens that they could keep arms for militia purposes would necessarily have allowed them to keep arms that they could have used for self-defense as well. But self-defense alone, detached from any militia-related objective, is not the Amendment’s concern. The second independent reason is that the protection the Amendment provides is not absolute. The Amendment permits government to regulate the interests that it serves. Thus, irrespective of what those interests are-whether they do or do not include an independent interest in self-defense-the majority’s view cannot be correct unless it can show that the District’s regulation is unreasonable or inappropriate in Second Amendment terms. This the majority cannot do. In respect to the first independent reason, I agree with Justice STEVENS, and I join his opinion. In this opinion I shall focus upon the second reason. I shall show that the District’s law is consistent with A M E R I C A N
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the Second Amendment even if that Amendment is interpreted as protecting a wholly separate interest in individual self-defense. That is so because the District’s regulation, which focuses upon the presence of handguns in highcrime urban areas, represents a permissible legislative response to a serious, indeed lifethreatening, problem. Thus I here assume that one objective (but, as the majority concedes, ante, at 2801, not the primary objective) of those who wrote the Second Amendment was to help assure citizens that they would have arms available for purposes of self-defense. Even so, a legislature could reasonably conclude that the law will advance goals of great public importance, namely, saving lives, preventing injury, and reducing crime. The law is tailored to the urban crime problem in that it is local in scope and thus affects only a geographic area both limited in size and entirely urban; the law concerns handguns, which are specially linked to urban gun deaths and injuries, and which are the overwhelmingly favorite weapon of armed criminals; and at the same time, the law imposes a burden upon gun owners that seems proportionately no greater than restrictions in existence at the time the Second Amendment was adopted. In these circumstances, the District’s law falls within the zone that the Second Amendment leaves open to regulation by legislatures. II
The Second Amendment says that: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” In interpreting and applying this Amendment, I take as a starting point the following four propositions, based on our precedent and today’s opinions, to which I believe the entire Court subscribes: (1) The Amendment protects an “individual” right-i.e., one that is separately possessed, and may be separately enforced, by each person on whom it is conferred. See, e.g., ante, at 2799 (opinion of the Court); ante, at 2822 (STEVENS, J., dissenting). (2) As evidenced by its preamble, the Amendment was adopted “[w]ith obvious purpose to assure the continuation and render possible the effectiveness of [militia] forces.” United States v. Miller, 307 U.S. 174, 178, 59 G A L E
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S.Ct. 816, 83 L.Ed. 1206 (1939); see ante, at 2801 (opinion of the Court); ante, at 2822 (STEVENS, J., dissenting). (3) The Amendment “must be interpreted and applied with that end in view.” Miller, supra, at 178, 59 S.Ct. 816. (4) The right protected by the Second Amendment is not absolute, but instead is subject to government regulation. See Robertson v. Baldwin, 165 U.S. 275, 281-282, 17 S.Ct. 326, 41 L.Ed. 715 (1897); ante, at 2799, 2816 (opinion of the Court). My approach to this case, while involving the first three points, primarily concerns the fourth. I shall, as I said, assume with the majority that the Amendment, in addition to furthering a militia-related purpose, also furthers an interest in possessing guns for purposes of self-defense, at least to some degree. And I shall then ask whether the Amendment nevertheless permits the District handgun restriction at issue here. Although I adopt for present purposes the majority’s position that the Second Amendment embodies a general concern about self-defense, I shall not assume that the Amendment contains a specific untouchable right to keep guns in the house to shoot burglars. The majority, which presents evidence in favor of the former proposition, does not, because it cannot, convincingly show that the Second Amendment seeks to maintain the latter in pristine, unregulated form. To the contrary, colonial history itself offers important examples of the kinds of gun regulation that citizens would then have thought compatible with the “right to keep and bear arms,” whether embodied in Federal or State Constitutions, or the background common law. And those examples include substantial regulation of firearms in urban areas, including regulations that imposed obstacles to the use of firearms for the protection of the home. Boston, Philadelphia, and New York City, the three largest cities in America during that period, all restricted the firing of guns within city limits to at least some degree. See Churchill, Gun Regulation, the Police Power, and the Right to Keep Arms in Early America, 25 Law & Hist. Rev. 139, 162 (2007); Dept. of Commerce, Bureau of Census, C. Gibson, Population of the 100 Largest Cities and Other Urban Places in the United States: 1790 to 1990 (1998) (Table 2), A M E R I C A N
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online at http:// www.census.gov/population/ documentation/twps 0027/tab 02.txt (all Internet materials as visited June 19, 2008, and available in Clerk of Court’s case file). Boston in 1746 had a law prohibiting the “discharge” of “any Gun or Pistol charged with Shot or Ball in the Town” on penalty of 40 shillings, a law that was later revived in 1778. See Act of May 28, 1746, ch. 10; An Act for Reviving and Continuing Sundry Laws that are Expired, and Near Expiring, 1778 Massachusetts Session Laws, ch. 5, pp. 193, 194. Philadelphia prohibited, on penalty of 5 shillings (or two days in jail if the fine were not paid), firing a gun or setting off fireworks in Philadelphia without a “governor’s special license.” See Act of Aug. 26, 1721, § 4, in 3 Mitchell, Statutes at Large of Pennsylvania 253-254. And New York City banned, on penalty of a 20-shilling fine, the firing of guns (even in houses) for the three days surrounding New Year’s Day. 5 Colonial Laws of New York, ch. 1501, pp. 244-246 (1894); see also An Act to Suppress the Disorderly Practice of Firing Guns, & c., on the Times Therein Mentioned, 8 Statutes at Large of Pennsylvania 1770-1776, pp. 410-412 (1902) (similar law for all “inhabited parts” of Pennsylvania). See also An Act for preventing Mischief being done in the Town of Newport, or in any other Town in this Government, 1731, Rhode Island Session Laws (prohibiting, on penalty of 5 shillings for a first offense and more for subsequent offenses, the firing of “any Gun or Pistol . . . in the Streets of any of the Towns of this Government, or in any Tavern of the same, after dark, on any Night whatsoever”). Furthermore, several towns and cities (including Philadelphia, New York, and Boston) regulated, for fire-safety reasons, the storage of gunpowder, a necessary component of an operational firearm. See Cornell & DeDino, A Well Regulated Right, 73 Fordham L.Rev. 487, 510-512 (2004). Boston’s law in particular impacted the use of firearms in the home very much as the District’s law does today. Boston’s gunpowder law imposed a £10 fine upon “any Person” who “shall take into any DwellingHouse, Stable, Barn, Out-house, Ware-house, Store, Shop, or other Building, within the Town of Boston, any . . . Fire-Arm, loaded with, or having Gun-Powder.” An Act in Addition to the several Acts already made for the prudent Storage of Gun-Powder within the Town of Boston, ch. XIII, 1783 Mass. Acts 218-219; see G A L E
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also 1 S. Johnson, A Dictionary of the English Language 751 (4th ed. 1773) (defining “firearms” as “[a]rms which owe their efficacy to fire; guns”). Even assuming, as the majority does, see ante, at 2819 - 2820, that this law included an implicit self-defense exception, it would nevertheless have prevented a homeowner from keeping in his home a gun that he could immediately pick up and use against an intruder. Rather, the homeowner would have had to get the gunpowder and load it into the gun, an operation that would have taken a fair amount of time to perform. See Hicks, United States Military Shoulder Arms, 1795-1935, 1 Am. Military Hist. Foundation 23, 30 (1937) (experienced soldier could, with specially prepared cartridges as opposed to plain gunpowder and ball, load and fire musket 3-to-4 times per minute); id., at 26-30 (describing the loading process); see also Grancsay, The Craft of the Early American Gunsmith, 6 Metropolitan Museum of Art Bulletin 54, 60 (1947) (noting that rifles were slower to load and fire than muskets). Moreover, the law would, as a practical matter, have prohibited the carrying of loaded firearms anywhere in the city, unless the carrier had no plans to enter any building or was willing to unload or discard his weapons before going inside. And Massachusetts residents must have believed this kind of law compatible with the provision in the Massachusetts Constitution that granted “the people . . . a right to keep and to bear arms for the common defence”-a provision that the majority says was interpreted as “secur[ing] an individual right to bear arms for defensive purposes.” Art. XVII (1780), in 3 The Federal and State Constitutions, Colonial Charters, and Other Organic Laws 1888, 1892 (F. Thorpe ed.1909) (hereinafter Thorpe); ante, at 2802 - 2803 (opinion of the Court). The New York City law, which required that gunpowder in the home be stored in certain sorts of containers, and laws in certain Pennsylvania towns, which required that gunpowder be stored on the highest story of the home, could well have presented similar obstacles to in-home use of firearms. See Act of April 13, 1784, ch. 28, 1784 N.Y. Laws p. 627; An Act for Erecting the Town of Carlisle, in the County of Cumberland, into a Borough, ch. XIV, § XLII, 1782 Pa. Laws p. 49; An Act for Erecting the Town of Reading, in the County of Berks, into a Borough, ch. LXXVI, § XLII, 1783 Pa. Laws p. 211. Although it is unclear whether these laws, A M E R I C A N
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like the Boston law, would have prohibited the storage of gunpowder inside a firearm, they would at the very least have made it difficult to reload the gun to fire a second shot unless the homeowner happened to be in the portion of the house where the extra gunpowder was required to be kept. See 7 United States Encyclopedia of History 1297 (P. Oehser ed. 1967) (“Until 1835 all small arms [were] singleshot weapons, requiring reloading by hand after every shot”). And Pennsylvania, like Massachusetts, had at the time one of the selfdefense-guaranteeing state constitutional provisions on which the majority relies. See ante, at 2802 - 2803 (citing Pa. Declaration of Rights, Art. XIII (1776), in 5 Thorpe 3083). The majority criticizes my citation of these colonial laws. See ante, at 2819 - 2821. But, as much as it tries, it cannot ignore their existence. I suppose it is possible that, as the majority suggests, see ante, at 2819 - 2820, they all in practice contained self-defense exceptions. But none of them expressly provided one, and the majority’s assumption that such exceptions existed relies largely on the preambles to these acts-an interpretive methodology that it elsewhere roundly derides. Compare ibid. (interpreting 18th-century statutes in light of their preambles), with ante, at 2789 - 2790, and n. 3 (contending that the operative language of an 18th-century enactment may extend beyond its preamble). And in any event, as I have shown, the gunpowder-storage laws would have burdened armed self-defense, even if they did not completely prohibit it. This historical evidence demonstrates that a self-defense assumption is the beginning, rather than the end, of any constitutional inquiry. That the District law impacts self-defense merely raises questions about the law’s constitutionality. But to answer the questions that are raised (that is, to see whether the statute is unconstitutional) requires us to focus on practicalities, the statute’s rationale, the problems that called it into being, its relation to those objectives-in a word, the details. There are no purely logical or conceptual answers to such questions. All of which to say that to raise a self-defense question is not to answer it. III
I therefore begin by asking a process-based question: How is a court to determine whether a particular firearm regulation here, the District’s G A L E
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restriction on handguns) is consistent with the Second Amendment? What kind of constitutional standard should the court use? How high a protective hurdle does the Amendment erect? The question matters. The majority is wrong when it says that the District’s law is unconstitutional “[u]nder any of the standards of scrutiny that we have applied to enumerated constitutional rights.” Ante, at 2817. How could that be? It certainly would not be unconstitutional under, for example, a “rational basis” standard, which requires a court to uphold regulation so long as it bears a “rational relationship” to a “legitimate governmental purpose.” Heller v. Doe, 509 U.S. 312, 320, 113 S.Ct. 2637, 125 L.Ed.2d 257 (1993). The law at issue here, which in part seeks to prevent gun-related accidents, at least bears a “rational relationship” to that “legitimate” life-saving objective. And nothing in the three 19th-century state cases to which the majority turns for support mandates the conclusion that the present District law must fall. See Andrews v. State, 50 Tenn. 165, 177, 186187, 192 (1871) (striking down, as violating a state constitutional provision adopted in 1870, a statewide ban on a carrying a broad class of weapons, insofar as it applied to revolvers); Nunn v. State, 1 Ga. 243, 246, 250-251 (1846) (striking down similarly broad ban on openly carrying weapons, based on erroneous view that the Federal Second Amendment applied to the States); State v. Reid, 1 Ala. 612, 614-615, 622 (1840) (upholding a concealed-weapon ban against a state constitutional challenge). These cases were decided well (80, 55, and 49 years, respectively) after the framing; they neither claim nor provide any special insight into the intent of the Framers; they involve laws much less narrowly tailored that the one before us; and state cases in any event are not determinative of federal constitutional questions, see, e.g., Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 549, 105 S.Ct. 1005, 83 L.Ed.2d 1016 (1985) (citing Martin v. Hunter’s Lessee, 1 Wheat. 304, 4 L.Ed. 97 (1816)). Respondent proposes that the Court adopt a “strict scrutiny” test, which would require reviewing with care each gun law to determine whether it is “narrowly tailored to achieve a compelling governmental interest.” Abrams v. Johnson, 521 U.S. 74, 82, 117 S.Ct. 1925, 138 L.Ed.2d 285 (1997); see Brief for Respondent 54-62. But the majority implicitly, and A M E R I C A N
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appropriately, rejects that suggestion by broadly approving a set of laws-prohibitions on concealed weapons, forfeiture by criminals of the Second Amendment right, prohibitions on firearms in certain locales, and governmental regulation of commercial firearm sales-whose constitutionality under a strict scrutiny standard would be far from clear. See ante, at 2816. Indeed, adoption of a true strict-scrutiny standard for evaluating gun regulations would be impossible. That is because almost every gun-control regulation will seek to advance (as the one here does) a “primary concern of every government-a concern for the safety and indeed the lives of its citizens.” United States v. Salerno, 481 U.S. 739, 755, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987). The Court has deemed that interest, as well as “the Government’s general interest in preventing crime,” to be “compelling,” see id., at 750, 754, 107 S.Ct. 2095, and the Court has in a wide variety of constitutional contexts found such public-safety concerns sufficiently forceful to justify restrictions on individual liberties, see e.g., Brandenburg v. Ohio, 395 U.S. 444, 447, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969) (per curiam) (First Amendment free speech rights); Sherbert v. Verner, 374 U.S. 398, 403, 83 S.Ct. 1790, 10 L. Ed.2d 965 (1963) (First Amendment religious rights); Brigham City v. Stuart, 547 U.S. 398, 403-404, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006) (Fourth Amendment protection of the home); New York v. Quarles, 467 U.S. 649, 655, 104 S.Ct. 2626, 81 L.Ed.2d 550 (1984) (Fifth Amendment rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)); Salerno, supra, at 755 (Eighth Amendment bail rights). Thus, any attempt in theory to apply strict scrutiny to gun regulations will in practice turn into an interest-balancing inquiry, with the interests protected by the Second Amendment on one side and the governmental public-safety concerns on the other, the only question being whether the regulation at issue impermissibly burdens the former in the course of advancing the latter. I would simply adopt such an interestbalancing inquiry explicitly. The fact that important interests lie on both sides of the constitutional equation suggests that review of gun-control regulation is not a context in which a court should effectively presume either constitutionality (as in rational-basis review) or unconstitutionality (as in strict scrutiny). Rather, “where a law significantly implicates G A L E
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competing constitutionally protected interests in complex ways,” the Court generally asks whether the statute burdens a protected interest in a way or to an extent that is out of proportion to the statute’s salutary effects upon other important governmental interests. See Nixon v. Shrink Missouri Government PAC, 528 U.S. 377, 402, 120 S.Ct. 897, 145 L.Ed.2d 886 (2000) (BREYER, J., concurring). Any answer would take account both of the statute’s effects upon the competing interests and the existence of any clearly superior less restrictive alternative. See ibid. Contrary to the majority’s unsupported suggestion that this sort of “proportionality” approach is unprecedented, see ante, at 2820 2821, the Court has applied it in various constitutional contexts, including election-law cases, speech cases, and due process cases. See 528 U.S., at 403, 120 S.Ct. 897 (citing examples where the Court has taken such an approach); see also, e.g., Thompson v. Western States Medical Center, 535 U.S. 357, 388, 122 S.Ct. 1497, 152 L. Ed.2d 563 (2002) (BREYER, J., dissenting) (commercial speech); Burdick v. Takushi, 504 U.S. 428, 433, 112 S.Ct. 2059, 119 L.Ed.2d 245 (1992) (election regulation); Mathews v. Eldridge, 424 U.S. 319, 339-349, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) (procedural due process); Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968) (government employee speech). In applying this kind of standard the Court normally defers to a legislature’s empirical judgment in matters where a legislature is likely to have greater expertise and greater institutional factfinding capacity. See Turner Broadcasting System, Inc. v. FCC, 520 U.S. 180, 195196, 117 S.Ct. 1174, 137 L.Ed.2d 369 (1997); see also Nixon, supra, at 403, 120 S.Ct. 897 (BREYER, J., concurring). Nonetheless, a court, not a legislature, must make the ultimate constitutional conclusion, exercising its “independent judicial judgment” in light of the whole record to determine whether a law exceeds constitutional boundaries. Randall v. Sorrell, 548 U.S. 230, 249, 126 S.Ct. 2479, 165 L.Ed.2d 482 (2006) (opinion of BREYER, J.) (citing Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 499, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984)). The above-described approach seems preferable to a more rigid approach here for a further reason. Experience as much as logic has led the Court to decide that in one area of A M E R I C A N
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constitutional law or another the interests are likely to prove stronger on one side of a typical constitutional case than on the other. See, e.g., United States v. Virginia, 518 U.S. 515, 531-534, 116 S.Ct. 2264, 135 L.Ed.2d 735 (1996) (applying heightened scrutiny to gender-based classifications, based upon experience with prior cases); Williamson v. Lee Optical of Okla., Inc., 348 U.S. 483, 488, 75 S.Ct. 461, 99 L.Ed. 563 (1955) (applying rational-basis scrutiny to economic legislation, based upon experience with prior cases). Here, we have little prior experience. Courts that do have experience in these matters have uniformly taken an approach that treats empirically-based legislative judgment with a degree of deference. See Winkler, Scrutinizing the Second Amendment, 105 Mich. L.Rev. 683, 687, 716-718 (2007) (describing hundreds of gun-law decisions issued in the last half-century by Supreme Courts in 42 States, which courts with “surprisingly little variation,” have adopted a standard more deferential than strict scrutiny). While these state cases obviously are not controlling, they are instructive. Cf., e.g., Bartkus v. Illinois, 359 U.S. 121, 134, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959) (looking to the “experience of state courts” as informative of a constitutional question). And they thus provide some comfort regarding the practical wisdom of following the approach that I believe our constitutional precedent would in any event suggest. IV
The present suit involves challenges to three separate District firearm restrictions. The first requires a license from the District’s Chief of Police in order to carry a “pistol,” i.e., a handgun, anywhere in the District. See D.C. Code § 22-4504(a) (2001); see also §§ 22-4501 (a), 22-4506. Because the District assures us that respondent could obtain such a license so long as he meets the statutory eligibility criteria, and because respondent concedes that those criteria are facially constitutional, I, like the majority, see no need to address the constitutionality of the licensing requirement. See ante, at 2818 2819. The second District restriction requires that the lawful owner of a firearm keep his weapon “unloaded and disassembled or bound by a trigger lock or similar device” unless it is kept at his place of business or being used for lawful recreational purposes. See § 7-2507.02. The G A L E
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only dispute regarding this provision appears to be whether the Constitution requires an exception that would allow someone to render a firearm operational when necessary for selfdefense (i.e., that the firearm may be operated under circumstances where the common law would normally permit a self-defense justification in defense against a criminal charge). See Parker v. District of Columbia, 478 F.3d 370, 401 (2007) (case below); ante, at 2817 - 2818 (opinion of the Court); Brief for Respondent 5254. The District concedes that such an exception exists. See Brief for Petitioners 56-57. This Court has final authority (albeit not often used) to definitively interpret District law, which is, after all, simply a species of federal law. See, e.g., Whalen v. United States, 445 U.S. 684, 687-688, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980); see also Griffin v. United States, 336 U.S. 704, 716-718, 69 S.Ct. 814, 93 L.Ed. 993 (1949). And because I see nothing in the District law that would preclude the existence of a background commonlaw self-defense exception, I would avoid the constitutional question by interpreting the statute to include it. See Ashwander v. TVA, 297 U.S. 288, 348, 56 S.Ct. 466, 80 L.Ed. 688 (1936) (Brandeis, J., concurring). I am puzzled by the majority’s unwillingness to adopt a similar approach. It readily reads unspoken self-defense exceptions into every colonial law, but it refuses to accept the District’s concession that this law has one. Compare ante, at 2819 - 2820, with ante, at 2817-2818. The one District case it cites to support that refusal, McIntosh v. Washington, 395 A.2d 744, 755-756 (1978), merely concludes that the District Legislature had a rational basis for applying the trigger-lock law in homes but not in places of business. Nowhere does that case say that the statute precludes a self-defense exception of the sort that I have just described. And even if it did, we are not bound by a lower court’s interpretation of federal law. The third District restriction prohibits (in most cases) the registration of a handgun within the District. See § 7-2502.02(a)(4). Because registration is a prerequisite to firearm possession, see § 7-2502.01(a), the effect of this provision is generally to prevent people in the District from possessing handguns. In determining whether this regulation violates the Second Amendment, I shall ask how the statute seeks to further the governmental interests that it serves, how the statute burdens the interests A M E R I C A N
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that the Second Amendment seeks to protect, and whether there are practical less burdensome ways of furthering those interests. The ultimate question is whether the statute imposes burdens that, when viewed in light of the statute’s legitimate objectives, are disproportionate. See Nixon, 528 U.S., at 402, 120 S.Ct. 897 (BREYER, J., concurring). A
No one doubts the constitutional importance of the statute’s basic objective, saving lives. See, e.g., Salerno, 481 U.S., at 755, 107 S.Ct. 2095. But there is considerable debate about whether the District’s statute helps to achieve that objective. I begin by reviewing the statute’s tendency to secure that objective from the perspective of (1) the legislature (namely, the Council of the District of Columbia) that enacted the statute in 1976, and (2) a court that seeks to evaluate the Council’s decision today. 1
First, consider the facts as the legislature saw them when it adopted the District statute. As stated by the local council committee that recommended its adoption, the major substantive goal of the District’s handgun restriction is “to reduce the potentiality for gun-related crimes and gun-related deaths from occurring within the District of Columbia.” Hearing and Disposition before the House Committee on the District of Columbia, 94th Cong., 2d Sess., on H. Con. Res. 694, Ser. No. 94-24, p. 25 (1976) (hereinafter DC Rep.) (reproducing, inter alia, the Council committee report). The committee concluded, on the basis of “extensive public hearings” and “lengthy research,” that “[t]he easy availability of firearms in the United States has been a major factor contributing to the drastic increase in gun-related violence and crime over the past 40 years.” Id., at 24, 25. It reported to the Council “startling statistics,” id., at 26, regarding gun-related crime, accidents, and deaths, focusing particularly on the relation between handguns and crime and the proliferation of handguns within the District. See id., at 25-26. The committee informed the Council that guns were “responsible for 69 deaths in this country each day,” for a total of “[a]pproximately 25,000 gun-deaths . . . each year,” along with an additional 200,000 gun-related injuries. Id., at 25. Three thousand of these deaths, the G A L E
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report stated, were accidental. Ibid. A quarter of the victims in those accidental deaths were children under the age of 14. Ibid. And according to the committee, “[f]or every intruder stopped by a homeowner with a firearm, there are 4 gunrelated accidents within the home.” Ibid. In respect to local crime, the committee observed that there were 285 murders in the District during 1974-a record number. Id., at 26. The committee also stated that, “[c]ontrary to popular opinion on the subject, firearms are more frequently involved in deaths and violence among relatives and friends than in premeditated criminal activities.” Ibid. Citing an article from the American Journal of Psychiatry, the committee reported that “[m]ost murders are committed by previously law-abiding citizens, in situations where spontaneous violence is generated by anger, passion or intoxication, and where the killer and victim are acquainted.” Ibid. “Twenty-five percent of these murders,” the committee informed the Council, “occur within families.” Ibid. The committee report furthermore presented statistics strongly correlating handguns with crime. Of the 285 murders in the District in 1974, 155 were committed with handguns. Ibid. This did not appear to be an aberration, as the report revealed that “handguns [had been] used in roughly 54% of all murders” (and 87% of murders of law enforcement officers) nationwide over the preceding several years. Ibid. Nor were handguns only linked to murders, as statistics showed that they were used in roughly 60% of robberies and 26% of assaults. Ibid. “A crime committed with a pistol,” the committee reported, “is 7 times more likely to be lethal than a crime committed with any other weapon.” Id., at 25. The committee furthermore presented statistics regarding the availability of handguns in the United States, ibid., and noted that they had “become easy for juveniles to obtain,” even despite then-current District laws prohibiting juveniles from possessing them, id., at 26. In the committee’s view, the current District firearms laws were unable “to reduce the potentiality for gun-related violence,” or to “cope with the problems of gun control in the District” more generally. Ibid. In the absence of adequate federal gun legislation, the committee concluded, it “becomes necessary for local governments to act to protect their citizens, and certainly the District of Columbia as the only totally urban statelike jurisdiction should be A M E R I C A N
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strong in its approach.” Id., at 27. It recommended that the Council adopt a restriction on handgun registration to reflect “a legislative decision that, at this point in time and due to the gun-control tragedies and horrors enumerated previously” in the committee report, “pistols . . . are no longer justified in this jurisdiction.” Id., at 31; see also ibid. (handgun restriction “denotes a policy decision that handguns . . . have no legitimate use in the purely urban environment of the District”). The District’s special focus on handguns thus reflects the fact that the committee report found them to have a particularly strong link to undesirable activities in the District’s exclusively urban environment. See id., at 25-26. The District did not seek to prohibit possession of other sorts of weapons deemed more suitable for an “urban area.” See id., at 25. Indeed, an original draft of the bill, and the original committee recommendations, had sought to prohibit registration of shotguns as well as handguns, but the Council as a whole decided to narrow the prohibition. Compare id., at 30 (describing early version of the bill), with D.C.Code § 72502.02). 2
Next, consider the facts as a court must consider them looking at the matter as of today. See, e.g., Turner, 520 U.S., at 195, 117 S.Ct. 1174 (discussing role of court as factfinder in a constitutional case). Petitioners, and their amici, have presented us with more recent statistics that tell much the same story that the committee report told 30 years ago. At the least, they present nothing that would permit us to second-guess the Council in respect to the numbers of gun crimes, injuries, and deaths, or the role of handguns. From 1993 to 1997, there were 180,533 firearm-related deaths in the United States, an average of over 36,000 per year. Dept. of Justice, Bureau of Justice Statistics, M. Zawitz & K. Strom, Firearm Injury and Death from Crime, 1993-97, p. 2 (Oct.2000), online at http://www. ojp.usdoj.gov/bjs/pub/pdf/fidc9397.pdf (hereinafter Firearm Injury and Death from Crime). Fifty-one percent were suicides, 44% were homicides, 1% were legal interventions, 3% were unintentional accidents, and 1% were of undetermined causes. See ibid. Over that same period there were an additional 411,800 nonfatal firearm-related injuries treated in U.S. hospitals, an average of over 82,000 per year. Ibid. Of these, G A L E
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62% resulted from assaults, 17% were unintentional, 6% were suicide attempts, 1% were legal interventions, and 13% were of unknown causes. Ibid. The statistics are particularly striking in respect to children and adolescents. In over one in every eight firearm-related deaths in 1997, the victim was someone under the age of 20. American Academy of Pediatrics, FirearmRelated Injuries Affecting the Pediatric Population, 105 Pediatrics 888 (2000) (hereinafter Firearm-Related Injuries). Firearm-related deaths account for 22.5% of all injury deaths between the ages of 1 and 19. Ibid. More male teenagers die from firearms than from all natural causes combined. Dresang, Gun Deaths in Rural and Urban Settings, 14 J. Am. Bd. Family Practice 107 (2001). Persons under 25 accounted for 47% of hospital-treated firearm injuries between June 1, 1992 and May 31, 1993. FirearmRelated Injuries 891. Handguns are involved in a majority of firearm deaths and injuries in the United States. Id., at 888. From 1993 to 1997, 81% of firearmhomicide victims were killed by handgun. Firearm Injury and Death from Crime 4; see also Dept. of Justice, Bureau of Justice Statistics, C. Perkins, Weapon Use and Violent Crime, p. 8 (Sept.2003), (Table 10), http:// www. ojp. usdoj. gov/ bjs/ pub/ pdf/ wuvc 01. pdf (hereinafter Weapon Use and Violent Crime) (statistics indicating roughly the same rate for 1993-2001). In the same period, for the 41% of firearm injuries for which the weapon type is known, 82% of them were from handguns. Firearm Injury and Death From Crime 4. And among children under the age of 20, handguns account for approximately 70% of all unintentional firearm-related injuries and deaths. FirearmRelated Injuries 890. In particular, 70% of all firearm-related teenage suicides in 1996 involved a handgun. Id., at 889; see also Zwerling, Lynch, Burmeister, & Goertz, The Choice of Weapons in Firearm Suicides in Iowa, 83 Am. J. Public Health 1630, 1631 (1993) (Table 1) (handguns used in 36.6% of all firearm suicides in Iowa from 1980-1984 and 43.8% from 1990-1991). Handguns also appear to be a very popular weapon among criminals. In a 1997 survey of inmates who were armed during the crime for which they were incarcerated, 83.2% of state inmates and 86.7% of federal inmates said that they were armed with a handgun. See Dept. of Justice, Bureau of Justice Statistics, C. Harlow, A M E R I C A N
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Firearm Use by Offenders, p. 3 (Nov.2001), online at http:// www. ojp. usdoj. gov/ bjs/ pub/ pdf/ fuo. pdf; see also Weapon Use and Violent Crime 2 (Table 2) (statistics indicating that handguns were used in over 84% of nonlethal violent crimes involving firearms from 1993 to 2001). And handguns are not only popular tools for crime, but popular objects of it as well: the FBI received on average over 274,000 reports of stolen guns for each year between 1985 and 1994, and almost 60% of stolen guns are handguns. Dept. of Justice, Bureau of Justice Statistics, M. Zawitz, Guns Used in Crime, p. 3 (July 1995), online at http:// www. ojp. usdoj. gov/ bjs/ pub/ pdf/ guic. pdf. Department of Justice studies have concluded that stolen handguns in particular are an important source of weapons for both adult and juvenile offenders. Ibid. Statistics further suggest that urban areas, such as the District, have different experiences with gun-related death, injury, and crime, than do less densely populated rural areas. A disproportionate amount of violent and property crimes occur in urban areas, and urban criminals are more likely than other offenders to use a firearm during the commission of a violent crime. See Dept. of Justice, Bureau of Justice Statistics, D. Duhart, Urban, Suburban, and Rural Victimization, 1993-98, pp. 1, 9 (Oct.2000), online at http:// www. ojp. usdoj. gov/ bjs/ pub/ pdf/ usrv 98. pdf. Homicide appears to be a much greater issue in urban areas; from 1985 to 1993, for example, “half of all homicides occurred in 63 cities with 16% of the nation’s population.” Wintemute, The Future of Firearm Violence Prevention, 282 JAMA 475 (1999). One study concluded that although the overall rate of gun death between 1989 and 1999 was roughly the same in urban than rural areas, the urban homicide rate was three times as high; even after adjusting for other variables, it was still twice as high. Branas, Nance, Elliott, Richmond, & Schwab, Urban-Rural Shifts in Intentional Firearm Death, 94 Am. J. Public Health 1750, 1752 (2004); see also ibid. (noting that rural areas appear to have a higher rate of firearm suicide). And a study of firearm injuries to children and adolescents in Pennsylvania between 1987 and 2000 showed an injury rate in urban counties 10 times higher than in nonurban counties. Nance & Branas, The RuralUrban Continuum, 156 Archives of Pediatrics & Adolescent Medicine 781, 782 (2002). G A L E
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Finally, the linkage of handguns to firearms deaths and injuries appears to be much stronger in urban than in rural areas. “[S]tudies to date generally support the hypothesis that the greater number of rural gun deaths are from rifles or shotguns, whereas the greater number of urban gun deaths are from handguns.” Dresang, supra, at 108. And the Pennsylvania study reached a similar conclusion with respect to firearm injuries-they are much more likely to be caused by handguns in urban areas than in rural areas. See Nance & Branas, supra, at 784. 3
Respondent and his many amici for the most part do not disagree about the figures set forth in the preceding subsection, but they do disagree strongly with the District’s predictive judgment that a ban on handguns will help solve the crime and accident problems that those figures disclose. In particular, they disagree with the District Council’s assessment that “freezing the pistol . . . population within the District,” DC Rep., at 26, will reduce crime, accidents, and deaths related to guns. And they provide facts and figures designed to show that it has not done so in the past, and hence will not do so in the future. First, they point out that, since the ban took effect, violent crime in the District has increased, not decreased. See Brief for Criminologists et al. as Amici Curiae 4-8, 3a (hereinafter Criminologists’ Brief); Brief for Congress of Racial Equality as Amicus Curiae 35-36; Brief for National Rifle Assn. et al. as Amici Curiae 28-30 (hereinafter NRA Brief). Indeed, a comparison with 49 other major cities reveals that the District’s homicide rate is actually substantially higher relative to these other cities than it was before the handgun restriction went into effect. See Brief for Academics as Amici Curiae 7-10 (hereinafter Academics’ Brief); see also Criminologists’ Brief 6-9, 3a-4a, 7a. Respondent’s amici report similar results in comparing the District’s homicide rates during that period to that of the neighboring States of Maryland and Virginia (neither of which restricts handguns to the same degree), and to the homicide rate of the Nation as a whole. See Academics’ Brief 11-17; Criminologists’ Brief 6a, 8a. Second, respondent’s amici point to a statistical analysis that regresses murder rates against the presence or absence of strict gun laws in 20 European nations. See Criminologists’ Brief 23 (citing Kates & Mauser, Would A M E R I C A N
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Banning Firearms Reduce Murder and Suicide? 30 Harv. J.L. & Pub. Pol’y 649, 651-694 (2007)). That analysis concludes that strict gun laws are correlated with more murders, not fewer. See Criminologists’ Brief 23; see also id., at 2528. They also cite domestic studies, based on data from various cities, States, and the Nation as a whole, suggesting that a reduction in the number of guns does not lead to a reduction in the amount of violent crime. See id., at 17-20. They further argue that handgun bans do not reduce suicide rates, see id., at 28-31, 9a, or rates of accidents, even those involving children, see Brief for International Law Enforcement Educators and Trainers Assn. et al. as Amici Curiae App. 7-15 (hereinafter ILEETA Brief). Third, they point to evidence indicating that firearm ownership does have a beneficial self-defense effect. Based on a 1993 survey, the authors of one study estimated that there were 2.2-to-2.5 million defensive uses of guns (mostly brandishing, about a quarter involving the actual firing of a gun) annually. See Kleck & Gertz, Armed Resistance to Crime, 86 J.Crim. L. & C. 150, 164 (1995); see also ILEETA Brief App. 1-6 (summarizing studies regarding defensive uses of guns). Another study estimated that for a period of 12 months ending in 1994, there were 503,481 incidents in which a burglar found himself confronted by an armed homeowner, and that in 497,646 (98.8%) of them, the intruder was successfully scared away. See Ikida, Dahlberg, Sacks, Mercy, & Powell, Estimating Intruder-Related Firearms Retrievals in U.S. Households, 12 Violence & Victims 363 (1997). A third study suggests that gun-armed victims are substantially less likely than non-gun-armed victims to be injured in resisting robbery or assault. Barnett & Kates, Under Fire, 45 Emory L.J. 1139, 1243-1244, n. 478 (1996). And additional evidence suggests that criminals are likely to be deterred from burglary and other crimes if they know the victim is likely to have a gun. See Kleck, Crime Control Through the Private Use of Armed Force, 35 Social Problems 1, 15 (1988) (reporting a substantial drop in the burglary rate in an Atlanta suburb that required heads of households to own guns); see also ILEETA Brief 17-18 (describing decrease in sexual assaults in Orlando when women were trained in the use of guns). Fourth, respondent’s amici argue that laws criminalizing gun possession are self-defeating, as evidence suggests that they will have the effect G A L E
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only of restricting law-abiding citizens, but not criminals, from acquiring guns. See, e.g., Brief for President Pro Tempore of Senate of Pennsylvania as Amicus Curiae 35, 36, and n. 15. That effect, they argue, will be especially pronounced in the District, whose proximity to Virginia and Maryland will provide criminals with a steady supply of guns. See Brief for Heartland Institute as Amicus Curiae 20. In the view of respondent’s amici, this evidence shows that other remedies-such as less restriction on gun ownership, or liberal authorization of law-abiding citizens to carry concealed weapons-better fit the problem. See, e.g., Criminologists’ Brief 35-37 (advocating easily obtainable gun licenses); Brief for Southeastern Legal Foundation, Inc. et al. as Amici Curiae 15 (hereinafter SLF Brief) (advocating “widespread gun ownership” as a deterrent to crime); see also J. Lott, More Guns, Less Crime (2d ed.2000). They further suggest that at a minimum the District fails to show that its remedy, the gun ban, bears a reasonable relation to the crime and accident problems that the District seeks to solve. See, e.g., Brief for Respondent 59-61. These empirically based arguments may have proved strong enough to convince many legislatures, as a matter of legislative policy, not to adopt total handgun bans. But the question here is whether they are strong enough to destroy judicial confidence in the reasonableness of a legislature that rejects them. And that they are not. For one thing, they can lead us more deeply into the uncertainties that surround any effort to reduce crime, but they cannot prove either that handgun possession diminishes crime or that handgun bans are ineffective. The statistics do show a soaring District crime rate. And the District’s crime rate went up after the District adopted its handgun ban. But, as students of elementary logic know, after it does not mean because of it. What would the District’s crime rate have looked like without the ban? Higher? Lower? The same? Experts differ; and we, as judges, cannot say. What about the fact that foreign nations with strict gun laws have higher crime rates? Which is the cause and which the effect? The proposition that strict gun laws cause crime is harder to accept than the proposition that strict gun laws in part grow out of the fact that a nation already has a higher crime rate. And we are then left with the same question as A M E R I C A N
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before: What would have happened to crime without the gun laws-a question that respondent and his amici do not convincingly answer. Further, suppose that respondent’s amici are right when they say that householders’ possession of loaded handguns help to frighten away intruders. On that assumption, one must still ask whether that benefit is worth the potential death-related cost. And that is a question without a directly provable answer. Finally, consider the claim of respondent’s amici that handgun bans cannot work; there are simply too many illegal guns already in existence for a ban on legal guns to make a difference. In a word, they claim that, given the urban sea of pre-existing legal guns, criminals can readily find arms regardless. Nonetheless, a legislature might respond, we want to make an effort to try to dry up that urban sea, drop by drop. And none of the studies can show that effort is not worthwhile. In a word, the studies to which respondent’s amici point raise policy-related questions. They succeed in proving that the District’s predictive judgments are controversial. But they do not by themselves show that those judgments are incorrect; nor do they demonstrate a consensus, academic or otherwise, supporting that conclusion. Thus, it is not surprising that the District and its amici support the District’s handgun restriction with studies of their own. One in particular suggests that, statistically speaking, the District’s law has indeed had positive lifesaving effects. See Loftin, McDowall, Weirsema, & Cottey, Effects of Restrictive Licensing of Handguns on Homicide and Suicide in the District of Columbia, 325 New England J. Med. 1615 (1991) (hereinafter Loftin study). Others suggest that firearm restrictions as a general matter reduce homicides, suicides, and accidents in the home. See, e.g., Duggan, More Guns, More Crime, 109 J. Pol. Econ. 1086 (2001); Kellerman, Somes, Rivara, Lee, & Banton, Injuries and Deaths Due to Firearms in the Home, 45 J. Trauma, Infection & Critical Care 263 (1998); Miller, Azrael, & Hemenway, Household Firearm Ownership and Suicide Rates in the United States, 13 Epidemiology 517 (2002). Still others suggest that the defensive uses of handguns are not as great in number as respondent’s amici claim. See, e.g., Brief for American Public Health Assn. et al. as Amici Curiae 17-19 (hereinafter APHA Brief) (citing studies). G A L E
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Respondent and his amici reply to these responses; and in doing so, they seek to discredit as methodologically flawed the studies and evidence relied upon by the District. See, e.g., Criminologists’ Brief 9-17, 20-24; Brief for Assn. Am. Physicians and Surgeons, Inc. as Amicus Curiae 12-18; SLF Brief 17-22; Britt, Kleck, & Bordua, A Reassessment of the D.C. Gun Law, 30 Law & Soc. Rev. 361 (1996) (criticizing the Loftin study). And, of course, the District’s amici produce counter-rejoinders, referring to articles that defend their studies. See, e.g., APHA Brief 23, n. 5 (citing McDowall, Loftin, & Wiersema et al., Using Quasi-Experiments to Evaluate Firearm Laws, 30 Law & Soc. Rev. 381 (1996)). The upshot is a set of studies and counterstudies that, at most, could leave a judge uncertain about the proper policy conclusion. But from respondent’s perspective any such uncertainty is not good enough. That is because legislators, not judges, have primary responsibility for drawing policy conclusions from empirical fact. And, given that constitutional allocation of decisionmaking responsibility, the empirical evidence presented here is sufficient to allow a judge to reach a firm legal conclusion. In particular this Court, in First Amendment cases applying intermediate scrutiny, has said that our “sole obligation” in reviewing a legislature’s “predictive judgments” is “to assure that, in formulating its judgments,” the legislature “has drawn reasonable inferences based on substantial evidence.” Turner, 520 U.S., at 195, 117 S.Ct. 1174 (internal quotation marks omitted). And judges, looking at the evidence before us, should agree that the District legislature’s predictive judgments satisfy that legal standard. That is to say, the District’s judgment, while open to question, is nevertheless supported by “substantial evidence.” There is no cause here to depart from the standard set forth in Turner, for the District’s decision represents the kind of empirically based judgment that legislatures, not courts, are best suited to make. See Nixon, 528 U.S., at 402, 120 S.Ct. 897 (BREYER, J., concurring). In fact, deference to legislative judgment seems particularly appropriate here, where the judgment has been made by a local legislature, with particular knowledge of local problems and insight into appropriate local solutions. See Los Angeles v. Alameda Books, Inc., 535 U.S. 425, 440, 122 S.Ct. 1728, 152 L.Ed.2d 670 (2002) (plurality A M E R I C A N
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opinion) (“[W]e must acknowledge that the Los Angeles City Council is in a better position than the Judiciary to gather an evaluate data on local problems”); cf. DC Rep., at 67 (statement of Rep. Gude) (describing District’s law as “a decision made on the local level after extensive debate and deliberations”). Different localities may seek to solve similar problems in different ways, and a “city must be allowed a reasonable opportunity to experiment with solutions to admittedly serious problems.” Renton v. Playtime Theatres, Inc., 475 U.S. 41, 52, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986) (internal quotation marks omitted). “The Framers recognized that the most effective democracy occurs at local levels of government, where people with firsthand knowledge of local problems have more ready access to public officials responsible for dealing with them.” Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 575, n. 18, 105 S.Ct. 1005, 83 L.Ed.2d 1016 (1985) (Powell, J., dissenting) (citing The Federalist No. 17, p. 107 (J. Cooke ed.1961) (A. Hamilton)). We owe that democratic process some substantial weight in the constitutional calculus. For these reasons, I conclude that the District’s statute properly seeks to further the sort of life-preserving and public-safety interests that the Court has called “compelling.” Salerno, 481 U.S., at 750, 754, 107 S.Ct. 2095. B
I next assess the extent to which the District’s law burdens the interests that the Second Amendment seeks to protect. Respondent and his amici, as well as the majority, suggest that those interests include: (1) the preservation of a “well regulated Militia”; (2) safeguarding the use of firearms for sporting purposes, e.g., hunting and marksmanship; and (3) assuring the use of firearms for self-defense. For argument’s sake, I shall consider all three of those interests here. 1
The District’s statute burdens the Amendment’s first and primary objective hardly at all. As previously noted, there is general agreement among the Members of the Court that the principal (if not the only) purpose of the Second Amendment is found in the Amendment’s text: the preservation of a “well regulated Militia.” See supra, at 2848. What scant Court precedent there is on the Second Amendment G A L E
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teaches that the Amendment was adopted “[w] ith obvious purpose to assure the continuation and render possible the effectiveness of [militia] forces” and “must be interpreted and applied with that end in view.” Miller, 307 U.S., at 178, 59 S.Ct. 816. Where that end is implicated only minimally (or not at all), there is substantially less reason for constitutional concern. Compare ibid. (“In the absence of any evidence tending to show that possession or use of a ‘shotgun having a barrel of less than eighteen inches in length’ at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument”). To begin with, the present case has nothing to do with actual military service. The question presented presumes that respondent is “not affiliated with any state-regulated militia.” 552 U.S. ——, 128 S.Ct. 645, 169 L.Ed.2d 417 (2007) (emphasis added). I am aware of no indication that the District either now or in the recent past has called up its citizenry to serve in a militia, that it has any inkling of doing so anytime in the foreseeable future, or that this law must be construed to prevent the use of handguns during legitimate militia activities. Moreover, even if the District were to call up its militia, respondent would not be among the citizens whose service would be requested. The District does not consider him, at 66 years of age, to be a member of its militia. See D.C.Code § 49-401 (2001) (militia includes only male residents ages 18 to 45); App. to Pet. for Cert. 120a (indicating respondent’s date of birth). Nonetheless, as some amici claim, the statute might interfere with training in the use of weapons, training useful for military purposes. The 19th-century constitutional scholar, Thomas Cooley, wrote that the Second Amendment protects “learning to handle and use [arms] in a way that makes those who keep them ready for their efficient use” during militia service. General Principles of Constitutional Law 271 (1880); ante, at 2811 - 2812 (opinion of the Court); see also ante, at 2811 - 2812 (citing other scholars agreeing with Cooley on that point). And former military officers tell us that “private ownership of firearms makes for a more effective fighting force” because “[m] ilitary recruits with previous firearms experience and training are generally better marksmen, and accordingly, better soldiers.” Brief for A M E R I C A N
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Retired Military Officers as Amici Curiae 1-2 (hereinafter Military Officers’ Brief). An amicus brief filed by retired Army generals adds that a “well-regulated militia-whether ad hoc or as part of our organized military-depends on recruits who have familiarity and training with firearmsrifles, pistols, and shotguns.” Brief for Major General John D. Altenburg, Jr., et al. as Amici Curiae 4 (hereinafter Generals’ Brief). Both briefs point out the importance of handgun training. Military Officers’ Brief 26-28; Generals’ Brief 4. Handguns are used in military service, see id., at 26, and “civilians who are familiar with handgun marksmanship and safety are much more likely to be able to safely and accurately fire a rifle or other firearm with minimal training upon entering military service,” id., at 28. Regardless, to consider the military-training objective a modern counterpart to a similar militia-related colonial objective and to treat that objective as falling within the Amendment’s primary purposes makes no difference here. That is because the District’s law does not seriously affect military training interests. The law permits residents to engage in activities that will increase their familiarity with firearms. They may register (and thus possess in their homes) weapons other than handguns, such as rifles and shotguns. See D.C.Code §§ 7-2502.01, 7-2502.02(a) (only weapons that cannot be registered are sawed-off shotguns, machine guns, short-barreled rifles, and pistols not registered before 1976); compare Generals’ Brief 4 (listing “rifles, pistols, and shotguns” as useful military weapons; emphasis added). And they may operate those weapons within the District “for lawful recreational purposes.” § 7-2507.02; see also § 7-2502.01(b)(3) (nonresidents “participating in any lawful recreational firearm-related activity in the District, or on his way to or from such activity in another jurisdiction” may carry even weapons not registered in the District). These permissible recreations plainly include actually using and firing the weapons, as evidenced by a specific D.C.Code provision contemplating the existence of local firing ranges. See § 7-2507.03. And while the District law prevents citizens from training with handguns within the District, the District consists of only 61.4 square miles of urban area. See Dept. of Commerce, Bureau of Census, United States: 2000 (pt. 1), p. 11 (2002) (Table 8). The adjacent States do permit the use of handguns for target practice, and those States G A L E
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are only a brief subway ride away. See Md.Crim. Law Code Ann. § 4-203(b)(4) (Lexis Supp.2007) (general handgun restriction does not apply to “the wearing, carrying, or transporting by a person of a handgun used in connection with,” inter alia, “a target shoot, formal or informal target practice, sport shooting event, hunting, [or] a Department of Natural Resources-sponsored firearms and hunter safety class”); Va.Code Ann. § 18.2-287.4 (Lexis Supp.2007) (general restriction on carrying certain loaded pistols in certain public areas does not apply “to any person actually engaged in lawful hunting or lawful recreational shooting activities at an established shooting range or shooting contest”); Washington Metropolitan Area Transit Authority, Metrorail System Map, http://www.wmata. com/metrorail/systemmmap.cfm. Of course, a subway rider must buy a ticket, and the ride takes time. It also costs money to store a pistol, say, at a target range, outside the District. But given the costs already associated with gun ownership and firearms training, I cannot say that a subway ticket and a short subway ride (and storage costs) create more than a minimal burden. Compare Crawford v. Marion County Election Bd., 553 U.S. ——, ——, 128 S.Ct. 1610, 1614-1615, 170 L.Ed.2d 574 (2008) (BREYER, J., dissenting) (acknowledging travel burdens on indigent persons in the context of voting where public transportation options were limited). Indeed, respondent and two of his coplaintiffs below may well use handguns outside the District on a regular basis, as their declarations indicate that they keep such weapons stored there. See App. to Pet. for Cert. 77a (respondent); see also id., at 78a, 84a (coplaintiffs). I conclude that the District’s law burdens the Second Amendment’s primary objective little, or not at all. 2
The majority briefly suggests that the “right to keep and bear Arms” might encompass an interest in hunting. See, e.g., ante, at 2801. But in enacting the present provisions, the District sought “to take nothing away from sportsmen.” DC Rep., at 33. And any inability of District residents to hunt near where they live has much to do with the jurisdiction’s exclusively urban character and little to do with the District’s firearm laws. For reasons similar to those I discussed in the preceding subsection-that the District’s law does not prohibit possession of A M E R I C A N
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rifles or shotguns, and the presence of opportunities for sporting activities in nearby States-I reach a similar conclusion, namely, that the District’s law burdens any sports-related or hunting-related objectives that the Amendment may protect little, or not at all. 3
The District’s law does prevent a resident from keeping a loaded handgun in his home. And it consequently makes it more difficult for the householder to use the handgun for self-defense in the home against intruders, such as burglars. As the Court of Appeals noted, statistics suggest that handguns are the most popular weapon for self defense. See 478 F.3d, at 400 (citing Kleck & Gertz, 86 J.Crim. L. & C., at 182-183). And there are some legitimate reasons why that would be the case: Amici suggest (with some empirical support) that handguns are easier to hold and control (particularly for persons with physical infirmities), easier to carry, easier to maneuver in enclosed spaces, and that a person using one will still have a hand free to dial 911. See ILEETA Brief 37-39; NRA Brief 32-33; see also ante, at 2818. But see Brief for Petitioners 54-55 (citing sources preferring shotguns and rifles to handguns for purposes of self-defense). To that extent the law burdens to some degree an interest in self-defense that for present purposes I have assumed the Amendment seeks to further. C
In weighing needs and burdens, we must take account of the possibility that there are reasonable, but less restrictive alternatives. Are there other potential measures that might similarly promote the same goals while imposing lesser restrictions? See Nixon, 528 U.S., at 402, 120 S. Ct. 897 (BREYER, J., concurring) (“existence of a clearly superior, less restrictive alternative” can be a factor in determining whether a law is constitutionally proportionate). Here I see none. The reason there is no clearly superior, less restrictive alternative to the District’s handgun ban is that the ban’s very objective is to reduce significantly the number of handguns in the District, say, for example, by allowing a law enforcement officer immediately to assume that any handgun he sees is an illegal handgun. And there is no plausible way to achieve that objective other than to ban the guns. G A L E
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It does not help respondent’s case to describe the District’s objective more generally as an “effort to diminish the dangers associated with guns.” That is because the very attributes that make handguns particularly useful for selfdefense are also what make them particularly dangerous. That they are easy to hold and control means that they are easier for children to use. See Brief for American Academy of Pediatrics et al. as Amici Curiae 19 (“[C]hildren as young as three are able to pull the trigger of most handguns”). That they are maneuverable and permit a free hand likely contributes to the fact that they are by far the firearm of choice for crimes such as rape and robbery. See Weapon Use and Violent Crime 2 (Table 2). That they are small and light makes them easy to steal, see supra, at 2797 - 2798, and concealable, cf. ante, at 2816 (opinion of the Court) (suggesting that concealed-weapon bans are constitutional). This symmetry suggests that any measure less restrictive in respect to the use of handguns for self-defense will, to that same extent, prove less effective in preventing the use of handguns for illicit purposes. If a resident has a handgun in the home that he can use for self-defense, then he has a handgun in the home that he can use to commit suicide or engage in acts of domestic violence. See supra, at 2856 (handguns prevalent in suicides); Brief for National Network to End Domestic Violence et al. as Amici Curiae 27 (handguns prevalent in domestic violence). If it is indeed the case, as the District believes, that the number of guns contributes to the number of gun-related crimes, accidents, and deaths, then, although there may be less restrictive, less effective substitutes for an outright ban, there is no less restrictive equivalent of an outright ban. Licensing restrictions would not similarly reduce the handgun population, and the District may reasonably fear that even if guns are initially restricted to law-abiding citizens, they might be stolen and thereby placed in the hands of criminals. See supra, at 2856 - 2857. Permitting certain types of handguns, but not others, would affect the commercial market for handguns, but not their availability. And requiring safety devices such as trigger locks, or imposing safe-storage requirements would interfere with any self-defense interest while simultaneously leaving operable weapons in the hands of owners (or others capable of acquiring the weapon and disabling the safety device) who A M E R I C A N
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might use them for domestic violence or other crimes. The absence of equally effective alternatives to a complete prohibition finds support in the empirical fact that other States and urban centers prohibit particular types of weapons. Chicago has a law very similar to the District’s, and many of its suburbs also ban handgun possession under most circumstances. See Chicago, Ill., Municipal Code §§ 8-20-030(k), 8-2040, 8-20-50(c) (2008); Evanston, Ill., City Code § 9-8-2 (2007); Morton Grove, Ill., Village Code § 6-2-3(C) (2008); Oak Park, Ill., Village Code § 27-2-1 (2007); Winnetka, Ill., Village Ordinance § 9.12.020(B) (2008); Wilmette, Ill., Ordinance § 12-24(b) (2008). Toledo bans certain types of handguns. Toledo, Ohio, Municipal Code, ch. 549.25 (2007). And San Francisco in 2005 enacted by popular referendum a ban on most handgun possession by city residents; it has been precluded from enforcing that prohibition, however, by state-court decisions deeming it pre-empted by state law. See Fiscal v. City and County of San Francisco, 158 Cal.App.4th 895, 900-901, 70 Cal.Rptr.3d 324, 326-328 (2008). (Indeed, the fact that as many as 41 States may pre-empt local gun regulation suggests that the absence of more regulation like the District’s may perhaps have more to do with state law than with a lack of locally perceived need for them. See Legal Community Against Violence, Regulating Guns in America 14 (2006), http:// www.lcav.org/Library/reports_analyses/National_Audit_Total_8.16.06.pdf. In addition, at least six States and Puerto Rico impose general bans on certain types of weapons, in particular assault weapons or semiautomatic weapons. See Cal.Penal Code § 12280 (b) (West Supp.2008); Conn. Gen.Stat. §§ 53202c (2007); Haw.Rev.Stat. § 134-8 (1993); Md.Crim. Law Code Ann. § 4-303(a) (Lexis 2002); Mass. Gen. Laws, ch. 140, § 131M (West 2006); N.Y. Penal Law Ann. § 265.02(7) (West Supp.2008); 25 Laws P.R. Ann. § 456m (Supp.2006); see also 18 U.S.C. § 922(o) (federal machinegun ban). And at least 14 municipalities do the same. See Albany, N. Y., Municipal Code § 193-16(A) (2005); Aurora, Ill., Ordinance § 29-49(a) (2007); Buffalo, N. Y., City Code § 180-1(F) (2000); Chicago, Ill., Municipal Code § 8-24-025(a), 8-20-030(h); Cincinnati, Ohio, Admin. Code § 708-37(a) (Supp.2008); Cleveland, Ohio, Ordinance § 628.03(a) (2008); Columbus, Ohio, City Code G A L E
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§ 2323.31 (2007); Denver, Colo., Municipal Code § 38-130(e) (2008); Morton Grove, Ill., Village Code § 6-2-3(B); N.Y.C. Admin. Code § 10-303.1 (2007); Oak Park, Ill., Village Code § 27-2-1; Rochester, N. Y., Code § 47-5(f) (2008); South Bend, Ind., Ordinance §§ 13-97 (b), 13-98 (2008); Toledo, Ohio, Municipal Code § 549.23(a). These bans, too, suggest that there may be no substitute to an outright prohibition in cases where a governmental body has deemed a particular type of weapon especially dangerous. D
The upshot is that the District’s objectives are compelling; its predictive judgments as to its law’s tendency to achieve those objectives are adequately supported; the law does impose a burden upon any self-defense interest that the Amendment seeks to secure; and there is no clear less restrictive alternative. I turn now to the final portion of the “permissible regulation” question: Does the District’s law disproportionately burden Amendment-protected interests? Several considerations, taken together, convince me that it does not. First, the District law is tailored to the lifethreatening problems it attempts to address. The law concerns one class of weapons, handguns, leaving residents free to possess shotguns and rifles, along with ammunition. The area that falls within its scope is totally urban. Cf. Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 563, 121 S.Ct. 2404, 150 L.Ed.2d 532 (2001) (varied effect of statewide speech restriction in “rural, urban, or suburban” locales “demonstrates a lack of narrow tailoring”). That urban area suffers from a serious handgun-fatality problem. The District’s law directly aims at that compelling problem. And there is no less restrictive way to achieve the problem-related benefits that it seeks. Second, the self-defense interest in maintaining loaded handguns in the home to shoot intruders is not the primary interest, but at most a subsidiary interest, that the Second Amendment seeks to serve. The Second Amendment’s language, while speaking of a “Militia,” says nothing of “self-defense.” As JUSTICE STEVENS points out, the Second Amendment’s drafting history shows that the language reflects the Framers’ primary, if not exclusive, objective. See ante, at 2831 - 2837 (dissenting opinion). And the majority itself says that “the threat that the new Federal Government would destroy the citizens’ militia by taking away their arms was A M E R I C A N
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the reason that right . . . was codified in a written Constitution.” Ante, at 2836 (emphasis added). The way in which the Amendment’s operative clause seeks to promote that interestby protecting a right “to keep and bear Arms”may in fact help further an interest in self-defense. But a factual connection falls far short of a primary objective. The Amendment itself tells us that militia preservation was first and foremost in the Framers’ minds. See Miller, 307 U.S., at 178, 59 S.Ct. 816 (“With obvious purpose to assure the continuation and render possible the effectiveness of [militia] forces the declaration and guarantee of the Second Amendment were made,” and the amendment “must be interpreted and applied with that end in view”). Further, any self-defense interest at the time of the Framing could not have focused exclusively upon urban-crime related dangers. Two hundred years ago, most Americans, many living on the frontier, would likely have thought of self-defense primarily in terms of outbreaks of fighting with Indian tribes, rebellions such as Shays’ Rebellion, marauders, and crime-related dangers to travelers on the roads, on footpaths, or along waterways. See Dept. of Commerce, Bureau of Census, Population: 1790 to 1990 (1998) (Table 4), online at http://www.census. gov/population/censusdata/table-4.pdf (of the 3,929,214 Americans in 1790, only 201,655about 5%-lived in urban areas). Insofar as the Framers focused at all on the tiny fraction of the population living in large cities, they would have been aware that these city dwellers were subject to firearm restrictions that their rural counterparts were not. See supra, at 2848 2850. They are unlikely then to have thought of a right to keep loaded handguns in homes to confront intruders in urban settings as central. And the subsequent development of modern urban police departments, by diminishing the need to keep loaded guns nearby in case of intruders, would have moved any such right even further away from the heart of the amendment’s more basic protective ends. See, e.g., Sklansky, The Private Police, 46 UCLA L.Rev. 1165, 1206-1207 (1999) (professional urban police departments did not develop until roughly the mid-19th century). Nor, for that matter, am I aware of any evidence that handguns in particular were central to the Framers’ conception of the Second Amendment. The lists of militia-related weapons in the late 18th-century state statutes G A L E
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appear primarily to refer to other sorts of weapons, muskets in particular. See Miller, 307 U.S., at 180-182, 59 S.Ct. 816 (reproducing colonial militia laws). Respondent points out in his brief that the Federal Government and two States at the time of the founding had enacted statutes that listed handguns as “acceptable” militia weapons. Brief for Respondent 47. But these statutes apparently found them “acceptable” only for certain special militiamen (generally, certain soldiers on horseback), while requiring muskets or rifles for the general infantry. See Act of May 8, 1792, ch. XXXIII, 1 Stat. 271; Laws of the State of North Carolina 592 (1791); First Laws of the State of Connecticut 150 (1784); see also 25 Journals of the Continental Congress, pp. 1774-1789 741-742 (1922). Third, irrespective of what the Framers could have thought, we know what they did think. Samuel Adams, who lived in Boston, advocated a constitutional amendment that would have precluded the Constitution from ever being “construed” to “prevent the people of the United States, who are peaceable citizens, from keeping their own arms.” 6 Documentary History of the Ratification of the Constitution 1453 (J. Kaminski & G. Saladino eds.2000). Samuel Adams doubtless knew that the Massachusetts Constitution contained somewhat similar protection. And he doubtless knew that Massachusetts law prohibited Bostonians from keeping loaded guns in the house. So how could Samuel Adams have advocated such protection unless he thought that the protection was consistent with local regulation that seriously impeded urban residents from using their arms against intruders? It seems unlikely that he meant to deprive the Federal Government of power (to enact Boston-type weapons regulation) that he know Boston had and (as far as we know) he would have thought constitutional under the Massachusetts Constitution. Indeed, since the District of Columbia (the subject of the Seat of Government Clause, U.S. Const., Art. I, § 8, cl. 17) was the only urban area under direct federal control, it seems unlikely that the Framers thought about urban gun control at all. Cf. Palmore v. United States, 411 U.S. 389, 397-398, 93 S.Ct. 1670, 36 L.Ed.2d 342 (1973) (Congress can “legislate for the District in a manner with respect to subjects that would exceed its powers, or at least would be very unusual, in the context of national legislation enacted under other powers delegated to it”). A M E R I C A N
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Of course the District’s law and the colonial Boston law are not identical. But the Boston law disabled an even wider class of weapons (indeed, all firearms). And its existence shows at the least that local legislatures could impose (as here) serious restrictions on the right to use firearms. Moreover, as I have said, Boston’s law, though highly analogous to the District’s, was not the only colonial law that could have impeded a homeowner’s ability to shoot a burglar. Pennsylvania’s and New York’s laws could well have had a similar effect. See supra, at 2849 - 2850. And the Massachusetts and Pennsylvania laws were not only thought consistent with an unwritten common-law gun-possession right, but also consistent with written state constitutional provisions providing protections similar to those provided by the Federal Second Amendment. See supra, at 2849 - 2850. I cannot agree with the majority that these laws are largely uninformative because the penalty for violating them was civil, rather than criminal. Ante, at 2820 - 2821. The Court has long recognized that the exercise of a constitutional right can be burdened by penalties far short of jail time. See, e.g., Murdock v. Pennsylvania, 319 U.S. 105, 63 S.Ct. 870, 87 L.Ed. 1292 (1943) (invalidating $7 per week solicitation fee as applied to religious group); see also Forsyth County v. Nationalist Movement, 505 U.S. 123, 136, 112 S.Ct. 2395, 120 L.Ed.2d 101 (1992) (“A tax based on the content of speech does not become more constitutional because it is a small tax”). Regardless, why would the majority require a precise colonial regulatory analogue in order to save a modern gun regulation from constitutional challenge? After all, insofar as we look to history to discover how we can constitutionally regulate a right to self-defense, we must look, not to what 18th-century legislatures actually did enact, but to what they would have thought they could enact. There are innumerable policyrelated reasons why a legislature might not act on a particular matter, despite having the power to do so. This Court has “frequently cautioned that it is at best treacherous to find in congressional silence alone the adoption of a controlling rule of law.” United States v. Wells, 519 U.S. 482, 496, 117 S.Ct. 921, 137 L.Ed.2d 107 (1997). It is similarly “treacherous” to reason from the fact that colonial legislatures did not enact certain kinds of legislation an unalterable constitutional limitation on the power of a modern legislature cannot do so. The question G A L E
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should not be whether a modern restriction on a right to self-defense duplicates a past one, but whether that restriction, when compared with restrictions originally thought possible, enjoys a similarly strong justification. At a minimum that similarly strong justification is what the District’s modern law, compared with Boston’s colonial law, reveals. Fourth, a contrary view, as embodied in today’s decision, will have unfortunate consequences. The decision will encourage legal challenges to gun regulation throughout the Nation. Because it says little about the standards used to evaluate regulatory decisions, it will leave the Nation without clear standards for resolving those challenges. See ante, at ——, and n. 26. And litigation over the course of many years, or the mere specter of such litigation, threatens to leave cities without effective protection against gun violence and accidents during that time. As important, the majority’s decision threatens severely to limit the ability of more knowledgeable, democratically elected officials to deal with gun-related problems. The majority says that it leaves the District “a variety of tools for combating” such problems. Ante, at 2822. It fails to list even one seemingly adequate replacement for the law it strikes down. I can understand how reasonable individuals can disagree about the merits of strict gun control as a crime-control measure, even in a totally urbanized area. But I cannot understand how one can take from the elected branches of government the right to decide whether to insist upon a handgun-free urban populace in a city now facing a serious crime problem and which, in the future, could well face environmental or other emergencies that threaten the breakdown of law and order. V
The majority derides my approach as “judgeempowering.” Ante, at 2821. I take this criticism seriously, but I do not think it accurate. As I have previously explained, this is an approach that the Court has taken in other areas of constitutional law. See supra, at 2852 - 2853. Application of such an approach, of course, requires judgment, but the very nature of the approach-requiring careful identification of the relevant interests and evaluating the law’s effect upon them-limits the judge’s choices; and the method’s necessary transparency lays bare the judge’s reasoning for all to see and to criticize. A M E R I C A N
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The majority’s methodology is, in my view, substantially less transparent than mine. At a minimum, I find it difficult to understand the reasoning that seems to underlie certain conclusions that it reaches. The majority spends the first 54 pages of its opinion attempting to rebut JUSTICE STEVENS’ evidence that the Amendment was enacted with a purely militia-related purpose. In the majority’s view, the Amendment also protects an interest in armed personal self-defense, at least to some degree. But the majority does not tell us precisely what that interest is. “Putting all of [the Second Amendment’s] textual elements together,” the majority says, “we find that they guarantee the individual right to possess and carry weapons in case of confrontation.” Ante, at 2797. Then, three pages later, it says that “we do not read the Second Amendment to permit citizens to carry arms for any sort of confrontation.” Ante, at 2799. Yet, with one critical exception, it does not explain which confrontations count. It simply leaves that question unanswered. The majority does, however, point to one type of confrontation that counts, for it describes the Amendment as “elevat[ing] above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home.” Ante, at 2846. What is its basis for finding that to be the core of the Second Amendment right? The only historical sources identified by the majority that even appear to touch upon that specific matter consist of an 1866 newspaper editorial discussing the Freedmen’s Bureau Act, see ante, at 2810, two quotations from that 1866 Act’s legislative history, see ante, at 2810 - 2811, and a 1980 state court opinion saying that in colonial times the same were used to defend the home as to maintain the militia, see ante, at 2815. How can citations such as these support the far-reaching proposition that the Second Amendment’s primary concern is not its stated concern about the militia, but rather a right to keep loaded weapons at one’s bedside to shoot intruders? Nor is it at all clear to me how the majority decides which loaded “arms” a homeowner may keep. The majority says that that Amendment protects those weapons “typically possessed by law-abiding citizens for lawful purposes.” Ante, G A L E
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at 2816. This definition conveniently excludes machineguns, but permits handguns, which the majority describes as “the most popular weapon chosen by Americans for self-defense in the home.” Ante, at 2818; see also ante, at 2816 2817. But what sense does this approach make? According to the majority’s reasoning, if Congress and the States lift restrictions on the possession and use of machineguns, and people buy machineguns to protect their homes, the Court will have to reverse course and find that the Second Amendment does, in fact, protect the individual self-defense-related right to possess a machinegun. On the majority’s reasoning, if tomorrow someone invents a particularly useful, highly dangerous self-defense weapon, Congress and the States had better ban it immediately, for once it becomes popular Congress will no longer possess the constitutional authority to do so. In essence, the majority determines what regulations are permissible by looking to see what existing regulations permit. There is no basis for believing that the Framers intended such circular reasoning. I am similarly puzzled by the majority’s list, in Part III of its opinion, of provisions that in its view would survive Second Amendment scrutiny. These consist of (1) “prohibitions on carrying concealed weapons”; (2) “prohibitions on the possession of firearms by felons”; (3) “prohibitions on the possession of firearms by . . . the mentally ill”; (4) “laws forbidding the carrying of firearms in sensitive places such as schools and government buildings”; and (5) government “conditions and qualifications” attached “to the commercial sale of arms.” Ante, at 2816. Why these? Is it that similar restrictions existed in the late 18th century? The majority fails to cite any colonial analogues. And even were it possible to find analogous colonial laws in respect to all these restrictions, why should these colonial laws count, while the Boston loaded-gun restriction (along with the other laws I have identified) apparently does not count? See supra, at 2849 2850, 2867 - 2868. At the same time the majority ignores a more important question: Given the purposes for which the Framers enacted the Second Amendment, how should it be applied to modern-day circumstances that they could not have anticipated? Assume, for argument’s sake, that the Framers did intend the Amendment A M E R I C A N
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to offer a degree of self-defense protection. Does that mean that the Framers also intended to guarantee a right to possess a loaded gun near swimming pools, parks, and playgrounds? That they would not have cared about the children who might pick up a loaded gun on their parents’ bedside table? That they (who certainly showed concern for the risk of fire, see supra, at 2849 - 2850) would have lacked concern for the risk of accidental deaths or suicides that readily accessible loaded handguns in urban areas might bring? Unless we believe that they intended future generations to ignore such matters, answering questions such as the questions in this case requires judgment-judicial judgment exercised within a framework for constitutional analysis that guides that judgment and which makes its exercise transparent. One cannot answer those questions by combining inconclusive historical research with judicial ipse dixit. The argument about method, however, is by far the less important argument surrounding
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today’s decision. Far more important are the unfortunate consequences that today’s decision is likely to spawn. Not least of these, as I have said, is the fact that the decision threatens to throw into doubt the constitutionality of gun laws throughout the United States. I can find no sound legal basis for launching the courts on so formidable and potentially dangerous a mission. In my view, there simply is no untouchable constitutional right guaranteed by the Second Amendment to keep loaded handguns in the house in crime-ridden urban areas. VI
For these reasons, I conclude that the District’s measure is a proportionate, not a disproportionate, response to the compelling concerns that led the District to adopt it. And, for these reasons as well as the independently sufficient reasons set forth by Justice STEVENS, I would find the District’s measure consistent with the Second Amendment’s demands. With respect, I dissent.
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Briefs to the U.S. Supreme Court Brief for the Petitioner . . . . . . . . . . . . . . . . . . . . . . . . . . . . 307 Brief for the Respondent . . . . . . . . . . . . . . . . . . . . . . . . . . . 324 Opinion of the U.S. Supreme Court, March 18, 1963. . . . . . . . . 345
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Gideon v. Wainwright
ISSUE
Criminal Procedure MATERIALS
This section includes the briefs filed with the U.S. Supreme Court as well as the Court’s opinion. The Florida Supreme Court had previously denied Clarence Wainwright’s petition for habeas corpus relief. HOW TO USE MILESTONES IN THE LAW
As you read the materials included, consider the following questions: n
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What was the status of the law regarding appointment of counsel prior the Court’s decision in Gideon? Was it common among the states as of the time of the decision to appoint counsel? What did the respondent argue about why Gideon was not entitled to the appointment of counsel?
THIS CASE IN HISTORY
During the morning of June 3, 1961, someone broke into the Baylor Harbor Pool Room in Panama City, Florida, stealing money from the cash register in addition to causing property
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damage. A witness accused Clarence Gideon of leaving the pool room that morning, and based on this identification, police arrested Gideon and charged him with breaking and entering with intent to commit petty larceny. At his trial, Gideon requested the assistance of counsel because he was too poor to afford to hire an attorney, but the court denied this request. Gideon defended himself in the case and was convicted of the crime. He was sentenced to five years in the state penitentiary. After unsuccessfully seeking relief from the Florida Supreme Court, Gideon hand wrote a petition to the U.S. Supreme Court, arguing that the Florida court had violated his Sixth and Fourteenth Amendment right to assistance of counsel. The Court granted Gideon’s petition and assigned future Supreme Court justice Abe Fortas to serve as counsel. In a landmark decision, the Court unanimously reversed the Florida court, holding that courts must provide legal counsel in all criminal cases. The decision was one of several during the 1960s that provided procedural guarantees to criminal defendants. Gideon’s case later became the subject of a book and movie, both entitled Gideon’s Trumpet.
M I L E S T O N E S IN T H E L A W
G I D E O N V . WA I N W R I G H T
In the Supreme Court of the United States, November 1962 BRIEF FOR THE PETITIONER
4. The Distinction Between Capital and NonCapital Offenses Does Not Furnish a Valid Basis for Deciding When to Appoint Counsel 5. Denial of Counsel to the Indigent Violates Both Due Process and Equal Protection II.
NO. 155
1. The Great Majority of the States Now Make Provision for the Appointment of Counsel in All Felony Cases, Either Explicitly or as a Matter of Practice 2. Betts v. Brady Has Created Friction Between the States and the Federal Courts
CLARENCE EARL GIDEON, PETITIONER, v. LOUIE L. WAINWRIGHT, DIRECTOR, DIVISION OF CORRECTIONS, RESPONDENT. No. 155. Argued November 21, 1962 On Writ of Certiorari to the Supreme Court of The State of Florida Brief for the Petitioner
3. Experimentation by the States Will Not Be Eliminated If the Special Circumstances Test Is Jettisoned III. The Rule of Betts v. Brady Has Not Proved to be a Satisfactory Standard for Judicial Administration
Of Counsel:*
IV. The Right to Counsel Minimally Includes Appointment of an Attorney to Assist an Indigent Person at the Trial of a Serious Offense
Abe Krash Ralph Temple Arnold, Fortas & Porter 1229 19th Street, N.W. Washington 6, D. C.
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Abe Fortas 1229 19th Street, N.W. Washington 6, D. C. Attorney for Petitioner
The Practical Implications With Respect to Persons Already Imprisoned Do Not Militate Against Overruling Betts v. Brady
Conclusion Appendix A - Constitutional Provisions and Statutes Involved
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Appendix B - In the Present Case, Petitioner Did Not Receive the Benefits and Protection Which Would Have Been Afforded Him by Counsel
TABLE OF CONTENTS
Appendix C - The Court-Martial Cases and Rejection of the Distinction Between Capital and Non-Capital Offenses as a Constitutional Standard in Those Cases
Summary Statement of the Case Opinion Below Jurisdiction
SUMMARY STATEMENT OF THE CASE
Constitutional Provisions and Statutes Involved Questions Presented Summary of Argument Argument I.
The Demands of Federalism Do Not Dictate Continued Adherence to Betts. v. Brady
The Fourteenth Amendment Requires That Counsel Be Appointed to Represent an Indigent Defendant in Every Criminal Case Involving a Serious Offense 1. The Aid of Counsel Is Indispensable to a Fair Hearing 2. The Absolute Requirement of Counsel in Federal Prosecutions Confirms the Need for an Attorney
Petitioner, Clarence Earl Gideon, was charged by an information filed in the Circuit Court of Bay County, Florida, with a felony defined as “unlawfully and feloniously break[ing] and enter[ing] a building of another, to wit, The Bay Harbor Poolroom . . . with intent to commit a misdemeanor within said building, to wit, petit larceny . . . ” (R. 1). This offense is punishable under Florida law by a sentence of not more than five years imprisonment or a fine not to exceed $500. Fla. Stat. §810.05 (1961), Appendix A, infra. Petitioner pleaded not guilty (R. 3).1
3. The Trial Judge Cannot Act as Defense Counsel 1
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Counsel for Petitioner wishes to acknowledge the valuable assistance rendered in connection with this brief by John Hart Ely, a third year student at the Yale Law School, New Haven, Connecticut.
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The record shows that the arraignment was postponed when Petitioner “requested permission to consult counsel” (R. 2). The record does not indicate, however, whether Petitioner obtained legal assistance at that point in the proceeding.
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At the commencement of the trial, Petitioner informed the trial judge that he was “not ready” because “I have no counsel.” (R. 8-9). Petitioner expressly requested that counsel be appointed to assist him at the trial, but the request was denied by the trial court. The colloquy is as follows (R. 9): “The Defendant: Your Honor, I said: I request this Court to appoint Counsel to represent me in this trial.2 “The Court: Mr. Gideon, I am sorry, but I cannot appoint Counsel to represent you in this case. Under the laws of the State of Florida, the only time the Court can appoint Counsel to represent a Defendant is when that person is charged with a capital offense.3 I am sorry, but I will have to deny your request to appoint Counsel to defend you in this case. “The Defendant: The United States Supreme Court says I am entitled to be represented by Counsel. “The Court: (Addressing the Reporter) Let the record show that the Defendant has asked the Court to appoint Counsel to represent him in this trial and the Court denied the request, and informed the Defendant that the only time the Court could appoint Counsel to represent a Defendant was in cases where the Defendant was charged with a capital offense. The Defendant stated to the Court that the United States Supreme Court said he was entitled to it.” A jury of six persons was then impaneled and the case proceeded to trial. Gideon represented himself. He directly examined several witnesses called in his behalf; he crossexamined the state’s witnesses; and he made a closing argument, He was found guilty by the 2
It is conceded that Petitioner was an indigent person without funds to employ an attorney. In a memorandum filed in this Court in connection with a motion to strike portions of the record designated for printing, Respondent stated as follows: “Respondent hereby admits and concedes, for purposes of this case, that all allegations in the habeas corpus petition are true, including petitioner’s allegations that he was without funds and without an attorney at the time of trial and that the trial court failed to appoint counsel upon his request.” (Respondent’s Motion to Strike Paragraphs 1 and 2 of Petitioner’s Designation for Printing, p. 2). 3 See Johnson v. Mayo, 158 Fla. 264, 28 So. 2d 585 (1946), cert. denied, 329 U.S. 804 (1947); Sneed v. Mayo, 66 So. 2d 865, 872 (1953), habeas corpus proceeding dismissed, 69 So.
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jury (R. 4). On August 25, 1961, Gideon was sentenced to five years imprisonment, the maximum penalty under the applicable statute (R. 5). He is presently confined in the state penitentiary at Raiford, Florida (R. 45). On October 11, 1961, Gideon filed a sworn, handwritten petition for a writ of habeas corpus in the Florida Supreme Court, alleging that he “was without funds and without an attorney,” that he had asked the trial court “to appoint me an attorney but they denied me that right” and “ignored this plea,” and that this action by the trial court denied him “the rights of the 4th, 5th and 14th Amendments of the Bill of Rights” (R. 45-46). The petition did not recite any “special circumstances” to show that the trial was unfair in the absence of counsel, nor did Petitioner allege that he was unable to defend himself by reason of any special circumstances or conditions. Gideon alleged that, under decisions of this Court, “the State of Florida should see that everyone who is tried for a felony charge should have legal counsel” (R. 46). The Clerk of the Florida Supreme Court has certified to this Court that “no pleadings, transcripts, documents or papers” were before that Court other than the handwritten petition for habeas corpus which Gideon transmitted to the Florida Supreme Court from the state penitentiary.4 The petition in this Court, like that in the Supreme Court of Florida, is based upon a claim of right to counsel. It does not allege any “special circumstances” in the present case requiring the appointment of counsel. The petition for habeas corpus was denied by the Florida Supreme Court without requiring a return, without a hearing, and without opinion (R. 47).5 2d 653 (Fla. 1954); Fla. Stats. §909.21 (1961), Appendix A, infra. But see note 27, infra. 4 Certificate of Guyte P. MeCord, Clerk, Supreme Court of Florida, attached to Respondent’s Motion to Strike Paragraphs 1 and 2 of Petitioner’s Designation for Printing. 5 Similar procedure was followed by the Florida Supreme Court in Reynolds v. Cochran, 365 U.S. 525 (1961), in which this Court held that Petitioner was deprived of due process because of the trial court’s refusal to grant a continuance in order that Petitioner might have the assistance of the counsel he had retained. Four of the last eight right-to-counsel cases decided by this Court originated in Florida. Carnley v. Cochran, 369 U.S. 506 (1962); Reynolds v. Cochran, 365 U.S. 525 (1961); McNeal v. Culver, 365 U.S. 109 (1961); Cash v. Culver, 358 U.S. 633 (1959).
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Thereafter, on January 8, 1962, Petitioner filed a motion in this Court for leave to proceed in forma pauperis and a petition for certiorari. On June 4, 1962, this Court entered an order in the present case granting the motion for leave to proceed in forma pauperis and granting the petition for certiorari (R. 47-48). In the order granting the writ, the Court requested counsel “to discuss the following in their briefs and oral argument: ‘Should this Court’s holding in Betts v. Brady, 316 U.S. 455, be reconsidered?’” (R. 47-48). At the request of counsel for Petitioner herein, the trial court proceedings were certified directly to this Court by the clerk of the trial court after the petition for certiorari was granted. The Florida Attorney General takes the position in this Court that the transcript of the trial proceedings should not be considered by this Court in deciding the present case because it was not before the Florida Supreme Court, op. cit. note 2, supra. We do not agree with this contention,6 but we believe that the question need not be decided because reversal of the judgment below is necessary without reference to the trial court transcript. OPINION BELOW
The order of the Supreme Court of Florida denying Petitioner’s application for a writ of habeas corpus appears as Gideon v. Cochran, 135 So. 2d 746 (Fla. 1961) (R. 47). JURISDICTION
The jurisdiction of this Court is invoked pursuant to 28 U.S.C. §1257(3). CONSTITUTIONAL PROVISIONS AND STATUTES INVOLVED
This appeal involves Section 1 of the Fourteenth Amendment, U. S. Const.; Fla. Const., Declaration of Rights, §11; and Fla. Stats. §810.05 and §909.21 (1961). These provisions are reprinted in Appendix A, infra.
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Petitioner submits that the record before a lower court may be supplemented in this Court, and in the exercise of its jurisdiction over the present case, this Court may consider the proceedings in the trial court to the extent necessary and appropriate. See Petitioner’s Memorandum in Opposition to Respondent’s Motion to Strike Paragraphs 1 and 2 of Petitioner’s Designation for Printing, pp. 2-3.
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QUESTIONS PRESENTED
I. Does the denim by a state court of a request by an indigent defendant for the appointment of counsel to assist him at a trim for a serious criminal offense constitute a deprivation of the defendant’s rights in violation of the Fourteenth Amendment? Should this Court’s holding in Betts v. Brady, 316 U.S. 455 (1942), be overruled? II. In the present case, did the refusal of the state court to appoint counsel to assist Petitioner at trial, Petitioner having expressly requested such assistance, deprive Petitioner, an indigent person, of his rights in violation of the Fourteenth Amendment? SUMMARY OF ARGUMENT
This case presents the issue whether Betts v. Brady, 316 U.S. 455 (1942), should be overruled. It illustrates the denial of due process and equal protection consequent upon the refusal to appoint counsel in a state felony prosecution; but we cannot urge that the circumstances presented by the case are “special” rather than typical. The Petitioner is not illiterate, mentally incompetent, or inexperienced. The statute defining the offense with which petitioner is charged presents issues of fact and law; but so do most criminal statutes. The conduct of the trial left much to be desired; but this is an inevitable consequence of the absence of defense counsel, and we cannot attribute to the trial judge or prosecutor animus or a deviation from normal standards. Betts v. Brady should be overruled. The Fourteenth Amendment requires that counsel be made available to the accused in every case of arrest and prosecution in the states for serious criminal offense. I
An accused person cannot effectively defend himself. The assistance of counsel is necessary to “due process” and to a fair trial. Without counsel, the accused cannot possibly evaluate the lawfulness of his arrest, the validity of the indictment or information, whether preliminary motions should be filed, whether a search or seizure has been lawful, whether a “confession” is admissible, etc. He cannot determine whether he is responsible for the crime as charged or a lesser offense, lie cannot discuss the possibilities of pleading to a lesser offense. He cannot evaluate the grand or petit jury. At the trial he cannot interpose objections to evidence or A M E R I C A N
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cross-examine witnesses, etc. He is at a loss in the sentencing procedure.
in ways which seem contradictory. State courts have disregarded or misapplied it.
BRIEF FOR THE PETITIONER
An indigent is almost always in jail, unable to make bail. He cannot prepare his defense.
Proper application of the principle of federalism dictates that the constitutional requirement of due process be affirmed and not curtailed, and that the states should be given latitude in devising methods to assure compliance with the constitutional principle.
There is no distinction between the need for counsel in federal and in state cases. Johnson v. Zerbst, 304 U.S. 458 (1938), recognizes the need in federal cases. The trial judge cannot perform the function of counsel. There is no basis for distinguishing between the need for counsel in capital and in noncapital cases. Indeed, the need may be greater in the latter because of complexity of issues. This Court has rejected the distinction between capital and other offenses in the court-martial cases and with respect to the obligation of the states to furnish transcripts to destitute persons on appeal. (Kinsella v. United States ex rel. Singleton, 361 U.S. 234 (1960); Griffin v. Illinois, 351 U.S. 12 (1956). To convict the pool. without counsel while we guarantee a right to counsel to those who can afford it is also a denial of equal protection of the laws. II
Regard for federalism does not justify the “special circumstances” restriction of Betts v. Brady. On the contrary, the rule creates friction between state and federal courts. It impairs the values of federalism. All but five states now make provision for appointment of counsel for indigents in all felony cases, either expressly or as a matter of practice. The “special circumstances” rule involves federal supervision over state courts in a most obnoxious form: ad hoc and post facto. The absence of counsel is responsible in large measure for the flood of habeas corpus petitions in the federal courts which create state-federal friction and constitute a burden on the federal system. The post facto nature of Betts v. Brady means that prisoners languish in jail, sometimes for many years, before their rights are vindicated. III
The “special circumstances” test is not capable of proper application. This Court has applied it G A L E
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The supposed practical consequences should not frustrate vindication of the constitutional principle. Cf. Mapp v. Ohio, 367 U.S. 643 (1961). In any event, prisoners whose convictions are set aside because of denial of counsel may be retried. ARGUMENT I. THE FOURTEENTH AMENDMENT REQUIRES THAT COUNSEL BE APPOINTED TO REPRESENT AN INDIGENT DEFENDANT IN EVERY CRIMINAL CASE INVOLVING A SERIOUS OFFENSE
In Betts v. Brady, 316 U.S. 455, decided in 1942, this Court ruled that the 14th Amendment does not require that the state courts furnish counsel to an indigent defendant in a non-capital case unless the total facts and circumstances in the particular case show that there has been “a denial of fundamental fairness, shocking to the universal sense of justice.” Id. at 462. In short, counsel need not be appointed unless there are “special circumstances showing that without a lawyer a defendant could not have an adequate and a fair defense.” Palmer v. Ashe, 342 U.S. 134, 135 (1951).7 7
Uveges v. Pennsylvania, 335 U.S. 437 (1948), Mr. Justice Reed summarized the situation, which has obtained until the present, as follows: “Some members of the Court think that where serious offenses are charged, failure of a court to offer counsel in state criminal trials deprives an accused of rights under the Fourteenth Amendment. They are convinced that the services of counsel to protect the accused are guaranteed by the Constitution in every such instance . . . Others of us think that when a crime subject to capital punishment is not involved, each case depends on its own facts. See Botts v. Brady . . . Where the gravity of the crime and other factors such as the age and education of the defendant, the conduct of the court or the prosecuting officials, and the complicated nature of the offense charged and the possible defenses thereto - render criminal proceedings without counsel so apt to result in injustice as to be fundamentally unfair, the latter group hold that the accused must have legal assistance under the Amendment . . . whether he requests counsel or not.” (335 U.S. at 440-441).
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For twenty years, this Court, the lower federal courts, and the courts of a number of states have been charged with the duty of administering this rule. The experience has not been a happy one. We respectfully suggest that the data, summarized in this brief, demonstrate that the quality of criminal justice and the relations between the federal and state courts, have suffered as a result of Betts v. Brady. We believe that “time has set its face”8 against Betts v. Brady; that a fresh evaluation of the holding in that case is timely and appropriate; and that Betts v. Brady should be overruled in the present case.9 In the following portions of this brief, we believe that we shall demonstrate that the “special circumstances” rule, devised to assure the 14th Amendment’s requirement of due process in state criminal cases, has not achieved its basic constitutional objective: It has not assured and cannot be expected to assure that counsel will be provided where necessary in the interests of fundamental fairness in state criminal proceedings. We shall also show, we believe, the overwhelming evidence that the rule of Betts v. Brady is not compatible with due respect for the separate processes of the states. It is not an appropriate adaptation of the 14th Amendment to the demands of federalism. To the contrary, it is a rule which compels continual, unseemly, and improper intervention by the federal courts in state criminal proceedings not on the basis of applying a concrete, fundamental principle but by the corrosive and irritating process of case-by-case review. Betts v. Brady has produced and will continue to produce a series of ad hoc decisions by this Court and other federal courts exercising supervision over the conduct of trials by state courts and state judges - which are disruptive of our federal system and which create friction between the states and the federal government. 8
Mapp v. Ohio, 367 U.S. 643, 653 (1961). “[T]his court throughout its history has freely exercised its power to reexamine the basis of its constitutional decisions,” Smith v. Allwright, 321 U.S. 649, 665 (1944), and the Court has often overruled its earlier decisions in light of additional experience. Reappraisal is particularly appropriate in cases raising issues of due process, since “‘Due process’ is, perhaps, the least frozen concept of our law - the least confined to history and the most absorptive of powerful social standards of a progressive society.” Griffin v. Illinois, 351 U.S. 12, 20-21 (1956) (Frankfurter, J., concurring).
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In other words, Betts v. Brady has not meant, and will not mean, less federal intervention in state criminal proceedings than would be the case if the 14th Amendment were construed to require that counsel be furnished in all state criminal prosecutions. Because of the intensely factual, subjective, and post-facto nature of its standards, Botts v. Brady means more federal intervention on a case by case basis, and in a much more exacerbating form. The present case, in our opinion, raises the fundamental question as to whether Betts v. Brady should be overruled. Apart from the technical and procedural question resulting from the failure of petitioner to allege special circumstances and from the nature of the proceedings before the Florida Supreme Court to which we have referred above, we can claim neither extreme youth, inexperience, mental incapacity, nor illiteracy on the part of the defendant. It is true that the defendant could not possibly have fully understood the legal subtleties of the crime with which he was charged; he could not have been aware of the decisions of the Supreme Court of Florida or principles of corpus juris which might affect his defense. He could not have been alert to the opportunities theoretically offered by the law to cope with the problems of jury selection or the testimony of witnesses adduced by the State. It is true, too, that the judge in Gideon’s case did not serve as Gideon’s defense counsel - although it is obvious that he tried to conduct the trial fairly. In Appendix B to this Brief we analyze the specific points that demonstrate that Gideon did not receive the benefits and protection which would presumably have been afforded him by counsel. We believe that these constitute a vivid demonstration of the fact that he was deprived of his due process rights under the Fourteenth Amendment: that he did not have a fair trial in the constitutional sense. But it is our opinion that these points are not peculiar to Gideon’s case. We believe, mutatis mutandis, these points are present in every criminal prosecution. In short, we believe that the circumstances of this case are no more “special” than in other criminal cases - unless we are to draw a line between tweedledee and tweedledum. We are therefore of the opinion that the fundamental question of Betts v. Brady is at issue in the present case. 1. The aid of counsel is indispensable to a fair hearing. As we shall discuss, we believe that the real point of difference between the advocates A M E R I C A N
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and opponents of the “special circumstances” rule of Betts v. Brady relates to the requirements of federalism in the application of the Fourteenth Amendment. It is not the issue of whether counsel is or is not needed for a trial which is fair and decent. The necessity for counsel in a criminal case is too plain for argument. No individual who is not a trained or experienced lawyer can possibly know or pursue the technical, elaborate, and sophisticated measures which are necessary to assemble and appraise the facts, analyze the law, determine contentions, negotiate the plea, or marshal and present all of the factual and legal considerations which have a bearing upon his defense.10 Even a trained, experienced criminal lawyer cannot - and will not, if he is sensible undertake his own defense.11
dire of the petit jury, or cross-examine the prosecution’s witnesses, or interpose objections to incompetent and prejudicial testimony. See Douglas, J., concurring in Carnley v. Cochran, 369 U.S. 506 (1962). The truth is that “The unrepresented defendant in many cases does not really know what is going on . . . ” Ass’n. of the Bar of the City of New York, Report of the Magistrate’s Courts Visitation Committee 30 (undated). As this Court pointed out in Reynolds v. Cochran, 365 U.S. 525, 532-33 (1961), “even in the most routine-appearing proceedings the assistance of able counsel may be of inestimable value.”14 In the event of conviction, the unrepresented defendant is further seriously disadvantaged at the senfencing stage.
In the absence of counsel an accused person cannot determine whether his arrest is lawful; whether the indictment or information is valid; what, if any, preliminary motions should be filed. He cannot accurately evaluate the implications of a plea to a lesser offense, and he is at a loss in discussions with the prosecuting attorney relating to such a plea.12
“Automatic sanctions, which predominated in earlier historical periods, have been largely replaced by judicial discretion . . . . Consequently, counsel may be called upon to play a role in senfencing which requires wide knowledge and experience.” Ass’n. of the Bar of the City of New York, Special Committee to Study Defender Systems, Equal Justice for the Accused 35-36 (1959).
The indigent, apart from all other considerations, has probably been in jail from the time of arrest because of inability to furnish bail.13 How can he prepare his case? And how unreal it is to suppose that a layman can conduct a voir
See also Gadsden v. United States, 223 F. 2d 627, 630-33 (D.C. Cir. 1955); Kadish, The Advocate and the Expert - Counsel in the PenoCorrectional Process, 45 Minn. L. Rev. 803, 806 (1961).
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post bond. Note, A Study of the Administration of Bait in New York City, 106 U. Pa. L. Rev. 693, 707 (1958). A field study of the metropolitan courts of Philadelphia established that 75% of all defendants charged with serious crimes where bail is set by the court were held in jail from the time of arrest to trial. Note, Compelling Appearance in Court: Administration of Bail in Philadelphia, 102 U. Pa. L. Rev. 1031, 1048 (1954). See also Note, Bail: An Ancient Practice Reexamined, 70 Yale L. J. 966, 970 (1961). 14 In a powerful passage, often quoted, Mr. Justice Sutherland summed up why the assistance of counsel is indispensable to a fair hearing as follows: “The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him.
The rule that only a qualified and licensed lawyer may represent another in our courts is based, in part at least, on the assumpion that a certain amount of skill is necessary to the task. 11 “He that is his own lawyer has a fool for a client.” The Oxford Dictionary of English Proverbs 112 (2d ed. 1.048). This adage has a psychiatric basis. To expect that an accused person, particularly an indigent, usually friendless, defendant can or will rise to the level of operating skill and efficiency necessary to functioning in the criminal process, is to expect the impossible. Most defendants, after arrest and imprisonment, cannot even function at their normal level of competence. 12 “Men entering an initial plea of not guilty were significantly more often represented by defense attorneys than the men pleading guilty immediately.” Newman, Pleading Guilty for Considerations: A Study of Bargain Justice, 46 J.Crim.L.,C. & P.S. 780, 782 (1956). “The methods used by the prosecutor and the judge to obtain a plea of guilty to a lesser charge from an unrepresented defendant often amount to downright coercion performed in open court.” Dash, Cracks in the Foundation of Justice, 46 Ill. L. Rev. 385, 393 (1951). 13 A comprehensive study of the New York City Municipal Courts revealed that, in 1958, 51% of all defendants did not
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Moreover, it is patent that many constitutional rights are meaningless in the absence of legal assistance. As an eminent State Supreme Court judge has stated: “Of all the rights that an accused person has, the right to be represented by counsel is by far the most pervasive, for it affects his ability to assert any other rights he may have.” Schaefer, Federalism and State Criminal Procedure, 70 Harv. L. Rev. 1, 8 (1956). In the past twenty years, this Court has stated a number of principles of constitutional law with respect to state criminal procedure, which have a direct and practical bearing on the conduct of trials. The law of involuntary confessions and searches and seizures as applied to the states, for example, post-dates almost in its entirety the decision in Betts v. Brady.15 Important procedural safeguards cannot be implemented effectively without the assistance of counsel. An uncounseled defendant manifestly cannot be expected, for example, to be a master of the intricacies of the law relating to searches and seizures, e.g., whether a search warrant is required, whether there is “probable cause,” whether there has been a waiver, and so on. An inexperienced person cannot possibly appraise the implications of invoking the privilege against self-incrimination or determine whether a statement he wishes to make may constitute a waiver of the privilege.16 In brief, what is required for the effective assertion of constitutional rights and privileges is “the assistance of a learned gentleman to speak for an unlearned man” (5 The Speeches of the Right Hon. Charles James Fox in the House of Commons (London 1815) 78, quoted by Mr. Justice Clark in Kinsella v. Unified States ex rel. Singleton, 361 U.S. 234, 244, n. 10 [1960]). Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence. If that be true of men of intelligence, how much more time is it of the ignorant and illiterate, or those of feeble intellect.” Powell v. Alabama, 287 U.S. 45, 68-69 (1932). See also, Pollock, Equal Justice In Practice, 45 Minn. L. Rev. 737, 741-743 (1961); Note, Metropolitan Criminal Courts of First Instance, 70 Harv. L. Rev. 320 (1956); Willcox and Bloustein, Account of a Field Study in a Rural Area of the Representation of Indigents Accused of Crime, 59 Colum. L. Roy. 551 (1959); Barth, The Price of Liberty 159 (1961). 15 “Even if advised that he has a right to speak, the unrepresented defendant often chooses to remain silent for fear of self-incrimination. The manner in which the assistant district attorneys inform unrepresented defendants of their constitutional rights to remain silent seems to imply
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2. The absolute requirement of counsel in federal prosecutions confirms the need for an attorney. The parallel development of the right to counsel in the federal courts confirms the conclusion that an unrepresented defendant cannot adequately advocate his rights. In 1938, in Johnson v. Zerbst, 304 U.S. 458, this Court held that counsel must be furnished in every case to a person tried in the federal courts. To quote the Court: “If the accused . . . is not represented by Counsel and has not competently and intelligently waived his constitutional right, the Sixth Amendment stands as a jurisdictional bar to a valid conviction and sentence depriving him of his life or his liberty.” 304 U.S. at 468.17 Johnson v. Zerbst was not the unchallenged product of the ineluctable language of the Sixth Amendment. There are those who assert that the right conferred on the accused “to have the assistance of counsel for his defense” meant only “that in the Federal courts the defendant in a criminal case was entitled to be represented by counsel retained by him,” and that it did not comprehend “the right of a prisoner to have counsel assigned to him by the court if, for financial or other reasons, he was unable to retain counsel.” Holtzoff, The Right of Counsel Under the Sixth Amendment, 20 N. Y. L. Q. Rev. 1, 7-8 (1944). That view was rejected by the Court in Johnson v. Zerbst. In speaking for the Court, Mr. Justice Black made it clear that the conclusion of the case rested upon “the obvious truth that the average defendant does not have the professional legal skill to protect himself when brought before a tribunal that it is always to the accused’s great advantage to refuse to speak.” Comment, Preliminary Hearings on Indictable Offenses in Philadelphia, 106 U. Pa. L. Rev. 589, 591 (1958). 16 “Even if advised that he has a right to speak, the unrepresented defendant often chooses to remain silent for fear of self-incrimination. The manner in which the assistant district attorneys inform unrepresented defendants of their constitutional rights to remain silent seems to imply that it is always to the accused’s great advantage to refuse to speak.” Comment, Preliminary Hearings on Indictable Offenses in Philadelphia, 106 U. Pa. L. Rev. 589, 591 (1958). 17 The ruling is reflected (although inadequately, in our view) in Rule 44, Fed. R. Crim. P.: “If the defendant appears in court without counsel, the court shall advise him of his right to counsel and assign counsel to represent him at every stage of the proceeding unless he elects to proceed without counsel or is able to obtain counsel.”
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with power to take his life or liberty, wherein the prosecution is presented by experienced and learned Counsel.” 304 U.S. at 462-463.
should not engage in the probing of a defendant necessary for representation; he cannot and should not cross-examine the state’s witnesses.
Our accusatorial system of criminal justice presupposes that the cause of the defendant as well as that of the state will be vigorously advocated.18
In a word, a man cannot act both as trial judge and as defense counsel. As Mr. Justice Sutherland stated, in speaking for the Court in Powell v. Alabama, 287 U.S. 45, 61 (1932):
It makes no sense to urge that the availability of counsel is required in the federal courts in order “to insure fundamental human rights of life and liberty” (id. at 304 U.S. 462), but that it is not fundamental if the prosecution occurs in a state courthouse.19 We do not think it arguable that federal judges or prosecutors are less solicitous of the accused than are their state counterparts, or that the indigent accused in state criminal proceedings are more learned in the law than their counterparts who are involved in the federal process.
[H]ow can a judge, whose functions are purely judicial, effectively discharge the obligations of counsel for the accused? He can and should see to it that in the proceedings before the court the accused shall be dealt with justly and fairly. He cannot investigate the facts, advise and direct the defense, or participate in those necessary conferences between counsel and accused which sometimes partake of the inviolable character of the confessional.
3. The trial judge cannot act as defense counsel. The trial judge must assure himself by a meticulous and thorough investigation that the accused has not ignorantly or incompetently waived his right to counsel, Von Moltke v. Gillies, 332 U.S. 708, 723-24 (1948), but we do not believe that it can properly be urged that the trial judge can or should perform the functions of ascertaining and advancing the legal and factual points available to the accused.20 The judge comes on the scene too late in point of time; crucial events, have already taken place and important decisions made by default or otherwise. The judge cannot investigate the facts; he cannot and
Our adversary system presumes that “each litigant is most interested and will be most effective in seeking, discovering, and presenting the materials which will reveal the strength of his own case and the weakness of his adversary’s case so that the truth will emerge to the impartial tribunal that makes the decision.” Morgan, Some Problems of Proof Under the Anglo-American System of Litigation 3 (1956). 19 “An English court will not hear a criminal case without a defense counsel if the defendant desires one.” Section of Criminal Law of the A.B.A., A Comparative Study of Criminal Law Administration in the United States and Great Britain, 50 J. Crim. L., C. & P.S. 59, 66 (1959). See Devlin, The Criminal Prosecution in England 127 (1958): “[I]t is very rare that an accused who has any sort of defense to put forward has to prepare and present it without legal assistanee”; Waddington, The Development of Legal Aid in England Since 1949, 48 A.B.A.J. 1029, 1030 (1962): “[T]he tendency today is to grant legal aid in all cases, at all stages of the trial and of any appeal, and whether or not there is a plea of guilty. 18
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4. The distinction between capital and noncapital offenses does not furnish a valid basis for deciding when to appoint counsel. In one class of criminal cases tried in the state courts - those involving capital offenses - this Court has rejected the Betts v. Brady rule. Hamilton v. Alabama, 368 U.S. 52 (1961); Uveges v. Pennsylvania, 335 U.S. 437, 441 (1948); Bute v. Illinois, 333 U.S. 640, 674 (1948). As the Court stated in Hamilton v. Alabama, supra: “When one pleads to a capital charge without benefit of counsel, we do not stop to determine whether prejudice resulted.” 368 U.S. at 55.21 We do not believe this distinction between capital and non-capital offenses furnishes an appropriate or constitutionally valid basis for
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Blackstone characterized the English common law rule denying the assistance of counsel in most felony prosecutions (changed by Parliament in 1836, 6 & 7 W. 4, 114, s.1) as “[A] rule which (however it may be palliated under cover of that noble declaration of the law, when rightly understood, that the judge shall be counsel for the prisoner; that is, shall see that the proceedings against him are legal and strictly regular) seems to be net at all of a piece with the rest of the humane treatment of prisoners by the English law.” IV B1. Comm., pp. 348-350 (Clarendon Press 1767). Blackstone noted that Coke (3 Inst. 137) gave as a reason for denying the right to counsel that “the evidence to convict a person should be so manifest, as it could not be contradicted.” Blackstone pointed out that “to say the truth, the judges themselves are so sensible of this defect that they allow counsel to stand by the prisoner, suggest questions or even ask them.” 21 In the present case, the trial court rejected Gideon’s request for legal assistance on the grounds that “Under the laws of the State of Florida, the only time the Court can appoint Counsel to represent a Defendant is when that person is charged with a capital offense.” (R. 9).
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determining when counsel must be appointed. The due process clause protects against deprivation of “liberty” and “property” as well as against deprivation of “life.”22 Moreover, the necessity for legal assistance, not the nature of the sanction, should be the controlling consideration. As one commentator has observed: “[I]n determining whether absence of counsel has denied a fair hearing, the important consideration seems less the penalties that may be imposed than the need for skilled representation. Any experienced defense lawyer is likely to testify that most murder cases, in which capital penalties are involved, are by no means the most difficult to try or those in which representation is most urgently required. Indictments charging such crimes as embezzlement, confidence game, or conspiracy are likely to place the defendant in a far more helpless position. The distinction that the Court has drawn lacks integrity, and so long as it persists, the law of the subject will remain in a state of unstable equilibrium.” Allen, The Supreme Court and State Criminal Justice, 4 Wayne L. Rev. 191, 197 (1958). This Court has specifically rejected the distinction between capital and non-capital offenses in the military court-martial cases, involving rights secured by Article III and the Fifth and Sixth Amendments. Kinsella v. United States ex rel. Singleton, 361 U.S. 234 (1960). In view of the importance of the court-martial cases to this particular issue, we discuss the cases at more length in Appendix C, infra. It is true that these court-martial decisions involved the power of Congress under Art. 1, §8, “To make Rules for the Government and Regulation of the land and naval Forces” and did not involve limitations upon state power under the Fourteenth Amendment. The cases turned upon the status of the accused. But if the capital and non-capital distinction is rejected in a case involving the right to trial by jury before a constitutionally appointed judge, among other privileges, we perceive no reason why it should be considered as controlling with respect to the closely allied right to counsel. 22
There are some who believe that life imprisonment is a more terrible penalty than a death sentence. See Barzun, In Favor of Capital Punishment, 31 American Scholar 181 (1962).
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Further, in 1961, this Court in Ferguson v. Georgia, 365 U.S. 570, rejected the capital-noncapital distinction in a Fourteenth Amendment case. The Court concluded in that case that the Fourteenth Amendment invalidated a Georgia statute which prohibited a defendant in a criminal case from testifying under oath in his own defense, in response to questions of counsel. The Court stated: “Our decision does not turn on the facts that the appellant was tried for a capital offense and was represented by employed counsel. The command of the Fourteenth Amendment also applies in the case of an accused tried for a non-capital offense, or represented by appointed counsel.” 365 U.S. at 596. Griffin v. Illinois, 351 U.S. 12 (1956), a noncapital case, similarly rejected the capital non-capital distinction with respect to the availability to indigents of transcripts for appeal purposes.23 In sum, we submit that the possibility of a death sentence does not constitute a valid constitutional criterion for determining who shall have the assistance of counsel. 5. Denial of counsel to the indigent violates both due process and equal protection. The refusal to appoint an attorney to represent a destitute person results in discrimination against defendants based solely upon poverty. There is no doubt that a defendant in a state criminal trial has an unqualified right under the Fourteenth Amendment to be heard through counsel he has retained. Chandler v. Fretag, 348 U.S. 3, 9 (1954); see In re Groban’s Petition, 352 U.S. 330, 332 (1957). We submit that if a person with funds is entitled to be heard through an attorney, the same privilege must be extended to indigents. In the case of those able financially to hire counsel, the rule is not limited to capital cases or to “special circumstances.” It is absolute and complete, and a state may not restrict it. How, then, can the right be restricted in the case of the poor? We have agreed since Powell v. Alabama, 287 U.S. 45 (1932), that the state has a duty to appoint counsel for the 23
Indigent defendants sentenced to death were provided by Illinois with a free transcript for purposes of appellate review, but in all other cases the defendant was required to buy the transcript. Id. at 14. The Court held that the state was required to furnish means for effective review to all defendants. The dissenting Justices urged that the distinction between capital and non-capital eases made by Illinois law was valid and reasonable. Id. at 27-28.
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indigent in at least some criminal cases in order to meet the requirements of due process. If this is so, counsel must be provided in all criminal cases in which there is a constitutional requirement to permit counsel to appear and act for those who have the funds to hire them. The indigent defendant cannot be denied an “unqualified right” solely because of poverty; to 40 so results in a denial of equal protection. “The need of counsel is the same, whatever the economic status of the accused.” McNeal v. Culver, 365 U.S. 109, 118 (1961) (Douglas, J., concurring); see also Douglas, Vagrancy and Arrest on Suspicion, 70 Yale L.J. 1, 10-11 (1960). This principle was articulated in Griffin v. Illinois, 351 U.S. 12 (1956), which held that the Fourteenth Amendment requires that “Destitute defendants must be afforded as adequate appellate review as defendants who have money enough to buy transcripts.” 351 U.S. at 19. The Court said that the “constitutional guaranties of due process and equal protection both call for procedures in criminal trials which allow no invidious discriminations between persons and different groups of persons. Both equal protection and due process emphasize the central aim of our entire judicial system - all people charged with crime must, so far as the law is concerned, ‘stand on an equality before the bar of justice in every American court.’” 351 U. S. at 17. And the Court added: “In criminal trials a State can no more discriminate on account of poverty than on account of religion, race, or color . . . . There is no meaningful distinction between a rule which would deny the poor the right to defend themselves in a trial court and one which effectively denies the poor an adequate appellate review accorded to all who have money enough to pay the costs in advance . . . . There can be no equal justice where the kind of trial a man gets depends on the amount of money he has.” 351 U.S. at 17-19. See WiIIcox and BIoustein, The Griffiin Case Poverty and the Fourteenth Amendment, 43 Cornell L.Q. 1, 23 (1957); see also Smith v. Bennett, 365 U.S. 708 (1961); Douglas v. Green, 363 U.S. 192 (1960); Burns v. Ohio, 360 U.S. 252 (1959); Eskridge v. Washington Prison Bd., 357 U.S. 214 (1958); cf. Coppedge v. United States, 369 U.S. 438 (1962). Where counsel are not designated to assist indigent persons, whether a defense of any kind will be asserted, and the type of defense, tends to G A L E
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depend more upon the personality and temperament of the accused than upon guilt or innocence or any other factor. The large percentage of guilty pleas in our courts24 may reflect the helplessness of the arrested and their lack of counsel as well as the efficiency of the police. Certainly, the frequency of guilty pleas suggests that those who are arrested, particularly the penniless and persons who are members of minority groups, are more likely hopelessly to resign themselves to fate than aggressively to as like the defense counsel portrayed on television. In sum: “To say that trials without counsel can be fair is to assume either that the defense which counsel might have presented would not have changed the result in the case or that in certain types of cases counsel serves no useful function. The first assumption is hindsight and unprovable. The second, if true, would convict a portion of the bar of taking money under false pretenses in all those ‘simple’ cases where counsel accepts a retainer but apparently cannot influence the result. We cannot with justice keep the existing ‘fight’ theory of criminal law and force the indigent defendant to fight alone. If our vaunted claim of ‘equal justice under law’ is to be more than an idle pretense, the right to have counsel must be extended in practice to all persons accused of crime.” Beaney, The Right to Counsel in American Courts 234-235 (1955). II. THE DEMANDS OF FEDERALISM DO NOT DICTATE CONTINUED ADHERENCE TO BETTS V. BRADY
In view of the foregoing, we believe that the real argument against the position that the 14th Amendment requires that counsel be furnished to indigent persons in all state criminal proceedings is that it “would disregard the basic and historic power of the states to prescribe their own local court procedures,” i.e., the demands of federalism. Bute v. Illinois, 333 U.S. “[T]he overwhelming proportion of cases (75 to 90 per cent) . . . are decided by pleas of guilty.” Goldstein, The State and The Accused: Balance of Advantage in Criminal Procedure, 69 Yale L. J. 1149, 1189 (1960). “Men entering an initial plea of not guilty were significantly more often represented by defense attorneys than the men pleading guilty immediately.” Newman, Pleading Guilty for Considerations: A Study of Bargain Justice, 46 J. Crim. L., C. & P. S. 780, 782 (1956). “If the defendant is represented by counsel, it is more likely that he will be permitted to present a defense.” Comment, Preliminary Hearings on Indictable Offenses in Philadelphia, 106 U. Pa. L. Rev. 589, 591 (1958).
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640, 668 (1948).25 We submit two answers to this argument: First, we do not believe it necessary to dilute, denigrate, and diminish the quality of due process in our criminal proceedings or subtract from the equal administration of justice in deference to the few states, like Florida, which continue to defy the general opinion as to the right to counsel. Second, we believe that the argument is based on a premise that experience has rejected. The “special circumstances” rule increases the problems of federalism. It does not decrease them. 1. The great majority of the states now make provision for the appointment of counsel in all felonny cases, either explicitly or as a matter of practice. In 1942, the Court concluded in Betts v. Brady, after canvassing the law in each state, that “in the great majority of the states, it has been the considered judgment of the people, their representatives and their courts that appointment of counsel is not a fundamental right, essential to a fair trial.” Betts v. Brady, 316 U.S. at 471. This factual premise of Betts v. Brady has evaporated during the past twenty years. “Although not every state today offers counsel to the indigent defendant in the serious, but noncapital, criminal case, the trend is unmistakably in that direction.” Schaefer, Federalism and State Criminal Procedure, 70 Harv. L. Rev. 1, 9 (1956). In 1961, in an appendix attached to a concurring opinion in McNeal v. Culver, 365 U.S. 109, 119-122, Mr. Justice Douglas listed 35 states which provide for “Appointment of counsel for indigents in all felony cases, as of course, by force of the State Constitution, statutes, court rule, or judicial decision.” (Id. at 120). Subsequent to compilation of the appendix, Colorado made appointment of counsel obligatory in all felony cases, Colo.R.Crim.P. 44 (set out in 34 Rocky 25
The history of the right to counsel in England and the United States during the past three centuries reflects a steady, unmistakable evolution toward complete recognition of the right. Sec Powell v. Alabama, 287 U.S. 45, 60-65 (1932); Beaney, The Right to Counsel in American Courts 8-26, 225-228 (1955); Becker and Heidelbaugh, The Right to Counsel in Criminal Cases - An Inquiry into the History and Practice in England and America, 28 Notre Dame Law. 351 (1953). 26 Professor Kamisar made available to counsel the manuscript of his valuable article prior to its publication. 27 “The practice in a number of the larger counties in Florida also goes far beyond the demands of Betts. In Dade County (Miami), the largest county in the state, ‘the Public Defender acts as counsel for all indigent felony defendants who are in jail and unable to make bond,’ entering the picture ‘at or
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Mt. L. Rev. 1, 89 [1961]), and Michigan apparently should be added to the list, see Mich. Ct. R. 35A (Honigman’s Mich. Ct. Rules Anno.). There are thus presently thirty-seven states which expressly provide, in one form or another, for the designation of counsel in behalf of destitute defendants in all felony cases. In a majority of the states listed in Justice Douglas’ appendix in McNeal v. Culver, supra, the court must inform the accused of his right to counsel and inquire whether he desires an attorney. In all thirty-seven states appointment is mandatory in all felony cases if requested by the defendant. See Appendix, “Provision for the Assignment of Counsel for Indigent Defendants in Criminal Cases,” in Ass’n. of the Bar of the City of New York, Special Committee to Study Defender Systems, Equal Justice for the Accused (1959). Further, a study, just completed, concludes on the basis of extensive documentation that of the remaining thirteen states, it is the general practice in eight states - Pennsylvania, Maryland, Maine, New Hampshire, Rhode Island, Vermont, Delaware, and Hawaii - to furnish legal assistance in each case where such aid is requested. Kamisar, The Right to Counsel and the Fourteenth Amendment: A Dialogue on “The Most Pervasive Right” of an Accused, 30 U. of Chi. L. Rev. 1 (1962).26 There remain only five states - Alabama, Florida, Mississippi, North Carolina, and South Carolina - which do not make provision for appointment of counsel in behalf of indigents in all felony cases. Even in these states, however, there are cities and counties where public defenders or court appointed counsel are assigned to represent impoverished defendants at various stages in the proceeding.27 See Kamisar, op. cit. supra. before arraignment.’ The same practice prevails for the large counties of Broward (Fort Lauderdale) (public defender) and Dural (Jacksonville) (court appointed counsel). A public defender also operates in Hills-County (Tampa), but apparently represents only those who have pled not guilty and are awaiting trial. Thus, despite the presence of a public defender, indigent defendants in this populous county are without counsel at the ‘critical’ arraignment stage. The practice throughout the rest of the state varies a good deal, but indigent non-capital defendants, it appears, are not furnished counsel generally, although they are in the ‘more serious and more complicated cases.’” Kamisar, op. cit. supra. See Sen. Judiciary Committee, Subcommittee on Constitutional Rights, Legal Counsel for Indigent Defendants in Federal Courts, p. 9 (1961).
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There is far less contrariety of views among the states with respect to the right to counsel than was the case with respect to the exclusion of evidence secured by an illegal search and seizure. When Mapp v. Ohio, 367 U.S. 643, was decided in 1961, one-half of the states still adhered to the rule that illegally seized evidence was admissible. 367 U.S. at 680 (dissenting opinion); see Elkins v. United States, 364 U.S. 206, 224 (1960). This Court held, however, that the 14th Amendment required that the state courts exclude unlawfully procured evidence. With respect to the plea that the decision infringed the principle of federalism, the Court said (367 U.S. at 656): This Court has not hesitated to enforce as strictly against the States as it does against the Federal Government the rights of free speech and of a free press, the rights to notice and to a fair, public trial, including, as it does, the right not to be convicted by use of a coerced confession . . .
We recognize, of course, that resolution of an important question of constitutional law cannot and should not be made simply by taking a census of the states. But the practice among the states was emphasized in Betts v. Brady as a factor to be used in determining the standard of procedural fairness required by the due process clause. Betts v. Brady, 316 U.S. at 465. There is no doubt that there is today widespread consensus among the states that legal assistance should be furnished to indigent persons. Further, it is a principle which has the overwhelming support of the bar.28 The task here is essentially a modest one: to bring into line with the consensus of the states and professional opinion the few “stragglers” who persist in denying fair treatment to the accused.* 28 See e.g., Ass’n. of the Bar of the City of New York, Special Committee to Study Defender Systems, Equal Justice for the Accused 56 (1959). There are now 96 defender offices in the United States, including 77 public defender offices. Brownell, Legal Aid in the United States, 1961 Supplement 14 (1961). “The Legal Aid movement is now almost universally accepted as being morally and ethically correct and as deserving the support of the general public.” Summary of Conference Proceedings of the National Legal Aid and Defender Association 9 (1959). See also Symposium, The Right to Counsel, 45 Minn. L. Rev. 693-896 (1961). * Counsel for Petitioner has been informed that twenty-two states are filing a joint brief as Amici in the present case urging that Betts v. Brady be overruled. The states involved are Alaska, Colorado, Connecticut, Georgia, Hawaii, Idaho, Illinois, Iowa, Kentucky, Maine, Massachusetts, Michigan, Minnesota, Missouri, Nevada, Ohio, North Dakota, Oregon, Rhode Island, South Dakota, Washington, and West Virginia.
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2. Betts v. Brady has created friction between the states and the Federal Courts. Two decades of experience have borne out the forecast of Mr. Justice Black, dissenting in Betts v. Brady, that the “special circumstances” test would require this Court and other federal courts to exercise “vast supervisory powers” over the state courts. 316 U.S. at 475. Betts v. Brady has engendered conflict between the federal and state courts because of the case by case review it entails and because it does not prescribe a clearcut standard which the state courts can follow. As one commentator has noted: “[T]he very vagueness of the fair-trial test has encouraged recourse to the lower federal courts and to the Supreme Court by state convicts.” Beaney, The Right to Counsel in American Courts 196 (1955). A vast number of petitions have been filed in the federal courts collaterally attacking the validity of convictions for failure to assign counsel. A recent study of 35 federal habeas corpus cases in which a state prisoner successfully attacked the judgment under which he was committed led to the following conclusions: “A most striking fact discovered from the 35 cases studied is the dominance of the issue of right to counsel as the contention most likely to succeed in federal habeas corpus. In roughly half of the cases, the state judgment fell on this ground. As only four of these cases involved a capital offense, the largest stumbling block in the administration of state criminal law is revealed as the nonabsolute right to counsel for indigents in non-cases.” Reitz, Federal Habeas Corpus: Postconviction Remedy for State Prisoners, 108 U. Pa. L. Rev. 461, 483 (1960) (emphasis supplied). Moreover, the “special circumstances” rule involves federal supervision over the state courts in its most noxious form. In effect, the federal courts are given a roving commission to scrutinize the proceeding in the state court to determine if it is “shocking to the universal sense of justice.” It is difficult to conceive of a test more likely to promote friction between federal and state tribunals. But, as Mr. Justice Stewart has stated, “The very essence of a healthy federalism depends upon the avoidance of needless conflict between state and federal courts.” Elkins v. United States, 364 U.S. 206, 221 (1960). Finally, the flood of habeas corpus petitions spawned by Betts has led to agitation to curtail the “Great Writ.” The undesirable consequences of Betts thus extend beyond the immediate issue of right to counsel. A decision overruling Betts A M E R I C A N
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would benefit the federalist principle by eliminating a major irritant. 3. Experimentation by the States will not be eliminated if the special circumstances is jettisoned. An absolute rule that counsel must be furnished indigents accused of serious offenses will still leave open an area in which federalism will operate. The states undoubtedly will meet the demands of the rule in a variety of ways. Some states may elect to provide counsel through a governmentally financed public defender system;29 others through court assignment of members of the bar; still others by use of a privately financed voluntary defender system. See A’ssn. of the Bar of the City of New York, Special Committee to Study Defender Systems, Equal Justice for the Accused 4753 (1959). Some states may choose to follow the system established by Congress in the District of Columbia Legal Aid Act, (74 Stat. 229, D. C. Code Anno. §§2-2201-2210 (1961 ed.)), which provides for compensation to counsel employed by a publicly financed legal aid agency and reimbursement of expenses to volunteer or court-assigned counsel.30 In other words, the states will remain at liberty to experiment and to adopt a system for the appointment of counsel consonant with community needs and resources, subject only to the requirement that the system adopted fulfill the constitutional imperative and guarantee effective legal aid to all persons accused of a serious offense who do not competently and intelligently waive such assistance. We believe that this is an instance of federalism in operation in an appropriate form: Under our system, we submit, the demands 29
A bill (S. 2900) authorizing each federal district court to appoint a public defender was approved by the Senate in the 87th Congress, 2d Session. See 108 Cong. Rec. 21079 (Oct. 4, 1962). The bill provides that if the court “is satisfied that a defendant charged with a felony or misdemeanor (other than a petty offense as defined in [18 U.S.C. § 1(3)]) is unable to employ counsel because he is indigent, it may assign the public defender to represent such defendant . . . ” Provision is made for compensating the public defender. 30 Students who have received a law degree and are engaged in post-graduate study under a private grant are used extensively as assistants in this program in the District of Columbia. In Massachusetts, senior law students, certified by their dean as having special ability and training, may represent indigents, provided that their activities are under the “general supervision” of a member of the bar. Rule 11, General Rules, Sup. Jud. Court (see Crane, Court Rules Anno., 8 Mass. Practice [1961]).
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and the benefits of federalism should take the form of a diversity of method. Federalism properly considered does not demand or permit a negation of basic constitutional principle. III. THE RULE OF BETTS V. BRADY HAS NOT PROVED TO BE A SATISFACTORY STANDARD FOR JUDICIAL ADMINISTRATION
Two decades have shown that Betts v. Brady is not an operable guide. 1. The cases decided by this Court under the “special circumstances” test, to quote one commentator, “are distinguished neither by the consistency of their results nor by the cogency of their argument.” Allen, The Supreme Court, Federalism, and State Systems of Criminal Justice, 8 De Paul L. Rev. 213, 230 (1958). The difficulty inheres in the subjective, ambiguous nature of the rule itself. Thus, the following factors have been deemed relevant in deciding whether the proceeding was “fundamentally unfair”: (i) the complexity of the statute under which the defendant is prosecuted and the nature of the offense charged;31 (ii) the fact that specific objections or arguments could have been, but were not, made;32 (iii) illiteracy or lack of education;33 (iv) mental illness or mental retardation;34 (v) youth of the accused;35 (vi) a plea of guilty by a co-defendant;36 (vii) the extent of the accused’s prior experience with criminal proceedings;37 (viii) the adequacy of guidance by the trial court;38
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E.g., Carnley v. Cochran, 369 U.S. 506 (1962); Chewning v. Cunningham, 368 U.S. 443 (1962); Reynolds v. Cochran, 365 U.S. 525 (1961); Pennsylvania ex rel Herman v. Claudy, 350 U.S. 116 (1956). 32 E.g., Hudson v. North Carolina, 363 U.S. 697 (1960); Gibbs v. Burke, 337 U.S. 773 (1949). 33 E.g., McNeal v. Culver, 365 U.S. 109 (1961); Cash v. Culver, 358 U.S. 633 (1959); Moore v. Michigan, 355 U.S. 155 (1957); Reece v. Georgia, 350 U.S. 85 (1955). 34 E.g., McNeal v. Culver, 365 U.S. 109 (1961); Massey v. Moore, 348 U.S. 105 (1954); Palmer v. Ashe, 342 U.S. 134 (1951). 35 E.g., Uveges v. Pennsylvania, 335 U.S. 437 (1948); DeMeerleer v. Michigan, 329 U.S. 663 (1947). 36 Hudson v. North Carolina, 363 U.S. 697 (1960); Cash v. Culver, 358 U.S. 633 (1959). 37 Uveges v. Pennsylvania, 335 U.S. 437 (1948); Wade v. Mayo, 334 U.S. 672 (1948); Quicksall v. Michigan, 339 U.S. 660 (1950). 38 Gibbs v. Burke, 337 U.S. 773 (1949).
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(ix) misconduct by the trial judge or the prosecutor;39 (x) the severity of the sentence.40 No standards have been delineated, however, with respect to the weight or importance to be assigned each of the foregoing factors. Thus, for example, in DeMeerleer v. Michigan, 329 U.S. 663 (1947), the Court deemed the youth of the accused (seventeen) significant and reversed his conviction, but in Gayes v. New York, 332 U.S. 145 (1947), the conviction was not set aside despite the fact that the defendant was “a lad of sixteen” (id. at 146) when he was convicted without counsel. In Qwicksall v. Michigan, 339 U.S. 660 (1950), the Court felt it reasonable to presume from the accused’s prior appearances in court that he knew of his right to counsel, and since he made no request for legal aid, his rights were held not infringed. But recently in Carntey v. Cochran, 369 U.S. 506 (1962), the Court felt that a prior criminal record magnified the importance of the assistance of counsel because of its implications in the event the accused takes the witness stand. It is likewise difficult to reconcile Gryger v. Burke, 334 U.S. 728 (1948), with Townsend v. Burke, 334 U.S. 736 (1948), both decided on the same day. In Gryger, a defendant sentenced to life imprisonment, argued that the state court mistakenly assumed that the applicable statute made the penalty mandatory. In Townsend, the defendant contended that the court imposed a sentence under the erroneous impression that defendant’s record included convictions on two charges as to which, in fact, he had been acquitted. In both cases, the defendants, who were unrepresented, claimed that if counsel had been present the mistake would have been corrected. In Townsend, this Court concluded that the accused was so disadvantaged by lack of counsel that the conviction could not be permitred to stand, but in Gryger the Court affirmed the order denying habeas corpus. It is difficult to perceive why the denial of counsel was deemed prejudicial as a constitutional matter in one case but not in the other. 2. In the present case, the trial court did not call petitioner’s attention to the “special circumstances” bearing on the right to 39
Townsend v. Burke, 334 U.S. 736 (1948). Uveges v. Pennsylvania, 335 U.S. 437 (1948).
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appointment of counsel. As the state court decisions discussed below show, the “special circumstances” rule has only infrequently led the state courts to appoint counse41 Some of the state decisions are startling. For example, in Commonwealth ex rel. Simon v. Maroney, 405 Pa. 562, 176 A. 2d 94 (1961), pet. for cert. pending, No. 41 Misc., Oct. Term, 1962, the defendant, an 18 year old boy, was sentenced in 1942 to a term of 20 to 40 years imprisonment following a conviction for rape, robbery, and assault and battery. The Pennsylvania Supreme Court recently denied relief. It felt that denial of counsel did not produce an “ingredient of unfairness” although the court recognized that “The defendant was not wholly a normal person . . . A behavior clinic study made of the defendant shortly after his arrest revealed him to be a high grade moron with an intelligence quotient of 59,” equivalent to a “mental age of only nine.” 405 Pa. at 565-67, 176 A. 2d at 96, 97. The defendant was “illiterate” (405 Pa. at 570, 176 A. 2d at 99), but the court felt no prejudice occurred because “There were no ‘intricacies of criminal procedure,’ no ‘improper conduct on the part of the court or prosecuting officials,’ and nothing complicated about the charges of robbery and rape.” 405 Pa. at 565-66, 176 A. 2d at 96. In Butler v. Culver, 111 So. 2d 35 (Fla. 1959), the court refused to set aside a conviction for second degree murder for which the defendant had been sentenced to life imprisonment, although there was a “showing in this record that approximately two months after the petitioner pleaded guilty to second degree murder [without counsel], it was formally adjudicated that he was suffering from an acute condition of insanity, described as paranoid schizophrenia.” Id. at 37-38. The court said no contention was made on appeal that the accused was mentally incompetent at the time of trial.
41
We wish to invite the attention of the Court to the excellent brief submitted in behalf of Amici, the American Civil Liberties Union and the Florida Civil Liberties Union, by J. Lee Rankin, Esq., and Professor Norman Dorsen. A draft of this brief has been furnished to counsel for Petitioner. The Amici point out that of 139 decisions in state courts since Betts v. Brady on the question whether “special circumstances” required appointment of counsel, only 15 resulted in a finding that such circumstances existed. The Amici found no case in which a state trial court, seeing the possibility of unfairness, halted the proceeding in its midst so that counsel could be assigned.
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In Shauffer v. Warden, 211 Md. 635, 126 A. 2d 573 (1956), the accused was convicted without counsel on charges of burglary. The accused contended that “he was only nineteen years of age and the average in mental capacity and was suffering from a congenital speech defect.” Ibid. The defendant maintained that as a result of his speech defect a plea of not guilty was mistaken as a plea of guilty; that he was unable because of his speech impedimnet to make the trial court understand the whereabouts of certain necessary witnesses; and that he vainly attempted to “stammer out” a request for appointment of counsel. 211 Md. at 636-37, 126 A. 2d at 573-74. The conviction was upheld. The opinion of the Alabama Court of Appeals in Artrip v. State, 136 So. 2d 574 (Ct. App. Ala. 1962), reads in a similar vein. The court felt the following pertinent to its conclusion that petitioner was not prejudiced by denial of his request for counsel in a prosecution for escaping from the penitentiary: “Artrip was considered a good all round mechanic and electrician by his supervisor at the Kilby motor pool. His original brief was well typed and concisely stated a number of pertinent points. His supplemental briefs which exhibit good penmanship are also pertinent to the contentions he advances.” Id. at 576. Contrast with the foregoing cases the opinions of this Court in Carnley v. Cochran, 369 U.S. 506 (1962); Chewning v. Cunningham, 368 U.S. 443 (1962); and McNeal v. Culver, 365 U.S. 109 (1961). 3. There is an inherent incongruity in the “special circumstances” test. The rule is invoked primarily after trial in connection with an appeal or a petition for habeas corpus. A defendant, who had no counsel at trial, must file a petition, without the assistance of counsel, alleging that he was denied due process by reason of the refusal to appoint counsel. We submit that it is highly unlikely that a layman knows what constitutes “special circumstances” within the meaning of the rule in Betts v. Brady, or that he has sufficient technical competence to allege these matters. If the accused lacked funds to retain counsel to defend him at trial, he will be unable to afford counsel once he is in prison. Thus, the factors which would justify invalidating the conviction may not be brought to the attention of the appellate court. G A L E
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Even in the unlikely event that the accused has the assistance of counsel in preparing the documents on appeal, the prejudicial factors may not be adduced for the reason that the record does not reveal the “special circumstances.” For example, the accused may be mentally retarded or mentally ill, but that fact may not be reflected in the record, although it would be a decisive factor under the rule of Betts v. Brady. See McNeal v. Culver, 365 U.S. 109 (1961); Massey v. Moore, 348 U.S. 105 (1954). Denied qualified professional assistance at trial, the accused, confined in prison, tends to turn for legal advice to “jailhouse lawyers.” The volume of post-conviction petitions in this and other courts and the assertion of important constitutional rights are thus left, we surmise, largely to untrained, unqualified prisoners. Cf. Schware v. Board of Bar Examiners of the State of New Mexico, 353 U.S. 232, 247 (1957) (Frankfurter, J., concurring). It is ironic, but we believe true, that in final analysis, whether a postconviction petition is filed, or whether a poverty-ridden prisoner gets a hearing on his right to counsel, may turn upon the quality of the fellow-inmate - usually equally untrained who is the jailhouse lawyer. 4. The essentially post-trial character of the “special circumstances” rule is unfair to defendants in another respect: The accused may languish in prison for years before his conviction is adjudged to have been unfair by reason of the absence of counsel. The defendant in Moore v. Michigan, 355 U.S. 155 (1957), was sentenced in 1938 to “solitary confinement at hard labor for life”; in December, 1957, some 19 years later, this Court ruled that he had been denied his constitutional right to legal assistance. The lapse of time between trial and reversal for want of counsel was 15 years in DeMeerleer v. Michigan, 329 U.S. 663 (1947), and in United States ex rel. Stoner v. Randolph, 165 F. Supp. 284 (E.D. Ill. 1958); 14 years in Garton v. Tinsley, 171 F. Supp. 387 (D. Colo. 1959); and 10 years in Uveges v. Pennsylvania, 335 U.S. 437 (1948). Indeed, a defendant may serve his entire sentence protesting throughout that his conviction is invalid by reason of the denial of counsel, and the case may be mooted before the wrong can be corrected. See Parker v. Ellis, 362 U.S. 574 (1960), writ of certiorari dismissed as moot, where four members of this Court agreed that A M E R I C A N
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the defendant “was convicted of a felony in flagrant disregard of his constitutional right to assistance of counsel” after a trial characterized as a “sham.” Id. at 577-578 (Warren, C. J., dissenting). 5. The long periods of delay associated with Betts v Brady are undesirable for the state as well as for the defendant. If the conviction is invalidated it may be difficult, if not impossible, to conduct a new trial years later. Witnesses may have died; records may have been lost; memories will have faded. In short, we respectfully submit that it is to the advantage of the state, as well as to the defendant, to furnish counsel to indigent persons at all trials for serious offenses. IV. THE RIGHT TO COUNSEL MINIMALLY INCLUDES APPOINTMENT OF AN ATTORNEY TO ASSIST AN INDIGENT PERSON AT THE TRIAL OF A SERIOUS OFFENSE
It is, of course, unnecessary in deciding the present case to delineate all of the metes and bounds of the right to counsel in state criminal proceedings. This case involves the right of an accused to legal assistance at the trial stage of the prosecution. Whatever the perimeter of the right, it surely comprehends the assignment of counsel at the trial on the merits. We believe the right of indigents to legal assistance should be commensurate with that of persons who have means to employ counsel. An accused person who desires to consult an attorney should have the right to do so at any time immediately after arrest.42 Indeed, “there is a strong argument that the time a defendant needs counsel most is immediately after his arrest and until trial.” Ass’n. of Bar of City of New York, et al., Equal Justice for the Accused 60 (1959). In any event, counsel should be furnished to destitute defendants at the same point in time at which an accused person with funds would be entitled under the 14th Amendment to consult an attorney.43
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The District of Columbia Legal Aid Act provides that the court “will make every reasonable effort to provide assignment of counsel as early in the proceeding as practicable.” D. C. Code Anno. § 2-2202 (1961 ed.). See also Beaney, Right to Counsel Before Arraignment, 45 Minn. L. Bey. 771, 780-81 (1961); Crooker v. California, 357 U.S. 433, 448 (1958) (Douglas, J., dissenting); White v. Maryland, No. 600 Misc., Oct. Term, 1962 (pet. for cert. granted, Nov. 19, 1962).
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V. THE PRACTICAL IMPLICATIONS WITH RESPECT TO PERSONS ALREADY IMPRISONED DO NOT MILITATE AGAINST OVERRULING BETTS V. BRADY
Finally, a word should be said about the contention that Betts v. Brady should not be overruled because it may result in releasing indeterminate numbers of prisoners in some states. See Foster v. Illinois, 332 U.S. 134, 139 (1947). First, it must be noted that a defendant who obtains a reversal of his conviction may be retried for the offense of which he was convicted. See Green v. United States, 355 U.S. 184, 189 (1957); id. at 219 (Frankfurter, J., dissenting). Moreover, it is possible that an even more severe sentence than that originally levied may be imposed at the conclusion of the second trial. See Robinson v. Johnston, 50 F. Supp. 774 (N.D. Cal. 1943); Robinson v. United States, 324 U.S. 282 (1945) (defendant sentenced to life imprisonment successfully attacked conviction for failure to appoint counsel; following retrial, he was sentenced to death for the same offense).44 Second, the claim that some offenders would go free was urged in opposition to the decisions in Mapp v. Ohio, 367 U.S. 643 (1961), and Griffin v. Illinois, 351 U.S. 12 (1956). In both cases, this Court brushed aside that consideration. The practical implications of the ruling in Mapp are in some respects more drastic than the ruling sought here. As a consequence of Mapp, illegally obtained evidence cannot be used; the prosecution may be completely disarmed. But no comparable handicap will be imposed upon the prosecution by reversal of Betts v. Brady. Further, the claims of the Petitioner here are stronger than those of the petitioner in Griffin. Griffin involved the rights of a convicted person seeking equality of treatment in connection with an appeal; as the Court pointed out in that case, 43
With respect to the scope of the right, it is pertinent to note that the 6th Amendment reads, in part, that “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury . . . and to have the Assistance of Counsel for his defense.” (emphasis supplied) This Court has held that the right to trial by jury secured by this provision does not extend to “petty” offenses. District of Columbia v. Clawans, 300 U.S. 617 (1937); see Frankfurter and Corcoran, Petty Federal Offenses and the Constitutional Guaranty of Trial by Jury, 39 Harv. L. Rev. 917 (1926); 18 U.S.C. § 1. 44 The sentence was subsequently commuted. See note, Hall and Glueck, Cases on Criminal Law and Its Enforcement 604 (1958).
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there is no constitutional right to an appeal. 351 U.S. at 18. The present case, however, involves the rights of persons presumed to be innocent who are seeking meaningful protection of their right to a fair trial, a right which is safeguarded by the Constitution. Thirty years have passed since the Court, in Powell v. Alabama, supra, spoke of the necessity for appointment of counsel by the states. The states have had adequate notice and ample time to conform their practice to the requirements of a constitutional imperative. As Mr. Justice Clark stated in Mapp v. Ohio, supra, “further delay in reaching the present result could have no effect other than to compound the difficulties” in the future. 367 U.S. at 659, n. 9.45 CONCLUSION
In 1942, shortly after Betts v. Brady was announced, the present Dean of the Harvard Law School, Erwin N. Griswold, and Benjamin Cohen, Esquire, expressed their protest against that decision in words which, we feel, have been underscored by the passage of time: “[A]t a critical period in world history, Botts v. Brady dangerously tilts the scales against the safeguarding of one of the most precious rights
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of man. For in a free world no man should be condemned to penal servitude for years without having the right to counsel to defend him. The right of counsel, for the poor as well as the rich, is an indispensable safeguard of freedom and justice under law.” (N.Y. Times, Aug. 2, 1942, §IV, p. 6, col. 5, quoted in Butt v. Illinois, 333 U.S. 640, 677, n. 1 (1948) (Douglas, J., dissenting)). For the reasons stated, Betts v. Brady should be overruled, and the judgment of the Court below should be reversed. [Appendix omitted]
45
It has been suggested that a decision overruling a point of constitutional law should be given only prospective effect in certain instances. See Griffin v. Illinois, 351 U.S. 12, 25-26 (1956) (Frankfurter, J., concurring). We do not advocate that result. We respectfully submit that it would blur the distinction between the legislative and judicial functions and that it would present substantial questions in connection with the requirement of U.S. Coast., Art. III,§ 2, that this Court sits to decide “cases” and “controversies.” The ruling in Johnson v. Zerbst, 304 U.S. 458 (1938), was given retroactive effect. See Robinson v. Johnston, 50 F. Supp. 774 (N.D. Cal. 1943). Similarly, in Eskridge v. Washington Prison Bd., 357 U.S. 214 (1958), this Court held that the principle of Griffin v. Illinois, supra, decided in 1956, was applicable to a 1935 conviction.
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GIDEON V. WAINWRIGHT
U.S. SUPREME COURT, 1962 BRIEF FOR THE RESPONDENT
MILESTONES IN THE LAW
In the United States Supreme Court, 1962 BRIEF FOR THE RESPONDENT No. 155 CLARENCE EARL GIDEON, PETITIONER, v. H. G. COCHRAN, JR., DIRECTOR DIVISION OF CORRECTIONS, RESPONDENT.
No. 155 Filed January 2, 1963 On Writ of Certiorari to the Supreme Court of The State of Florida Brief for the Respondent RICHARD W. ERVIN ATTORNEY GENERAL STATE OF FLORIDA BRUCE R. JACOB ASSISTANT ATTORNEY GENERAL STATE OF FLORIDA A. G. SPICOLA, JR. ASSISTANT ATTORNEY GENERAL COUNSEL FOR RESPONDENT
TOPICAL INDEX TO BRIEF
Statement of the Case Questions Presented by the Petition in the Florida Supreme Court Questions Involved in the Instant Proceeding Constitutional and Statutory Provisions Involved Summary of Argument Argument Question I Conclusion Appendices Appendix A Appendix B Cases Conclusion STATEMENT OF THE CASE
On October 11, 1961, Clarence Earl Gideon, an inmate of the Florida State Prison at Raiford, filed a petition for writ of habeas corpus in the Supreme Court of Florida, alleging substantially as follows: 1. He was arrested on June 3, 1961, and charged with the crime of breaking and entering with intent to commit a misdemeanor, to wit, petit larceny. 2. He plead not guilty and was tried and convicted in the Circuit Court of Bay County, Florida, on August 4, 1961. G A L E
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3. He was sentenced on August 25, 1961, to a term of five years in the State Prison. 4. At the time of trial he was without funds and without an attorney. He asked the trial court to appoint him an attorney but his request was denied. He told the court that the United States Supreme Court had ruled that the State of Florida should see that everyone who is tried for a felony should have legal counsel, but the court ignored this plea thereby allegedly denying him his rights under the 4th, 5th and 14th Amendments. 5. He sent a petition from the county, jail of Bay County to the United States District Court at Tallahassee, Florida, but the Sheriff’s office and officials refused to let it go out, contrary to the laws of the United States (R. 45-46). The Petitioner did not recite any circumstances to show that the trial was unfair or that the charges against him were complex. Nor did Petitioner allege that he was incapable of adequately making his own defense, by reason of any lack of mental capacity, education, experience, etc. On October 30, 1961, the Supreme Court of Florida denied the petition for habeas corpus without requiring a return, without a hearing, and without opinion (R. 47). Thereafter, on January 8, 1962, Petitioner filed in this Court a petition for writ of certiorari and a motion for leave to proceed in forma pauperis. Respondent filed an informal Response to the petition.1 On June 4, 1962, this Court entered an order granting the motion and the petition for certiorari. In addition to other questions presented by this case, counsel were requested to discuss the following in their briefs and oral argument: “Should this Court’s holding in Betts v. Brady, 316 U.S. 455, be reconsidered?” (R. 47-48). Petitioner’s Designation For Printing, directed that the formal record and the reporter’s transcript of trial proceedings in the Circuit Court of Bay County, Florida, be printed and included in the record in this cause.2 Respondent moved to strike those paragraphs 1 Response To Petition For Writ Of Certiorari, filed April 9, 1962. 2 Petitioner’s Designation For Printing, paragraphs 1 and 2, p. 1.
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of Petitioner’s designations pertaining to the trial proceedings in Bay County,3 since the trial record and transcript were not before the Florida Supreme Court4 and are not, therefore, incorporated in the judgment being reviewed in the present certiorari proceeding.5 On October 15, 1962, an order was entered denying the motion of Respondent. The trial record and transcript of proceedings have been included in the printed record before this Court (R. 1-44). QUESTIONS PRESENTED BY THE PETITION IN THE FLORIDA SUPREME COURT In his petition for habeas corpus, Gideon alleged that (1) he was denied counsel and (2) the “sheriff’s office and officials” of Bay County refused to send a “petition” he had drawn to the United States District Court at Tallahassee, Florida. Point (2) has not been briefed and is evidently abandoned by Petitioner in this Court. That allegation was answered by Respondent in his informal Response to Gideon’s petition for certiorari wherein it was pointed out that, although the Fourteenth Amendment is violated if state Prison authorities prevent a prisoner from sending out appeal documents until it is too late to take an appeal (Cochran v. Kansas, 316 U.S. 255), there is no such violation where a prisoner is temporarily prevented from mailing out a habeas corpus petition. There is no jurisdictional limit on the time period within which a habeas corpus application must be filed, as there is in the case of an appeal. The grounds for habeas corpus which were available to Petitioner while he was
incarcerated in the Bay County Jail were available to him when he filed his petition with the Supreme Court of Florida, and any grounds which were not raised in that Court, not being res adjudicata, are and will be available to him for as long as he is imprisoned under his present commitment. Therefore, Petitioner could not have been permanently injured or prejudiced by the alleged conduct of the Sheriff and officials of Bay County. It should also be pointed out that, even if Petitioner had been allowed to mail his petition to the United States District Court in Tallahassee, said petition could not have been considered until State remedies had been exhausted. White v. Ragen, 324 U.S. 760.6 QUESTIONS INVOLVED IN THE INSTANT PROCEEDING Respondent chooses to restate the questions involved in this case as follows: I. Under the rule of Betts v. Brady, 316 U.S. 455, did the Supreme Court of Florida err in denying Petitioner’s application for a writ of habeas corpus? II. Should this Court’s holding in Betts v. Brady be reconsidered? CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
In addition to the provisions reprinted in Petitioner’s brief,7 this certiorari proceeding involves the Sixth Amendment, U.S. Const.; Section 79.01, Florida Statutes; and Chapter 61-639, Laws of Florida, 1961. These provisions are reprinted in the Appendix A, infra.
3
Respondent’s Motion To Strike Paragraphs 1 and 2 Of Petitioner’s Designation For Printing, filed August 31, 1962. 4 Attached to Respondent’s Motion To Strike is a certificate of the Honorable Guyte P. McCord, Clerk of the Supreme Court of Florida, to the effect that “no pleadings, transcripts, documents or papers,” were before that Court, other than the petition for habeas corpus filed by Petitioner on October 11, 1961, and the order of the Florida Supreme Court denying said petition, filed on October 30, 1961. He also certified that “the trial record and transcript in the case of State v. Gideon in the Circuit Court of Bay County, Florida, August, 1961, have never been and are not now a part of the record which was considered by the Florida Supreme Court in denying Gideon’s petition for writ of habeas corpus in October, 1961.” 5 We quote, as follows, from Respondent’s Motion To Strike, supra note 3 at p. 3: The Florida Court did not have before it the transcript of trial proceedings and formal record in the Circuit Court of Bay County, Florida, which
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petitioner seeks to include in the printed record in the instant cause, and that Court denied Gideon’s petition for habeas corpus on the basis that the bare allegations contained therein were insufficient as a matter of law. The trial papers are not needed by petitioner to prove the allegations of the petition, since respondent has admitted that those allegations must be taken as true. Matters which took place at the trial which were not alleged in the petition for habeas corpus are not involved in the instant case, and therefore have no place in the printed record. For these reasons, inclusion of the trial papers in the printed record herein would be unnecessary and improper. 6
See note 1 supra at pp. 11-13. Section 1 of the Fourteenth Amendment, U. S. Const.; Fla. Const., Declaration of Rights, §11; and Sections 810.05 and 909.21, Florida Statutes. See Brief For The Petitioner, pp. 6, 48, and 49. 7
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GIDEON V. WAINWRIGHT
U.S. SUPREME COURT, 1962 BRIEF FOR THE RESPONDENT
MILESTONES IN THE LAW
SUMMARY OF ARGUMENT
Betts v. Brady should not be overruled or modified. I.
The allegations of Gideon’s petition for habeas corpus in the Florida Supreme Court were insufficient, under existing case law developed by this Court, to entitle him to discharge from custody. Under these circumstances, the denial of the petition by the Florida Court, without requiring a return, was proper. A charge of breaking and entering with intent to commit petit larceny is uncomplicated, and the allegation, standing alone, that Petitioner was required to defend himself on that charge is insufficient to entitle him to habeas corpus relief, under the doctrine of Betts v. Brady. The trial transcript and record of proceedings in Bay County, Florida, are not incorporated in the judgment of the Florida Supreme Court and are not, therefore, subject to review in the present proceedings. However, even if we consider matters which were not before the Florida Supreme Court, such as the trial proceedings and Petitioner’s personal history, it is apparent that Petitioner was competent to handle his own defense and that he received a fair trial. II.
Historically, there is no basis for requiring the states to automatically appoint counsel in all cases. The English common law did not even provide a right to retain counsel, except in misdemeanor and minor cases. The right to counsel provision of the Sixth Amendment, as of the time of its adoption, was intended to do way with the rules which denied representation, and was not aimed to compel the states to provide counsel for a defendant. The construction given the Sixth Amendment by this Court in Johnson v. Zerbst, 304 U.S. 458, was the outgrowth of a practice which had become common in the federal court system and constituted, to some extent, an exercise by this Court of its supervisory and rulemaking powers over the inferior federal courts. That decision did not contemplate that automatic appointment of counsel would be required as a requisite of due process. In Powell v. Alabama, 287 U.S. 45, appointment of counsel was G A L E
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absorbed into the concept of due process to the extent that such appointment is essential to the substance of a hearing, and to that extent only. In accordance with the requirements of our federal system of government, the states should not be required by constitutional mandate to provide counsel for indigent defendants in every case. Under the Tenth Amendment, powers not granted to the central government were reserved to the states, and those powers cannot be decreased or modified. A requirement that counsel be automatically appointed would infringe upon the historic right of the people of the states to determine their own rules of procedure and would defeat the very desirable possibility of experiment. The “fair trial” rule as enunciated in Powell v. Alababama and Betts v. Brady, is the only test consistent with the nature and meaning of due process, since that provision is not susceptible to being reduced to a mechanical or fixed formula, and must necessarily depend upon the circumstances of each particular situation. The right to counsel is just one aspect of the comprehending guaranty of the due process clause of a fair hearing. The Sixth Amendment, as construed in Johnson v. Zerbst, can be made applicable against the states through the Fourteenth Amendment only so far as the substance of a hearing would be thwarted by failure to provide counsel. The case by case approach under the Betts rule is the only approach consistent with the demands of federalism and the meaning of due process. That rule provides a clear and consistent standard for determination of the right to counsel under the Fourteenth Amendment. Although many states now provide for automatic appointment of counsel in some cases, the right so provided has not generally been accepted as a fundamental requirement. Constitutions, cases, statutes, and court rules on the subject in the states are inconsistent, and few states have construed automatic appointment provisions in cases less than capital as having constitutional or fundamental character. To “absorb” the Sixth Amendment, as construed in Johnson v. Zerbst, into the due process clause of the Fourteenth Amendment, would be to impose upon the states a requirement to provide free counsel to defendants in all A M E R I C A N
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criminal cases, including misdemeanors. Also, since the Fourteenth Amendment extends the protection of due process to property as well as to life and liberty, the rule urged by Petitioner would require the furnishing of counsel in civil cases, in federal as well as state courts. An automatic requirement that counsel be appointed in every case would not decrease the quantity of habeas corpus petitions being filed in federal courts. The trend in habeas corpus petitions is to allege lack of adequate representation, and this problem will not be solved by imposition of a rule requiring automatic appointment. A decision overruling Betts would engender much new litigation. A state may not deny access to its courts on account of poverty, but should not be required to equalize social and economic conditions among its citizens. If this Court should require automatic appointment of counsel under the equal protection clause of the Fourteenth Amendment, states would logically he required to provide counsel in appeals and post conviction proceedings, and would be required to equalize economic conditions in a number of ways. This would bring on a host of problems not contemplated under the Fourteenth Amendment. A decision reversing the present case, if retroactive, will allow over 5,000 hardened criminals in Florida to be set free. Retrials of these prisoners will be impossible in many cases. Florida and other states have followed the Betts rule in good faith, and to overrule that decision and impose a retroactive rule requiring appointment of counsel in all cases would endanger society. ARGUMENT I. THE SUPREME COURT OF FLORIDA DID NOT ERR IN DENYING GIDEON’S PETITION FOR HABEAS CORPUS. A. Petitioner Failed To Allege Any Circumstances Which Would Entitle Him To Habeas Corpus Relief On The Ground That His Right To Counsel Was Denied.
In the case of Powell v. Alabama, 287 U.S. 45, this Court held that in a capital case, where the defendant is unable to employ counsel, and is incapable of adequately making his own defense because of ignorance, feeble-mindedness, illiteracy, or the like, it is the duty of the Court whether G A L E
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requested or not, to assign counsel for him as a necessary requisite of due process of law.
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In Betts v. Brady, 316 U.S. 455, this Court indicated that although a denial by a state of rights or privileges specifically embodied in the Sixth Amendment to the United States Constitution may, in certain circumstances, or in connection with other elements, operate in a given case to deprive a defendant of due process of law in violation of the Fourteenth Amendment, it cannot he said that the due process clause of the Fourteenth Amendment incorporated, as such, the specific guarantees found in the Sixth Amendment. As pointed out in that decision, due process of the Fourteenth Amendment formulates a concept less rigid and more fluid than those envisaged in other specific and particular privileges of the Bill of Rights. We quote from the decision:
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Its (The Fourteenth Amendment’s) application is less a matter of rule. Asserted denial is to be tested by an appraisal of the totality of facts in a given case. That which may, in one setting, constitute a denial of fundamental fairness, shocking to the universal sense of justice, may, in other considerations, fall short of such denial. In the application of such a concept there is always the danger of falling into the habit of formulating the guarantee into a set of hard and fast rules the application of which in a given case may be to ignore the qualifying factors therein disclosed.8 (Parentheses added)
In the Betts case, the crime was robbery and the accused was a man forty-three years old, of ordinary intelligence and ability to take care of his own interests in that particular instance, since the issue was simply the veracity of the testimony for the State and that for the defendant. The accused was not wholly unfamiliar with criminal procedure. Under such circumstances it could not be said that his trial without a jury, resulting in a sentence of eight years, was lacking in the common and fundamental ideas of fairness and right embodied in the due process clause of the Fourteenth Amendment. The interpretation of the Fourteenth Amendment as enunciated by this Court in the Betts case was applied to a case involving a jury trial, in Gallegos v. Nebraska, 324 U.S. 55.
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316 U.S. at 462.
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GIDEON V. WAINWRIGHT
U.S. SUPREME COURT, 1962 BRIEF FOR THE RESPONDENT
MILESTONES IN THE LAW
According to the opinion in Bute v. Illinois, 332 U.S. 134, an accused has a right to the assistance of counsel for his defense when there are special circumstances showing that, otherwise, the defense would not enjoy that fair notice and adequate hearing which constitute the foundation of due process of law in the trial of any criminal charge. Any doubts as to the regularity of the trial proceedings should be resolved in favor of the integrity, competence and proper performance of their official duties by the judge and the prosecutor; and if any presumption is to be indulged it should be one of regularity rather than that of irregularity. Since Bute had made no affirmative showing of exceptional circumstances such as would amount to a violation of due process under the Fourteenth Amendment, his convictions were affirmed. In Quicksall v. Michigan, 339 U.S. 660, it was pointed out that, “to invalidate a plea of guilty the prisoner must establish that ‘for want of benefit of counsel an ingredient of unfairness actively operated in the process that resulted in his confinement . . . ’”9 Carter v. Illinois, 329 U.S. 173, involved a thirty year old Negro convicted of murder and sentenced to imprisonment for ninety-nine years. The trial judge did assign counsel when it came to sentencing, and petitioner alleged, on petition for certiorari, that this showed he was incapable of defending himself and entering his plea of guilty. This Court’s opinion indicated that designation of counsel to assist the accused at the sentencing stage of the trial in no wise implied that the defendant was incapable of pleading guilty. The conviction was affirmed, primarily because there was nothing in the record showing what manner of man the defendant was. “Facts bearing on his maturity or capacity of comprehension, or on the circumstances under which a plea of guilty was tendered and accepted, are wholly wanting. . . . ”10 There was no showing by petitioner of circumstances creating unfairness such as would entitle him to appointment of counsel. In Gryger v. Burke, 334 U.S. 728, the petitioner complained of a life sentence imposed 9
339 U.S. at 666. The opinion cited Foster v. Illinois, 332 U.S. 134, and Gibbs v. Burke, 337 U.S. 773, as authority for this statement. 10 329 U.S. at 178.
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under a Pennsylvania habitual criminal act when he was thirty-four years old. He failed to show any exceptional circumstances requiring appointment of counsel, and for that reason his conviction was upheld. In his petition to the Florida Supreme Court, Gideon made no affirmative showing of any circumstances or unfairness which would have entitled him to counsel under the Fourteenth Amendment. He merely alleged that he was without funds and that he pleaded not guilty and requested court appointed counsel while being tried on a charge of breaking and entering with intent to commit a misdemeanor. Petitioner made no allegations concerning his age, experience, mental capacity, familiarity or unfamiliarity with court procedure, or the complexity of the legal issues presented by the charge; he made no showing of unfairness or of a lack of fundamental justice in the trial proceedings. His petition lacked any material allegations which would entitle him to counsel under the Fourteenth Amendment, and the Florida Supreme Court, in denying the petition without requiring a hearing or return, properly applied existing rules of law which have been developed by this Court. B. Petitioner Was Not Entitled To Habeas Corpus Relief On The Mere Allegation That He was Refused Court-Appointed Counsel At Trial For Breaking And Entering With Intent To Commit Petit Larceny.
A charge of breaking and entering with intent to commit petit larceny in Florida is uncomplicated, and Petitioner’s mere allegation, standing alone, that he was refused counsel by the trial court and thereby required to defend himself on that charge, did not entitle him to habeas corpus relief in the Florida Supreme Court. Foster v. Illinois, 332 U.S. 134, involved two petitioners who had been thirty-four and fortyeight years of age at the time they had entered pleas of guilty to charges of burglary and larceny. The convictions were affirmed because there was “neither proof nor uncontradicted allegation of any . . . miscarriage of justice in accepting pleas of guilty. . . . ”11 Although in that case the petitioners had pleaded guilty, Mr. Justice Frankfurter, speaking for the Court, pointed out that where exceptional 11
332 U.S. at 138.
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circumstances exist which would require that a defendant be appointed counsel under the rule set forth in Betts v. Brady, supra, and Palko v. Connecticut, 302 U.S. 319, 327, the need for such appointment “may exist whether an accused contests a charge against him or pleads guilty.”12 Inherent in the Court’s holding in Foster v. Illinois is the principle that a charge of burglary or larceny, in and of itself, is not so complex as to require appointment of counsel as an essential of Due Process, and this principle is applicable regardless whether the defendant pleads guilty or contests the charge. In Florida, to constitute the crime of breaking and entering, or entering without breaking, with intent to commit a misdemeanor, the accused must have intended to commit that misdemeanor in the building. McNair v. State, 61 Fla. 35, 55 So. 401. The building must, of course, belong to someone else. Cannon v. State, 102 Fla. 928, 136 So. 695; Vicente v. State, 66 Fla. 197, 63 So. 423. The gist of the offense is the intent entertained by the wrongdoer at the time of the breaking or entering. Vawter v. State, 63 So. 2d 255. The offense with which Petitioner was charged consists of three simple elements: (1) a breaking or entering (2) the building of another (3) with intent to commit petit larceny.13 C. The Trial Record And Transcript Are Not Incorporated In The Judgment Of The Florida Supreme Court And Therefore Are Not Subject To Review By This Court.
Section 79.01, Florida Statutes,14 requires that, before a writ of habeas corpus shall issue, the petitioner shall show “probable cause to believe that he is detained in custody without lawful authority.” The writ of habeas corpus does not issue as of course in every instance. Reasonable grounds or justiciable issues must be shown to exist before the writ will be awarded, and, where a petition does not make a prima facie showing that the applicant is entitled to be discharged from custody, the writ should be denied when applied for in the first instance. Skipper v. Schumacher, 118 Fla. 867, 160 So. 357; ex parte 12
Id. at 137; See also Uveqes v. Pennsylvania, 335 U.S. 437, 441. 13 In Florida the crime of petit larceny is the stealing of property having a value of less than $100.00. Section 811.021, Florida Statutes. 14 See Appendix, infra.
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Aulday, 113 Fla. 70, 151 So. 388; Sullivan v. State ex rel McCrory, 49 So. 2d 794; State ex rel Davis v. Hardie, 108 Fla. 133, 437, 146 So. 97.15 For purposes of determining whether the petitioner has made such prima facie showing, the allegations of the petition must, of course, be accepted as true. Cash v. Culver, 358 U.S. 633.16 The practice of the Florida Supreme Court is to deny the petition if its allegations are insufficient but to issue a writ and require a return if a prima facie showing is made that petitioner is being illegally held. If, after return, there is a dispute of fact, that Court will order a hearing before a commissioner. In the instant case the bare allegations of petitioner, without any showing of circumstances which operated to deny him a fair hearing, were insufficient to entitle him to issuance of a writ of habeas corpus17 and the order of denial issued by the Florida Supreme Court was proper. Under 28 U.S.C. §1257, upon which jurisdiction is invoked in the present case, this Court may, by certiorari, review certain judgments or decrees rendered by the highest court of a state. A judgment is a decision of a court based upon matters which are before it for determination. As already pointed out, the Florida Supreme Court was under no duty, under existing law, to issue a writ and require a return or a hearing in the present case. In the absence of such duty or obligation, it is apparent that matters which were not alleged or incorporated in the petition are not and cannot be considered to be included in the judgment now being reviewed. In Hedgebeth v. North Carolina, 334 U.S. 806, 807, in a per curiam opinion this Court noted that “In reviewing a judgment of a State court, we are bound by the record on which that judgment was based.” From Carter v. Illinois, supra, page 176, we quote as follows: “When a defendant, as here, invokes a remedy provided by the State of Illinois, the decision of the local court must be 15
See also Sneed v. Mayo, 66 So. 2d 865; 69 So. 2d 653. In the Cash case, it was pointed out that allegations of circumstance which would entitle petitioner to relief, if true, made it incumbent upon the Florida courts, in that instance, to determine what the true facts were. After reversal by this Court, the Florida Supreme Court determined that Cash’s representations as to need for court-appointed counsel were unfounded but that he had been deprived of a reasonable opportunity to obtain counsel of his own choice. Cash v. Culver, 120 So. 2d 590; 122 So. 2d 179. 17 Betts v. Brady, Carter v. Illinois, Gryqer v. Burke, Quicksall v. Michigan, Bute v. Illinois, supra. 16
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judged on the basis of the scope of the remedy provided and what the court properly had before it in such a proceeding. . . . ”
possibility, however, was effectively negated by the testimony of Henry Cook and Mrs. Rhodes (R. 17, 18, 30, 31).
It is Respondent’s position that, although the Bay County trial court record and transcript of proceedings have been incorporated in the printed record before this Court, they do not form a part of the judgment subject to review and should not constitute a predicate for this Court’s decision herein.
The trial transcript shows that the trial judge conducted a fair and impartial trial. For example, the court interrogated the venire (R. 10), explained his rights to Petitioner at various stages of the trial (R. 3, 10, 11, 41), and charged the jury with a complete and fair set of instructions (R. 42-44).
D. The Trial Record And Proceedings And Petitioner’s Personal History Show That He Received A Fair Trial.
Petitioner took an active role in his defense and showed that he possessed much skill and facility in questioning witnesses and handling himself in court. He made an opening statement (R. 11), examined ten witnesses, and made an elevenminute closing argument to the jury (R. 11).
Even if we assume that this Court has the power, on this review, to supplement the judgment of the Court below with transcripts and other matters which were not before the Florida Supreme Court, it is obvious from an examination of the trial record and proceedings and the personal history of Petitioner that he received a fair trial in the Circuit Court of Bay County, Florida. Although the trial proceedings18 do not contain information bearing on Petitioner’s age, education, work experience, etc., it should be pointed out that Petitioner is a white male and that he was fifty years old at the time of the crime herein involved. His prison record reflects that he completed the eighth grade. He lists his occupation as being that of a mechanic, but his prison classification summary also shows that he has worked as a short order cook and an auto electrician and that he worked at a shoe factory while previously in prison. Petitioner’s record indicates that he “was not wholly unfamiliar with criminal procedure.”19 The identity of the man who was seen in the Bay Harbor Poolroom appears to have been the only issue involved in the trial below. Petitioner attempted to show that the eye witness for the State, Henry Cook (R. 16-21), may have been mistaken in his identification of Petitioner as the man he saw by the cigarette machine in the Poolroom, from which money had been taken (R. 13, 20, 30, 39). It was his theory that Cook had seen someone else in the Poolroom and had then mistakenly thought that Petitioner, who claimed to have been in a phone booth at the time, was the man who had come out the back door of the Poolroom after the crime. This
Counsel for Petitioner has attempted to show that Gideon did not receive a fair trial. He cites McNair v. State, 61 Fla. 35, 55 So. 401, as authority for the notion that “the offense of breaking and entering with intent to commit a misdemeanor raises a number of subtle and complex questions.”20 That case states that intent is the gist of the offense and that it is not necessarily implied from the simple fact of entering a building. The case also points out that whether the defendant had the necessary intent is a question of fact to be decided from all the circumstances of the case. In the instant case, breaking was proven to the satisfaction of the jury as was the theft of money and wine by Petitioner. Proof of these facts is strong evidence that Petitioner possessed the requisite intent when he broke into the Bay Harbor Poolroom. Petitioner complains that the trial judge did not explain the elements of the offense to the jury.21 We would like to point out that the trial court defined the crime charged with as much particularity as can be required considering the simplicity of the crime of breaking and entering with intent to commit petit larceny. Petitioner intimates that he may have had a good defense (intoxication) which he was unable to present due to lack of counsel, and that the Court failed to instruct the jury with regard to such defense.22 He cites Jenkins v. State, 58 Fla. 62, 50 So. 582, to illustrate his position. That case 20
Briefs For The Petitioner, p. 49. Ibid. 22 Id. at 49, 50.
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holds that a verdict of guilty for breaking and entering with intent to commit petit larceny will not be set aside upon the ground of intoxication where the evidence fails to show that the defendant was intoxicated at the time that he entered the building to such an extent that he was unable to form a criminal intent. In Miller v. State, 76 Fla. 518, 80 So. 314, no evidence was adduced to show that the defendants were not in the full possession of their faculties at the time of the commission of the crime. The Florida Supreme Court indicated that in the absence of such evidence an instruction as to intoxication was properly refused. In the present case, the evidence showed that Petitioner was not intoxicated during the commission of the crime (R. 26, 27, 40). Adkinson v. State, 48 Fla. 1, 37 So. 522, cited by Petitioner,23 to show that the trial judge improperly limited cross examination, must be limited to the facts of that case. Counsel for Petitioner makes capital of the fact that Petitioner was given a sentence of five years, the maximum prison term authorized for the crime for which he was convicted,24 even though he committed a relatively minor offense. In all fairness to the trial judge, it must be noted that at the time of sentencing, Petitioner had already been convicted of four felonies, three of which involved burglary in some form. This factor undoubtedly had some bearing on the sentence given Petitioner in the present case. When Petitioner first appeared for arraignment he “requested permission to consult counsel” and arraignment was postponed for one month (R. 2). At his arraignment he was “questioned by the Court concerning his understanding of the charge filed against him and of his rights under the law” (R.3). Although no transcript of these pretrial proceedings is available, it appears that Petitioner may not have been indigent at that time, that he may have consulted counsel prior to trial and that he may have waived his right to counsel prior to the day of trial. From the trial record and transcript, as supplemented by Petitioner’s personal history, it is obvious that he was competent and that he received a fair trial.
23 24
Id. at 50. Id at 3, 50.
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II. THIS COURT’S HOLDING IN BETTS V. BRADY SHOULD NOT BE OVERRULED OR MODIFIED.
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A. Historically, There Is No Basis For Requiring States To Automatically Appoint Counsel In All Cases.
At common law in England a prisoner was nut entitled to defend by counsel upon the general issue of not guilty on any indictment for treason or felony,25 but in misdemeanor cases English law had recognized the accused’s right to retain counsel.26 In some instances, persons charged with felony were allowed counsel with respect to legal questions which the accused himself might suggest,27 but if was not until 1836 that the right to retain counsel, in England, was extended to all criminal proceedings.28 The Constitutions of the thirteen original states as of the time the Bill of Rights was ratified, in 1791, reflect that Maryland, Massachusetts, New York, Pennsylvania, New Hampshire, Delaware and New Jersey had constitutional provisions providing for the right to counsel in one form or another. The Massachusetts provision was adopted in 1790, after Congress had approved the Bill of Rights in 1789 but before those amendments had been fully ratified by the states.29 The statutes in force in the thirteen original states in 1789-91 exhibit great diversity of policy. Pennsylvania, South Carolina and Delaware provided for appointment of counsel in capital cases prior to 1789, and New Hampshire passed such a law in February, 1791, prior to complete ratification of the Sixth Amendment. An act passed by Massachusetts in 1777 gave the right to have counsel appointed in cases of treason or misprision of treason. Connecticut had no statute on the subject but it may have been the custom of the courts in that State to assign counsel in all criminal cases. North Carolina made no provision for appointment but accorded defendants the right to have counsel.30 According to the above information regarding the laws and practices of the courts of the 25
Betts v. Brady, supra, at 466. Beaney, The Right to Counsel in American Courts, p. 8 (1955). 27 Powell v. Alabama, supra, at 60. 28 See note 26 supra. 29 See note 25 supra at 465. 30 Id. at 467, fn. 20; See note 27 supra at 62, fn. 1. 26
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thirteen original states at the time that the Bill of Rights became part of the Constitution, it appears that the courts of only one state made any provision for assignment of counsel in cases less than capital; and the courts of that state did so only by custom and practice and not by statutory or constitutional mandate. In view of these facts, it must be concluded that the right to counsel provision of the Sixth Amendment did not, at the time of its adoption and ratification, embrace the right to have counsel appointed. It only included the right to retain counsel. In light of the common law practice, it has been said that the right to counsel provision of the Sixth Amendment was intended to do away with the rules which denied representation but was not aimed to compel the state to provide counsel for a defendant.31 The above conclusion is substantiated by Story, who commented on the right to counsel as being a right to employ counsel.32 Several months before the ratification of the Bill of Rights, Congress furnished an illuminating clue concerning the original meaning of the counsel provision of the Sixth Amendment when it passed a law requiring that every person indicted for treason or other capital crime in the federal courts shall be entitled to assignment of counsel.33 If the proposed Sixth Amendment counsel provision included a guaranty of appointed counsel in all cases, Congress obviously would not have passed this halfway measure.34 In the case of United States v. Van Duzee, 140 U.S. 169, decided in 1890, this Court stated that: There is . . . no general obligation on the part of the government either to furnish copies of indictments, summon witnesses or retain counsel for defendants or prisoners. 31
See note 25 supra. Story on the Constitution, 5th Ed., §1794, p. 574. 33 1 United States Statutes at Large, ch. 9, p. 118 (1790), That statute, in pertinent part, reads as follows: 32
. . . every person so accused and indicted for any of the crimes aforesaid, (treason, other capital offenses) shall also be allowed and admitted to make his full defense by counsel learned in the law; and the court before whom such person shall be tried, or some judge thereof, shall, and they are hereby authorized and required immediately upon his request to assign to such person such counsel, not exceeding two as such person shall desire, . . . (parentheses added). 34
See note 26 supra at 28.
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The object of the constitutional provision was merely to secure those rights which by the ancient rules of the common law had been denied to them; but it was not contemplated that this should be done at the expense of the government. . . .
All courts have the inherent power to appoint counsel where that course seems to be required in the interest of fairness, and, though the Sixth Amendment did not originally require assignment of counsel to defend indigent defendants, it nevertheless became an almost universal practice, between 1789 and 1938, for the federal courts to assign counsel to unrepresented indigent defendants in all serious criminal cases. In 1931, the Wickersham Commission, in outlining the essential characteristics of American criminal proceedings, concluded that the right guaranteed by the Sixth Amendment and similar state provisions was, historically, that of employing counsel.35 In Johnson v. Zerbst, 304 U.S. 458, this Court construed the Sixth Amendment as requiring automatic appointment of counsel in all federal criminal cases. The decision was an outgrowth of the practice which had developed in the federal court system. It is apparent, from the opinion of this Court in Johnson v. Zerbst and from the circumstances under which it was rendered, that the holding of that case was not predicated on history nor was it based on the premise that automatic appointment in all criminal cases is a requisite of due process of law under the Fifth or Fourteenth Amendments. The construction given the Sixth Amendment counsel provision in Johnson v. Zerbst constituted, to some extent, an exercise by this Court of its supervisory and rulemaking power over federal criminal procedure. For discussions concerning this supervisory power, see McNabb v. United States, 318 U.S. 332, 340; United States v. Rabinowitz, 339 U.S. 56, 57, (Justice Black, dissenting); Holland v. United States, 348 U.S. 121, 135 (footnote 7); Hoag v. New Jersey, 356 U.S. 464, 471; Marshall v. United States, 360 U.S. 310, 313; Rosenberg v. United States, 346 U.S. 271, 287; Gallegos v. Nebraska, supra, at 64; Watts v. Indiana, 338 U.S. 49, 50, footnote 1); and Mookini v. United States, 303 U.S. 201, 206. This rulemaking or supervisory
35
U.S. National Committee On Law Observance and Enforcement, Report on Prosecution, p. 30 (1931).
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power does not exist with respect to criminal procedure in state courts. We quote from the McNabb case, supra: . . . while the power of this Court to undo convictions in state courts is limited to the enforcement of those ‘fundamental principles of liberty and justice,’ which are secured by the Fourteenth Amendment, the scope of our reviewing power over convictions brought here from the Federal courts is not confined to ascertainment of Constitutional validity. Judicial supervision of the administration of criminal justice in the Federal courts implies the duty of establishing and maintaining civilized standards of procedure and evidence. Such standards are not satisfied merely by observance of those minimal historic safeguards for securing trial by reason which are summarized as ‘due process of law’ and below which we reach what is really trial by force. Moreover, review by this Court of state action expressing its notion of what will best further its own security in the administration of criminal justice demands appropriate respect for the deliberative judgment of a state in so basic an exercise of its jurisdiction.
The radical change brought about by the Johnson v. Zerbst opinion with respect to the common understanding of the meaning of the Sixth Amendment is illustrated by Judge Sibley’s opinions in Salyor v. Sanford, 99 F. 2d 605, and Sanford v. Robbins, 115 F. 2d 435, written shortly after the Johnson decision. We quote from Saylor v. Sanford, supra, at page 607: . . . The Constitution in saying that ‘the accused shall enjoy the right *** to have the Assistance of counsel for his defense’ means that if he provides himself counsel the court shall allow the counsel to assist and represent the accused - a right not accorded the accused in felony cases by the common law. It has never been understood that the federal courts were bound by the Constitution to furnish accused persons with counsel . . . .
There are proposals pending before the Congress to provide for a public defender, and for paying lawyers to defend indigent persons in some cases. All these arrangements for the defense of poor persons are acts of mercy, perhaps justice, but they are not required by the constitutional provisions and have never been supposed to be. . . . Sanford v. Robbins holds that the due process clause of the Fifth Amendment does not require federal courts to furnish counsel. In Gall v. Brady, 39 F. Supp. 504, the Court said that Johnson v. G A L E
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Zerbst had placed a construction on the Sixth Amendment which was broader than that theretofore commonly understood in the light of the history of Anglo-Saxon criminal procedure. The test of what is due process depends, to some extent, upon the meaning and content of that term at common law and in the colonies or states prior to the adoption of the Bill of Rights. The right to be heard by counsel employed by the defendant may well be included in that guaranty, but by any historical test that might be applied, automatic appointment of counsel in all criminal cases has never been considered an essential of due process. In Powell v. Alabama, supra, this Court held that counsel must be appointed under the due process clause of the Fourteenth Amendment in capital cases where the defendant is ignorant, illiterate, or otherwise unable to present his own defense. The Court pointed out that the right to have counsel appointed, “when necessary” is a “logical corollary from the constitutional right to be heard by counsel.”36 The decision turned upon the fact that in the particular situation before the court, the benefit of counsel was essential to the substance of a hearing. To the extent that appointment of counsel is necessary to the substance of a hearing, and to that extent only, that “corollary from the constitutional right to be heard by counsel” has been included in the concept of due process under the Fourteenth Amendment and made applicable as against the states. The following conclusions can be drawn from the above discussion: 1. The English common law provided the right to retain counsel in misdemeanors but no right to counsel in felony cases. 2. The Sixth Amendment as originally intended guaranteed the right to retain counsel, not the right to have counsel appointed in cases of indigency. 3. The construction given the Sixth Amendment by this Court in Johnson v. Zerbst was the outgrowth of a practice which had become common in the federal court system. 4. The decision in Johnson v. Zerbst to some extent constituted an exercise by this Court of its supervisory and rulemaking powers over the inferior federal courts. 36
287 U.S. at 72.
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5. This court’s opinion in Johnson v. Zerbst did not contemplate that automatic appointment of counsel could be required as a requisite of due process of law. 6. Appointment of counsel has been included in the concept of due process to the extent that such appointment is essential to the substance of a hearing, and to that extent only. B. Under Our Federal System, the States Should Not Be Required By Constitutional Mandate To Provide Counsel For Indigent Defendants In Every Case.
Shortly after the adoption of the Fourteenth Amendment, it was argued in the Slaughterhouse Cases, 16 Wall 36; 21 L. ed 394, that the privileges or immunities of the citizens of the United States which were not to be abridged by any state were the privileges which citizens theretofore had enjoyed under the Constitution. However, “after the fullest consideration that view was rejected,” and the rejection has the authority that comes from contemporaneous knowledge of the purpose of the Fourteenth Amendment.”37 The majority opinion of Mr. Justice Miller in the Slaughterhouse Cases was reaffirmed in Twining v. Nero Jersey, 211 U.S. 78, in which this Court held that the exemption from compulsory self-incrimination is not a privilege or immunity of national citizenship guaranteed by the Fourteenth Amendment against abridgment by the states. (See also Adamson v. California, 332 U.S. 46). In Palko v. Connecticut, supra, it was held that immunity from secondary jeopardy is not a privilege or immunity of the citizens of the United States. From time to time it has been asserted before this Court that the first eight amendments of the Constitution should be “incorporated,” so to speak, in the Fourteenth Amendment as limitations upon the power of the states, even though the Bill of Rights was originally intended as a restriction upon the power of the federal government. It has been consistently held, however, that the criminal procedure provisions of the first eight amendments apply only to the procedure and trial of cases in federal courts. Gaines v. Washington, 227 U.S. 81; Spies v. Illinois, 123 U.S. 131; Re
Sawyer, 124 U.S. 200; Brooks v. Missouri, 124 U.S. 394; Eilenbecker v. District Court, 134 U.S. 31; West v. Louisiana, 194 U.S. 258; Howard v. Kentucky, 200 U.S. 164. The Fourteenth Amendment does not constitute a “shorthand summary” of the Bill of Rights;38 and the specific procedural guarantees of the first eight amendments are not included in the meaning of due process. A prosecution for a capital case by information instead of indictment is not necessarily a violation of due process. Hurtado v. California, 110 U.S. 516; Gaines v. Washington, supra; Hodgson v. Vermont, 168 U.S. 262; Powell v. United States, 221 U.S. 325; Bolin v. Nebraska, 176 U.S. 83; McNulty v. California, 149 U.S. 645; Maxwell v. Dow, 176 U.S. 581. The provision of the Bill of Rights which secures to every party, where the value in controversy exceeds $20, the right of trial by jury, does not apply to trials in the state courts. Edwards v. Elliott, 21 Wall 532; 22 L. ed 487. There is nothing in the Fourteenth Amendment that requires a jury trial for any offender. Tumey v. Ohio, 273 U.S. 510; Maxwell v. Dow, supra; Hallinger v. Davis, 146 U.S. 314; Walker v. Sauvinet, 92 U.S. 90; Brown v. New Jersey, 175 U.S. 172. The Federal Constitution does not require, under all circumstances, that the defendant in a state court should be confronted with witnesses against him. West v. Louisiana, supra. The Fifth Amendment privilege against self-incrimination is not applicable to the states. Twining v. New Jersey, supra; Adamson v. California, supra; Palko v. Connecticut, supra; Cohen v. Hurley, 366 U.S. 117. The Fourteenth Amendment does not impose upon the states any uniform code of criminal procedure. The power of a legislature of a state to prescribe the number of peremptory challenges in criminal cases is limited only by the necessity of having an impartial jury. Hayes v. Missouri, 120 U.S. 68. A state is free to provide for differences in treatment of habitual criminals, Graham v. West Virginia, 224 U.S. 616. A state is free to allocate functions as between judge and jury as it sees fit, Stein v. New York, 346 U.S. 156, 179. So far as the Fourteenth Amendment is concerned, the presence of a defendant at a trial is a condition of due process to the extent that a fair and just hearing would 38
37
See concurring opinion of Mr. Justice Frankfurter in Louisiana v. Resweber, 329 U.S. 459, 467.
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See concurring opinion of Mr. Justice Frankfurter in Adamson v. California, supra, at 59, and dissenting opinion of Mr. Justice Stone in Colgate v. Harvey, 296 U.S. 404, 445.
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be thwarted by his absence, and to that extent only. Snyder v. Massachusetts, 291 U.S. 97. In Missouri v. Lewis, 101 U.S. 22, Mr. Justice Bradley said, in effect, that the Fourteenth Amendment would not prevent a state from adopting or continuing the Civil Law instead of the common law. He pointed out that the Fourteenth Amendment does not secure to all persons in the United States the benefit of the same laws. Each state may prescribe its own mode of judicial proceedings, and “great diversities . . . may exist in two states separated only by an imaginary line.” A state may even provide for different systems of judicature in the various geographical areas within its borders. In Twining v. New Jersey, supra, at 106, the Court commented that in our dual form of government nothing is more fundamental than the power of the state to order its own affairs and govern its own people except so far as the Federal Constitution, expressly or by fair implication, has withdrawn that power. This Court declared, in Maxwell v. Dow, 176 U.S. 581, 593, that the Fourteenth Amendment did not radically change the whole theory of the relations of the State and Federal governments to each other. At page 605 of the opinion this statement was made: . . . the people can be trusted to look out and care for themselves. There is no reason to doubt their willingness or their ability to do so, and when providing in their Constitution and legislation for the manner in which civil or criminal actions shall be tried, it is in entire conformity with the character of the Federal government that they should have the right to decide for themselves what shall be the form and character of the procedure in such trials. . . .
Mr. Justice Cardozo, in Snyder v. Massachusetts, supra, at 122, said: The Constitution and statutes and judicial decisions of the Commonwealth of Massachusetts are the authentic forms through which the sense of justice of the People of that Commonwealth expresses itself in law. We are not to supersede them on the ground that they deny the essentials of a trial because opinions may differ as to their policy or fairness. Not all the precepts of conduct precious to the hearts of many of us are immutable principles of justice, . . . .
See also Cassell v. Texas, 339 U.S. 282; Carter v. Illinois, supra; Buchalter v. New York, 319 U.S. 427; Tumey v. Ohio, supra; Jordan v. G A L E
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Massachusetts, 225 U.S. 167; Holmes v. Conway, 241 U.S. 625; Hoag v. New Jersey, supra at 468; Cicenia v. La Gay, 357 U.S. 504; Knapp v. Schweitzer, 357 U.S. 371, 375, 376. The states are not tied down by any provisions of the Federal Constitution to the practice and procedure which existed at common law, and they may take advantage of experience to make such changes as may be necessary. Brown v. New Jersey, supra. Mr. Justice Frankfurter has noted that “the Fourteenth Amendment did not mean to imprison the states into the limited experience of the eighteenth century,”39 and Justice Holmes said, in his dissent in Truax v. Corrigan, 257 U.S. 312, 344: “There is nothing that I more deprecate than the use of the Fourteenth Amendment beyond the absolute compulsion of its words to prevent the making of social experiments that an important part of the community desires, in the insulated chambers afforded by the several states, even though the experiments may seem futile or even noxious to me and to those whose judgment I most respect.”
In a right to counsel case it has been said that “due process, ‘itself a historical product’ . . . is not to be turned into a destructive dogma in the administration of systems of criminal justice under which the states have lived not only before the Fourteenth Amendment but for the eighty years since its adoption.” Foster v. Illinois, supra at 139. From Bute v. Illinois, supra at 668, we quote as follows: “If in the face of these widely varying state procedures, this Court were to select the rule contended for by the petitioner (rule requiring automatic appointment of counsel in all felony cases) and hold invalid all procedure not reaching that standard, it not only would disregard the basic and historic power of the states to prescribe their own local court procedures . . . but it would introduce extraordinary confusion and uncertainty into local criminal procedure. . . . ” (parenthesis added). Under the Tenth Amendment of the Constitution, all powers not granted to the central government were specifically reserved to the states. These reserved powers, including the power of the states to control proceedings in their own courts, cannot be diminished or 39
See note 37 supra at 468.
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modified. While this Court has the power and authority to supervise the administration of criminal justice in the federal courts, it has no such power with respect to state court proceedings, except where a state has denied an individual the essentials of justice under the Fourteenth Amendment. Where a defendant receives an unfair trial in a state court and the unfairness is not remedied by the state, it is proper that this court should have jurisdiction to reverse so that he might be accorded the fundamentals of justice. However, where a defendant is fairly tried by state courts, it is not proper, under our federal system, for the federal government or its courts to intervene. Even if we assume, arguendo, that failure of a court to appoint counsel in a non-capital case under present procedural rules, is, per se, a denial of fundamental justice, it must he conceded that there is always the possibility that model rules of criminal procedure can be devised which would afford fair trials even to those who are unable to procure the assistance of counsel. For instance, a state may simplify its court procedure to such extent as to equalize any differences in the respective abilities of the prosecutor and the average defendant, or it may even find a way to dispense with the need for prosecuting attorneys in some cases. Rules might be devised which would make it impossible for a defendant, represented or unrepresented, to waive any defenses which he might have. But, if this Court reverses the Betts case and declares an inflexible rule requiring automatic appointment in every case, states would be prevented from adopting novel forms of procedure, whether fair or unfair. By adopting a rule which would preclude a state from adopting a fair, just code of procedure, this Court would be infringing upon the historic powers of the states. Such a decision would defeat the very desirable possibility of state experiment in the field of criminal procedure. C. The “Fair Trial” Test As Enunciated In Powell v. Alabama and Betts v. Brady Is Consistent With The Nature And Meaning Of Due Process.
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limitations upon the power of the states. Provisions of these first eight amendments may, however, restrict the activity of a state in extreme instances, in which case the Fourteenth Amendment makes them applicable to a particular factual situation. The Fourteenth Amendment is a broad, inexplicit provision, and it is not susceptible of being reduced to a mechanical or fixed formula. Speaking of the Fourteenth Amendment, in his concurring opinion in Adamson v. California, supra, at 66, Mr. Justice Frankfurter said: The Amendment neither comprehends the specific provisions by which the founders deemed it appropriate to restrict the federal government nor is it confined to them.
As to the meaning of the due process clause of the Fourteenth Amendment, with respect to court procedure, that guaranty appears to require that no man shall be condemned without due notice and an opportunity of being heard in his defense. Holden v. Mangum, 237 U.S. 309; Rogers v. Peck, 199 U.S. 425; Howard v. Kentucky, 200 U.S. 164; Garland v. Washington, 232 U.S. 642; Simon v. Craft, 182 U.S. 427; Missouri ex rel Hurwitz v. North, 271 U.S. 40; and Louisville and N.R. Co. v. Schmidt, 177 U.S. 230. In Holden v. Hardy, 169 U.S. 366, at 389, 390, due process was defined as follows: It is sufficient to say 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.
In Hebert v. Louisiana, 272 U.S. 312, 316, this Court declared that the due process of law clause of the Fourteenth Amendment requires that state action “shall be consistent with the fundamental principles of liberty and justice which lie at the base of all our civil and political institutions . . . .” In Snyder v. Massachusetts, supra, at p. 114, Mr. Justice Cardozo referred to the “vague precepts” of the Fourteenth Amendment. He said in that case that: Due process of law requires that the proceedings shall be fair, but fairness is a relative, not an absolute concept. It is fairness with reference to particular conditions or particular results. ‘The due process clause does not impose upon the States a duty to establish ideal systems for the administration of justice, with every modern improvement and with provision against every possible A M E R I C A N
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hardship that may befall.’ . . . What is fair in one set of circumstances may be an act of tyranny in others.40
Lisenba v. California, 314 U.S. 219, 236, contained the following rule for ascertaining what is meant by due process: . . . as applied to a criminal trial, denial of due process is the failure to observe that fundamental fairness essential to the very concept of justice. In order to declare a denial of it we must find that the absence of that fairness fatally infected the trial; the acts complained of must be such quality as necessarily prevent a fair trial.
In Mr. Justice Frankfurter’s concurring opinion in Adamson v. California, supra, at 67, 68, it was pointed out that judicial review of the due process clause of the Fourteenth Amendment “inescapably imposes upon this Court an exercise of judgment upon the whole course of the proceedings in order to ascertain whether they offend those canons of decency and fairness which express the notions of justice of English speaking peoples. . . . These standards of justice are not authoritatively formulated anywhere as though they were prescriptions in a pharmacopoeia. . . . ” Due process of law depends on circumstances. “It varies with the subject matter and the necessities of the situation.” (Mr. Justice Holmes, in Moyer v. Peabody, 212 U.S. 78, 84). “The pattern of due process is picked out in the facts and circumstances of each case.” Brock v. North Carolina, 344 U.S. 424; Hoag v. New Jersey, supra. Other cases which discuss the necessity for an appraisal of the facts of each case in determining whether deprivation of counsel works a fundamental unfairness are Gibbs v. Burke, 337 U.S. 773, 780 and Foster v. Illinois, supra.
fundamental” may be considered a part of due process of the Fourteenth Amendment.
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In Palko the opinion of this Court indicated that the right to counsel provision of the Sixth Amendment had been found to be implicit in the concept of ordered liberty, in Powell v. Alabama, supra. However, “the decision did not turn upon the fact that the benefit of counsel would have been guaranteed to the defendants by the provisions of the Sixth Amendment if they had been prosecuted in a federal court. The decision turned upon the fact that in the particular situation laid before us in the evidence the benefit of counsel was essential to the substance of a hearing.”41 The Palko case indicates that the right to counsel provision of the Sixth Amendment can be made applicable against the states through the Fourteenth Amendment only so far as the substance of a hearing would be thwarted by failure to provide counsel. What will be sufficient to constitute a fair hearing must naturally depend to some extent upon the circumstances of the particular case. Gall v. Brady, 39 F. Supp. 504.
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It is now established that, in the administration of criminal justice, a state’s duty to provide counsel is but one aspect of the comprehending guaranty of the due process clause of a fair hearing on an accusation, including adequate opportunity to meet it. Quicksall v. Michigan, supra; Townsend v. Burke, 334 U.S. 736; Foster v. Illinois, supra; Carter v. Illinois; and Cicenia v. La Gay, supra. In other aspects of criminal procedure as well as in the right to counsel area there is no “ready litmus-paper test” or fixed formula for determining what is due process. U.S. v. Rabinowitz, 339 U.S. 56; Lynos v. Oklahoma, 322 U.S. 596.
In Palko v. Connecticut, supra, at 325, this Court summarized the previous cases which had contained discussions on the meaning of due process and stated that immunities contained in the specific amendments may be included in the concept of due process if “found to be implicit in the concept of ordered liberty.” Also, principles of justice “so rooted in the traditions and conscience of our people as to be ranked as
In conclusion, it may be said that due process cannot be reduced to a mechanical formula in cases relating to any area of criminal procedure. In right to counsel cases the appointment of counsel is an element of due process only to the extent that a fair and just hearing would be prevented by the failure to appoint counsel and to that extent only. Also, the right to counsel is just one aspect to be considered in determining, in a given case,
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291 U.S. at 116, 117.
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whether there has been a denial of due process. While the federal courts are subject to strict, rigid, requirements of the first eight amendments, the states are restricted only by the broad definitions of due process set forth in Holden v. Hardy, Hebert v. Louisiana, and Palko v. Connecticut. The “fair trial” test set out in Powell v. Alabama and Betts v. Brady is a natural and imperative result of the principles which have been developed by this Court in Palko and similar cases. In applying the “fair trial” test we must look to the circumstances of each case. D. The Betts v. Brady Rule, As Developed By This Court, Provides a Clear And Consistent Standard For Determination Of The Right To Counsel Under The Fourteenth Amendment.
From the cases that have been decided under the Betts v. Brady rule during the last twenty years, this Court has prochimed the following factors or circumstances as guides for determining whether a defendant, in a particular situation, has been denied the aid of courtappointed counsel: 1. Gravity of the offense, i.e., whether capital or non-capital.42 2. Complexity of the charge against the defendant.43 3. Ignorance44 4. Illiteracy or lack of education45 5. Extreme youth or lack of experience46 6. Familiarity with court procedure47 7. Feeble-mindedness or insanity48 8. Inability to understand the English language49 42
Williams v. Kaiser, 323 U.S. 471; Tomkins v. Missouri, 323 U.S. 485; Hamilton v. Alabama, 368 U.S. 52. 43 Rice v. Olson, 324 U.S. 786; DeMeerleer v. Michigan, 329 U.S. 663; McNeal v. Culver, 365 U.S. 109; Chewning v. Cunningham, 368 U.S. 443; Pennsylvania ex rel Herman v. Claudy, 350 U.S. 116. 44 Smith v. O’Grady, 312 U.S. 329; Tomkins v. Missouri, supra note 42. 45 Carnley v. Cochran, 369 U.S. 506; Cash v. Culver, 358 U.S. 633. 46 Wade v. Mayo, 334 U.S. 672; Uveges v. Pennsylvania, 335 U.S. 437; Moore v. Michigan, 355 U.S. 155. 47 Wade v. Mayo, supra note 46; McNeal v. Culver, supra note 43. 48 Palmer v. Ashe, 342 U.S. 134; Massey v. Moore, 348 U.S. 105. 49 Marino v. Ragen, 332 U.S. 561.
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9. Prejudicial conduct shown by trial judge, prosecuting attorney or public defender50 10. Plea of guilty by co-defendant within hearing of jury51 To illustrate his position that the Betts rule does not provide a workable standard, counsel for Petitioner has, on pages 37 and 38 of his brief, compared three sets of cases. None of the comparisons, however, prove his thesis. For instance, he points out that this Court reversed the conviction of a seventeen year old youth in DeMeerleer v. Michigan, 329 U.S. 663, while upholding the conviction of a sixteen year old defendant in Gayes v. New York, 332 U.S. 145. DeMeerleer was confronted by a complex firstdegree murder charge and was arraigned, tried, convicted and sentenced on the same day. The record showed that he had never been advised of his right to counsel, and indicated that considerable confusion existed in his mind at the time of arraignment as to the effect of a plea of guilty. No evidence was introduced on his behalf, and no witnesses were cross examined. Gayes, at the age of sixteen, was charged with burglary in the third degree and petit larceny. He said he didn’t want counsel and pleaded guilty. At the age of 19 he pleaded guilty to a charge of being a second offender. After having served the first sentence, he sought relief from the second offender sentence, but this Court pointed out that he could not “by a flank attack”52 challenge the first sentence. In his second comparison, Petitioner has attempted to find inconsistency between Quicksall v. Michigan, 339 U.S. 660, and Carnley v. Cochran, 369 U.S. 506. He states that in Quicksall “the Court felt it reasonable to presume from the accused’s prior appearances in court that he knew of his right to counsel, and since he made no request for legal aid, his rights were not infringed,” but that in Carnley “the Court felt that a prior criminal record magnified the importance of the assistance of counsel because of its implications in the event the accused takes the witness stand.”53 In Quicksall the defendant pleaded guilty and,
50
White v. Ragen, 324 U.S. 760; Townsend v. Burke, 334 U.S. 736; Hawk v. Olson, 326 U.S. 271; Reynolds v. Cochran, 365 U.S. 525; Gibbs v. Burke, 337 U.S. 773. 51 Hudson v. North Carolina, 363 U.S. 697. 52 332 U.S. at 149. 53 Supra note 20 at 37 and 38.
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of course, there was no danger of his taking the witness stand. It should also be noted that, prior to the time that the Quicksall case reached this Court, the Michigan courts had meticulously made findings of fact which conclusively showed that the Petitioner’s plea of guilty was freely, voluntarily and understandingly made. Petitioner states that it is difficult to reconcile Gryger v. Burke, 334 U.S. 728, with Townsend v. Burke, 334 U.S. 736, saying that in Gryger the defendant “argued that the state court mistakenly assumed that the applicable statute made (his sentence) mandatory” while in Townsend, “the defendant contended that the court imposed a sentence under the erroneous impression that defendant’s record included convictions on two charges as to which, in fact, he had been acquitted.”54 (parenthesis ours). A reading of the Townsend case makes clear that the reversal of petitioner’s sentence there was due to the foul play, carelessness, and facetiousness on the part of the trial court. This Court’s ruling in Gryger was due to the fact that petitioner’s allegation involved a question of Pennsylvania law which this Court was not empowered to decide. Also, there was nothing in the record to impeach “the fairness and temperateness with which the trial judge approached his task.55 If it can be said that Betts and the cases which have followed are inconsistent and that they do not comprise a workable standard, it can be argued with equal force that the entire common law is inconsistent and that it, likewise, should be rejected. The Betts approach is the common law approach, consisting of the development of a body of law on a case by case basis, and lawyers for centuries have thrived on distinguishing one case from another on the basis of factual situations and circumstances. Petitioner argues that the distinction existing in the Powell v. Alabama - Betts v. Brady rule between capital and non-capital offenses does not furnish a valid basis for deciding when to appoint counsel and ekes the case of Kinsella v. United States, 361 U.S. 234, among others, as authority. There it was held by this Court that the Armed Forces have no power or jurisdiction
54 55
Id. at 38. 334 U.S. at 731.
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to try dependents accompanying servicemen overseas during peacetime for non-capital offenses. It was shown that military jurisdiction was based upon status rather than the nature of the offense. Since the Court had already ruled that military tribunals had no jurisdiction in capital cases, under similar circumstances, Reid v. Covert, 354 U.S. 1, it followed that no jurisdiction existed, irrespective of the gravity of the crime involved. In objecting to the “distinction” between capital and non-capital crimes in the right to counsel cases, Petitioner makes the mistake of confusing the rule with its application. Powell v. Alabama did not require automatic appointment in all capital cases. It was meticulously limited to its own facts. Betts v. Brady was merely an extension of the Powell rule to cases less than capital. Under the rule of these two cases, a defendant, to show a denial of counsel, was required to establish circumstances which operated to deny him a fair trial. In the application of the rule, the fact that a charge is capital has become one of the factors in determining whether a petitioner should have been given counsel. Automatic assignment in death cases has now become an almost inflexible requirement, under the Powell-Betts rule, not because capital cases are necessarily more complex, but because (1) all capital crime states have statutes requiring appointment in such cases and (2) courts have recognized the finality of the death penalty and the procedural distinction which many states make between capital and non-capital crimes. Some legislatures have placed the death penalty in the hands of the jury rather than the judge. Indictment by grand jury is provided in capital but not in noncapital cases, in many instances. Some state laws require that capital cases be tried before a larger petit jury than is provided for non-capital cases. When a man is faced with a non-capital charge there is always the chance that he may obtain probation or, eventually, parole. These and many more distinctions between the two categories of offenses support the tendency of the courts to require automatic appointment in all death cases, but not in cases less than capital. Respondent submits that Betts and the cases which have followed provide a clear, consistent and operable standard for the states to follow in applying the due process clause of the Fourteenth Amendment in right to counsel cases. A M E R I C A N
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E. Although States Now Provide For Appointment In Many Instances, The Rights So Provided Have Not Generally Been Accepted As Being Fundamental Or Constitutional In Character.
An examination of the constitutions, statutes, and court rules which have been adopted by the various states and the cases which have construed these provisions will reflect that, although all states have made provision for appointment in some instances, there is no general concensus that a right to automatic appointment in all cases, or even in all felony cases, is of a fundamental or constitutional character. Some states have required appointment for indigents in capital cases. Some have provided automatic free counsel in felonies, and a very few have extended the right to misdemeanors. The means by which counsel is provided vary from state to state. Some make such provision by court rule and others by statute. Some state courts have construed the right to appointment as having no constitutional basis, while stating that their constitutions only guarantee the right to employ counsel. Others have held that the right to automatic appointment for indigents is of a constitutional nature. There is, thus, no general or consistent feeling among the states as to the nature and scope of the right to appointed counsel. For a short summary of the laws, rules and cases of the various states on this subject, see Appendix B, infra. F. The Sixth Amendment, As Construed In Johnson v. Zerbst, Should Not Be Made Applicable Against The States Through The Due Process Clause Of The Fourteenth Amendment.
The Sixth Amendment provides that “in all criminal prosecutions, the accused shall enjoy the right . . . to have the assistance of counsel for his defense” (emphasis supplied). The underlined words contemplate misdemeanor as well as felony cases. Consequently, if the counsel provision of the Sixth Amendment should be made applicable as against the states, counsel would be automatically required in all cases regardless of their triviality. As Mr. Justice Roberts said in Betts v. Brady, supra, at 473: To deduce from the due process clause a rule binding upon the states in this matter would be to impose upon them, as Judge Bond points out, a requirement without distinction between criminal charges of different magnitude or in respect of courts of varying jurisdiction. As he says: ‘Charges of small crimes tried before justices of the peace and G A L E
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capital charges tried in the higher courts would equally require the appointment of counsel. Presumably it would be argued that trials in the Traffic Court would require it.’
Petitioner urges the court to abolish any distinction in the Betts rule between capital and non-capital cases. If there can be no distinction between capital cases and non-capital felonies, by the same token there can be no differentiation between felonies and misdemeanors. If the requirements of the Sixth Amendment as presently construed should be extended to minor cases, this requirement would impose an enormous burden on members of the Bar who might be called upon to defend such charges. Also, such an imposition would encourage those charged with misdemeanors to plead not guilty and, consequently, more time would be consumed in the trial of minor cases. The entire undertaking would result in unnecessary expense to tax payers. Mr. Justice Roberts also commented in Betts v. Brady, at p. 473, as follows: . . . . indeed it was said by petitioner’s counsel both below and in this court, that as the Fourteenth Amendment extends the protection of due process to property as well as to life and liberty, if we hold with the petitioner logic would require the furnishing of counsel in civil cases involving property.
The Fourteenth Amendment prohibits states from depriving persons of life, liberty, or property without due process of law. If this Court imposes a rigid requirement regarding the automatic appointment of counsel instead of following the present case by case method of review, the new requirement could not be limited only to criminal felony cases, nor could it be limited to crimes. Since the due process clause places life, liberty, and property on an equal plane, an inflexible counsel appointment rule promulgated by this Court would logically have to apply in civil cases as well as criminal causes. The rule would apply in federal as well as in state courts, as the due process clause of the Fifth Amendment would, presumably, make the new rule applicable against the federal government as well as against the states. Further, in civil cases, counsel would have to be appointed for indigent plaintiffs as well as defendants, since it may be necessary for them to initiate proceedings, in some cases, to prevent deprivation of property of liberty without due process of law. A M E R I C A N
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To reject the Betts rule is to impute to judges a lack of ability and integrity which we should not accept as a major premise. As this Court said in Gibbs v. Burke, 337 U.S. 773, 780: . . . the fair conduct of a trial depends largely on the wisdom and understanding of the trial judge. He knows the essentials of a fair trial. The primary duty falls on him to determine the accused’s need of counsel at arraignment and during trial. He may guide a defendant without a lawyer past the errors that make trials unfair. . . . ”
Let us assume the case in which the trial judge protects every right of the accused, by insuring that the defendant has ample opportunity to procure his witnesses and prepare his defense and by interposing motions at the trial on the defendant’s behalf, if he fails to do so, to prevent any waiver of procedural or evidentiary rights. Or let us suppose the case where a wise and fair judge accepts a plea of guilty only after carefully explaining all his rights to the accused. In such case, where the court obviously provides a fair hearing for the defendant, who can say that the Palko, Hebert or Holden v. Hardy tests of due process have not been fully met? A fallacy in some arguments is the premise that every defendant who enters a criminal court is entirely unqualified to handle his own defense. This premise evades the inescapable fact that some defendants are more competent in the field of criminal law than are some lawyers. Some lawyers never practice criminal law; many do no courtroom work. If Betts should be overruled, lawyers in those areas that are forced to resort to the appointment system will in some cases be less familiar with the criminal courtroom and its procedures than some of the indigents they defend. In the event that automatic appointment of counsel would be required in all state courts, some states or areas in those states will be forced into using an appointment system of some type. Reginald Heber Smith, in the book, Justice and the Poor, p. 114, said: The assignment of counsel in criminal cases, except when the offense charged is murder, has been a general failure. . . . As a system, both in plan operation, it deserves unqualified condemnation.
Smith reasoned that appointed counsel in murder cases work harder because the case generally receives newspaper publicity and because of the realization that they have a G A L E
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man’s life in their hands. Very frequently the circumstances of a non-capital charge may be revolting, and the prisoner charged with such crime may arouse no sympathy in the community. Smith also pointed out that the average lawyer cannot afford to give a thorough defense. He cannot afford to pay for investigators and other experts out of his own pocket, which he would, of necessity, be required to do in those states whose legislatures fail to provide for reimbursement. “Incorporation” of the Sixth Amendment counsel provision, as presently construed, into the due process clause of the Fourteenth Amendment would not solve the problem of persons who are able to pay a lawyer a small amount, but who are unable m purchase adequate representation. Poor persons who get into a hospital sometimes get better treatment than the person of moderate means. That might happen in some cases in the courts.56 It has been argued that an inflexible counsel appointment requirement, if imposed on the states, will halt the flood of litigation concerning the right to counsel. This, however, is an unrealistic assumption. To begin with, reversal of Betts v. Brady would create myriad and complex new legal questions regarding the right to counsel in misdemeanor and civil cases, as well as questions concerning the significance of our federal system. Also, an examination of recent cases under Criminal Law, key number 641, and Constitutional Law, key number 268, in West Publishing Company’s Decennial Digest System, will reflect that an increasing trend in right to counsel cases is for prisoners to attack their sentences on the grounds of inadequate representation. This problem of ineffective representation will exist regardless whether we follow Betts or a new rule. This Court’s decision in Mapp v. Ohio, 367 U.S. 643, does not furnish, by analogy, any basis for makging the counsel provision of the Sixth Amendment applicable against the states. In Boyd v. United States, 116 U.S. 616, this Court said that the search and seizure provision of the Fourth Amendment took its origin in the safeguards which had grown up in England. That right has firm basis in the common law. In
See Kadish and Kimball, “Legal Representation of the Indigent in Utah,” 4 Utah L. Rev. No. 1, p. 198.
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Elkins v. United States, 364 U.S. 206, 217, Mr. Justice Stewart said, speaking of the exclusionary rule: Its purpose is to deter - to compel respect for the constitutional guaranty in the only effective available way - by removing the incentive to disregard it.
Adoption of the exclusionary rule in Mapp was necessary in order to prevent the right to be free from illegal searches and seizures, a right having a firm foundation in the common law, from being a hollow, meaningless, and ineffective guaranty. The Sixth Amendment counsel provision as now construed has no such firm historical basis. The Sixth Amendment, as construed in Johnson v. Zerbst, should not be made applicable to the states through the due process provision of the Fourteenth Amendment. G. Automatic Appointment Of Counsel For Defendants In All Criminal Cases Should Not Be Required Under The Equal Protection Clause Of The Fourteenth Amendment.
In Griffin v. Illinois, 351 U.S. 12, this Court held that a state may not deny appellate review solely because of poverty. There, by a statute, Illinois had made it virtually impossible for an indigent to obtain a review of his conviction. In effect, the state had blocked indigents from entering the appellate courts just as effectively as if it had required a prohibitive filing fee. The Griffin case constitutes a reaffirmation of the doctrine announced in Barbier v. Connolly, 113 U.S. 27, 31, to the effect that all persons “should have like access to the courts of the Country for the protection of their persons and property.” To comply with the Griffin case, a state must not close the courtroom door to anyone on account of his poverty. However, the Griffin case does not require that states take affirmative action to equalize economic conditions existing between its citizens and over which it has no control. Mr. Justice Black said, in the majority opinion, at page 20: We do not hold, however, that Illinois must purchase a stenographer’s transcript in every case where a defendant cannot buy it. The Supreme Court may find other means of affording adequate and effective appellate review to indigent defendants. For example, it may be that bystanders’ bills of G A L E
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exceptions or other methods of reporting trial proceedings could be used in some cases. The Illinois Supreme Court appears to have broad power to promulgate rules of procedure and appellate practice. We are confident the State will provide corrective rules to meet the problem which this case lays bare.”
As the above quoted portion of the majority opinion indicates, states need not provide indigents with the exact same advantages which are available to those who have the purchasing power of money. If automatic appointment of counsel in all cases should be required by this Court under the equal protection clause of the Fourteenth Amendment, such requirement would open a veritable “Pandora’s Box” which would cause an enormous volume of litigation and which would cause repercussions in all fields of law. For instance, if a state can be required to provide counsel in every criminal trial, under that clause, it can just as logically be argued that a state should provide counsel in appeals and in post-conviction proceedings. Also, under such a construction of the Fourteenth Amendment, states would logically be required to provide an indigent with bail, with the services of investigators, psychiatrists, etc., in criminal proceedings, since those things are available to the rich man. In civil proceedings and in many other areas of life, a construction of the Fourteenth Amendment, similar to that given the Sixth Amendment, would create many difficulties and problems which were never dreamed of by the framers of the equal protection clause. H. The Practical Implications Involved In This Case Require Adherence To The Doctrine Of Betts v. Brady.
To overrule Betts v. Brady would be to create multifold new problems in the fields of criminal and constitutional law. As already indicated, the imposition of an inflexible rule that the states appoint counsel in all cases would raise questions which would cause a flood of litigation in federal and state tribunals. The Mapp case, supra, which involved an appeal from the state court, has been held to be essentially prospective in operation. There can be no doubt that it is the duty of state courts to follow the Mapp holding in all trials taking place after June 19, 1961. (The date of that decision). A M E R I C A N
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People v. Loria, (N.Y.), 179 N.E. 2d 478. As to cases arising prior to Mapp, in United States v. Fay, 199 F. Supp. 415, it was pointed out that state courts should be afforded the initial opportunity to evaluate any possible retroactive effect that the Mapp decision may have on their criminal procedures.
their convictions. That survey resulted in these findings:
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1. As of June 30, 1962, the Division of Corrections had in custody 8,000 prisoners.
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In State v. Evans, (N.J.), 183 A. 2d 137, the court held that although application of the decision in the Mapp case is essentially prospective, it is not necessarily inapplicable merely because an illegal search antedated the decision; however, its retrospective effect is circumscribed by potential limits and is subordinate to essential justice both to the individual and to the community. Collateral attack, or the equivalent, on pre-Mapp convictions has been denied in State v. Long, (N.J.), 177 A. 2d 609; People v. Muller, (N.Y.), 182 N.E. 2d 99; People v. Figueroa, 220 N.Y.S. 2d 131; People v. Oree, 220 N.Y.S. 2d 121; and Hall v. Warden, 201 F. Supp. 639. Regarding the effect of Mapp, see also United States v. La Vallee, 206 F. Supp. 679; and United States ex rel Gregory v. People of New York, 195 F. Supp. 527.
3. Of this group, 1,504 entered pleas of guilty and were represented by counsel when they entered their pleas.
In sum, it makes a great deal of difference whether a case comes to this Court after an appeal or from a collateral proceeding in the state courts. A decision by this Court reversing a state court appeal is essentially prospective in operation, while the contrary is true with respect to reviews of collateral proceedings. If the instant case involved an appeal instead of a collateral attack upon his sentence by petitioner, a reversal overruling Betts v. Brady would allow the state courts some flexibility in determining whether and in what circumstances such a decision should apply retroactively. However, since Gideon attacked his sentence by way of habeas corpus, a decision reversing the ruling of the court below would necessarily be retroactive in effect. (In Eskridge v. Washington Prison Bd., 357 U.S. 214, this Court’s holding in Griffin v. Illinois, which involved a post conviction proceeding, was applied retrospectively.) After certiorari was granted in this case, a survey of all its prisoner files or records was made by the Division of Corrections of the State of Florida, to determine the number of prisoners incarcerated who had not been represented by counsel in the proceedings which resulted in G A L E
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2. Of this group, 4,065 entered pleas of guilty with no counsel.
4. 477 of this group entered pleas of not guilty and were not represented by counsel. 5. 975 entered pleas of not guilty and were represented by counsel. 6. As to the remaining 979, the records were either so old that the information needed was not contained in them, or for some other reason the Division was unable to ascertain whether those prisoners were represented by counsel. The above figures reflect that approximately 65% of those whose records were available were not represented by counsel in the proceedings resulting in their convictions. If this percentage is true, it appears that, as of June 30, 1962, the Division had in custody approximately 5,200 prisoners who had not been represented by counsel in the trial court. On November 30, 1962, the Division had 7,836 prisoners in custody. Again, applying the 65% figure, approximately 5,093 unrepresented prisoners were in custody as of that date. If Betts should be overruled by this Court in the instant case, as many as 5,093 hardened criminals may be eligible to be released in one mass exodus in Florida alone, not to mention those in other states where automatic appointment of counsel in non-capital cases was not provided for at one time or another. Of course, some of them may be re-tried, but it is often impossible to re-try a man due to practical difficulties in locating witnesses, marshalling evidence, etc. If the instant case should be reversed and the new rule made retroactive, many of these 5,093 criminals will go free, without the possibility of a retrial. Florida and other states have, for the past twenty years, followed this Court’s decisions in the right to counsel area in good faith. In view of this good faith reliance on the Betts rule by Florida and other states, and in recognition of the danger to society in the event that the prison doors of the A M E R I C A N
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land are opened by such a decision, it is urged that the doctrine of Betts v. Brady be adhered to.
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If this Court should decide to overrule Betts, Respondent respectfully requests that it be accomplished in such way as to prevent the new rule from operating retrospectively. (See concurring opinion of Mr. Justice Frankfurter in Griffin v. Illinois, supra; Great Northern R. Co. v. Sunburst Oil Co., 287 U.S. 358; Warring v.
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Colpoys, 122 F. 2d 642, 136 A.L.R., 1025; State v. Smith, (N.J.), 181 A. 2d 176). CONCLUSION
For the reasons stated, the doctrine of Betts v. Brady should be adhered to, and the judgment of the Court below should be affirmed. [Appendix omitted]
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In the United States Supreme Court, March 1963 OPINION OF THE SUPREME COURT, MARCH 18, 1963 No. 155 CLARENCE EARL GIDEON, PETITIONER, v. LOUIE L. WAINWRIGHT, DIRECTOR, DIVISION OF CORRECTIONS, RESPONDENT.
No. 155 Decided March 18, 1963
Abe Fortas, Washington, D.C., for petitioner. Bruce R. Jacob, Tallahassee, Fla., for respondent. J. Lee Rankin, New York City, for American Civil Liberties Union, amicus curiae, by special leave of Court. George D. Mentz, Montgomery, Ala., for State of Alabama, amicus curiae. Mr. Justice BLACK delivered the opinion of the Court. Petitioner was charged in a Florida state court with having broken and entered a poolroom with intent to commit a misdemeanor. This offense is a felony under Florida law. Appearing in court without funds and without a lawyer, petitioner asked the court to appoint counsel for him, whereupon the following colloquy took place: The COURT: Mr. Gideon, I am sorry, but I cannot appoint Counsel to represent you in this case. Under the laws of the State of Florida, the only time the Court can appoint Counsel to represent a Defendant is when that person is charged with a capital offense. I am sorry, but I will have to deny your request to appoint Counsel to defend you in this case. The DEFENDANT: The United States Supreme Court says I am entitled to be represented by Counsel.
Put to trial before a jury, Gideon conducted his defense about as well as could be expected from a layman. He made an opening statement to the jury, cross-examined the State’s witnesses, presented witnesses in his own defense, declined to testify himself, and made a short argument “emphasizing his innocence to the G A L E
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charge contained in the Information filed in this case.” The jury returned a verdict of guilty, and petitioner was sentenced to serve five years in the state prison. Later, petitioner filed in the Florida Supreme Court this habeas corpus petitioner attacking his conviction and sentence on the ground that the trial court’s refusal to appoint counsel for him denied him rights “guaranteed by the Constitution and the Bill of Rights by the United States Government.”1 Treating the petition for habeas corpus as properly before it, the State Supreme Court, “upon consideration thereof” but without an opinion, denied all relief. Since 1942, when Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L. Ed. 1595, was decided by a divided Court, the problem of a defendant’s federal constitutional right to counsel in a state court has been a continuing source of controversy and litigation in both state and federal courts.2 To give this problem another review here, we granted certiorari. 370 U.S. 908, 82 S.Ct. 1259, 8 L.Ed.2d 403. Since Gideon was proceeding in forma pauperis, we appointed counsel to represent him and requested both sides to discuss in their briefs and oral arguments the following: “Should this Court’s holding in Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595, be reconsidered?” I.
The facts upon which Betts claimed that he had been unconstitutionally denied the right to have counsel appointed to assist him are strikingly like the facts upon which Gideon here bases his federal constitutional claim. Betts was indicted for robbery in a Maryland 1 Later in the petition for habeas corpus, signed and apparently prepared by petitioner himself, he stated, “I, Clarence Earl Gideon, claim that I was denied the rights of the 4th, 5th and 14th amendments of the Bill of Rights.” 2 Of the many such cases to reach this Court, recent examples are Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962); Hudson v. North Carolina, 363 U.S. 697, 80 S.Ct. 1314, 4 L.Ed.2d 1500 (1960); Moore v. Michigan, 355 U.S. 155, 78 S.Ct. 191, 2 L.Ed.2d 167 (1957). Illustrative cases in the state courts are Artrip v. State, 41 Ala.App. 492, 136 So.2d 574 (Ct.App.Ala.1962); Shaffer v. Warden, 211 Md. 635, 126 A.2d 573 (1956). For examples of commentary, see Allen, The Supreme Court, Federalism, and State Systems of Criminal Justice, 8 De Paul L.Rev. 213 (1959); Kamisar, The Right to Counsel and the Fourteenth Amendment: A Dialogue on “The Most Pervasive Right” of an Accused, 30 U. of Chi.L.Rev. 1 (1962); The Right to Counsel, 45 Minn.L.Rev. 693 (1961).
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state court. On arraignment, he told the trial judge of his lack of funds to hire a lawyer and asked the court to appoint one for him. Betts was advised that it was not the practice in that county to appoint counsel for indigent defendants except in murder and rape cases. He then pleaded not guilty, had witnesses summoned, cross-examined the State’s witnesses, examined his own, and chose not to testify himself. He was found guilty by the judge, sitting without a jury, and sentenced to eight years in prison. Like Gideon, Betts sought release by habeas corpus, alleging that he had been denied the right to assistance of counsel in violation of the Fourteenth Amendment. Betts was denied any relief, and on review this Court affirmed. It was held that a refusal to appoint counsel for an indigent defendant charged with a felony did not necessarily violate the Due Process Clause of the Fourteenth Amendment, which for reasons given the Court deemed to be the only applicable federal constitutional provision. The Court said: “Asserted denial (of due process) is to be tested by an appraisal of the totality of facts in a given case. That which may, in one setting, constitute a denial of fundamental fairness, shocking to the universal sense of justice, may, in other circumstances, and in the light of other considerations, fall short of such denial.” 316 U. S., at 462, 62 S.Ct., at 1256, 86 L.Ed. 1595. Treating due process as “a concept less rigid and more fluid than those envisaged in other specific and particular provisions of the Bill of Rights,” the Court held that refusal to appoint counsel under the particular facts and circumstances in the Betts case was not so “offensive to the common and fundamental ideas of fairness’ as to amount to a denial of due process. Since the facts and circumstances of the two cases are so nearly indistinguishable, we think the Betts v. Brady holding if left standing would require us to reject Gideon’s claim that the Constitution guarantees him the assistance of counsel. Upon full reconsideration we conclude that Betts v. Brady should be overruled.” II.
The Sixth Amendment provides, “In all criminal prosecutions, the accused shall enjoy the right * * * to have the Assistance of Counsel for his defence.” We have construed this to mean that in federal courts counsel must be provided for defendants unable to employ counsel unless G A L E
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the right is competently and intelligently waived.3 Betts argued that this right is extended to indigent defendants in state courts by the Fourteenth Amendment. In response the Court stated that, while the Sixth Amendment laid down “no rule for the conduct of the states, the question recurs whether the constraint laid by the amendment upon the national courts expresses a rule so fundamental and essential to a fair trial, and so, to due process of law, that it is made obligatory upon the states by the Fourteenth Amendment.” 316 U.S., at 465, 62 S. Ct., at 1257, 86 L.Ed. 1595. In order to decide whether the Sixth Amendment’s guarantee of counsel is of this fundamental nature, the Court in Betts set out and considered “(r)elevant data on the subject * * * afforded by constitutional and statutory provisions subsisting in the colonies and the states prior to the inclusion of the Bill of Rights in the national Constitution, and in the constitutional, legislative, and judicial history of the states to the present date.” 316 U.S., at 465, 62 S.Ct., at 1257. On the basis of this historical data the Court concluded that “appointment of counsel is not a fundamental right, essential to a fair trial.” 316 U.S. at 471, 62 S.Ct., at 1261. It was for this reason the Betts Court refused to accept the contention that the Sixth Amendment’s guarantee of counsel for indigent federal defendants was extended to or, in the words of that Court, “made obligatory upon the states by the Fourteenth Amendment”. Plainly, had the Court concluded that appointment of counsel for an indigent criminal defendant was “a fundamental right, essential to a fair trial,” it would have held that the Fourteenth Amendment requires appointment of counsel in a state court, just as the Sixth Amendment requires in a federal court. We think the Court in Betts had ample precedent for acknowledging that those guarantees of the Bill of Rights which are fundamental safeguards of liberty immune from federal abridgment are equally protected against state invasion by the Due Process Clause of the Fourteenth Amendment. This same principle was recognized, explained, and applied in Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932), a case upholding the right of counsel, where the Court held that despite sweeping language to the contrary in Hurtado v. California, 3 Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938).
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110 U.S. 516, 4 S.Ct. 292, 28 L.Ed. 232 (1884), the Fourteenth Amendment “embraced” those “fundamental principles of liberty and justice which lie at the base of all our civil and political institutions,” even though they had been “specifically dealt with in another part of the Federal Constitution.” 287 U.S., at 67, 53 S.Ct., at 63, 77 L.Ed. 158. In many cases other than Powell and Betts, this Court has looked to the fundamental nature of original Bill of Rights guarantees to decide whether the Fourteenth Amendment makes them obligatory on the States. Explicitly recognized to be of this “fundamental nature” and therefore made immune from state invasion by the Fourteenth, or some part of it, are the First Amendment’s freedoms of speech, press, religion, assembly, association, and petition for redress of grievances.4 For the same reason, though not always in precisely the same terminology, the Court has made obligatory on the States the Fifth Amendment’s command that private property shall not be taken for public use without just compensation,5 the Fourth Amendment’s prohibition of unreasonable searches and seizures,6 and the Eighth’s ban on cruel and unusual punishment.7 On the other hand, this Court in Palko v. Connecticut, 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288 (1937), refused to hold that the Fourteenth Amendment made the double jeopardy provision of the Fifth Amendment obligatory on the States. In so refusing, however, the Court, speaking through Mr. Justice Cardozo, was careful to emphasize that “immunities that are valid as against the federal government by force of the specific pledges of particular amendments have been found to be implicit in the concept of ordered liberty, and thus, through the Fourteenth Amendment, become valid as against the states” and that guarantees “in their origin * * * effective against the federal government alone” had by prior cases “been taken over from the earlier articles of the 4
E.g., Gitlow v. New York, 268 U.S. 652, 666, 45 S.Ct. 625, 629, 69 L.Ed. 1138 (1925) (speech and press); Lovell v. City of Griffin, 303 U.S. 444, 450, 58 S.Ct. 666, 668, 82 L.Ed. 949 (1938) (speech and press); Staub v. City of Baxley, 355 U.S. 313, 321, 78 S.Ct. 277, 281, 2 L.Ed.2d 302 (1958) (speech); Grosjean v. American Press Co., 297 U.S. 233, 244, 56 S.Ct. 444, 446, 80 L.Ed. 660 (1936) (press); Cantwell v. Connecticut, 310 U.S. 296, 303, 60 S.Ct. 900, 903, 84 L.Ed. 1213 (1940) (religion); De Jonge v. Oregon, 299 U.S. 353, 364, 57 S.Ct. 255, 259, 81 L.Ed. 278 (1937) (assembly); Shelton v. Tucker, 364 U.S. 479, 486, 488, 81 S.Ct. 247, 251, 252, 5 L.Ed.2d 231 (1960) (association); Louisiana ex rel. Gremillion v. NAACP, 366 U.S. 293, 296, 81 S. Ct. 1333, 1335, 6 L.Ed.2d 301 (1961) (association); Edwards v.
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Federal Bill of Rights and brought within the Fourteenth Amendment by a process of absorption.” 302 U.S., at 324-325, 326, 58 S.Ct., at 152. We accept Betts v. Brady’s assumption, based as it was on our prior cases, that a provision of the Bill of Rights which is “fundamental and essential to a fair trial” is made obligatory upon the States by the Fourteenth Amendment. We think the Court in Betts was wrong, however, in concluding that the Sixth Amendment’s guarantee of counsel is not one of these fundamental rights. Ten years before Betts v. Brady, this Court, after full consideration of all the historical data examined in Betts, had unequivocally declared that “the right to the aid of counsel is of this fundamental character.” Powell v. Alabama, 287 U.S. 45, 68, 53 S.Ct. 55, 63, 77 L. Ed. 158 (1932). While the Court at the close of its Powell opinion did by its language, as this Court frequently does, limit its holding to the particular facts and circumstances of that case, its conclusions about the fundamental nature of the right to counsel are unmistakable. Several years later, in 1936, the Court reemphasized what it had said about the fundamental nature of the right to counsel in this language: “We concluded that certain fundamental rights, safeguarded by the first eight amendments against federal action, were also safeguarded against state action by the due process of law clause of the Fourteenth Amendment, and among them the fundamental right of the accused to the aid of counsel in a criminal prosecution.” Grosjean v. American Press Co., 297 U.S. 233, 243-244, 56 S.Ct. 444, 446, 80 L. Ed. 660 (1936). And again in 1938 this Court said: “(The assistance of counsel) is one of the safeguards of the Sixth Amendment deemed necessary to insure fundamental human rights South Carolina, 372 U.S. 229, 83 S.Ct. 680 (1963) (speech, assembly, petition for redress of grievances). 5 E.g., Chicago, B. & Q.R. Co. v. Chicago, 166 U.S. 226, 235241, 17 S.Ct. 581, 584-586, 41 L.Ed. 979 (1897); Smyth v. Ames, 169 U.S. 466, 522-526, 18 S.Ct. 418, 424-426, 42 L. Ed. 819 (1898). 6 E.g., Wolf v. Colorado, 338 U.S. 25, 27-28, 69 S.Ct. 1359, 1361, 93 L.Ed. 1782 (1949); Elkins v. United States, 364 U.S. 206, 213, 80 S.Ct. 1437, 1441, 4 L.Ed.2d 1669 (1960); Mapp v. Ohio, 367 U.S. 643, 655, 81 S.Ct. 1684, 1691, 6 L.Ed.2d 1081 (1961). 7 Robinson v. California, 370 U.S. 660, 666, 82 S.Ct. 1417, 1420, 8 L.Ed.2d 758 (1962).
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of life and liberty. * * * The Sixth Amendment stands as a constant admonition that if the constitutional safeguards it provides be lost, justice will not “still be done.” Johnson v. Zerbst, 304 U.S. 458, 462, 58 S.Ct. 1019, 1022, 82 L.Ed. 1461 (1938). To the same effect, see Avery v. Alabama, 308 U.S. 444, 60 S.Ct. 321, 84 L.Ed. 377 (1940), and Smith v. O’Grady, 312 U. S. 329, 61 S.Ct. 572, 85 L.Ed. 859 (1941). In light of these and many other prior decisions of this Court, it is not surprising that the Betts Court, when faced with the contention that “one charged with crime, who is unable to obtain counsel, must be furnished counsel by the state,” conceded that “(e)xpressions in the opinions of this court lend color to the argument * * *” 316 U.S., at 462-463, 62 S.Ct., at 1256, 86 L.Ed. 1595. The fact is that in deciding as it did-that “appointment of counsel is not a fundamental right, essential to a fair trial”-the Court in Betts v. Brady made an abrupt break with its own well-considered precedents. In returning to these old precedents, sounder we believe than the new, we but restore constitutional principles established to achieve a fair system of justice. Not only these precedents but also reason and reflection require us to recognize that in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him. This seems to us to be an obvious truth. Governments, both state and federal, quite properly spend vast sums of money to establish machinery to try defendants accused of crime. Lawyers to prosecute are everywhere deemed essential to protect the public’s interest in an orderly society. Similarly, there are few defendants charged with crime, few indeed, who fail to hire the best lawyers they can get to prepare and present their defenses. That government hires lawyers to prosecute and defendants who have the money hire lawyers to defend are the strongest indications of the wide-spread belief that lawyers in criminal courts are necessities, not luxuries. The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours. From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law. This noble ideal G A L E
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cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him. A defendant’s need for a lawyer is nowhere better stated than in the moving words of Mr. Justice Sutherland in Powell v. Alabama: “The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence.” 287 U.S., at 68-69, 53 S.Ct., at 64, 77 L.Ed. 158. The Court in Betts v. Brady departed from the sound wisdom upon which the Court’s holding in Powell v. Alabama rested. Florida, supported by two other States, has asked that Betts v. Brady be left intact. Twenty-two States, as friends of the Court, argue that Betts was “an anachronism when handed down” and that it should now be overruled. We agree. The judgment is reversed and the cause is remanded to the Supreme Court of Florida for further action not inconsistent with this opinion. Reversed. Mr. Justice DOUGLAS. While I join the opinion of the Court, a brief historical resume of the relation between the Bill of Rights and the first section of the Fourteenth Amendment seems pertinent. Since the adoption of that Amendment, ten Justices have felt that it protects from infringement by the States the privileges, protections, and safeguards granted by the Bill of Rights. Justice Field, the first, Justice Harlan, and probably Justice Brewer, took that position in O’Neil v. Vermont, 144 U.S. 323, 362-363, 370371, 12 S.Ct. 693, 708, 711, 36 L.Ed. 450, as did A M E R I C A N
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Justices Black, Douglas, Murphy and Rutledge in Adamson v. California, 332 U.S. 46, 71-72, 124, 67 S.Ct. 1672, 1683, 1686, 91 L.Ed. 1903. And see Poe v. Ullman, 367 U.S. 467, 515-522, 81 S.Ct. 1752, 6 L.Ed.2d 989 (dissenting opinion). That view was also expressed by Justices Bradley and Swayne in the SlaughterHouse Cases, 16 Wall. 36, 118-119, 122, 21 L. Ed. 394, and seemingly was accepted by Justice Clifford when he dissented with Justice Field in Walker v. Sauvinet, 92 U.S. 90, 92, 23 L.Ed. 678.8 Unfortunately it has never commanded a Court. Yet, happily, all constitutional questions are always open. Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188. And what we do today does not foreclose the matter. My Brother HARLAN is of the view that a guarantee of the Bill of Rights that is made applicable to the States by reason of the Fourteenth Amendment is a lesser version of that same guarantee as applied to the Federal Government.9 Mr. Justice Jackson shared that view.10 11
But that view has not prevailed and rights protected against state invasion by the Due Process Clause of the Fourteenth Amendment are not watered-down versions of what the Bill of Rights guarantees. Mr. Justice CLARK, concurring in the result. In Bute v. Illinois, 333 U.S. 640, 68 S.Ct. 763, 92 L.Ed. 986 (1948) this Court found no special circumstances requiring the appointment of counsel but stated that “if these charges had 8 Justices Bradley, Swayne and Field emphasized that the first eight Amendments granted citizens of the United States certain privileges and immunities that were protected from abridgment by the States by the Fourteenth Amendment. See Slaughter-House Cases, supra, 16 Wall. at 118-119, 21 L. Ed. 394; O’Neil v. Vermont, supra, 144 U.S. at 363, 12 S.Ct. 708, 36 L.Ed. 450. Justices Harlan and Brewer accepted the same theory in the O’Neil case (see id., at 370-371, 12 S.Ct. at 711), though Justice Harlan indicated that all “persons,” not merely “citizens,” were given this protection. Ibid. In Twining v. New Jersey, 211 U.S. 78, 117, 29 S.Ct. 14, 27, 53 L.Ed. 97, Justice Harlan’s position was made clear:
In my judgment, immunity from self-incrimination is protected against hostile state action, not only by * * * (the Privileges and Immunities Clause), but (also) by * * * (the Due Process Clause). Justice Brewer, in joining the opinion of the Court, abandoned the view that the entire Bill of Rights applies to the States in Maxwell v. Dow, 176 U.S. 581, 20 S.Ct. 448, 44 L.Ed. 597. 9 See Roth v. United States, 354 U.S. 476, 501, 506, 77 S.Ct. 1304, 1317, 1320, 1 L.Ed.2d 1498; Smith v. California, 361 U.S. 147, 169, 80 S.Ct. 215, 227, 4 L.Ed.2d 205.
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been capital charges, the court would have been required, both by the state statute and the decisions of this Court interpreting the Fourteenth Amendment, to take some such steps.” Id., at 674, 68 S.Ct., at 780. Prior to that case I find no language in any cases in this Court indicating that appointment of counsel in all capital cases was required by the Fourteenth Amendment.12 At the next Term of the Court Mr. Justice Reed revealed that the Court was divided as to noncapital cases but that “the due process clause * * * requires counsel for all persons charged with serious crimes * * *.” Uveges v. Pennsylvania, 335 U.S. 437, 441, 69 S.Ct. 184, 186, 93 L.Ed. 127 (1948). Finally, in Hamilton v. Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114 (1961), we said that “(w) hen one pleads to a capital charge without benefit of counsel, we do not stop to determine whether prejudice resulted.” Id., at 55, 82 S.Ct., at 159. That the Sixth Amendment requires appointment of counsel in “all criminal prosecutions” is clear, both from the language of the Amendment and from this Court’s interpretation. See Johnson v. Zerbst, 304 U.S. 458, 58 S. Ct. 1019, 82 L.Ed. 1461 (1938). It is equally clear from the above cases, all decided after Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595 (1942), that the Fourteenth Amendment requires such appointment in all prosecutions for capital crimes. The Court’s decision today, then, does no more than erase a distinction 10
Beauharnais v. Illinois, 343 U.S. 250, 288, 72 S.Ct. 725, 746, 96 L.Ed. 919. Cf. the opinions of Justices Holmes and Brandeis in Gitlow v. New York, 268 U.S. 652, 672, 45 S.Ct. 625, 632, 69 L.Ed. 1138, and Whitney v. California, 274 U.S. 357, 372, 47 S.Ct. 641, 647, 71 L.Ed. 1095. 11 The cases are collected by Mr. Justice Black in Speiser v. Randall, 357 U.S. 513, 530, 78 S.Ct. 1332, 1552, 2 L.Ed.2d 1460. And see, Ohio ex rel. Eaton v. Price, 364 U.S. 263, 274-276, 80 S.Ct. 1463, 1469-1470, 4 L.Ed.2d 1708. 12 It might, however, be said that there is such an implication in Avery v. Alabama, 308 U.S. 444, 60 S.Ct. 321, 84 L.Ed. 377 (1940), a capital case in which counsel had been appointed but in which the petitioner claimed a denial of “effective” assistance. The Court in affirming noted that “(h)ad petitioner been denied any representation of counsel at all, such a clear violation of the Fourteenth Amendment’s guarantee of assistance of counsel would have required reversal of his conviction.” Id., at 445, 60 S.Ct. at 322. No “special circumstances’ were recited by the Court, but in citing Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932), as authority for its dictum it appears that the Court did not rely solely on the capital nature of the offense.
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which has no basis in logic and an increasingly eroded basis in authority. In Kinsella v. United States ex rel. Singleton, 361 U.S. 234, 80 S.Ct. 297, 4 L.Ed.2d 268 (1960), we specifically rejected any constitutional distinction between capital and noncapital offenses as regards congressional power to provide for courtmartial trials of civilian dependents of armed forces personnel. Having previously held that civilian dependents could not constitutionally be deprived of the protections of Article III and the Fifth and Sixth Amendments in capital cases, Reid v. Covert, 354 U.S. 1, 77 S.Ct. 1222, 1 L.Ed.2d 1148 (1957), we held that the same result must follow in noncapital cases. Indeed, our opinion there foreshadowed the decision today,13 as we noted that: “Obviously Fourteenth Amendment cases dealing with state action have no application here, but if they did, we believe that to deprive civilian dependents of the safeguards of a jury trial here * * * would be as invalid under those cases as it would be in cases of a capital nature.” 361 U.S., at 246-247, 80 S.Ct., at 304, 4 L.Ed.2d 268. I must conclude here, as in Kinsella, supra, that the Constitution makes no distinction between capital and noncapital cases. The Fourteenth Amendment requires due process of law for the deprival of “liberty” just as for deprival of “life,” and there cannot constitutionally be a difference in the quality of the process based merely upon a supposed difference in the sanction involved. How can the Fourteenth Amendment tolerate a procedure which it condemns in capital cases on the ground that deprival of liberty may be less onerous than deprival of life-a value judgment not
13
Portents of today’s decision may be found as well in Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956), and Ferguson v. Georgia, 365 U.S. 570, 81 S.Ct. 756, 5 L.Ed.2d 783 (1961). In Griffin, a noncapital case, we held that the petitioner’s constitutional rights were violated by the State’s procedure, which provided free transcripts for indigent defendants only in capital cases. In Ferguson we struck down a state practice denying the appellant the effective assistance of counsel, cautioning that “(o)ur decision does not turn on the facts that the appellant was tried for a capital offense and was represented by employed counsel. The command of the Fourteenth Amendment also applies in the case of an accused tried for a noncapital offense, or represented by appointed counsel.” 365 U.S., at 596, 81 S.Ct., at 770.
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universally accepted14 -or that only the latter deprival is irrevocable? I can find no acceptable rationalization for such a result, and I therefore concur in the judgment of the Court. Mr. Justice HARLAN, concurring. I agree that Betts v. Brady should be overruled, but consider it entitled to a more respectful burial than has been accorded, at least on the part of those of us who were not on the Court when that case was decided. I cannot subscribe to the view that Betts v. Brady represented “an abrupt break with its own well-considered precedents.” Ante, p. 796. In 1932, in Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158, a capital case, this Court declared that under the particular facts there presented-“the ignorance and illiteracy of the defendants, their youth, the circumstances of public hostility * * * and above all that they stood in deadly peril of their lives’ (287 U.S., at 71, 53 S.Ct., at 65)-the state court had a duty to assign counsel for the trial as a necessary requisite of due process of law. It is evident that these limiting facts were not added to the opinion as an after-thought; they were repeatedly emphasized, see 287 U.S., at 52, 57-58, 71, 53 S. Ct., at 58, 59-60, 65 and were clearly regarded as important to the result. Thus when this Court, a decade later, decided Betts v. Brady, it did no more than to admit of the possible existence of special circumstances in noncapital as well as capital trials, while at the same time insisting that such circumstances be shown in order to establish a denial of due process. The right to appointed counsel had been recognized as being considerably broader in federal prosecutions, see Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461, but to have imposed these requirements on the States would indeed have been “an abrupt break” with the almost immediate past. The declaration that the right to appointed counsel in state prosecutions, as established in Powell v. Alabama, was not limited to capital cases was in truth not a departure from, but an extension of, existing precedent. The principles declared in Powell and in Betts, however, have had a troubled journey throughout the years that have followed first the one case and then the other. Even by the 14
See, e.g., Barzun, In Favor of Capital Punishment, 31 American Scholar 181, 188-189 (1962).
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time of the Betts decision, dictum in at least one of the Court’s opinions had indicated that there was an absolute right to the services of counsel in the trial of state capital cases.15 Such dicta continued to appear in subsequent decisions,16 and any lingering doubts were finally eliminated by the holding of Hamilton v. Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114. In noncapital cases, the “special circumstances’ rule has continued to exist in form while its substance has been substantially and steadily eroded. In the first decade after Betts, there were cases in which the Court found special circumstances to be lacking, but usually by a sharply divided vote.17 However, no such decision has been cited to us, and I have found none, after Quicksall v. Michigan, 339 U.S. 660, 70 S.Ct. 910, 94 L.Ed. 1188 decided in 1950. At the same time, there have been not a few cases in which special circumstances were found in little or nothing more than the “complexity” of the legal questions presented, although those questions were often of only routine difficulty.18 The Court has come to recognize, in other words, that the mere existence of a serious criminal charge constituted in itself special circumstances requiring the services of counsel at trial. In truth the Betts v. Brady rule is no longer a reality. This evolution, however, appears not to have been fully recognized by many state courts, in this instance charged with the front-line responsibility for the enforcement of constitutional rights.19 To continue a rule which is honored by this Court only with lip service is 15
Avery v. Alabama, 308 U.S. 444, 445, 60 S.Ct. 321, 84 L.Ed. 377. 16 E.g., Bute v. Illinois, 333 U.S. 640, 674, 68 S.Ct. 763, 780, 92 L.Ed. 986; Uveges v. Pennsylvania, 335 U.S. 437, 441, 69 S.Ct. 184, 185, 93 L.Ed. 127. 17 E.g., Foster v. Illinois, 332 U.S. 134, 67 S.Ct. 1716, 91 L.Ed. 1955; Bute v. Illinois, 333 U.S. 640, 68 S.Ct. 763, 92 L.Ed. 986; Gryger v. Burke, 334 U.S. 728, 68 S.Ct. 1256, 92 L.Ed. 1683. 18 E.g., Williams v. Kaiser, 323 U.S. 471, 65 S.Ct. 363, 89 L. Ed. 398; Hudson v. North Carolina, 363 U.S. 697, 80 S.Ct. 1314, 4 L.Ed.2d 1500; Chewning v. Cunningham, 368 U.S. 443, 82 S.Ct. 498, 7 L.Ed.2d 442.
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not a healthy thing and in the long run will do disservice to the federal system. The special circumstances rule has been formally abandoned in capital cases, and the time has now come when it should be similarly abandoned in noncapital cases, at least as to offenses which, as the one involved here, carry the possibility of a substantial prison sentence. (Whether the rule should extend to all criminal cases need not now be decided.) This indeed does no more than to make explicit something that has long since been foreshadowed in our decisions. In agreeing with the Court that the right to counsel in a case such as this should now be expressly recognized as a fundamental right embraced in the Fourteenth Amendment, I wish to make a further observation. When we hold a right or immunity, valid against the Federal Government, to be “implicit in the concept of ordered liberty”20 and thus valid against the States, I do not read our past decisions to suggest that by so holding, we automatically carry over an entire body of federal law and apply it in full sweep to the States. Any such concept would disregard the frequently wide disparity between the legitimate interests of the States and of the Federal Government, the divergent problems that they face, and the significantly different consequences of their actions. Cf. Roth v. United States, 354 U.S. 476, 496-508, 77 S.Ct. 1304, 1315-1321, 1 L. Ed.2d 1498 (separate opinion of this writer). In what is done today I do not understand the Court to depart from the principles laid down in Palko v. Connecticut, 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288, or to embrace the concept that the Fourteenth Amendment “incorporates’ the Sixth Amendment as such. On these premises I join in the judgment of the Court. 19
See, e.g., Commonwealth ex rel. Simon v. Maroney, 405 Pa. 562, 176 A.2d 94 (1961); Shaffer v. Warden, 211 Md. 635, 126 A.2d 573 (1956); Henderson v. Bannan, 256 F.2d 363 (C.A.6th Cir. 1958). 20 Palko v. Connecticut, 302 U.S. 319, 325, 58 S.Ct. 149, 152, 82 L.Ed. 288.
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KELO V. CITY OF NEW LONDON
Opinion of the Connecticut Supreme Court, March 9, 2004 . . . 355 Briefs to the U.S. Supreme Court Brief of Petitioners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 427 Brief of the Respondents . . . . . . . . . . . . . . . . . . . . . . . . . . . 448 Opinion of the United States Supreme Court, June 23, 2005 . . . 471
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Kelo v. City of New London
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Included in this section are the following documents: Opinion of the Connecticut Supreme Court, March 9, 2004 Brief of Petitioners Brief of the Respondents Opinion of the United States Supreme Court, June 23, 2005 HOW TO USE MILESTONES IN THE LAW
The briefs and opinions included in this section allows the reader to study a significant issue of eminent domain law. The reader should consider the following questions while reading this section: n
What was the basis for the decision made by the Connecticut Supreme Court?
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What were the main differences between the majority opinion in the Connecticut Supreme Court decision and the concurrence filed in the case?
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What were the differences between the majority opinion of John Paul Stevens and Anthony Kennedy?
Did this case completely change the law regarding what the courts consider to be a “public use” of property?
THIS CASE IN HISTORY
The Takings Clause of the U.S. Constitution, along with analogous provisions of many state constitutions, allows governmental entities to take private property for “public use”, provided that the government pays just compensation to the private property owner. In Kelo v. City of New London, the Supreme Court reviewed a case that involved the actions of the City of New London in Connecticut. New London condemned privately owned real property as part of an economic redevelopment plan. Under the plan, the property would transfer to a private development corporation that would develop the property. The Court concluded that because the community benefited generally from the condemnation of this private property, the taking of the property was done for public use. The case was highly controversial, as the public decried the practice of taking private property to benefit other private entities. Evidence of the backlash from the decision was seen not in the courts, but rather in the state legislatures. The vast majority of states during the next several years considered proposals that limited the effect of Kelo in varying degrees.
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In the Supreme Court of Connecticut, March 2004 OPINION OF THE CONNECTICUT SUPREME COURT, MARCH 9, 2004 No. 16742 Susette KELO, v. CITY OF NEW LONDON et al.
No. 16742 Decided March 9, 2004
Scott G. Bullock, pro hac vice, and Dana Berliner, pro hac vice, with whom, on the brief, were Scott W. Sawyer, William H. Mellor, pro hac vice, and Clark Neily, pro hac vice, for the appellants-appellees (plaintiffs). Thomas J. Londregan, with whom were Jeffrey T. Londregan and, on the brief, Brian K. Estep, New London, for the appellee-appellant (named defendant). Edward B. O’Connell, with whom was David P. Condon, New London, for the appellee-appellant (defendant New London Development Corporation). SULLIVAN, C.J., and BORDEN, NORCOTT, KATZ, PALMER, VERTEFEUILLE and ZARELLA, Js.1 Opinion
NORCOTT, J. The principal issue in this appeal is whether the public use clauses of the federal and state constitutions authorize the exercise of the eminent domain power in furtherance of a significant economic development plan that is projected to create in excess of 1000 jobs, to increase tax and other revenues, and to revitalize an economically distressed city, including its downtown and waterfront areas. The plaitiffs,2 owners of certain real property in the city of New London, appeal3 from the judgment of the trial court denying their request for permanent
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This case originally was argued before a panel of this court consisting of Justices Borden, Norcott, Palmer, Vertefeuille and Zarella. Thereafter, the court, pursuant to Practice Book § 70-7(b), sua sponte, ordered that the case be considered en banc. Accordingly, Chief Justice Sullivan and Justice Katz were added to the panel, and they have read the record, briefs and transcript of the oral argument.
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injunctive relief to prevent the defendants, the city of New London (city), a municipal corporation, and the New London Development Corporation (development corporation), a private nonprofit economic development corporation, from exercising eminent domain authority to condemn the plaintiffs’ properties located on parcel 3 of the development corporation’s municipal development plan (development plan). The defendants cross appeal4 from the judgment of the trial court granting the plaintiffs’ request for permanent injunctive relief with respect to those properties located on parcel 4A of the development plan. On appeal, the plaintiffs claim that the trial court improperly concluded that: (1) the taking of the plaintiffs’ land was authorized under chapter 132 of the General Statutes; (2) economic development constitutes a valid public use under the takings clauses of the state and federal constitutions, and that these takings will sufficiently benefit the public and bear reasonable assurances of future public use; (3) the delegation of the eminent domain power to the development corporation was not unconstitutional; (4) the taking of the plaintiffs’ land on parcel 3 was reasonably necessary to the development plan; and (5) the development corporation, by allowing a private social club, but not the plaintiffs’ properties to remain on parcel 3, did not violate the plaintiffs’ federal and state constitutional rights to equal protection of the laws. We affirm the judgment of the trial court with respect to the claims presented in the plaintiffs’ appeal. On their cross appeal, the defendants contend that the trial court improperly concluded that: (1) the condemnation of the plaintiffs’ properties on parcel 4A was not reasonably necessary to accomplish the development plan; and (2) the city’s general power to 2 The individual plaintiffs are Susette Kelo, Thelma Brelesky, Pasquale Cristofaro, Margherita Cristofaro, Wilhelmina Dery, Charles Dery, James Guretsky, Laura Guretsky, Pataya Construction Limited Partnership and William Von Winkle. 3 The plaintiffs appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to General Statutes § 51-199(c) and Practice Book § 65-2. 4 The defendants cross appealed from the judgment of the trial court to the Appellate Court, and we transferred the cross appeal, along with the plaintiffs’ appeal; see footnote 3 of this opinion; to this court pursuant to General Statutes § 51-199(c) and Practice Book § 65-2.
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widen and alter its roadways did not justify the taking of the plaintiffs’ properties on parcel 4A. We reverse the judgment of the trial court with respect to the defendants’ cross appeal. The record reveals the following background facts and procedural history, as aptly set forth in the trial court’s comprehensive memorandum of decision. “In 1978, the [development corporation] was established to assist the city in planning economic development. In January, 1998, the state bond commission authorized bonds to support planning activities in the Fort Trumbull area [of the city] and property acquisition to be undertaken by [the development corporation] in support of the project and other money toward the ultimate creation of a state park at Fort Trumbull. In February, 1998, [Pfizer, Inc. (Pfizer)] announced that it was developing a global research facility on the . . . New London Mills site which is adjacent to the Fort Trumbull area. In April, 1998, the New London city council gave initial approval to prepare a development plan for the Fort Trumbull area and the [development corporation] began holding informal neighborhood meetings regarding the [development plan] process. In May, 1998, the city council authorized [the development corporation] to proceed under chapters 130, 132 and/or 588 (l) of the [General] Statutes. “The state bond commission approved more funds for [the development corporation] activity. In June, 1998, the city formally conveyed the New London Mills site to Pfizer. In July, 1998, a consulting team was appointed for the state Environmental Protection Act process and to prepare the [development plan]. Six alternative plans for the project area were considered as part of the required environmental impact evaluation.” The development plan area is approximately ninety acres in size and is located on the Thames River in New London, adjacent to the proposed Fort Trumbull State Park, and the Pfizer global research facility, which opened in June, 2001. See Appendix to this opinion. It presently includes residential and commercial areas, and is comprised of approximately 115 land parcels. The development plan area also includes the presently closed United States Naval Undersea Warfare Center, which is thirty-two acres, and also the regional water pollution control facility. In its preface to the development plan, the development corporation stated that its goals G A L E
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were to create a development that would complement the facility that Pfizer was planning to build, create jobs, increase tax and other revenues, encourage public access to and use of the city’s waterfront, and eventually “build momentum” for the revitalization of the rest of the city, including its downtown area. The development plan itself is divided into seven parcels of land. Parcel 1 will include a waterfront hotel and conference center, along with marinas for both transient tourist boaters, and commercial fishing vessels. Parcel 1 also will include a public walkway along the waterfront. Parcel 2 will provide for approximately eighty new residences, organized into an urban neighborhood and linked by public walkway to the remainder of the development plan, including the Fort Trumbull State Park. Space will be reserved at the southern end of parcel 2 for the United States Coast Guard Museum (museum), which will be moved to the development plan area from the nearby United States Coast Guard Academy. Parcel 3 is projected to have at least 90,000 square feet of high technology research and development office space and parking.5 This office space would be located close to other research and development facilities, including those of Pfizer. The location of parcel 3 allows for direct vehicular access to the development therein, obviating the need for that traffic to pass through the rest of the development area. Parcel 3 also will retain the existing Italian Dramatic Club, a private social organization with its own building. Four properties owned by three of the plaintiffs are located on parcel 3. A major health club complex available to hotel guests and other city residents initially had been planned for parcel 3. It subsequently was relocated to parcel 1 as part of the hotel and conference center complex because, according to Admiral David Goebel, the development corporation’s chief operating officer, the development corporation and its consultants had 5 A major health club complex available to hotel guests and other city residents initially had been planned for parcel 3. It subsequently was relocated to parcel 1 as part of the hotel and conference center complex because, according to Admiral David Goebel, the development corporation’s chief operating officer, the development corporation and its consultants had concluded that there was “no stand-alone economic viability for such a health club.” The health club constructed pursuant to the development plan, however, will remain open to the public.
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concluded that there was “no stand-alone economic viability for such a health club.” The health club constructed pursuant to the development plan, however, will remain open to the public. Parcel 4 is subdivided into two smaller parcels, 4A and 4B. Parcel 4A is designated for “park support”; it will provide parking or retail services for the adjacent state park. Parcel 4B will include a marina, which will be a renovation of an existing marina and include slips for both recreational boating and commercial fishing operations. The walkway will be continued through these parcels. Eleven properties owned by four of the plaintiffs are located on parcel 4A. Parcel 5 also is subdivided into three separate parcels, which cumulatively will include 140,000 square feet of office space, parking and retail space. Parcel 6 will be developed for a variety of water-dependent commercial uses. Parcel 7 is small and will be used for additional office or research and development use. According to Admiral David Goebel, chief operating officer of the development corporation, the development corporation will own the land located within the development area. The development corporation will enter into ground leases of various parcels to private developers; those leases will require the developer to comply with the terms of the development plan. At the time of trial, the development corporation was negotiating with Corcoran Jennison, a developer, with the intention of entering into a ninety-nine year ground lease of parcels 1, 2 and 3 with the developer. Under the lease, Corcoran Jennison will pay the development corporation rent of $1 per year. Corcoran Jennison will actually develop the parcels, a process that includes marketing for and locating tenants. The development corporation estimated that the development plan, which is a composite of the most beneficial features of six alternate development plans that it had considered,6 6
The alternate plans considered by the development corporation included: (1) no action, with the assumption that some development activities would proceed under the direction of other entities, such as the United States Navy, without action by the development corporation; (2) recreational and cultural facilities to complement the adjacent state park; (3) residential construction with minor amounts of retail and office space; (4) a business campus supported by the hotel and conference center; and (5) two mixed use alternates combining residences, recreational, commercial, hotel and retail uses in differing arrangements.
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would have a significant socioeconomicimpact on the New London region. The development plan is expected to generate approximately between: (1) 518 and 867 construction jobs; (2) 718 and 1362 direct jobs; and (3) 500 and 940 indirect jobs. The composite parcels of the development plan also are expected to generate between $680,544 and $1,249,843 in property tax revenues for the city, in which 54 percent of the land area is exempt from property taxes. These gains would occur in a city that, with the exception of the new Pfizer facility adjacent to the development plan area that now employs approximately 2000 people, recently has experienced serious employment declines, particularly with the loss of approximately 1900 government sector positions, and the closure of the United States Naval Undersea Warfare Center in 1996, which transferred more than 1000 positions to Newport, Rhode Island.7 Indeed, the state office of policy and management has designated the city a “‘distressed municipality.’” The development corporation board approved the development plan in early 2000; the city council also approved it shortly thereafter.8 When it approved the development plan in January, 2000, the city council also had authorized the development corporation to acquire properties within the development area. Thereafter, in October, 2000, the development corporation voted to use the power of eminent domain to acquire properties within the development area whose owners had not been willing to sell them. In November, 2000, the development corporation filed the condemnation proceedings that gave rise to the actions presently on appeal. Thereafter, in December, 2000, the plaintiffs brought the present action challenging the condemnations. The trial court noted in its memorandum of decision that “[e]ach of the plaintiffs testified and said they wished to remain in their homes 7 The New London region has benefited economically by the opening and the expansion of casinos, specifically Foxwoods and Mohegan Sun. We note, however, that the city itself has not been a major beneficiary of this economic growth. 8 As required by statute; see General Statutes § 8-191; the state department of economic and community development, the state department of environmental protection, the state office of policy and management, and the Southeastern Connecticut Council of Governments, also approved the development plan. Hereafter, all references in this opinion to the department are to the department of economic and community development.
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for a variety of personal reasons. Two of the people referred to the fact that their families have lived in their homes for decades. They all testified that they loved their homes and the Fort Trumbull area. Several have put a lot of work into their property and all of them appeared . . . to be sincerely attached to their homes. One owner, [Susette] Kelo, loved the view her house afforded her and the fact that it was close to the water. All testified that they were not opposed to new development in the Fort Trumbull area. Also, two of the plaintiffs own their property as business investments-the rental of apartments. These two people have put much time, money and effort into renovating their properties, one has owned his property for seventeen years, the other for about eight years.” After a seven day bench trial, the court granted permanent injunctive relief to, and dismissed the pending eminent domain actions against, the four plaintiffs who live on parcel 4A of the development plan. The court, however, upheld the takings of the parcel 3 properties.9 This appeal and cross appeal followed. Additional facts and procedural history will be set forth in greater detail as necessary for the resolution of this appeal. I
WHETHER CHAPTER 132 OF THE GENERAL STATUTES APPLIES TO NONVACANT LANDSAND, THEREFORE, AUTHORIZED THE TAKING OF THE PLAINTIFFS’ LAND The plaintiffs’ first claim is that the trial court improperly determined that the development corporation has the authority to condemn the plaintiffs’ property under chapter 132 of the General Statutes.10 The plaintiffs contend that chapter 132; General Statutes § 8-186 et seq.; applies only to “unified land and water areas” and “vacated commercial plants,” and that their homes fit neither of those categories, because under the language and legislative history of 9
The trial court did, however, grant a temporary injunction to the parcel 3 property owners, pending the resolution of this case on appeal. 10 We first address the plaintiffs’ statutory claims because “[o]rdinarily, [c]onstitutional issues are not considered unless absolutely necessary to the decision of a case.” (Internal quotation marks omitted.) Bauer v. Waste Management of Connecticut, Inc., 234 Conn. 221, 230, 662 A.2d 1179 (1995).
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chapter 132, the statutory term “unified land and water areas” refers only to undeveloped land. The defendants claim, in response, that, in the context of the statutory language of the entire chapter, the term “unified land and water areas” includes developed land, and moreover, to conclude otherwise would frustrate the declared legislative purpose of restoring the state’s economic health. We agree with the defendants. We begin our analysis by reviewing the conclusions of the trial court on this issue. The trial court noted that it was undisputed that the development corporation attempted to exercise its eminent domain powers pursuant to only chapter 132 of the General Statutes, and stated that it would construe the eminent domain statutes strictly against the condemning authority. The trial court rejected the plaintiffs’ arguments that chapter 132 applies only to: (1) multimunicipality districts; and (2) undeveloped land other than vacated commercial plants. The court conducted a thorough analysis of the chapter’s language and legislative history, and concluded that references throughout the chapter to “structures” and “demolition,” as well as the requirement in General Statutes § 8189(f) that a plan exist for relocating project area occupants, indicated that the chapter applies to developed land as well as vacant land. In so concluding, the court rejected the plaintiffs’ argument that the subsequent addition of “vacated commercial plants” to the chapter was necessary because, otherwise, the statute would apply only to vacant land.11 We first set forth the applicable standard of review, and the process by which we interpret statutes. “Statutory construction is a question of law and therefore our review is plenary.” (Internal quotation marks omitted.) Grondin v. Curi, 262 Conn. 637, 649, 817 A.2d 61 (2003). “[T]he process of statutory interpretation involves a reasoned search for the intention of the legislature. . . . In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply. In seeking to determine that 11 The trial court also rejected the plaintiffs’ contention that chapter 132 of the General Statutes applies only to multimunicipality economic development projects on contiguous land areas. We need not address this conclusion in any detail because the plaintiffs have not challenged it on appeal.
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meaning, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.”12 Internal quotation marks omitted.) Commissioner of Social Services v. Smith, 265 Conn. 723, 734, 830 A.2d 228 (2003). We begin our analysis of this claim by reviewing the language of the relevant sections of chapter 132 of the General Statutes. The chapter begins with General Statutes § 8-186,13 which is the legislative declaration of policy recognizing that the state’s “economic welfare” is dependent on the “growth of industry and business . . . .” Section 8-186 provides, inter alia, that “permitting and assisting municipalities to acquire and improve unified land and water areas and to acquire and improve or demolish vacated commercial plants for industrial and business purposes . . . are public uses and purposes for which public moneys may be expended; and that the necessity in the public interest for the provisions of this chapter is hereby declared as a matter of legislative determination.”14 (Emphasis added.) General Statutes § 8-18715 is the chapter’s definitions section, providing most significantly that “‘real property’ means land, subterranean or subsurface rights, structures, any and all easements, air rights and franchises and 12
With regard to this purposive approach to statutory interpretation, our legislature recently has enacted Public Acts 2003, No. 03-154, § 1 (P.A. 03-154), which provides: “The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.” This case does not implicate P.A. 03154. We note that, in the present case, the relevant statutory text and the relationship of that text to other statutes is not “plain and unambiguous . . . .” P.A. 03-154. Accordingly, our analysis is not circumscribed to an examination of text alone, but rather properly may consider the various other sources helpful in the ascertainment of statutory meaning. 13 General Statutes § 8-186 provides: “It is found and declared that the economic welfare of the state depends upon the continued growth of industry and business within the state; that the acquisition and improvement of unified land and water areas and vacated commercial plants to meet the needs of industry and business should be in accordance with local, regional and state planning objectives; that such acquisition and improvement often cannot be accomplished through the ordinary operations of private enterprise at
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every estate, right or interest therein . . . .” (Emphasis added.) General Statutes § 8-187(9). General Statutes § 8-18916 describes the requirements that the development agency must follow in preparing the mandatory project plan, which include providing “a plan for relocating projectarea occupants . . . .” General Statutes § 8-189(f). General Statutes § 8-19317 permits the development agency to acquire real property within the project area, including through the exercise of the eminent domain power as authorized by the city council. General Statutes § 8-19818 provides for the promulgation of regulations to carry out the provisions of chapter 132. Finally, General Statutes § 8-19919 provides that all actions taken by the development agency are taken in the name of the municipality. The statutory term whose meaning is in dispute is “unified land and water areas”; General Statutes § 8-186; a phrase that is not defined expressly in any section of chapter 132 of the General Statutes. Thus, in construing the term, we look to its commonly approved usage, an inquiry that often is enhanced by the examination of dictionary definitions. See, e.g., Hasselt v. Lufthansa German Airlines, 262 Conn. 416, 425, 815 A.2d 94 (2003) (utilizing Merriam-Webster’s Collegiate Dictionary definition to construe statutory term “including”); see also General Statutes § 1-1(a). Merriam-Webster’s Third New International Dictionary defines “unified” as the competitive rates of progress and economies of cost; that permitting and assisting municipalities to acquire and improve unified land and water areas and to acquire and improve or demolish vacated commercial plants for industrial and business purposes and, in distressed municipalities, to lend funds to businesses and industries within a project area in accordance with such planning objectives are public uses and purposes for which public moneys may be expended; and that the necessity in the public interest for the provisions of this chapter is hereby declared as a matter of legislative determination.” 14 Chapter 132 of the General Statutes originally had referred only to “unified land areas.” Public Acts 1967, No. 760, § 1. The legislature amended it to include the present term “unified land and water areas” in 1975. Public Acts 1975, No. 75-480, § 1. 15 General Statutes § 8-187 provides: “As used in this chapter, (1) ‘municipality’ means a town, city, consolidated town and city or consolidated town and borough; (2) ‘legislative body’ means (A) the board of selectmen in a town that does not have a charter, special act or home rule ordinance relating to its government or (B) the council, board of aldermen, representative town meeting, board of selectmen or other elected legislative body described in a charter, special act or home rule ordinance relating to government in a city,
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adjective form of “unify,” which means “make into a coherent group or whole . . . .” Accordingly, we conclude that, as used in § 8-186 of chapter 132, a “unified land and water [area]” is one that exists because of the combination of separate land parcels into a unitary development scheme,20 a definition that undisputedly fits the Fort Trumbull development plan in the present case. This definition, however, does not resolve the issue of whether a unified land and water area under chapter 132 is limited to vacant land. Accordingly, we must continue our analysis by examining the term in the context of both the language of the chapter as a whole, and the legislative history.
Pt. 2, 1980 Sess., p. 453, remarks of Representative Joseph J. Farricielli (“This bill would attempt to remove confusing language defining land and the real property in Chapter 132 as compared to Chapter 130 of the General Statutes. It would clarify the meaning of real property as applied to state assisted municipal industrial development rights.”); see also 23 S. Proc., Pt. 3, 1980 Sess., pp. 660-61, remarks of Senator Sanford Cloud, Jr. (same). Even more significantly, § 8-193(a), which provides authorization for the acquisition of real property by eminent domain; see footnote 17 of this opinion; does not include or exclude any specific type of real property, leaving us only to conclude that the power applies to “‘real property,’” as broadly defined in § 8-187(9).
We conclude that the term “unified land and water areas” in § 8-186 is not limited to vacant land. The language and legislative history of chapter 132 of the General Statutes in its entirety are replete with references that compel this conclusion. For example, § 8-187(9), the chapter’s definition of “‘real property,’” includes “structures” expressly within its ambit. See footnote 15 of this opinion. Moreover, the legislative history indicates that § 8-187(9) was enacted as Public Acts 1980, No. 80-18, to clarify the meanings of the terms “land” and “real property” as used in chapter 132, and to make them consistent with the definitions provided in chapter 130 of the General Statutes, the urban renewal statutes.21 See 23 H.R. Proc.,
Another probative definition is that of “‘development project,’” which is defined as “a project conducted by a municipality for the assembly, improvement and disposition of land or buildings or both to be used principally for industrial or business purposes and includes vacated commercial plants . . . .” (Emphasis added.) General Statutes § 8-187(4). This definition is significant because the use of the word “includes” in the phrase “includes vacated commercial plants” indicates firmly that vacated commercial plants are not the only structures contemplated by the legislature as potentially present in a development area. See
consolidated town and city, consolidated town and borough or a town having a charter, special act, consolidation ordinance or home rule ordinance relating to its government; (3) ‘development agency’ means the agency designated by a municipality under section 8-188 through which the municipality may exercise the powers granted under this chapter; (4) ‘development project’ means a project conducted by a municipality for the assembly, improvement and disposition of land or buildings or both to be used principally for industrial or business purposes and includes vacated commercial plants; (5) ‘vacated commercial plants’ means buildings formerly used principally for business or industrial purposes of which more than fifty per cent of the usable floor space is, or which it is anticipated, within eighteen months, shall be, unused or substantially underutilized; (6) ‘project area’ means the area within which the development project is located; (7) ‘commissioner’ means the Commissioner of Economic and Community Development; (8) ‘planning commission’ means the planning and zoning commission designated pursuant to section 8-4a or the planning commission created pursuant to section 8-19; (9) ‘real property’ means land, subterranean or subsurface rights, structures, any and all easements, air rights and franchises and every estate, right or interest therein; and (10) ‘business purpose’ includes, but is not limited to, any commercial, financial or retail enterprise and includes any
enterprise which promotes tourism and any property that produces income.” (Emphasis added.) 16 General Statutes § 8-189 provides: “The development agency may initiate a development project by preparing a project plan therefor in accordance with regulations of the commissioner. The project plan shall include: (a) A legal description of the land within the project area; (b) a description of the present condition and uses of such land or building; (c) a description of the types and locations of land uses or building uses proposed for the project area; (d) a description of the types and locations of present and proposed streets, sidewalks and sanitary, utility and other facilities and the types and locations of other proposed site improvements; (e) statements of the present and proposed zoning classification and subdivision status of the project area and the areas adjacent to the project area; (f) a plan for relocating project-area occupants; (g) a financing plan; (h) an administrative plan; (i) a marketability and proposed land-use study or building use study if required by the commissioner; (j) appraisal reports and title searches; (k) a statement of the number of jobs which the development agency anticipates would be created by the project and the number and types of existing housing units in the municipality in which the project would be located, and in contiguous municipalities, which would be available to employees filling such jobs; and
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Hasselt v. Lufthansa German Airlines, supra, 262 Conn. at 424-25, 815 A.2d 94 (Court construed General Statutes § 31-307a [c], which “imposes liability on the [second injury] fund to reimburse employers for adjustments, including lump-sum payments . . . . Construing the word including according to its ordinary usage, however, must mean that the fund is required as well to reimburse employers for something other than those retroactive [cost of living adjustments] paid in a lump sum.” [Citation omitted; internal quotation marks omitted.]). Moreover, § 8-189, which describes the requirements that the development agency must follow in preparing the required project plan, requires the agency to provide “a plan for relocating project-area occupants . . . .” General Statutes § 8-189(f); see footnote 16 of this opinion. This is a requirement that, by definition, contradicts the plaintiffs’ argument that “unified land and water areas” is limited to vacant land; it is axiomatic that vacant land has no occupants to relocate. Furthermore, the commissioner’s regulations, promulgated pursuant to § 8-198, support the conclusion that “unified land and water areas” under chapter 132 of the General Statutes include occupied, and indeed, residential, land. Section 8-198-10 of the Regulations of Connecticut State Agencies,22 the regulation providing for the determination of funding for development grants, provides that “[t]he
amount of funds available to a municipality for development grants is based on a percentage of the net project cost. The net project cost is the total project cost less the estimated income from the project.” Regs., Conn. State Agencies § 8-198-10(a). We note that one factor that may be calculated into project cost is relocation expenses; Regs., Conn. State Agencies § 8-19810(a)(7); and that another factor that may be calculated into project income is income gained from “the temporary use of land, residences or businesses prior to their dispositions . . . .” Regs., Conn. State Agencies § 8-198-10(b)(2). These regulations are particularly probative in light of the well established proposition that “unless [administrative regulations] are shown to be inconsistent with the authorizing statute, they have the force and effect of a statute.” (Internal quotation marks omitted.) Andersen Consulting, LLP v. Gavin, 255 Conn. 498, 520 n. 15, 767 A.2d 692 (2001). We particularly are persuaded by the fact that the commissioner responsible for the implementation of chapter 132 has implemented regulations pursuant to that chapter that consider expressly residences, and their relocation, as factors for calculating the funding of development grants. Cf. MacDermid, Inc. v. Dept. of Environmental Protection, 257 Conn. 128, 138, 778 A.2d 7 (2001) (“it is the well established practice of this court to accord great deference to the construction given [a]
(l) findings that the land and buildings within the project area will be used principally for industrial or business purposes; that the plan is in accordance with the plan of development for the municipality adopted by its planning commission and the plan of development of the regional planning agency, if any, for the region within which the municipality is located; that the plan is not inimical to any state-wide planning program objectives of the state or state agencies as coordinated by the Secretary of the Office of Policy and Management; that the project will contribute to the economic welfare of the municipality and the state; and that to carry out and administer the project, public action under this chapter is required. Any plan which has been prepared by a redevelopment agency under chapter 130 may be submitted by the development agency to the legislative body and to the commissioner in lieu of a plan initiated and prepared in accordance with this section, provided all other requirements of this chapter for obtaining the approval of the commissioner of the project plan are satisfied.” (Emphasis added.) 17 General Statutes § 8-193 provides: “(a) After approval of the development plan as provided in this chapter, the development agency may proceed by purchase, lease, exchange or gift with the acquisition or rental of real property within the project area and real property and interests therein for rightsof-way and other easements to and from the project area. The
development agency may, with the approval of the legislative body, and in the name of the municipality, acquire by eminent domain real property located within the project area and real property and interests therein for rights-of-way and other easements to and from the project area, in the same manner that a redevelopment agency may acquire real property under sections 8-128 to 8-133, inclusive, as if said sections specifically applied to development agencies. The development agency may, with the approval of the legislative body and, of the commissioner if any grants were made by the state under section 8-190 or 8195 for such development project, and in the name of such municipality, transfer by sale or lease at fair market value or fair rental value, as the case may be, the whole or any part of the real property in the project area to any person, in accordance with the project plan and such disposition plans as may have been determined by the commissioner.” “(b) A development agency shall have all the powers necessary or convenient to undertake and carry out development plans and development projects, including the power to clear, demolish, repair, rehabilitate, operate, or insure real property while it is in its possession, to make site improvements essential to the preparation of land for its use in accordance with the development plan, to install, construct or reconstruct streets, utilities and other improvements necessary for carrying out the objectives of the development
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statute by the agency charged with its enforcement” [internal quotation marks omitted]). The plaintiffs claim that the text and legislative history of chapter 132 of the General Statutes indicate that unified land and water areas do not include land already developed with business and residences. Specifically, they contend that a construction of “unified land and water areas” that includes developed or occupied land renders the subsequent addition of “vacated commercial plants” superfluous. They also contend that the legislative genealogy and history indicates that the legislature did not intend the term “unified land and water areas” to include occupied land because references within the chapter pertinent to occupied land, such as those of demolition and rehabilitation, were added only after the vacated commercial plant provision was enacted in 1972. Finally, the plaintiffs contend that construing “unified land and water areas” to include occupied land would be excessively broad in light of the strict construction given to eminent domain statutes. We disagree with these contentions, and address each in turn. We first conclude that construing “unified land and water areas” as including occupied land does not render the “vacated commercial plants” provision of § 8-186 superfluous. Indeed, the legislative history indicates that, in enacting chapter 132 of the General Statutes, the legislature envisioned two different types of economic project, and, in distressed municipalities, as defined in section 32-9p, to lend funds to businesses and industries in a manner approved by the commissioner.” (Emphasis added.) 18 General Statutes § 8-198 provides: “The commissioner is authorized to make and enforce reasonable regulations to carry out the provisions of this chapter.” 19 General Statutes § 8-199 provides: “Any development agency shall exercise its powers in the name of the municipality, and all bonds issued pursuant to this chapter shall be issued in the name of the municipality and title to land taken or acquired pursuant to a development plan shall be solely in the name of the municipality.” 20 This definition is not inconsistent with the legislative history of Public Acts 1967, No. 760, which reveals that the act was intended to enable and encourage industrial development in districts that are comprised of more than one municipality. Representative William S. Mayer, sponsor of the legislation, stated: “This particular bill will be of interest to towns interested in industrial development not only within their own confines but within multi-town districts. A section of this particular act provides that towns can get together to develop industrial land on contiguous borders.” 12 H.R. Proc., Pt. 10, 1967 Sess., pp. 4917-18.
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development plans, one aimed at developing unified land areas, or combinations of multiple parcels of land, and the other intended to revitalize underutilized commercial buildings. In introducing the bill that was enacted as Public Acts 1972, No. 87, which added the “vacant commercial plant” language to chapter 132, Senator Lawrence J. DeNardis stated that “this Bill will allow municipalities through their development agencies, to acquire [improve] and rehabilitate vacant commercial plants. At present, municipalities can acquire and improve unified land areas as it is worded in the present Statutes. They also have the power to clear, repair, operate and insure real property. This Bill would add the additional power of rehabilitation to the list and furthermore, it would add vacated commercial plants to the areas that can be dealt with or the matters that could be dealt with . . . . [T]he intent of this Bill is to improve the economic climate of the State by furthering industry and thereby creating jobs.” (Emphasis added.) 15 S. Proc., Pt. 2, 1972 Sess., p. 785.23 Put differently, chapter 132 does not require that a vacated commercial plant be located within a unified land and water area; they merely present two different opportunities for economic development. Accordingly, we conclude that a construction of the term “unified land and water areas” in § 8-186 that includes developed or occupied land does not render the 1972 addition of “vacated commercial plants” superfluous. 21 Indeed, § 8-187(9) is identical to the definition of “‘[r]eal property’” found in chapter 130 of the General Statutes, the urban renewal chapter. See General Statutes § 8-125(f). 22
Section 8-198-10 of the Regulations of Connecticut State Agencies provides in relevant part: “(a) The amount of funds available to a municipality for development grants is based on a percentage of the net project cost. The net project cost is the total project cost less the estimated income from the project. Eligible project costs include: (1) real estate acquisition and disposition financing for a period; (2) site clearance; (3) site development; (4) planning and engineering; (5) administration of the project; (6) interest costs for temporary and definitive financing for a period not to exceed five years on a principal amount not to exceed the required matching local share; and (7) relocation. The purchase of vehicles and interim and final audits are not eligible costs. Interim audits are required every two years through the duration of the development project.
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We also reject the plaintiffs’ contention that the legislative genealogy of § 8-186 indicates that the legislature did not intend “unified land and water areas” to include occupied land because references within chapter 132 of the General Statutes pertinent to occupied land, such as those to demolition and rehabilitation, were added only after the vacated commercial plant provision was enacted in 1972. Our reading of the legislative history, and particularly the original 1967 Public Act, contradicts the plaintiffs’ construction of the chapter. The plaintiffs note correctly that “rehabilitate” was not added to the development agency’s powers under § 8-193(b) until 1972; see Public Acts 1972, No. 87, § 3; and that the power to “demolish” vacated commercial plants was not added until 1974; see Public Acts 1974, No. 74184, § 6(b);24 both of which occurred after vacated commercial plants were added to the scope of the chapter. Our reading, however, of the original 1967 Public Act, which only provided for the development of unified land and water areas, reveals that the legislature contemplated unified land and water areas as including occupied land. Indeed, § 8-189(f), which requires the development agency to submit “a plan for relocating project-area occupants,” was included in the 1967 act.25 See Public Acts 1967, No. 760, § 4(f). Accordingly, we disagree with the plaintiffs’ contention that the legislative history of § 8-186 necessarily indicates that the legislature intended “unified land and water areas” to be limited to vacant land. We next address the plaintiffs’ contention that construing “unified land and water areas” to include occupied land would be excessively broad in light of the strict construction applied
to eminent domain statutes. We are mindful of the well established proposition that “[t]he authority to condemn [is to] be strictly construed in favor of the owner of the property taken and against the condemnor . . . .” State v. McCook, 109 Conn. 621, 630, 147 A. 126 (1929). We also note, however, that “[t]he statute . . . should be enforced in such a way as to effectuate the purpose for which it was enacted.” (Internal quotation marks omitted.) Pequonnock Yacht Club, Inc. v. Bridgeport, 259 Conn. 592, 601-602, 790 A.2d 1178 (2002). We conclude that construing the ambiguous term “unified land and water areas” in § 8-186 as including occupied land is not impermissibly broad; indeed, the language of other provisions in chapter 132 of the General Statutes compels this conclusion, and our review of the legislative history reveals nothing to contradict it Moreover, a construction limiting the application of the unified land and water areas provisions of chapter 132 to vacant land would undercut severely the chapter’s declared purpose of promoting economic development, particularly as the state’s stock of vacant land diminishes. This construction largely would limit the applicability of chapter 132 in urban and suburban areas to vacated commercial plants standing alone; the presence of a structure in the project area that does not meet the definition of vacated commercial plant would disrupt the entire economic development plan because it would need to be built around. This would make the parcels unattractive for investment by developers, and would, therefore, thwart the declared purpose of chapter 132. See General Statutes § 8186. Accordingly, we conclude that the trial court
(b) The project income includes monies or the value of goods and services received from: (1) the sale or lease of land; (2) the temporary use of land, residences or businesses prior to their dispositions; (3) the sale or lease of sand, gravel, or other earthen materials; (4) the sale or lease of buildings, machinery, equipment or other materials of value, occupying land areas within the project area; (5) other state grants; (6) federal capital grants approved for a nondistressed municipality; and (7) Interest income realized from the investment of project monies . . . .” (Emphasis added.) 23 See also 15 H.R. Proc., Pt. 4, 1972 Sess., p. 1439, remarks of Representative Victor Tudan (“[T]his Bill will allow municipalities through development agencies to acquire,
improve and rehabilitate vacated commercial properties. At present municipalities can acquire and improve unified land areas only. They also have the power to clear, repair, operate and insure real property. This Bill adds rehabilitate to this list.” [Emphasis added.]). 24 Public Act 74-184, § 1, also amended § 8-186, to declare expressly that it is a public use and purpose “to acquire and improve or demolish vacated commercial plants for industrial or business purposes . . . .” (Emphasis added.) 25 Accordingly, we disagree with the plaintiffs’ contention that the requirement of a relocation plan refers to the chapter’s definition of vacated commercial plant, which contemplates partial occupation. See General Statutes § 8187(5) (“‘vacated commercial plants’ means buildings formerly used principally for business or industrial purposes of which more than fifty per cent of the usable floor space is, or which it is anticipated, within eighteen months, shall be, unused or substantially underutilized”).
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properly construed the term “unified land and water areas” in § 8-186 of chapter 132 as not excluding developed or occupied land. II
WHETHER ECONOMIC DEVELOPMENT IS A PUBLIC USE UNDER THE STATE AND FEDERAL CONSTITUTIONS We next address the principal issue in this appeal, which is the plaintiffs’ claim that the trial court improperly concluded that the use of eminent domain for economic development does not violate the public use clauses of the state and federal constitutions. Specifically, the plaintiffs contend that: (1) economic development as contemplated in chapter 132 of the General Statutes is not a public use under the state and federal constitutions; (2) even if economic development is a public use, the condemnations in the present case do not promote sufficient public benefit to pass constitutional muster; and (3) the condemnation of parcels 3 and 4A lack a reasonable assurance of future public use because private parties retain control over the parcels’ use. We address each contention in turn. A
Whether Economic Development Is a Public Use under the State and Federal Constitutions The plaintiffs’ first contention is that the trial court improperly concluded that economic development under chapter 132 of the General Statutes, namely, the development plan in the present case, is a public purpose that satisfies the public use clauses of article first, § 11, of the Connecticut constitution,26 and the fifth amendment to the United States constitution.27 Specifically, they claim that the condemnation of property for economic development by private 26
Article first, § 11, of the constitution of Connecticut provides: “The property of no person shall be taken for public use, without just compensation therefor.” 27 The fifth amendment to the United States constitution provides in relevant part: “No person shall be . . . deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” (Emphasis added.) The fifth amendment’s public use clause has been made applicable to the states through the fourteenth amendment to the United States constitution. See, e.g., Hawaii Housing Authority v. Midkiff, 467 U.S. 229, 231, 104 S.Ct. 2321, 81 L.Ed.2d 186 (1984). 28 We note that, in Bugryn v. Bristol, 63 Conn.App. 98, 10304, 774 A.2d 1042, cert. denied, 256 Conn. 927, 776 A.2d 1143, cert. denied, 534 U.S. 1019, 122 S.Ct. 544, 151 L.Ed.2d 422 (2001), the Appellate Court rejected a factual challenge to the trial court’s finding that the plaintiffs’ land was not
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parties is inconsistent with this court’s prior public use decisions because: (1) the new owner will not provide a public service or utility; and (2) the condemnation will not remove blight conditions that are, in and of themselves, harmful to the public. In response, the defendants contend that by concluding that economic development is by itself a public use justifying the exercise of the eminent domain power, the trial court properly deferred to state and municipal legislative determinations. We conclude that economic development projects created and implemented pursuant to chapter 132 that have the public economic benefits of creating new jobs, increasing tax *27 and other revenues, and contributing to urban revitalization, satisfy the public use clauses of the state and federal constitutions.28 We begin by setting forth the applicable statutory framework. The legislative determination at issue in the present case is provided by § 8-186, which provides that as a matter of legislative finding and declaration, “that the economic welfare of the state depends upon the continued growth of industry and business within the state; that the acquisition and improvement of unified land and water areas and vacated commercial plants to meet the needs of industry and business should be in accordance with local, regional and state planning objectives; that such acquisition and improvement often cannot be accomplished through the ordinary operations of private enterprise at competitive rates of progress and economies of cost; that permitting and assisting municipalities to acquire and improve unified land and water areas and to acquire and improve or demolish vacated commercial plants for industrial and business purposes . . . are public uses and purposes for condemned for the purpose of benefiting and retaining a private manufacturer. The Appellate Court’s decision in Bugryn, however, is of limited value in resolving the particular issue in the present case, because the parties in that case did not dispute the proposition that the development of an industrial park is a public use. Id., at 104, 774 A.2d 1042. The court in that case did note that, even if the industrial park plan did benefit the manufacturer, the public use of industrial park development was not disputed, and “[w]here the public use which justifies the taking of the area in the first instance exists, an element over which there is no controversy in the present case, that same public purpose continues even though the property is later transferred to private persons.” (Internal quotation marks omitted.) Id.; Broadriver, Inc. v. Stamford, 158 Conn. 522, 533-34, 265 A.2d 75 (1969), cert. denied, 398 U.S. 938, 90 S. Ct. 1841, 26 L.Ed.2d 270 (1970).
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which public moneys may be expended; and that the necessity in the public interest for the provisions of this chapter is hereby declared as a matter of legislative determination.” (Emphasis added.) The trial court concluded that this language did not violate the public use clauses of either the state or the federal constitutions. In so concluding, the trial court relied on decisions from this court and the United States Supreme Court, but especially Hawaii Housing Authority v. Midkiff, 467 U.S. 229, 239-40, 104 S.Ct. 2321, 81 L.Ed.2d 186 (1984), Berman v. Parker, 348 U.S. 26, 31-32, 75 S.Ct. 98, 99 L.Ed. 27 (1954), Katz v. Brandon, 156 Conn. 521, 532-34, 245 A.2d 579 (1968), Gohld Realty Co. v. Hartford, 141 Conn. 135, 141-43, 104 A.2d 365 (1954), and Olmstead v. Camp, 33 Conn. 532, 546 (1866). After reviewing the authorities, the trial court concluded that both this court and the United States Supreme Court consistently have taken a broad, purposive view of the concept of public use, and accordingly have taken a deferential approach to legislative pronouncements of public use. The trial court, however, also emphasized that the public use question is ultimately a judicial inquiry. Ultimately, the trial court concluded that the purpose of chapter 132 of the General Statutes, as expressed in § 8-186; see footnote 13 of this opinion; was an appropriate public use that passed muster under both state and federal constitutions, stating that “[e]conomic growth and its encouragement, especially in ‘distressed municipalities’ is a valid public use because it obviously confers a benefit to all members of the public.” Accordingly, the trial court concluded that “the language of chapter 132 authorizing the use of eminent domain power for the purpose of accomplishing economic development in designative project areas [is not] violative of the federal or state eminent domain clauses of their respective constitutions.”
We note that the trial court approached the plaintiffs’ general claim about whether economic development is a constitutional public use in the context of a facial attack on the provisions of chapter 132 of the General Statutes that authorize the use of eminent domain. Although the plaintiffs do not argue expressly that these statutory provisions are unconstitutional, we will address this particular claim as a facial attack on the constitutionality of chapter 132 inasmuch as it authorizes the use of eminent domain for private economic development. Accordingly, “we proceed from the well recognized jurisprudential principle that [t]he party attacking a validly enacted statute . . . bears the heavy burden of proving its unconstitutionality beyond a reasonable doubt and we indulge in every presumption in favor of the statute’s constitutionality . . . . The burden of proving unconstitutionality is especially heavy when, as at this juncture, a statute is challenged as being unconstitutional on its face.” (Citation omitted; internal quotation marks omitted.) State v. Ball, 260 Conn. 275, 280-81, 796 A.2d 542 (2002).
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Neighborhood Council v. Detroit, 410 Mich. 616, 633-35, 304 N.W.2d 455 (1981), which typically would support the separate state constitutional analysis required as a threshold matter for review by well established Connecticut precedent. See, e.g., State v. DeJesus, 260 Conn. 466, 480 n. 11, 797 A.2d 1101 (2002) (separate state analysis required); State v. Geisler, 222 Conn. 672, 684-85, 610 A.2d 1225 (1992) (factors governing construction of state constitution enumerated). Moreover, the plaintiffs’ principal brief, does not contain a discussion of any relevant federal precedent, such as Hawaii Housing Authority v. Midkiff, supra, 467 U.S. 229, 104 S.Ct. 2321, 81 L.Ed.2d 186. We do note, however, that they do cite three significant federal cases in their reply brief.
The plaintiffs, in seeking invalidation of the eminent domain provisions of chapter 132 of the General Statutes under the public use clauses of the federal and state constitutions, provide a single, unitary analysis that does not assert that the state constitution’s public use clause offers them greater protection than the federal constitution’s public use clause. Their approach is confusing to us because their principal brief otherwise is replete with citations to cases such as Gohld Realty Co. v. Hartford, supra, 141 Conn. 135, 104 A.2d 365, Southwestern Illinois Development Authority v. National City Environmental, LLC, 199 Ill.2d 225, 240-41, 263 Ill.Dec. 241, 768 N.E.2d 1, cert. denied, 537 U.S. 880, 123 S.Ct. 88, 154 L.Ed.2d 135 (2002), and Poletown
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Moreover, in light of the somewhat confusing constitutional posture of their principal and reply briefs,29 we also take the opportunity to clarify the scope of our review of the plaintiffs’ constitutional claims in the present case. In as much as the relevant public use language of the state and federal constitutions is virtually identical; see footnotes 26 and 27 of this opinion; the plaintiffs have not stated expressly that the Connecticut constitution offers them greater protection, and their claim presents an issue of first impression for this court, we will address simultaneously their federal and state claims. See Donahue v. Southington, 259 Conn. 783, 794 n. 7, 792 A.2d 76 (2002) (“If a party does not provide an independent analysis asserting the existence of greater protection
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under the state constitutional provision than its federal counterpart . . . we will not of our own initiative address that question . . . . Accordingly, the federal equal protection standard is considered prevailing for the purposes of our review of both the state and federal equal protection claims in this case.” [Internal quotation marks omitted.]). We now turn to the substance of the plaintiffs’ claims. This court long has taken a flexible approach to construction of the Connecticut public use clause. Indeed, our analysis begins in 1866, when this court, in Olmstead v. Camp, supra, 33 Conn. 532, first addressed the constitutional concept of public use. In Olmstead, the owner of a water powered mill used for the grinding of grain petitioned the court, pursuant to the flowage act, for permission to make improvements to the pond and dam that powered his mill. Id. These alterations necessarily would have resulted in flooding his neighbor’s land, and the neighbor had refused to accept compensation from the mill owner for the privilege of flooding his land.30 Id., at 532-33. This court concluded that the mill owner should be permitted to flood his neighbor’s land. Id., at 552. In interpreting Connecticut’s public use clause, the court rejected a strict construction that “the term ‘public use’ means possession, occupation, direct enjoyment, by the public.” Id., at 546. Instead, it concluded that “such a limitation of the intent of this important clause would be entirely different 30
A committee appointed pursuant to the flowage act recommended that the improvement be made, in furtherance of the public use. Olmstead v. Camp, supra, 33 Conn. at 534. With respect to public use, the trial court found that the mill operated generally for the public benefit in a farming community where people relied, but not exclusively, on it and other merchants to furnish food for people and animals. Id., at 536. The court also found that the mill owner had no legal obligation to allow the public access to the mill, or to do milling for the public himself. Id., at 537. The trial court then reserved for this court the question of whether allowing the improvements to the mill would be a public use. Id. 31 Even more tellingly, the court in Olmstead stated further: “In none of the cases to which we have referred does the public as an active agent take and hold and occupy the property in actual possession. The term ‘public use’ is synonymous with public benefit or advantage. It is equivalent to the language, so familiar in our statute in relation to highways, ‘of common convenience and necessity.’ “If there were any doubt on the subject on first principles, we understand it to be the settled law of the country that the flowing of land for the purposes of mills and manufactories, in view of its
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from its accepted interpretation, and would prove as unfortunate as novel. One of the most common meanings of the word ‘use’ as defined by [Webster’s Dictionary], is ‘usefulness, utility, advantage, productive of benefit.’ ‘Public use’ may therefore well mean public usefulness, utility or advantage, or what is productive of general benefit; so that any appropriating of private property by the state under its right of eminent domain for purposes of great advantage to the community, is a taking for public use. Such, it is believed, is the construction which has uniformly been put upon the language by courts, legislatures and legal authorities.”31 (Emphasis added.) Id. Moreover, the court in Olmstead laid the foundation for our deferential approach to legislative declarations of public use, stating that “[t]he question is asked with great pertinence and propriety, what then is the limit of the legislative power under the clause which we have been considering, and what is the exact line between public and private uses? Our reply is that which has heretofore been quoted. From the nature of the case there can be no precise line. The power requires a degree of elasticity to be capable of meeting new conditions and improvements and the ever increasing necessities of society. The sole dependence must be on the presumed wisdom of the sovereign authority, supervised, and in cases of gross error or extreme wrong, controlled, by the dispassionate judgment of the courts.” (Emphasis added.) Id., at 551; accord effect upon the community, is to be considered as a taking it for public use. It would be difficult to conceive a greater public benefit than garnering up the waste waters of innumerable streams and rivers and ponds and lakes, and compelling them with a gigantic energy to turn machinery and drive mills, and thereby build up cities and villages, and extend the business, the wealth, the population and the prosperity of the state. It is obvious that those sections of the country which afford the greatest facilities for the business of manufacturing and the mechanic arts, must become the workshops and warehouses of other vast regions not possessing these advantages; and must receive in exchange for the results of their industry and skill an abundant return of the rich products of the earth, including the precious metals. It is of incalculable importance to this state to keep pace with others in the progress of improvements, and to render to its citizens the fullest opportunity for success in an industrial competition. (Emphasis added.) Olmstead v. Camp, supra, 33 Conn. at 550-51.
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New York, N.H. & H.R. Co. v. Offield, 77 Conn. 417, 421, 59 A. 510 (1904) (in taking for railroad improvements, court held “[t]hat the uses to be furthered are public, is a question the decision of which by the legislative department, while not absolutely conclusive upon the judicial department . . . is entitled to very great weight”). This court has continued to afford the public use clause a broad construction, and repeatedly has embraced the purposive formulation first articulated in Olmstead v. Camp, supra, 33 Conn. at 546.32 In Gohld Realty Co. v. Hartford, supra, 141 Conn. at 139, 104 A.2d 365, the owner of commercial real estate challenged the constitutionality of the eminent domain provisions of the redevelopment act, under which land in blighted urban areas could be taken, cleared and sold or leased to redevelopers. The property owner contended that use of eminent domain in this manner violated the public use clause of the state constitution. Id., at 141, 104 A.2d 365. Utilizing the purposive definition of public use from Olmstead v. Camp, supra, 33 Conn. at 546, this court relied on express legislative findings about the deleterious effects of urban blight, and concluded that “there can be no doubt that the elimination of such substandard, insanitary, deteriorated, slum or blighted areas . . . is for the public welfare. Private property taken for the purpose of eradicating the conditions which obtain in such areas is taken for a public use.” Gohld Realty Co. v. Hartford, supra, at 143, 104 A.2d 365. Moreover, with respect to the provisions of the act allowing the taken land 32
Prior to the urban renewal cases, we note that this court has construed the phrase “public purpose,” in the context of spending public moneys, as synonymous with the term “public use.” In Barnes v. New Haven, 140 Conn. 8, 12-14, 98 A.2d 523 (1953), a taxpayer challenged the validity of an act creating a parking authority as lacking a public purpose under the emoluments clause, article first, § 1, of the Connecticut constitution. This court upheld the act as having the legitimate public purpose of addressing severe traffic problems, a situation that “calls for an appropriate exercise of the police power of the state operating through the city as one of its municipalities.” Id., at 14, 98 A.2d 523. The court noted that “[w]hether the act does provide for a legitimate public purpose in the constitutional sense involves the question whether it primarily serves, in a reasonable manner, to promote the public welfare . . . . If it does, that an incidental financial benefit may result to certain individuals as distinguished from the public at large does not deprive it of its legitimate public purpose.” (Citations omitted.) Id., at 14-15, 98 A.2d 523.
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to be sold or leased to private developers, the court concluded that “[i]f the public use which justifies the exercise of eminent domain in the first instance is the use of the property for purposes other than slums, that same public use continues after the property is transferred to private persons. The public purposes for which the land was taken are still being accomplished.” (Emphasis added.) Id., at 143-44, 104 A.2d 365. Although Barnes is a spending case, and not a taking case, it is significant in our resolution of the present case. Indeed, the court in Barnes expressly used the terms “public use” and “public purpose” in an interchangeable manner, a definition that we later adopted in Katz v. Brandon, supra, 156 Conn. at 532-33, 245 A.2d 579, a redevelopment taking case. Gohld Realty Co. was followed by Katz v. Brandon, supra, 156 Conn. 521, 245 A.2d 579.33 In Katz, a property owner brought an action to determine the validity of the taking of his home pursuant to a redevelopment plan in Hartford. Id., at 523, 245 A.2d 579. A manufacturing corporation had a plant with an employee parking lot near the plaintiff’s home. Id., at 525, 245 A.2d 579. The state had condemned this parking lot for the construction of an interstate highway. Id. The corporation had offered to build a parking garage in the area, should the city approve a redevelopment plan in the area. Id., at 525-26, 245 A.2d 579. Subsequently, the redevelopment agency approved a redevelopment plan in the area, which included the plaintiff’s land. Id., at 525, 245 A.2d 579. The city then met with the corporation and other local manufacturers to discuss the redevelopment area, which was found by the city and the agency to be blighted and unsafe. Id., at 526-27, 245 A.2d 579. The city did not enter into an agreement with the corporation to purchase or lease any of the land; the city was of the opinion that the project was necessary with or without the corporation’s participation. Id., at 527-28, 245 A.2d 579. Subsequently, the city approved the redevelopment project and acquired title to all properties in the area by purchase or eminent domain, including those of the plaintiff. Id., at 529-31, 245 A.2d 579. The plaintiff
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For the sake of clarity, we note that this court’s opinion in Katz v. Brandon, supra, 156 Conn. at 532-34, 245 A.2d 579, does not state whether its public use analysis is based specifically on either or both of the federal and state constitutions.
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brought an action, and contended that the takings were invalid because they were taken for the private purpose of inducing the corporation to remain in Hartford by providing a parking lot for its employees, rather than for a public purpose. Id., at 531, 245 A.2d 579. This court, relying on Gohld Realty Co. v. Hartford, supra, 141 Conn. at 143, 104 A.2d 365, rejected the plaintiff’s argument, and emphasized that the public use was the clearing of the blighted land. Katz v. Brandon, supra, 156 Conn. at 534, 245 A.2d 579. Indeed, the court in Katz further broadened our approach to public use, citing Barnes v. New Haven, 140 Conn. 8, 15-16, 98 A.2d 523 (1953), a public spending case. See footnote 32 of this opinion. Indeed, this court stated in Katz that “[a] public use defies absolute definition, for it changes with varying conditions of society, new appliances in the sciences, changing conceptions of the scope and functions of government, and other differing circumstances brought about by an increase in population and new modes of communication and transportation . . . . Courts as a rule, instead of attempting judicially to define a public as distinguished from a private purpose, have left each case to be determined on its own peculiar circumstances. Promotion of the public safety and general welfare constitutes a recognized public purpose . . . . The modern trend of authority is to expand and liberally construe the meaning of public purpose. The test of public use is not how the use is furnished but rather the right of the public to receive and enjoy its benefit.” (Citations omitted; emphasis added; internal quotation marks omitted.) Katz v. Brandon, supra, at 532-33, 245 A.2d 579;34 Barnes v. New Haven, supra, at 15, 98 A.2d 523. Accordingly, the court in Katz rejected the plaintiff’s argument that the redevelopment plan violated the public use requirement. Katz v. Brandon, supra, at 534, 245 A.2d 579. The United States Supreme Court has afforded similarly broad treatment to the federal public use clause. In Berman v. Parker, supra, 348 U.S. at 28-29, 75 S.Ct. 98, the Supreme 34
Indeed, this court in Katz v. Brandon, supra, 156 Conn. at 533, 245 A.2d 579, noted that “[i]n this day of keen competition to attract industry and business to a state or to a particular locality, public officials are expected to cooperate in helping an industry to locate in their community. They must be at all times alert in providing for future as well as present needs.” (Internal quotation marks omitted.)
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Court addressed the constitutionality of the District of Columbia’s redevelopment act, in which Congress had declared, as a matter of public policy, the acquisition of property necessary to eliminate blight conditions. The act allowed the redevelopment agency, once it acquired the property, to transfer it to redevelopment companies or individuals to carry out the plan; indeed, private enterprise was preferred over public agencies for execution of the plan. Id., at 30, 75 S.Ct. 98. The owner of a department store in the rehabilitation area challenged the taking of his property pursuant to the plan, and contended that it was unconstitutional because: (1) his property was not slum housing; and (2) it would be redeveloped and managed by private, and not public agencies, for private, and not public use. Id., at 31, 75 S.Ct. 98. The Supreme Court concluded that the redevelopment act was a valid exercise of the police power that Congress exercises over the District of Columbia. Id., at 34, 75 S.Ct. 98. The court adopted the broad, purposive view of eminent domain, and held that the police power, while generally undefinable, “is essentially the product of legislative determinations addressed to the purposes of government, purposes neither abstractly nor historically capable of complete definition. Subject to specific constitutional limitations, when the legislature has spoken, the public interest has been declared in terms well-nigh conclusive. In such cases the legislature, not the judiciary, is the main guardian of the public needs to be served by social legislation, whether it be Congress legislating concerning the District of Columbia . . . or the States legislating concerning local affairs . . . . This principle admits of no exception merely because the power of eminent domain is involved. The role of the judiciary in determining whether that power is being exercised for a public purpose is an extremely narrow one.” (Citations omitted; emphasis added.) Id., at 32, 75 S.Ct. 98. Moreover, the court stated that “[o]nce the object is within the authority of Congress, the right to realize it through the exercise of eminent domain is clear. For the power of eminent domain is merely the means to the end.” Id., at 33, 75 S.Ct. 98. Accordingly, the court concluded that, because the taking was for the public purpose of clearing blighted areas, the means of redevelopment through private A M E R I C A N
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enterprise did not violate the public use clause.35 Id. Indeed, the court also adopted a highly deferential approach to agency determination of necessity, allowing the agency to take the building despite the fact that it was, itself, not blighted. Id., at 33-34, 75 S.Ct. 98. “If the [a]gency considers it necessary in carrying out the redevelopment project to take full title to the real property involved, it may do so. It is not for the courts to determine whether it is necessary for successful consummation of the project that unsafe, unsightly, or insanitary buildings alone be taken or whether title to the land be included, any more than it is the function of the courts to sort and choose among the various parcels selected for condemnation.” Id., at 36, 75 S.Ct. 98. Ultimately, the court concluded that “[t]he rights of these property owners are satisfied when they receive that just compensation which the Fifth Amendment exacts as the price of the taking.” Id.
created a mechanism for the condemnation of residential land tracts by the Hawaii housing authority, with subsequent transfer of the condemned fees simple to existing lessees. Id., at 233, 104 S.Ct. 2321. The act provided for a hearing process to ensure that the condemnation would further the public purpose of the act. Id. Once the housing authority acquired the land and paid compensation to the landowners, it was authorized to sell the land to the tenant residing there,36 or to sell or lease it to other prospective purchasers. Id., at 234, 104 S.Ct. 2321. The act prohibited the sale or lease of more than one lot to the same person. Id. Landowners, whose land had been condemned pursuant to the act after a hearing, brought an action to have the law declared unconstitutional. Id., at 235, 104 S.Ct. 2321.
In response to this property crisis, the Hawaii legislature had enacted legislation that
The Supreme Court concluded, with “no trouble,” that the act was a constitutional exercise of the Hawaii legislature’s police powers because “[r]egulating oligopoly and the evils associated with it is a classic exercise of a State’s police powers.” Id., at 241-42, 104 S.Ct. 2321. The court relied on Berman v. Parker, supra, 348 U.S. at 31-33, 75 S.Ct. 98, and concluded that “[t]he ‘public use’ requirement is thus coterminous with the scope of a sovereign’s police powers.” Hawaii Housing Authority v. Midkiff, supra, 467 U.S. at 240, 104 S.Ct. 2321. Accordingly, the court stated that “where the exercise of the eminent domain power is rationally related to a conceivable public purpose, [this] Court has never held a compensated taking to be proscribed by the Public Use Clause.” Id., at 241, 104 S.Ct. 2321. As applied, the court concluded that the act was a “comprehensive and rational approach to identifying and correcting market failure.”37 Id., at 242, 104 S.Ct. 2321.
The court stated further: “The public end may be as well or better served through an agency of private enterprise than through a department of government-or so the Congress might conclude. We cannot say that public ownership is the sole method of promoting the public purposes of community redevelopment projects. What we have said also disposes of any contention concerning the fact that certain property owners in the area may be permitted to repurchase their properties for redevelopment in harmony with the over-all plan. That, too, is a legitimate means which Congress and its agencies may adopt, if they choose.” Berman v. Parker, supra, 348 U.S. at 33-34, 75 S.Ct. 98. 36 The housing authority also made loans for up to 90 percent of the purchase price available to the existingtenants. Hawaii
Housing Authority v. Midkiff, supra, 467 U.S. at 234, 104 S.Ct. 2321. 37 In taking a broad, purposive approach to public use, the United States Supreme Court further emphasized that “[t]he mere fact that property taken outright by eminent domain is transferred in the first instance to private beneficiaries does not condemn that taking as having only a private purpose . . . . The [Land Reform] Act advances its purposes without the State’s taking actual possession of the land. In such cases, government does not itself have to use property to legitimate the taking; it is only the taking’s purpose, and not its mechanics, that must pass scrutiny under the Public Use Clause.” (Citations omitted; emphasis added; internal quotation marks omitted.) Hawaii Housing Authority v. Midkiff, supra, 467 U.S. at 243-44, 104 S.Ct. 2321.
The broad purposive approach to the interpretation of the federal public use clause reached its zenith in 1984, with the Supreme Court’s decision in Hawaii Housing Authority v. Midkiff, supra, 467 U.S. at 239-40, 104 S.Ct. 2321. In that case, the Hawaii state legislature had attempted to address economic problems created by severely over-concentrated land ownership that remained as a vestige of the feudal land tenure scheme developed by the original Polynesian settlers. Id., at 232-33, 104 S.Ct. 2321. “The legislature concluded that concentrated land ownership was responsible for skewing the State’s residential fee simple market, inflating land prices, and injuring the public tranquility and welfare.” Id., at 232, 104 S.Ct. 2321.
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Moreover, in Midkiff, the Supreme Court reemphasized the Berman theme of judicial deference to the legislative public use determination, stating that the courts’ role “in reviewing a legislature’s judgment of what constitutes a public use, even when the eminent domain power is equated with the police power . . . is . . . extremely narrow . . . .” (Internal quotation marks omitted.) Id., at 240, 104 S.Ct. 2321. “In short, the Court has made clear that it will not substitute its judgment for a legislature’s judgment as to what constitutes a public use unless the use be palpably without reasonable foundation.”38 (Emphasis added; internal quotation marks omitted.) Id., at 241, 104 S.Ct. 2321. The court emphasized that this deference applies equally to determinations made by both Congress and the state legislatures, and that “[j]udicial deference is required because, in our system of government, legislatures are better able to assess what public purposes should be advanced by an exercise of the taking power . . . . Thus, if a legislature, state or federal, determines there are substantial reasons for an exercise of the taking power, courts must defer to its determination that the taking will serve a public use.” (Citation omitted; emphasis added.) Id., at 244, 104 S.Ct. 2321. Our analysis of the foregoing cases reveals that this state’s well established approach to judicial review of legislative public use determinations, first articulated more than 125 years ago in Olmstead v. Camp, supra, 33 Conn. at 546-51, is in harmony with the approach of the federal courts, as enunciated in Hawaii Housing Authority v. Midkiff, supra, 467 U.S. at 239-40, 104 S.Ct. 2321, and Berman v. Parker, supra, 348 U.S. at 31-32, 75 S.Ct. 98. Both federal and state courts place an overwhelming emphasis on the legislative purpose and motive behind the taking, and give substantial deference to the legislative determination of purpose. 38
The court also noted that whether the act is successful in solving Hawaii’s land problems is irrelevant to whether it was passed in furtherance of a valid public purpose. Hawaii Housing Authority v. Midkiff, supra, 467 U.S. at 242, 104 S.Ct. 2321 (“Of course, this [Land Reform] Act, like any other, may not be successful in achieving its intended goals. But whether in fact the provision will accomplish its objectives is not the question: the [constitutional requirement] is satisfied if . . . the . . . [state] Legislature rationally could have believed that the [Act] would promote its objective.” [Emphasis in original; internal quotation marks omitted.]).
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Accordingly, with this standard in mind, we turn to the plaintiffs’ specific claim, which is that economic development is not, by itself, a public use under either the United States or Connecticut constitutions. Under this broad and deferential constitutional rubric, we conclude that an economic development plan that the appropriate legislative authority rationally has determined will promote significant municipal economic development, constitutes a valid public use for the exercise of the eminent domain power under both the federal and Connecticut constitutions. Indeed, the courts of several of our sister states, using the same deferential and purposive approach to which we adhere, have arrived at the same conclusion. See Oakland v. Oakland Raiders, 32 Cal.3d 60, 69-72, 646 P.2d 835, 183 Cal.Rptr. 673 (1982) (concluding that city was not barred as matter of law from taking professional football franchise by eminent domain in order to keep it from moving to another city; remanding for complete determination of public benefit involved); Shreveport v. Chanse Gas Corp., 794 So.2d 962, 973 (La. App.2001) (relying on Berman, Midkiff, and relevant legislative declarations to conclude that “economic development, in the form of a convention center and headquarters hotel, satisfies the public purposes and public necessity requirement of [state constitution]”), cert. denied, 805 So.2d 209 (La.2002); Prince George’s County v. Collington Crossroads, Inc., 275 Md. 171, 191, 339 A.2d 278 (1975) (concluding in condemnation for industrial park that “projects reasonably designed to benefit the general public, by significantly enhancing the economic growth of the State or its subdivisions, are public uses [under state constitution], at least where the exercise of the power of condemnation provides an impetus which private enterprise cannot provide”); Poletown Neighborhood Council v. Detroit, 410 Mich. 616, 633-35, 304 N.W.2d 455 (1981) (A landmark case relying on legislative and redevelopment agency declarations and upholding, under the state constitution, the taking of private homes for the construction of a major car manufacturing assembly plant. “The power of eminent domain is to be used in this instance primarily to accomplish the essential public purposes of alleviating unemployment and revitalizing the economic base of the community. The benefit A M E R I C A N
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to a private interest is merely incidental.”);39 Duluth v. State, 390 N.W.2d 757, 761-64 Minn.1986) (relying on Midkiff and deferring to city council legislative determination to conclude that construction of large privately operated paper mill that would alleviate unemployment and contribute to city’s economic revitalization was public purpose justifying use of eminent domain under federal and state public use clauses); Kansas City v. Hon, 972 S. W.2d 407, 414 (Mo.App.1998) (airport expansion is public use that will be furthered by subsequent transfer of land to private aviation related corporation); Vitucci v. New York City School Construction Authority, 289 A.D.2d 479, 481, 735 N.Y.S.2d 560 (2001) (condemnee not entitled to right of first refusal when condemnor sold land to private party for “new public purpose; the expansion of the facilities of a major employer and economic force in the area”; “[i]f a municipality determines that a new business may create jobs, provide infrastructure, and stimulate the local economy, those are legitimate public purposes which justify the use of the power of eminent domain”); Jamestown v. Leevers, 552 N.W.2d 365, 369, 374 (N.D.1996) (“the stimulation of commercial growth and removal of economic stagnation sought by [state urban redevelopment act allowing acquisition of non-blighted urban property ‘in furtherance of economic development’] are
objectives satisfying the public use and purpose requirement of [federal and state public use clauses]”; reversing and remanding because “trial court made no finding whether the primary object of this development project is for the economic welfare of downtown Jamestown and its residents rather than for the benefit of private interests”); see also Armendariz v. Penman, 75 F.3d 1311, 1321 (9th Cir.1996) (stating in dicta that “[i]f the city council . . . had by ordinance declared that a shopping center on the plaintiffs’ property would serve a public use by, for example, increasing legitimate business traffic in the area and providing jobs for neighborhood residents, the city might have been able to acquire plaintiffs’ property through the payment of just compensation, under the power of eminent domain”);40 99 Cents Only Stores v. Lancaster Redevelopment Agency, 237 F.Supp.2d 1123, 1129-30 (C.D.Cal.2001) (redevelopment agency’s admitted use of eminent domain solely to satisfy “private expansion demands” of major anchor retailer violated federal public use clause, even under deferential analysis; court rejected as speculative argument that prevention of “future blight” upon departure of retailer was public use), appeal dismissed and remanded, 60 Fed.Appx. 123 (9th Cir.2003).
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the purpose of conveying that property to General Motors for construction of an assembly plant, was public use under the state constitution because of the economic benefits of the jobs and tax revenue that would result from the plant’s construction. Id., at 633-34, 304 N.W.2d 455. The majority opinion noted that the legislature had stated distinctly, in the state Economic Development Corporations Act, the public purposes of revitalizing the state’s economy and alleviating unemployment, and also had authorized municipalities to condemn properties for development as industrial or commercial sites, with subsequent transfer to private users. Id., at 630-31, 304 N.W.2d 455. Indeed, the court framed the issue in the case as “whether the proposed condemnation is for the primary benefit of the public or the private user.” Id., at 632, 304 N. W.2d 455. The majority deferred to the legislature’s determination of economic development as a legitimate public purpose. Id., at 633, 304 N.W.2d 455. The court stated “[w]hen there is . . . public need, [t]he abstract right [of an individual] to make use of his own property in his own way is compelled to yield to the general comfort and protection of community, and to a proper regard to relative rights in others . . . . Eminent domain is an inherent power of the sovereign of the same nature as, albeit more severe than, the power to regulate the use of land through zoning
The Michigan Supreme Court’s decision in Poletown Neighborhood Council is a landmark case in the use of eminent domain. We conclude that it warrants further discussion because it illustrates amply how the use of eminent domain for a development project that benefits a private entity nevertheless can rise to the level of a constitutionally valid public benefit. In that case, General Motors Corporation (General Motors) had informed the city of Detroit that it was going to close its Cadillac plant in three years, at the cost of more than 6000 jobs, and the following “loss of millions of dollars in real estate and income tax revenues.” Poletown Neighborhood Council v. Detroit, supra, 410 Mich. at 650-51, 304 N.W.2d 455 (Ryan, J., dissenting). General Motors offered to build a new assembly complex in the city, so long as a site suitable with regard to size and transportation access could be located. Id., at 638, 304 N.W.2d 455 (Fitzgerald, J., dissenting). The city proposed a number of sites, of which one, the neighborhood in question, met General Motors’ specifications. Id., at 637, 304 N.W.2d 455 (Fitzgerald, J., dissenting). The plaintiffs, a neighborhood association and various individual residents, brought an action to challenge the project. Id., at 628, 304 N.W.2d 455. The Michigan court concluded, in a per curiam opinion, that the taking of a residential neighborhood, for
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This line of cases is wholly consistent with the broad41 view of the public use clause that Connecticut and the federal courts follow. Accordingly, we find them persuasive, and we conclude that economic development plans that the appropriate legislative authority rationally has determined will promote municipal economic development by creating new jobs, increasing tax and other revenues, and otherwise revitalizing distressed urban areas, constitute a valid public use for the exercise of the eminent domain power under either the state or federal constitution. The plaintiffs contend that the Connecticut blight and substandard housing clearance cases, such as Katz v. Brandon, supra, 156 Conn. at 533-34, 245 A.2d 579, and Gohld Realty Co. v. Hartford, supra, 141 Conn. at 143-44, 104 A.2d 365, are inapposite because in those cases the private sector economic development was secondary to the primary purpose of the redevelopment act, under which the applicable public use was the removal of harmful urban blight or substandard conditions. The plaintiffs also cite a competing line of sister state cases, notably Southwestern Illinois Development Authority v. National City Environmental, LLC, 199 Ill.2d 225, 240-41, 263 Ill.Dec. 241, 768 N. E.2d 1, cert. denied, 537 U.S. 880, 123 S.Ct. 88, 154 L.Ed.2d 135 (2002), and urge this court to follow them and conclude that economic
development is not, by itself, a public use that justifies the use of eminent domain. We address each of these contentions in turn. We first address the plaintiffs’ contention that the blight and substandard housing clearance cases, namely, Katz v. Brandon, supra, 156 Conn. at 533, 245 A.2d 579, and Gohld Realty Co. v. Hartford, supra, 141 Conn. at 143-44, 104 A.2d 365, are inapplicable. Specifically, they contend that, in the present case, the primary legislative purpose is to transfer the property to private entities, which will become the primary beneficiary of the taking; accordingly, any benefit to the public from the taking is merely secondary. Their arguments contrast this scenario with that of the blight cases, wherein this court concluded that the primary purpose of the takings was the clearance of harmful urban conditions, with any benefit to private entities being secondary. Katz v. Brandon, supra, at 534, 245 A.2d 579; Gohld Realty Co. v. Hartford, supra, at 143-44, 104 A.2d 365. We disagree with the plaintiffs’ contentions because we already have determined that municipal economic development can be, in and of itself, a constitutionally valid public use under the well established broad, purposive approach that we take on this issue under both the federal and state constitutions. Accordingly, we also conclude that private benefit from such economic development is, just as in the blight and
or the prohibition of public nuisances.” (Citation omitted; internal quotation marks omitted.) Id., at 633-34, 304 N. W.2d 455. The court then noted that the economic benefits to the city of the condemnation are “clear and significant.” Id., at 634, 304 N.W.2d 455. The court stated: “The power of eminent domain is to be used in this instance primarily to accomplish the essential public purposes of alleviating unemployment and revitalizing the economic base of the community. The benefit to a private interest is merely incidental.” Id.
There were two dissenting opinions in Poletown Neighborhood Council. The dissenting opinions, by Justices Fitzgerald and Ryan, both criticized the degree of deference to the legislative public use determination and distinguished economic development from blight clearance. Id., at 639, 643, 304 N.W.2d 455 (Fitzgerald, J., dissenting); id., at 665, 673, 304 N.W.2d 455 (Ryan, J., dissenting). The dissenters also criticized what they deemed to be incidental public benefit, as compared to the direct benefit to General Motors from the new plant. Id., at 641, 304 N.W.2d 455 (Fitzgerald, J., dissenting); id., at 672, 304 N.W.2d 455 (Ryan, J., dissenting). Poletown Neighborhood Council informs, but does not dictate, our decision in the present case. Specifically, we decline to follow the Michigan court’s holding that when “the condemnation power is exercised in a way that benefits specific and identifiable private interests, a court inspects with heightened scrutiny the claim that the public interest is the predominant interest being advanced.” Id., at 634-35, 304 N.W.2d 455. Indeed, we conclude that the application of a “heightened scrutiny” standard; id., at 635, 304 N.W.2d 455; is inconsistent with our well established approach of deference to legislative determinations of public use. 40 We note that the Ninth Circuit Court of Appeals’ decision in Armendariz v. Penman, supra, 75 F.3d at 1320-21, is a
The majority, however, limited the impact of its holding. The court stated: “Our determination that this project falls within the public purpose, as stated by the [l]egislature, does not mean that every condemnation proposed by an economic development corporation will meet with similar acceptance simply because it may provide some jobs or add to the industrial or commercial base. If the public benefit was not so clear and significant, we would hesitate to sanction approval of such a project . . . . Where, as here, the condemnation power is exercised in a way that benefits specific and identifiable private interests, a court inspects with heightened scrutiny the claim that the public interest is the predominant interest being advanced. Such public benefit cannot be speculative or marginal but must be clear and significant . . . .” (Emphasis added.) Id., at 634-35, 304 N.W.2d 455.
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substandard housing clearance cases, secondary to the public benefit that results from significant economic growth and revitalized financial stability in a community. We next address the plaintiffs’ analysis of the sister state cases, particularly Southwestern Illinois Development Authority v. National City Environmental, LLC, supra, 199 Ill.2d at 235-41, 263 Ill.Dec. 241, 768 N.E.2d 1, that they cite in support of their contention that economic development projects do not, by themselves, constitute public use. We acknowledge that the courts of Arkansas, Florida, Kentucky, Maine, New Hampshire, South Carolina and Washington have, using a narrow42 view of their public use clauses, ruled that economic development is, by itself, not public use for eminent domain purposes. See Little Rock v. Raines, 241 Ark. 1071, 1083-84, 411 S.W.2d 486 (1967) (utilizing narrow definition of public use and noting lack of express legislative eminent domain authorization in concluding that taking for industrial park did not satisfy public use clause); Baycol, Inc. v. Downtown Development Authority, 315 So.2d 451, 456-58 (Fla.1975) (condemnation of land for construction of parking garage for private shopping mall not public use solely because of economic benefits; describing public benefit from garage construction as “incidental” and insufficient “as a basis for public necessity justifying eminent domain”); Owensboro v. McCormick, 581 S.W.2d 3, 5-8 (Ky.1979) (using
narrow view of public use under state constitution to strike statute granting city or other governmental unit “unconditional right to condemn private property which [was] to be conveyed by the local industrial development authority for private development for industrial or commercial purposes”; “the constitutional provisions involved clearly require that finding of ‘public purpose’ does not satisfy the requirement of a finding of ‘public use’ ”); Opinion of the Justices, 152 Me. 440, 447, 131 A.2d 904 (1957) (advisory opinion following narrow view of state public use clause and concluding that statute authorizing city to use eminent domain for development of industrial park is unconstitutional); Merrill v. Manchester, 127 N.H. 234, 237-39, 499 A.2d 216 (1985) (using narrow public use analysis under state constitution and requiring direct public use in light of declared legislative policy of preserving open lands; enjoining taking of plaintiffs’ open lands for industrial park construction); Karesh v. City Council, 271 S.C. 339, 342-45, 247 S.E.2d 342 (1978) (adhering to narrow view of public use under state constitution, and concluding that city could not condemn land and lease it to developer for parking garage and convention center project; noting that “guarantee that the public will enjoy the use of the facilities, so necessary to the public use concept, is absent”); In re Seattle, 96 Wash.2d 616, 627-29, 638 P.2d 549 (1981) (using narrow view of state public
significant example of judicial intervention into an alleged governmental abuse of property rights by agents of the city’s executive branch. In Armendariz, city agents had conducted multiple housing code enforcement sweeps in an area of the city with low income housing owned by the plaintiffs. Id., at 1313. The plaintiffs alleged that “city officials conducted the sweeps to enable a commercial developer to acquire contiguous property in [the neighborhood] on the cheap, bulldoze the low-income housing units, and replace them with a planned shopping center. According to the plaintiffs, the [c]ity effectuated these purposes by ‘faking’ the existence of serious housing code violations purportedly discovered on the plaintiffs’ properties during the sweeps in order to invoke the [c]ity building official’s emergency powers to evict the plaintiffs’ tenants and revoke the plaintiffs’ business licenses and certificates of occupancy.” Id., at 1315. The Ninth Circuit concluded that the plaintiffs had stated a claim under 42 U.S.C. § 1983, because “[i]f the plaintiffs can prove their allegations, the defendants’ actions would constitute a taking of the property. Such a taking, if the allegations are true, would seem not to have been for a ‘public use’ as the Fifth Amendment requires but rather for the use of another private person, the shopping-center developer.” Id., at 1321. Significantly, however, the court stated in dicta that “[i]f the city council . . . had by
ordinance declared that a shopping center on the plaintiffs’ property would serve a public use by, for example, increasing legitimate business traffic in the area and providing jobs for neighborhood residents, the city might have been able to acquire [the] plaintiffs’ property through the payment of just compensation, under the power of eminent domain.” Id. The court emphasized, however, that “what [the] plaintiffs allege here is an uncompensated taking through a raw misuse of government power. If the allegations are true, the only determination that could possibly have been made that a shopping center on the plaintiffs’ land was a ‘public use’ would have been a secret determination by the defendants as executive-branch officials of the city or as individuals using the cloak of their official positions to effect their private ends. Thus, the usual extreme deference that courts owe to legislative determinations of public use . . . is not appropriate here.” (Citations omitted; emphasis added.) Id. 41 The leading treatise on eminent domain states that there are two competing definitions of the term “public use”-a “narrow” definition and a “broad” definition. 2A P. Nichols, Eminent Domain (3d Ed. Rev.2003, J. Sackman ed.) § 7.02 [2] through [7], pp. 7-26 through 7-37. The “broad” definition provides that “‘public use’ means ‘public advantage.’ Any eminent domain action which tends to enlarge
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use clause, without deference to legislature, and concluding retail shopping center “contemplated a predominantly private, rather than public, use,” noting that “[a] beneficial use is not necessarily a public use”).43 We address separately, and in greater detail, the Illinois Supreme Court’s recent decision in Southwestern Illinois Development Authority v. National City Environmental, LLC, supra, 199 Ill.2d at 237-38, 263 Ill.Dec. 241, 768 N.E.2d 1, because the plaintiffs rely heavily on that case, and its analysis is distinct from the aforementioned decisions of the other states. In that case, the state legislature had created a regional economic development authority to promote industrial and economic development within a geographic project area. Id., at 227-28, 263 Ill. Dec. 241, 768 N.E.2d 1. Under its enabling statute, the plaintiff had the authority to issue bonds and to exercise eminent domain. Id., at 228, 263 Ill.Dec. 241, 768 N.E.2d 1. A successful and popular racetrack in the plaintiff’s region desired to expand its seating and parking capacities. Id., at 229, 263 Ill.Dec. 241, 768 N.E.2d 1. To increase parking, it wished to acquire a large parcel of land from an adjacent metal recycling center owned by the defendant. Id. The defendant refused to discuss the matter, and the racetrack never had offered to purchase the land. Id. Instead, the racetrack had asked the plaintiff to use its eminent domain powers to take the land and transfer it to the racetrack, with the racetrack paying all expenses for the taking. Id., at resources, increase industrial energies, or promote the productive power of any considerable number of inhabitants of a state or community manifestly contributes to the general welfare and prosperity of the whole community and thus constitutes a valid public use. Under this view of ‘public use,’ it has been held that the scope of eminent domain is both ‘coterminous with the scope of the sovereign’s police powers,’ as well as its constitutional taxing authority.” Id., § 7.02[3], pp. 7-29 through 7-32. In contrast, under the “narrow” definition, “to make a use public means that the property acquired by eminent domain must actually be used by the public or that the public must have the opportunity to use the property taken.” Id., § 7.02[2], p. 7-26. The treatise states that the “broad” view of eminent domain generally has gained greater acceptance among the federal and state courts; id., § 7.02[5], pp. 7-35 through 7-36; but that neither definition comprehensively can explain all eminent domain public use holdings; id., § 7.02[6] and [7], pp. 7-36 through 7-37; concluding that “[f]urther efforts at providing a precise definition of ‘public use’ are doomed to fail, and many courts have recognized this . . . .” Id., § 7.02 [7], p. 7-37.
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229-30, 263 Ill.Dec. 241, 768 N.E.2d 1. Thereafter, the county legislative body issued the required approval for the plaintiff’s use of its eminent domain powers, concluding that expanded parking would be beneficial for the public safety, and also would increase the region’s tax revenues. Id., at 230, 263 Ill.Dec. 241, 768 N.E.2d 1. The plaintiff followed with a similar resolution. Id. Both the plaintiff and the racetrack continued to negotiate with the defendant for the purchase of the property; the negotiations failed and the plaintiff then filed a condemnation petition, which the trial court granted.44 Id., at 231, 263 Ill.Dec. 241, 768 N.E.2d 1. On appeal, the Illinois Supreme Court reversed the determination of the trial court. The Supreme Court cited Berman v. Parker, supra, 348 U.S. 26, 75 S.Ct. 98, 99 L.Ed. 27, and Hawaii Housing Authority v. Midkiff, supra, 467 U.S. at 243-44, 104 S.Ct. 2321, and undertook initially a generally broad, purposive police power analysis of the plaintiff’s exercise of its eminent domain powers. Southwestern Illinois Development Authority v. National City Environmental, LLC, supra, 199 Ill.2d at 235-36, 263 Ill. Dec. 241, 768 N.E.2d 1. The court, however, then qualified these statements by stating that “a distinction still exists” between “public use” and “public purpose.” Id., at 237, 263 Ill.Dec. 241, 768 N.E.2d 1. Indeed, the court emphasized that “[t]he public must be to some extent entitled to use or enjoy the property, not as a mere favor or by permission of the owner, but by right.” 42
See 2A P. Nichols, Eminent Domain (3d Ed. Rev.2003, J. Sackman ed.) § 7.02[2], pp. 7-26 through 7-29; see also footnote 41 of this opinion. 43 Indeed, the Washington Supreme Court expressly has stated that the courts of its state “have provided a more restrictive interpretation of public use” than have the federal courts. Manufactured Housing Communities of Washington v. State, 142 Wash.2d 347, 359-60, 13 P.3d 183 (2000) (regulatory taking); see also Hogue v. Port of Seattle, 54 Wash.2d 799, 827-29, 341 P.2d 171 (1959) (utilizing narrow definition of state public use clause to strike statute allowing eminent domain for industrial development). 44 In the condemnation action, the trial court heard testimony about the positive public safety impact that the expanded parking would have on severe highway traffic generated by the racetrack, as well as on the benefits that continued racetrack expansion would bring to the region. Southwestern Illinois Development Authority v. National City Environmental, LLC, supra, 199 Ill.2d at 232-34, 263 Ill.Dec. 241, 768 N.E.2d 1. The trial court granted the condemnation petition and ordered compensation paid to the defendant; as soon as title vested in the plaintiff, it conveyed the property to the racetrack. Id., at 234, 263 Ill.Dec. 241, 768 N.E.2d 1.
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(Internal quotation marks omitted.) Id., at 238, 263 Ill.Dec. 241, 768 N.E.2d 1. Moreover, the court stated that while it has “also recognized that economic development is an important public purpose . . . to constitute a public use, something more than a mere benefit to the public must flow from the contemplated improvement.”45 (Citations omitted; internal quotation marks omitted.) Id., at 239, 263 Ill. Dec. 241, 768 N.E.2d 1. Ultimately, the court concluded that the taking violated the public use clauses of both federal and state constitutions. Id., at 235, 240, 263 Ill.Dec. 241, 768 N.E.2d 1. The court did “not require a bright-line test to find that this taking bestows a purely private benefit and lacks a showing of a supporting legislative purpose . . . . [M]embers of the public are not the primary intended beneficiaries of this taking . . . . This condemnation clearly was intended to assist [the racetrack] in accomplishing their goals in a swift, economical, and profitable manner.” (Citations omitted.) Id., at 240, 263 Ill.Dec. 241, 768 N.E.2d 1. The court stated that “[the plaintiff’s] true intentions were not clothed in an independent, legitimate governmental decision to further a planned public use.”46 Id. It further noted the plaintiff’s responsiveness to the racetrack’s demands, as well as the lack of planning studies and consideration of other alternatives, such as
45
Indeed, the Illinois Supreme Court rejected the plaintiff’s contention that it is the purpose of the taking alone that controls, noting that “[i]n its wisdom, the legislature has given [the plaintiff] the authority to use eminent domain power to encourage private enterprise and become involved in commercial projects that may benefit a specific region of this state. While we do not question the legislature’s discretion in allowing for the exercise of eminent domain power, the government does not have unlimited power to redefine property rights . . . . The power of eminent domain is to be exercised with restraint, not abandon.” (Citation omitted; internal quotation marks omitted.) Southwestern Illinois Development Authority v. National City Environmental, LLC, supra, 199 Ill.2d at 242, 263 Ill.Dec. 241, 768 N. E.2d 1. 46 The court stated that “[i]t appears [the plaintiff’s] true intentions were to act as a default broker of land for [the racetrack’s] proposed parking plan.” Southwestern Illinois Development Authority v. National City Environmental, LLC, supra, 199 Ill.2d at 241, 263 Ill.Dec. 241, 768 N.E.2d 1. The court also dismissed claims of resulting economic benefits as mere “trickle-down” of the racetrack’s revenues, stating that “revenue expansion alone does not justify an improper and unacceptable expansion of the eminent domain power of the government. Using the power of the government for purely
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construction of a parking garage on the existing racetrack property.47 Id., at 241, 263 Ill.Dec. 241, 768 N.E.2d 1. We disagree with the plaintiffs’ contention that the Southwestern Illinois Development Authority stands for the proposition that economic development is never a constitutionally valid public use. Indeed, despite its use of a more restrictive public use standard than the purely purposive formulation followed by this court and the United States Supreme Court; Hawaii Housing Authority v. Midkiff, supra, 467 U.S. at 243-44, 104 S.Ct. 2321; Olmstead v. Camp, supra, 33 Conn. at 546-51; the Illinois decision strikes us more as an illustration of when a court determines that an economic development plan cannot be said to be for the public’s benefit. In our view, the facts of Southwestern Illinois Development Authority merely demonstrate the far outer limit of the use of the eminent domain power for economic development. Indeed, that decision did not strike the statute allowing the agency to use eminent domain; it merely assailed the agency’s exercise of that power within a particularly egregious set of facts. See Southwestern Illinois Development Authority v. National City Environmental, LLC, supra, 199 Ill.2d at 240-41, 263 Ill. Dec. 241, 768 N.E.2d 1 (“[c]learly the foundation of this taking is rooted not in the economic and planning process with which [the plaintiff]
private purposes to allow [the racetrack] to avoid the open real estate market and expand its facilities in a more costefficient manner, and thus maximizing corporate profits, is a misuse of the power entrusted by the public.” Id. 47 The opinion in Southwestern Illinois Development Authority v. National City Environmental, LLC, supra, 199 Ill.2d at 254, 263 Ill.Dec. 241, 768 N.E.2d 1, also included a spirited dissent by Justice Freeman, who stated that “[c]ontrary to the holdings of Hawaii Housing Authority and Berman, the majority gives little deference to the legislature’s public use determination. Further, the majority engrafts upon Hawaii Housing Authority and Berman a requirement that property taken by eminent domain be put into use for the public, a proposition specifically rejected by the Court in Hawaii Housing Authority . . . . Today’s opinion is not an accurate rendition of the holdings of Hawaii Housing Authority and Berman and of the principles of law involved in this area.” (Citation omitted.) Justice Freeman also supplied a rendition of the facts that he concluded demonstrated the economic benefits of the racetrack and its proposed expansion; id., at 243-53, 263 Ill. Dec. 241, 768 N.E.2d 1 (Freeman, J., dissenting); and noted what he considered an extreme lack of deference by the majority to “the legislative findings regarding the need to alleviate certain economic, housing and other conditions in
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has been charged”). Accordingly, the Illinois decision simply does not persuade us to abandon our conclusion that an economic development plan that the legislature rationally has determined will have the public benefits of increasing employment, tax and other revenues, and spurring the revitalization of a distressed city constitutes a valid public use for the exercise of the eminent domain power under either the state or federal constitution. Moreover, beyond the case law, we observe that many commentators within the academic community also have addressed the issue of whether economic development satisfies the constitutional public use requirement. Support for both sides of the issue, of course, may be found within this array of law review articles. We note that most, however, tend to express alarm at what they consider to be a situation rife with the potential for abuse of the eminent domain power. See, e.g., J. Lazzarotti, “Public Use or Public Abuse,” 68 UMKC L.Rev. 49, 74 (1999) (cautioning against overexpansive interpretation of terms “public use” or “public purpose”; noting “if the only limit on meeting the public purpose requirement is what one can conceive or rationalize, the process is extremely vulnerable to abuse”); S. Jones, note, “Trumping Eminent Domain Law: An Argument for Strict Scrutiny Analysis Under the Public Use Requirement of the Fifth Amendment,” 50 Syracuse L.Rev. 285, 288-89 (2000) (maintaining
that private property rights are fundamental and proposing “an analytical framework, whereby the condemnation authority must demonstrate a ‘compelling’ socioeconomic need in transferring land to private interests”).48 We, however, conclude that responsible judicial oversight over the ultimate public use question does much to quell the opportunity for abuse of the eminent domain power. We, of course, acknowledge the existence of particularly egregious cases, such as Armendariz v. Penman, supra, 75 F.3d at 132021; see footnote 40 of this opinion; 99 Cents Only Stores v. Lancaster Redevelopment Agency, supra, 237 F.Supp.2d at 1129-30, and Southwestern Illinois Development Authority v. National City Environmental, LLC, supra, 199 Ill.2d 225, 263 Ill.Dec. 241, 768 N.E.2d 1. Such cases, however, would be outliers under the formulation that we adopt herein, which requires public economic benefit in order for the use of eminent domain for economic development to pass constitutional muster. As such, those cases are readily distinguishable from projects such as the carefully considered development plan at issue in the present case.49 We, therefore, conclude that the plaintiffs have not proven beyond a reasonable doubt that the provisions of chapter 132 of the General Statutes authorizing the use of eminent domain are facially unconstitutional when used in furtherance of an economic development plan such as the development plan in the present case.
the southwestern part of this state . . . [and] that alleviation of these conditions furthers certain public purposes.” Id., at 261-62, 263 Ill.Dec. 241, 768 N.E.2d 1 (Freeman, J., dissenting). Ultimately, Justice Freeman concluded in his dissent that “the majority commits great disservice to the State of Illinois and its citizens in engrafting upon the public use doctrine the requirement that property taken by eminent domain must be accessible to the general public as of right. This requirement is the death of social legislation in furtherance of economic development and revitalization.” (Emphasis added.) Id., at 268, 263 Ill.Dec. 241, 768 N.E.2d 1. 48 See also W. Pritchett, “The ‘Public Menace’ of Blight: Urban Renewal and the Private Uses of Eminent Domain,” 21 Yale L. & Policy Rev. 1, 7 (2003) (examining “how the interaction of renewal advocates and the courts changed legal conceptions of property in the middle of the twentieth century”); J. Klemetsrud, note, “The Use of Eminent Domain for Economic Development,” 75 N.D. L.Rev. 783, 813 (1999) (urging, in wake of Poletown Neighborhood Council, that the “courts make a more meaningful examination [of] the nature of the proposed condemnation” in economic development eminent domain cases); L. Mansnerus, note, “Public Use, Private Use, and Judicial Review in Eminent Domain,” 58 N.Y.U. L.Rev. 409, 411 (1983) (advocating for increased judicial review of public
use determinations in public/private takings); D. Werner, note, “The Public Use Clause, Common Sense and Takings,” 10 B.U. Pub. Int. L.J. 335, 358 (2001) (“Due to the current state of public use doctrine, the property of minority landowners is insecure. For that matter, any homeowner or small business owner who lacks the political clout to dissuade the government from taking his home or business is at risk.”). 49 Moreover, we note that the use of the eminent domain power for economic development certainly is not without support in the academic community. See, e.g., M. Harrington, “‘Public Use’ and the Original Understanding of the So-Called ‘Takings’ Clause,” 53 Hastings L.J. 1245, 1249 (2002) (arguing “that attempts to craft devices to encourage judicial oversight of legislative takings are without warrant in the historical record . . . [and] the term ‘public use’ as used in the Fifth Amendment was meant to be descriptive, rather than proscriptive”); T. Merrill, “The Economics of Public Use,” 72 Cornell L.Rev. 61, 65 (1986) (discussing economics of and proposing models of judicial review of public use determinations); T. Benedict, note, “The Public-Use Requirement in Washington After State ex. rel. Washington State Convention & Trade Center v. Evans,” 75 Wash. L.Rev. 225, 226 (2000) (noting confusing array of standards for determining public use and advocating for application of broader public purpose standard).
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Whether the Public Will Benefit Sufficiently from the Condemnations The plaintiffs next claim that, even if we were to assume that economic development constitutes a valid public use, the condemnations at issue in the present case do not serve that purpose because, the motives of the development corporation and the city aside, the effects of those condemnations primarily will benefit private entities, namely, the development corporation, Corcoran Jennison and Pfizer.50 The plaintiffs claim that any public benefit is incidental and insignificant when compared to the private benefit to those entities that will result from the condemnations. The defendants contend, in response, that the public purpose is not defeated by the transfer of land to private entities, especially when successful achievement of the public purpose of economic development necessarily requires private sector involvement. We agree with the defendants. We set forth the following additional facts that are relevant to the disposition of this claim. As stated previously, the development corporation will own the property after the condemnation; it will then lease the property to Corcoran Jennison for $1 per year for a term of ninety-nine years. With respect to Pfizer, the plaintiffs point out that it is, in the words of 50
We note that the plaintiffs claim that the trial court improperly concluded that the parcel 3 condemnations promote sufficient public benefit to be considered in furtherance of the economic development that constitutes the public use in the present case. The plaintiffs also claim that the trial court correctly concluded that the parcel 4A condemnations do not promote sufficient public benefit to be considered in furtherance of the public use. The defendants contend, in response, that the court should not engage in a parcel-by-parcel analysis, and should consider the significant tax and employment economic benefits resulting from the development plan as a whole. We decline to address the plaintiffs’ parcel-specific claims in this context because an appropriate public use analysis necessarily requires evaluation of the development plan as a whole-the end result of the sum of all of its parts. Cf. Broadriver, Inc. v. Stamford, 158 Conn. 522, 534, 265 A.2d 75 (1969) (“[a]lthough the plaintiff’s concern is for its own parcel within the redevelopment area, the commission’s responsibility was to consider conditions existing in the entire area including such matters as street layouts and the relation and significance of the plaintiff’s property to the entire area”), cert. denied, 398 U.S. 938, 90 S.Ct. 1841, 26 L. Ed.2d 270 (1970); Pet Car Products, Inc. v. Barnett, 150
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James Hicks, the executive vice president of RKG Associates, the firm that assisted the development corporation in the preparation of the development plan, the “10,000 pound gorilla” and “a big driving point” behind the development project. Specifically, the plaintiffs point out that Pfizer’s “requirements”51 had been met, namely, the inclusion within the development plan of a hotel for its clients and business associates, upscale housing for its employees, office space for its contractors, and other upgrades to the infrastructure of the general area. The trial court’s memorandum of decision, however, reveals that, although a great deal of consideration was given to the various demands and needs created by the new Pfizer facility, this consideration was given for the purpose of making the development plan more beneficial to the city. Indeed, Hicks testified that Pfizer’s announcement was “key” because it was “unusual” for a major employer to move “into an urban area, especially into a brown site . . . that has environmental problems. They tend to go to suburban areas, tend to go to green fields. Finding them coming there just offered a unique property for New London to take advantage of a number of things that would happen at that site for development.”52 Hicks testified that he toured Pfizer’s facilities during the development plan preparation Conn. 42, 52, 184 A.2d 797 (1962) (for urban renewal, “[t] he plaintiff misconceives the agency’s responsibility to consider the condition obtaining in the entire area rather than the condition of the individual property”). We will, however, address the plaintiffs’ parcel-specific claims in the related context of reasonable necessity; that is, whether the taking of the plaintiffs’ property was reasonably necessary to achieve the public purpose of the development plan. See, e.g., Pequonnock Yacht Club, Inc. v. Bridgeport, supra, 259 Conn. at 600-04, 790 A.2d 1178; see parts IV and VI of this opinion. 51 The term “requirements” was contained in a December, 1997 letter from Claire Gaudiani, the president of the development corporation, to George Milne, the president of Pfizer’s research division. In this letter, Gaudiani had stated that the development corporation was “pleased to make the commitments outlined below to enable you to decide to construct a Pfizer Central Research Facility in New London.” The letter describes the efforts to “design a land plan to ensure that the new Pfizer facility will be the centerpiece of a concentrated reuse of the area surrounding the former New London Mills.” It informs Milne that “[i]n addition to your facility, the project includes the development of the state’s fourth biotechnology incubator, the refurbishment of historic Fort Trumbull, the reuse of the
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process in order to gain a better understanding of its needs and the demands that it created. Pfizer did not tell him what details to add to the development plan, although he had been told that there was a need for a hotel as a result of Pfizer’s arrival in the city. Hicks testified, however, that he was never told that Pfizer would not come to the city if the hotel was not built.53 The trial court also noted the testimony of William Longa, senior corporate counsel for Pfizer. Longa testified that Pfizer’s only conditions for relocating its global development facility to the city were that: (1) the adjacent wastewater treatment facility be upgraded; (2) the state park be restored; and (3) its significant local investment be leveraged into a benefit for the entire city. He stated that Pfizer did make suggestions about “certain functions that the company was involved in that were natural stepping stones that the community could use to its benefit to leverage the investment that the company had made in its own site.” He stated that Pfizer had informed the development corporation of certain needs and demands that it had created, such as the company’s guests who would need hotel space and employees who would need places to live.54
have an ownership or management interest in any of the facilities located within the development plan area. The trial court also observed that the team who had drafted the development plan considered alternatives that did not fit the needs communicated by Pfizer. Indeed, the development plan itself does not mention Pfizer’s desires in the section describing its reasoning for choosing the final of the six alternatives.
Longa did testify that Pfizer never made specific demands about the locations of uses within the development plan. Pfizer will not
The trial court acknowledged an October 21, 1998 e-mail to George Milne, president of Pfizer’s research division, from James Serbia, a Pfizer employee involved in the development and management of company facilities. In the e-mail, Serbia indicated that he had left Milne with some concept drawings because of “some confusion” about Pfizer’s “expectations” regarding the development of the Fort Trumbull area. The e-mail stated that Serbia thought the issue “boils down to . . . whether or not Pfizer is flexible regarding the development plans-I believe the answer is yes per all our previous discussions on this-as long as some key components are included.” It listed attractive residences, hotel and conference space, and upgrades to the wastewater treatment plant, state park and commercial space as “key components.” Serbia then asked Milne whether the following items would fit with his “expectations”—seventy to eighty upscale residential units, and a 250 unit
vacant Naval Undersea Warfare Center and the development of mixed retail and residential space that will be fully integrated into the surrounding neighborhoods of the city of New London. In order to achieve these goals, it will be necessary to relocate the Calamari Bros. scrap dealer, upgrade utilities and infrastructure, and acquire a number of surrounding properties.” The conclusion of the letter states that the development corporation “will work with you to refine this proposal to meet Pfizer’s requirements.” As the trial court correctly points out, in the letter “[n]o mention is made of a hotel or office buildings . . . or any direct link between new residential construction and any need by Pfizer executives for upscale housing.” 52 Indeed, Hicks testified that “[t]he major gist of the [development corporation’s] goals were to expand upon the Pfizer facilities. That is, to have not just Pfizer come in, but other ancillary economic benefits accrue before that. I mean, can you multiply it? Pfizer, with any large company, attracts other users, attracts people to provide them services. If you do what’s commonly referred to as an economic analysis, cluster analysis, there’s groups of firms and companies that relate to companies that also bring employment. So one of the major goals was to expand upon Pfizer for the benefit of citizens of New London to improve the tax base, [provide] employment opportunity . . . . If you’ve got something that
very rarely happens, in my experience, in an urban area, a major corporation moving a lot of jobs, high-paying jobs, it gives you really good opportunities to take advantage of that and expand some of the things that you see in your community.” (Emphasis added.) 53 We note that, during the testimony of William Longa, senior corporate counsel for Pfizer, the trial court wondered how Pfizer could move to the city without already having had the hotel and housing plans in place. In response to this, Longa testified that there were sufficient hotels and housing in the general area that already served its facility in nearby Groton. The Groton facility did not have housing and hotels immediately adjacent. Longa, however, testified that the hotels and housing are a significant part of ensuring that the city, rather than just the outlying towns, could take advantage of Pfizer’s relocation. 54 The trial court also noted the testimony of James Mahoney, executive director of the development corporation from 1992 to 1998. Mahoney testified that the development corporation interacted with Pfizer during the environmental impact evaluation process, as part of a market analysis intended to determine appropriate uses for the development plan area. Pfizer did at this time inform them of the demand for hotel, conference and residential space that its presence would create.
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hotel. The trial court noted that the development plan incorporates these features.55 The trial court relied on Katz v. Brandon, supra, 156 Conn. at 531-34, 245 A.2d 579, and Bugryn v. Bristol, 63 Conn.App. 98, 107-108, 774 A.2d 1042, cert. denied, 256 Conn. 927, 776 A.2d 1143, cert. denied, 534 U.S. 1019, 122 S.Ct. 544, 151 L.Ed.2d 422 (2001), to begin with the proposition that a taking of land is impermissible if it is made primarily to benefit private interests. In other words, the primary purpose of the taking must be to serve the public interest; benefits to private entities must be incidental to this public purpose. The trial court also relied on Merrill v. Manchester, supra, 127 N.H. at 237, 499 A.2d 216, for the use of a “net benefit” test, under which the “benefits of the proposed project and the benefits of the eradication of any harmful characteristics of the property in its present form, [are] reduced by the social costs of the loss of the property in its present form. If the social costs exceed the probable benefits, then the project cannot be said to be built for a public use.” The trial court considered the facts in the context of these principles and concluded that, viewed in the context of the severe economic distress faced by the city, with its rising unemployment and stagnant tax revenues, the benefits to the city will outweigh those to Pfizer. The court noted that the hotel, with many of its rooms subsidized by Pfizer, will employ many people at a variety of skill levels, which would tie into the city’s desire to rejuvenate its downtown area. The court did note that the concentrated high end housing would not likely have a “multiplier” effect, but would increase the tax rolls. With respect to parcels 3 and 4A, the trial court noted that Pfizer did not press for the development of these parcels, or demand office space. Thus, with respect to these parcels, Pfizer would only “tangentially benefit” from their development. The court, therefore, concluded that the primary motivation for the city and the 55
The e-mail indicated that the state did not want to locate new residences in a floodplain area, or condemn existing residential areas to replace them with more upscale housing. The e-mail did not mention office space or the need to clear the entire Fort Trumbull area of existing residences and businesses, which were the needs that precipitated the need for the condemnations in the present case.
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development corporation was to take advantage of Pfizer’s presence,56 and that the primary motivation and effect of the development plan and its condemnations was to benefit the distressed city, not Pfizer. Moreover, with respect to private entities besides Pfizer, the trial court concluded that “[t] here is nothing in the record to indicate that as regards this project as a whole or considering parcel 3 and its planned office building separately . . . the city or the development corporation [was] motivated by a desire to aid particular private entities.” The trial court noted that tenants for the office space had not been chosen, Corcoran Jennison was selected as developer from a group of applicants, and that the project was linked to the “rejuvenation of the downtown area.” Although the trial court acknowledged the “social cost”57 of the implementation of the development plan, the court ultimately “fail[ed] to see a relevant constitutional distinction between redevelopment cases and a situation such as this where the very fact of permitting economic development by private entities permits an economically struggling city to attempt to rejuvenate its downtown area, increase its job market, improve its housing stock and give it sufficient tax money to meet its needs.” A trial court’s determination that the legislative authority primarily intended a taking to benefit the public interest, rather than a private entity, is a question of fact that we review pursuant to the clearly erroneous standard of review. Bugryn v. Bristol, supra, 63 Conn.App. at 103, 774 A.2d 1042 (applying clearly erroneous standard to trial court’s determination that benefiting local manufacturer was not primary purpose for taking). It is well established that “[a] finding of fact is 56 The trial also court quoted the proposition in Katz v. Brandon, supra, 156 Conn. at 533, 245 A.2d 579, that “[i]n this day of keen competition to attract industry and business to a state or to a particular locality, public officials are expected to cooperate in helping an industry to locate in their community. They must be at all times alert in providing for future as well as present needs.” (Internal quotation marks omitted.) 57 The trial court was not, and we are not, blind to the social costs of the development plan in the present case. In the words of the trial court: “An old New London neighborhood with all of its memories, in effect, has been destroyed. People like the plaintiffs have been or might yet be removed from homes they love and in some cases from homes where their families have lived for generations.”
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clearly erroneous when there is no evidence in the record to support it . . . or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) DiMartino v. Richens, 263 Conn. 639, 661, 822 A.2d 205 (2003). We begin our review of the trial court’s finding with the proposition that the power of eminent domain must be used for a public use or purpose, and not primarily for the benefit of private entities. Moreover, “[w]here the public use which justifies the taking of the area in the first instance exists . . . that same public purpose continues even though the property is later transferred to private persons.” (Internal quotation marks omitted.) Bugryn v. Bristol, supra, 63 Conn.App. at 104, 774 A.2d 1042, quoting Broadriver, Inc. v. Stamford, 158 Conn. 522, 533-34, 265 A.2d 75 (1969), cert. denied, 398 U.S. 938, 90 S.Ct. 1841, 26 L.Ed.2d 270 (1970); see also Gohld Realty Co. v. Hartford, supra, 141 Conn. at 143-44, 104 A.2d 365. Although the courts afford great deference to the legislature’s public use or purpose determination; Hawaii Housing Authority v. Midkiff, supra, 467 U.S. at 244, 104 S.Ct. 2321; Olmstead v. Camp, supra, 33 Conn. at 551; the public use question remains ultimately a judicial question. New York, N.H. & H.R. Co. v. Offield, supra, 77 Conn. at 421, 59 A. 510. That element of judicial review, however deferential, would be hollow in the absence of a standard by which the courts can determine intelligently whether the public interest is paramount. Accordingly, we agree with the trial court’s utilization of a purposive standard that also takes into account the actual public benefit from the taking.58 Thus, we conclude that an exercise of the eminent domain power would be an unreasonable violation of the public use clause if the facts and circumstances of the particular case reveal that the taking was primarily intended to benefit
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We take the opportunity, however, to state that the trial court’s social costs analysis was an improper, but in this case, harmless, supplantation of a decision-making function better suited to legislative bodies. Although the courts remain charged with determining whether the facts and circumstances of the particular case reveal that the primary purpose of the taking is to benefit the public, the balancing of the benefits and social costs of a particular project is uniquely a legislative function.
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a private party, rather than primarily to benefit the public. See Katz v. Brandon, supra, 156 Conn. at 534, 245 A.2d 579 (“[t]here is nothing in the record to indicate that any conveyance of land has been made to [a manufacturing corporation] or that any agreement or understanding exists which would provide it with any advantage which is not available to others who may be interested as redevelopers”); Bugryn v. Bristol, supra, 63 Conn.App. at 104, 774 A.2d 1042 (“[e]ven if the taking [for an industrial park, an undisputed public use] would later provide a site for [a major local company], a consequence that would be neither undesirable to the defendants nor adverse to the goals that the park plan seeks to achieve, that fact would not support the plaintiffs’ claim [of private taking] in light of the ample evidence in the record concerning the plan as a whole”); Wilmington Parking Authority v. Land With Improvements, 521 A.2d 227, 232 (Del.1986) (“[A] primary purpose determination in a constitutional context will normally turn upon the ‘consequences and effects’ of a proposed project. However . . . a reviewing court may consider evidence concerning the ‘underlying purpose’ of a public authority in proposing a project.”);59 Jamestown v. Leevers, supra, 552 N.W.2d at 367 (recognizing economic development as public use, but remanding for finding as to “whether the primary object of the development project was for the economic
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Indeed, Wilmington Parking Authority v. Land With Improvements, supra, 521 A.2d at 232-34, is noteworthy as another example of the role of judicial review in curtailing the abusive use of the power of eminent domain; it is an excellent illustration of the line between public and private takings. In that case, a parking authority attempted to take land ostensibly for garage construction, but then intended to transfer it to a neighboring newspaper company. Id., at 229. The newspaper company would use the land for facility expansion, but the parking authority would pay the newspaper company for the air rights over the land, and construct a garage there. Id. The trial court blocked the parking authority’s use of eminent domain for this purpose. Id., at 230. On appeal, the Delaware Supreme Court concluded that the trial court did not commit clear error when it concluded that the parking authority acted beyond its statutory authorization because “the primary purpose of the project was to retain [a newspaper company] as a corporate citizen rather than to provide the public with parking facilities.” Id., at 234. The court also considered that other parking authority actions would dispose of 500 public parking spaces, offsetting the projected gain of 950 new spaces, of which 10 percent were reserved automatically for newspaper company employees. Id.
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welfare of downtown Jamestown and its residents rather than for the primary benefit of private interests”). Applying this standard to the present case, we conclude that the trial court’s finding that the takings were not primarily intended to benefit a private party, namely, Pfizer, is not clearly erroneous. The trial court’s finding derives ample support from the record, particularly the fact that Pfizer’s “requirements,” complained of by the plaintiffs, do not impact parcels 3 and 4A. Moreover, the testimony of Hicks, Longa and James Mahoney, executive director of the development corporation, supports the trial court’s conclusion that Pfizer did not dictate the form of the development plan. Although it is undisputed that Pfizer’s presence spurred many of the plans within the development plan, we view this factor as did the trial court; Pfizer’s arrival in the city afforded the development corporation an opportunity to create an economic development plan that would go a long way toward the rejuvenation of a distressed city. Indeed, had the development corporation failed to consider demands created by the new Pfizer facility, its planning would have been unreasonable. Moreover, the trial court correctly identified the ample public benefits that the development plan, once implemented, was projected to provide. Assuming them to be correct,60 the development plan projected the generation of hundreds of construction jobs, approximately 1000 direct jobs, and hundreds of indirect jobs. Moreover, the property tax revenues are expected to be between $680,544 and $1,249,843; this would be a significant increase for an area that presently produces $325,000 in property taxes. Most importantly, as the trial court astutely observed, these gains would occur in a city that, with the exception of the new Pfizer facility that employs approximately 2000 people, recently has experienced serious employment declines because of the loss of
thousands of government and military positions. As the trial court noted, the city’s unemployment rate is close to double that of the rest of the state. Indeed, as the trial court observed, the city’s regional labor market was up 17 percent, in comparison to 45 percent for the region and 40 percent for the state as a whole. In light of these staggering economic figures, we conclude that the trial court did not commit clear error when it found that the development plan primarily was intended to benefit the public interest, rather than private entities. The plaintiffs claim that “[t]he purpose put forward by the defendants for these condemnations is that greater taxes will be generated if plaintiffs’ homes are replaced by office buildings. That is true of nearly every home in the country. If greater tax revenues alone becomes a sufficient basis for condemnations in Connecticut, then Connecticut homeowners will lack any constitutional protection against eminent domain. Any home will be up for grabs to any private business that wants the property.” This claim, while somewhat incalescent, affords us the opportunity to reiterate that an exercise of the eminent domain power is unreasonable, in violation of the public use clause, if the facts and circumstances of the particular case reveal that the taking specifically is intended to benefit a private party. Thus, we emphasize that our decision is not a license for the unchecked use of the eminent domain power as a tax revenue raising measure; rather, our holding is that rationally considered municipal economic development projects such as the development plan in the present case pass constitutional muster. C
Assurances of Future Public Use The plaintiffs next contend that the condemnations of the properties on parcels 3 and 4A lack “reasonable assurances of future public use.”61 Before we turn to the specifics of the plaintiffs’ claim, we note that both the plaintiffs’
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Cf. Donahue v. Southington, supra, 259 Conn. at 795, 792 A.2d 76 (in equal protection context, “the legislative facts on which the classification is apparently based rationally may have been considered to be true by the government decisionmaker” [internal quotation marks omitted]); Franklin Furniture Co. v. Bridgeport, 142 Conn. 510, 51415, 115 A.2d 435 (1955) (“[w]hile recitals of fact in a legislative act may not be conclusive, a decent respect for a coordinate department of the government requires the courts to treat them as true until the contrary appears”).
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The trial court determined that the taking of parcel 4A was not reasonably necessary, and therefore only discussed the reasonable assurances of future public use for parcel 3. Accordingly, on appeal the plaintiffs claimed only that parcel 3 lacked reasonable assurances of future public use. In response to the defendants’ cross-appeal, however, the plaintiffs expanded their argument to include parcel 4A and, therefore, we will address them together.
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briefs and our research reveal no primary or secondary authorities that actually utilize the term “reasonable assurances of future public use.” Nevertheless, the plaintiffs, relying primarily on Casino Reinvestment Development Authority v. Banin, 320 N.J.Super. 342, 354-58, 727 A.2d 102 (1998), contend specifically that there is no assurance that the acquired properties will be used in accordance with the purposes of the development plan, because the development corporation owns the property, the city will not be a party to the development agreement with Corcoran Jennison, and the ultimate property uses will thus be chosen by private entities. The plaintiffs also claim that the trial court improperly concluded that supervision of the development corporation by the department, pursuant to chapter 132 of the General Statutes, will assure the future use of the property in accordance with the development plan because that supervision is financial and does not extend to the use of eminent domain. Finally, the plaintiffs claim, solely in regard to parcel 4A, that it is impossible to find reasonable assurances of future public use when the condemnor does not know what it is going to do with that parcel. The defendants contend in response that: (1) the development plan contains land use restrictions that assure future uses will be consistent with its purpose; and (2) land projects such as the development plan require time to complete; in other words, that “Fort
Trumbull will not be built in a day.” We agree with the defendants.
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the plaintiffs’ lack of reasonable assurances argument to an evidentiary standard that no other court, or even the plaintiffs themselves, has set forth. Furthermore, this court knows of no other area of the law where we, or any other courts, have imposed a clear and convincing standard on a prediction of future events. As the dissent itself makes clear, even in other civil cases involving property disputes, the clear and convincing standard is reserved for past events, and not for predictions of future events. See, e.g., Wildwood Associates, Ltd. v. Esposito, 211 Conn. 36, 42, 557 A.2d 1241 (1989) (clear and convincing evidence required to prove elements of adverse possession claim). Additionally, it is hard for this court to imagine how any plan, proposed and adopted according to the provisions of chapter 132 of the General Statutes, would be able to prove that the economic development will, in fact, occur in the future. Thus, there is simply no basis, in reason, precedent, policy or practicality for the dissent’s proffered standard. 63 The trial court also referred to its findings on the delegation issue; see part III of this opinion; wherein the court concluded that pursuant to chapter 132 of the General Statutes, there is substantial state oversight of the operations of the development corporation with respect to the implementation of the development plan. Specifically, the
The dissent claims that this court, sub silentio, is overruling the holdings of Connecticut College v. Calvert, 87 Conn. 421, 88 A. 633 (1913), and Evergreen Cemetery Assn. v. Beecher, 53 Conn. 551, 5 A. 353 (1886). More specifically, the dissent cites those two cases for the proposition that “the question whether in any given instance the use is or will be administered as a public or as a private use, is a question which must of necessity be determined by the courts in accordance with the facts of the particular case in hand.” Connecticut College v. Calvert, supra, at 428, 88 A. 633. Contrary to the dissent’s claim, our conclusion in the present case is consistent with the principles set forth in those two cases. We disagree with the dissent, however, on the appropriate standard the trial court should apply to the plaintiffs’ claim of lack of reasonable assurance of future public use. We conclude that the trial court’s factual determination about the statutory and contractual constraints on future public use is subject to the clearly erroneous standard of review. The dissent, to the contrary, proposes a new four step process of review in which one of the steps would require the development corporation to prove by clear and convincing evidence that the specific economic development contemplated by the plan will, in fact, result in a public benefit. This step essentially subjects
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We first set forth the standard of review. A trial court’s determination that there are sufficient statutory and contractual constraints in place to provide reasonable assurances of future public use is a question of fact, and “our review is limited to deciding whether such findings were clearly erroneous.” Powers v. Olson, 252 Conn. 98, 105, 742 A.2d 799 (2000). It is well established that “[a] finding of fact is clearly erroneous when there is no evidence in the record to support it . . . or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) DiMartino v. Richens, supra, 263 Conn. at 661, 822 A.2d 205.62 In the present case, the trial court concluded that the city’s lack of future involvement does not mean that the development corporation and the developers are not bound to use the property in accordance with the terms of the development plan. The trial court stated that the state, functioning through the department, is a signatory to the development agreement; it “provides the funding without which nothing goes forward.”63 The court then discussed several provisions of the development plan that assure that future land use will be on the terms contained therein, namely: (1)
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the durational clause providing that “[t]he development plan and/or any modification hereof shall be in full force and effect for a period of thirty years from the date of first approval of this development plan by the city council of the city”; and (2) other land use restrictions contained therein.64 The trial court concluded that, were a developer to violate these provisions, the development corporation could turn to the courts for relief; should the development corporation refuse to do so, the city could then terminate its arrangement with the development corporation and appoint a new development agency. We conclude that the trial court properly determined that there are sufficient statutory and contractual constraints in place to assure that private sector participants will adhere to the provisions of the development plan. We agree with the trial court that the terms of the development plan providing parcel-specific land uses, to which private developers participating in the project must adhere, provide significant control over the destiny of the parcels. See footnote 64 of this opinion. We also conclude that the trial court properly determined that the significant state involvement in this project, mandated by chapter 132 of the General Statutes, functions to provide a level of governmental oversight beyond that provided by the development corporation. See footnote
court discussed § 8-189 (development plan must conform to department regulations), General Statutes § 8-190 (department may make planning grants and advise development agency), General Statutes § 8-191 (department must approve final development plan if state grants have been made), General Statutes § 8-193(a) (if state grants have been made, department and city must approve land transfers by sale or lease in accordance with plan), and General Statutes § 8-200(a) (“substantial” changes to development plan require approval in same manner as original plan). In discussing the delegation issue, the trial court noted that the state is a signatory to the development agreement, and it concluded that it “strain[ed] credulity to believe that the state . . . will not (1) have the wherewithal to control the activities of the [development corporation] to a sufficient degree so as not to allow that agency to be characterized as being able to act according to its own ‘will and caprice’; and will not (2) have the ability to ensure through the development agreement that the developer and the [development corporation] will seek to meet the goals and purposes of the [development plan], which the commissioner had to approve in the first place . . . .” 64 The development plan provides, in addition to an antidiscrimination clause, that the redeveloper must
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63 of this opinion. Finally, we conclude that despite the lack of formal commitments to the use of parcel 4A, there are sufficient assurances that the public use of the development plan will be carried out. We, therefore, reject the plaintiffs’ claim that the existence of the development agreement requiring that the property be “primarily” developed in accordance with the development plan, which is in effect for thirty years, is no assurance because only the development corporation may enforce it.65 Accordingly, the plaintiffs’ reliance on Casino Reinvestment Development Authority v. Banin, supra, 320 N.J.Super. 342, 727 A.2d 102, is misplaced. In that case, the casino development authority had sought to take properties by eminent domain for the declared purpose of providing parking, green space and roadway access to an adjacent renovated hotel and casino complex owned by Trump Plaza Associates (Trump). Id., at 347, 727 A.2d 102. After the taking, the land would be transferred to Trump for redevelopment. Id. The court concluded that the primary consequence and effect of the taking was to benefit Trump because there was no adequate assurance that the property would be used by Trump for those purposes declared as justifications for the taking.66 Id., at 355-56, 727 A.2d 102. In so concluding, the court noted that the agreements between the casino
“[agree] for itself and its successors and assigns as successors in interest to the parcel, or any part thereof, that the deed conveying the Parcel shall contain language covenanting on the part of Redeveloper and its successors and assigns that: The Parcel shall be devoted principally to the uses contemplated by the Plan, and shall not be used or devoted for any other purpose, or contrary to any of the limitations or requirements of said Plan. All improvements made pursuant to the Plan and this Agreement shall be used in accordance with the Plan unless prior written consent is given by the [development corporation] and [department] for a different use; The Parcel shall not be sold, leased, or otherwise disposed of for the purposes of speculation. (Emphasis added.) 65 Although the present case provides no occasion for a complete exploration of the mechanisms for judicial enforcement of the development plan under chapter 132 of the General Statutes, it is elementary that the terms of the development plan, like any other “legal obligation may, of course, be dishonored. That is one reason why courts exist.” Northeastern Gas Transmission Co. v. Collins, supra, 138
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authority and Trump did not: (1) impose time restrictions on changes in the land use; or (2) require expressly that Trump use the acquired properties solely for the purpose for which they were taken; rather, they used the language “hotel development project and appurtenant facilities.” Id., at 356, 727 A.2d 102. The New Jersey court interpreted the “overbroad” term of “hotel development project and appurtenant facilities” as allowing Trump “to eliminate the park and fill the entire block with an expanded casino hotel . . . without [casino development authority] approval.” Id. The court, therefore, concluded that the casino development authority’s determination that the takings “fulfilled a public purpose” was unreasonable because, “[i]n looking at the consequences and effects of these condemnation actions the court must conclude that under the circumstances present here, any potential public benefit is overwhelmed by the private benefit received by Trump in the form of assemblage and future control over development and use of parcels of prime real estate in Atlantic City.”67 Id., at 358, 727 A.2d 102; see also Vicksburg v. Thomas, 645 So.2d 940, 943 (Miss.1994) (The taking of property for the construction of a riverboat casino was impermissible when the “[c]ity failed to provide conditions, restrictions, or covenants in its contract with [the casino] to ensure that the property will be used for the purpose of gaming enterprise or other related establishments. In fact, testimony indicates that [the casino] may do anything it wishes with [the defendant’s] property . . . .”). Conn. at 589, 87 A.2d 139. Although we need not address its precise workings, there is “ample judicial machinery”; id.; available for enforcement of the development agreement and the development plan, in the event of breach of their terms by either the development corporation or private developers. 66 Indeed, the court distinguished the project from “redevelopment projects . . . with the public agency identifying and putting together an assemblage of land in order to attract a developer” because all of the other land already was owned by the existing neighboring hotel and casino. Casino Reinvestment Development Authority v. Banin, supra, 320 N.J.Super. at 355, 727 A.2d 102. 67 The court stated that, in Casino Reinvestment Development Authority v. Banin, supra, 320 N.J.Super. at 357, 727 A.2d 102, “a public agency, through the power of eminent domain, if successful, will have effectively created an assemblage of land for future development by Trump under circumstances where [the casino authority] could not do so under [the enabling statute] and where Trump is unable or unwilling to do so itself on the open market.”
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Thus, we conclude that the plaintiffs’ reliance on Casino Reinvestment Development Authority v. Banin, supra, 320 N.J.Super. 342, 727 A.2d 102, is misplaced because of the previously discussed controls that exist by statute and under the development plan in the present case, particularly when compared to the flexibility that impermissibly was afforded to the private entities in that case and in Vicksburg v. Thomas, 645 So.2d at 943. The oversight and rigorous land use restrictions that are present with the development plan simply did not exist in Casino Reinvestment Development Authority.68 III
WHETHER THE DELEGATION OF THE EMINENT DOMAIN POWER TO THE DEVELOPMENT CORPORATION WAS UNCONSTITUTIONAL The plaintiffs next claim that the trial court improperly concluded that the city’s delegation of the eminent domain power to the development corporation was constitutionally valid. Specifically, the plaintiffs contend that, in concluding that the delegation was constitutional, the trial court incorrectly determined that the development corporation satisfied the test for the constitutionality of delegations set forth in Connecticut College v. Calvert, 87 Conn. 421, 427, 88 A. 633 (1913), and Gohld Realty Co. v. Hartford, supra, 141 Conn. at 144-45, 104 A.2d 365. The defendants claim, in response, that the delegation in the present case is constitutionally valid because the development corporation is the city’s statutorily authorized agent for the implementation of the development plan, a constitutionally valid public purpose, and is not acting to further its own operations. We agree with the defendants. The record reveals the following additional undisputed facts relevant to the disposition of the plaintiffs’ delegation claim. The development corporation is a Connecticut nonprofit, private economic development corporation that originally was formed in 1978, and reactivated in 1997. In May, 1998, pursuant to General 68 Moreover, we also reiterate our previous conclusion that the public use or purpose in the present case is, in the first instance, the plan to induce the significant economic growth projected as a result of private sector development spurred by the terms of the development plan. As the defendants note correctly, such growth necessarily requires time to occur.
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Statutes § 8-188,69 the city council had adopted a resolution approving the designation of the development corporation as the city’s “[d] evelopment agency” or “[i]mplementing agency.” Thereafter, in January, 2000, the city council approved the development plan as conceived by the development corporation,70 and appointed the development corporation to implement the development plan.71 The January, 2000 resolution also expressly had authorized the development corporation, in the city’s name, pursuant to § 8-193(a), to use the power of eminent domain within the project area if necessary to acquire properties for development. See footnote 71 of this opinion. Subsequently, in October, 2000, the development corporation enacted a resolution that exercised its power of eminent domain to acquire, in the city’s name, certain properties within the project area, including those of the plaintiffs.72 Indeed, we note that the development corporation resolution emphasized specifically the city’s approval of the use of eminent domain, pursuant to § 8-193. The trial court concluded that “from the perspective of political control over the [development corporation] by the city’s legislative body, it can hardly be said that the [development corporation] vis-a-vis that entity is some free-wheeling private body attendant to its own
affairs and acting as only it sees fit.”73 The trial court then cited the analysis of Connecticut College v. Calvert, supra, 87 Conn. at 427, 430, 88 A. 633, as discussed in Gohld Realty Co. v. Hartford, supra, 141 Conn. at 144, 104 A.2d 365, for the proposition that “the exercise of eminent domain by the government itself or a public agency thereof is different from its exercise by a private person to whom the government has granted the power. And, in the second place, the basis of the decision is . . . that when a private person is granted the power to appropriate property, it must be for a use to which ‘the public will have a common right upon equal terms, independently of the will or caprice of the corporation.’” The trial court then stated that this court, in Gohld Realty Co., seemed to presume, without actually ruling, that an urban redevelopment agency is a public agency, before it concluded that blight removal was a public use in and of itself, regardless of the subsequent transfer to private developers. Id., at 145, 104 A.2d 365. On the basis of its analysis of the statutory framework governing the operation of the development corporation; see General Statutes §§ 8-188, 8-189 and 8-193 (a); the trial court then concluded that it did not accept the plaintiffs’ delegation argument because: (1) it deemed the development corporation more a public agency than a private entity; and (2) the public use prong of the test
69 General Statutes § 8-188 provides: “Any municipality which has a planning commission is authorized, by vote of its legislative body, to designate the economic development commission or the redevelopment agency of such municipality or a nonprofit development corporation as its development agency and exercise through such agency the powers granted under this chapter, except that the Quinnipiac Valley Development Corporation, organized and existing by virtue of the provisions of number 625 of the special acts of 1957, may be designated as a development agency, for the purposes of this chapter, to act as such within the geographical area specified in section 2 of said special act. Any municipality may, with the approval of the commissioner, designate a separate economic development commission, redevelopment agency or nonprofit development corporation as its development agency for each development project undertaken by the municipality pursuant to this chapter.” 70 The development plan, as approved by the city council prior to its authorization of the development corporation to use eminent domain, expressly listed those properties needed for its implementation. 71 The January, 2000 resolution specifically stated that “the New London City Council hereby resolves: (1) That the [development plan] is hereby approved . . . .
(6) That to carry out and administer the project, public action under Chapters 130, 132 and 588 (l) of the Connecticut General Statutes as amended is required; and, for the purposes of carrying out this project, that the New London City Council approves and bestows upon the [development corporation] all rights and powers that are permitted to accrue to a development agency or implementing agency under Chapters 130, 132, and 588 (l) of the Connecticut General Statutes as amended, including the power of eminent domain with the project area in the name of the City of New London per Chapter 130, Section 8-128, and Chapter 132, Section 8-193. 72 The October, 2000, development corporation resolution provided in relevant part: “WHEREAS, the New London City Council has designated the [development corporation], a nonprofit development corporation, as its development agency pursuant to the Connecticut General Statutes, and “WHEREAS, the [development corporation] has prepared a project plan for [development plan] Area pursuant to Section 8-189 of the Connecticut General Statutes, and “WHEREAS, the project plan for the [development plan] Area has been duly approved and adopted pursuant to Section 8-191 of the Connecticut General Statutes, and
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was more appropriately analyzed in the context of whether economic development was a public use. We first set forth the appropriate standard of review. The plaintiffs’ claim involves only the trial court’s application of the constitutional standard of Connecticut College v. Calvert, supra, 87 Conn. at 427, 430, 88 A. 633, to the undisputed facts. Our review of this question of law, therefore, is plenary. See, e.g., Cunha v. Colon, 260 Conn. 15, 18 n. 6, 792 A.2d 832 (2002). Our analysis begins with a brief review of this court’s decision in Connecticut College v. Calvert, supra, 87 Conn. at 427-30, 88 A. 633. In Connecticut College, the petitioner had challenged an act whereby the legislature had granted the right of eminent domain to a private educational corporation. Id., at 423, 88 A. 633. The court “accept[ed] and endorse[d] the legislative declaration that the higher education of women is in its nature a public use,” stating, however, that “the question whether in any given instance the use is or will be administered as a public or as a private use, is a question which must of necessity be determined by the courts in accordance with the facts of the particular case in hand.” Id., at 428, 88 A. 633. The court relied on Evergreen Cemetery Assn. v. Beecher, 53 Conn. 551, 552-53, 5 A. 353 (1886), in which this court refused to permit a “WHEREAS, it is necessary to acquire certain properties located in the [development plan] Area of [the city] in order to carry out and administer said project plan, and “WHEREAS, pursuant to Section 8-193 of the Connecticut General Statutes the [development corporation] has the approval of the New London City Council to acquire by eminent domain properties within the [development plan] Area. “NOW, THEREFORE, IT IS RESOLVED that the [development corporation], in the name of the [city], acquire certain properties located in the [development plan] Area of [the city] through the exercise of the power of eminent domain as granted to it under Chapter 132 of the Connecticut General Statutes. Said properties are more particularly described . . . . “IT IS FURTHER RESOLVED, that the [development corporation] take such steps as are necessary to effectuate such acquisition in the manner provided in Sections 8-128 through 8-133 of the Connecticut General Statutes. 73 The plaintiffs also had argued in the trial court that the development corporation was entirely a private entity not subject to control by the state or city governments, and that the benefits of its actions accrued wholly to private parties, such as Corcoran Jennison. The trial court rejected these arguments after reviewing the extensive statutory framework
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private cemetery association to take land by eminent domain for cemetery purposes,74 and stated that the fundamental inquiry in cases of the delegation to private parties is “whether it appears that the public will have a common right upon equal terms, independently of the will or caprice of the corporation, to the use and enjoyment of the property sought to be taken.” (Emphasis added.) Connecticut College v. Calvert, supra, at 430, 88 A. 633. The court expanded further, stating that “the right of eminent domain cannot constitutionally be delegated to a private person or corporation unless for a use which is governmental in its nature, and unless the public has or can acquire a common right on equal terms to the use or benefit of the property taken; except only that the use, or right of use by the public, may be dispensed with when a public benefit results from the taking, which cannot otherwise be realized, and which continues to exist although the public has no use or benefit of the property taken.” (Emphasis added.) Id., at 435, 88 A. 633. The court applied this principle, and concluded that, even having accepted the college’s argument that “the higher education of women is a matter of great public utility”; id., at 436, 88 A. 633; the public would not necessarily have the right to enjoy the benefits of the land because the college did not have a legal obligation to admit “to its courses of under chapter 132 of the General Statutes governing the development corporation’s use of eminent domain. See footnote 63 of this opinion. On appeal, the plaintiffs challenge only the trial court’s constitutional analysis. 74 In Evergreen Cemetery Assn. v. Beecher, supra, 53 Conn. at 552, 5 A. 353, this court acknowledged the public necessity of the proper burial of the dead, as a matter of “[t]he safety of the living . . . .” The court also noted that the legislature provided for associations to exist with power to provide, maintain and protect public burial places, and that “[t]he use of land by them for this purpose does not cease to be a public use because they require varying sums for rights to bury in different localities; not even if the cost of the right is the practical exclusion of some.” Id., at 553, 5 A. 353. The court also noted that the cemetery association was a private facility not necessarily open to all, a category of cemetery whose “proprietors . . . cannot take land for such continued private use by right of eminent domain.” Id. It, therefore, was distinguishable from public access cemeteries, as well as privately operated mills, toll roads and bridges, which, while they benefit their private operators, “[remain] a public use as long as all persons have the same measure of right for the same measure of money.” Id. The court, therefore, denied the cemetery association’s petition to take land by eminent domain. Id.
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instruction all qualified candidates, to the extent of its capacity, without religious, racial, or social distinction.” Id., at 435-36, 88 A. 633. The court relied on a series of sister state public spending cases that distinguished private colleges like Connecticut College from public universities open to all qualified candidates, ultimately concluding that the grant of the eminent domain power was unconstitutional because of the exclusively private benefits from that grant of the eminent domain power to a private condemnor. Id., at 438-39, 88 A. 633. We most recently restated the rule of Connecticut College in Carofano v. Bridgeport, 196 Conn. 623, 632, 495 A.2d 1011 (1985), wherein this court rejected a claim that General Statutes § 7-473c, the mandatory binding arbitration statute, was an unconstitutional delegation of the legislative power because “the arbitrators are not public officials accountable to the electorate.” The court in Carofano discussed, inter alia, delegations of the eminent domain power, and cited Connecticut College as standing for the proposition that “the delegation of the governmental power of eminent domain to private persons rather than to public officials has frequently been approved where a public purpose is thereby advanced and where the benefit of the property taken is considered to be available to the general public.” (Emphasis added.) Id., at 633, 495 A.2d 1011. Indeed, this court “perceive[d] no inherent vice that should preclude enlistment by the legislature of private individuals or agencies to achieve a public purpose by the exercise of a governmental power so long as adequate safeguards are provided. Although elected officials and those appointed by them as public officers may be more directly answerable to the electorate for their doings, the principle of accountability remains viable in the ability of legislators to terminate or modify any delegation of legislative power that has been made and in the ultimate authority of the people to change the law by electing those amenable to the public will.” Id., at 633-34, 495 A.2d 1011. Although Carofano v. Bridgeport, supra, 196 Conn. at 633-34, 495 A.2d 1011, is not an eminent domain case, we find persuasive its rearticulation of the Connecticut College formulation that is applicable when the eminent domain authority has been delegated to a private entity. Its emphasis on public purpose and benefit is more harmonious with the well G A L E
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established purposive approach that we follow presently in resolving questions of public use, than the claim that Connecticut College requires actual access by the public. See, e.g., Olmstead v. Camp, supra, 33 Conn. at 551. Indeed, this court implicitly recognized this in Gohld Realty Co. v. Hartford, supra, 141 Conn. at 143-44, 104 A.2d 365, when the court concluded that the rule of Connecticut College did not apply because, “[i]f the public use which justifies the exercise of eminent domain in the first instance is the use of the property for purposes other than slums, that same public use continues after the property is transferred to private persons. The public purposes for which the land was taken are still being accomplished.” Moreover, the Carofano approach to delegation analysis is especially compatible with the concept that many governmental endeavors, such as economic development or urban renewal, may be accomplished more expeditiously when governmental authorities are afforded the opportunity to utilize the expertise and resources of the private sector. Accordingly, we conclude that Carofano sets forth the appropriate standard to apply to the eminent domain delegation in the present case. We now apply the Connecticut College standard, as articulated in Carofano v. Bridgeport, supra, 196 Conn. at 633-34, 495 A.2d 1011, to the delegation in the present case.75 At the outset, we note that it is undisputed that the development corporation is a private entity. We next turn to the second prong, which itself is bifurcated into two factors: (1) whether “a public purpose is thereby advanced”; and (2) “where the benefit of the property taken is considered to be available to the general public.” Id., at 633, 495 A.2d 1011. Accordingly, we also note that we previously have concluded that the development plan in the present case constitutes an economic development plan that is, by itself, a public use or purpose under either the federal or state constitution. See part II A of this opinion. The “advancing a public purpose” 75
The power of eminent domain, which emanates from the state legislature; see, e.g., Northeastern Gas Transmission Co. v. Collins, supra, 138 Conn. at 586-87, 87 A.2d 139; initially had been granted to the city through chapter 132 of the General Statutes. See General Statutes §§ 8-186, 8-193(a) and 8-199. The plaintiffs did not challenge this initial grant to the city, only the subsequent grant from the city to the development corporation.
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factor, therefore, is satisfied because the delegation effectuates the public purpose directly, by giving the development corporation the power to acquire real property for the implementation of the development plan. A more complex inquiry in the present case, however, is whether “the benefit of the property taken is considered to be available to the general public.” Carofano v. Bridgeport, supra, 196 Conn. at 633, 495 A.2d 1011. The plaintiffs claim that, under Connecticut College, availability to the general public requires public entrance into, or the benefits of tenancy in, the office buildings planned for construction on parcel 3. They further claim that such direct benefit is unavailable because the tenants will be selected solely by Corcoran Jennison, and not the development corporation or the city.76 The defendants contend, in response, that direct access is not required because the public use of economic development necessarily requires the development corporation to turn the property over to private developers and their tenants, and that the development corporation is, unlike the college in Connecticut College, not acting in furtherance of its own benefit. We agree with the defendants. We note that the Connecticut College rule as stated in Carofano, requires only that the “benefit” of the taking be available to the general public. Id. We conclude that the public benefit of the taking in the present case is the dramatic economic benefit that the development plan is expected to have for the public in the New London community, namely, the massive projected growths in employment and tax and other revenues. Indeed, the rule of Gohld Realty Co. v. Hartford, supra, 141 Conn. at 144, 104 A.2d 365, is particularly applicable, because in the present case, the public use and benefit in the first instance is the economic revitalization; accordingly, that “same public use continues after the property is transferred to private persons. The public purposes for which the land was taken are still being accomplished.” Id., at 143-44, 104 A.2d 365. Moreover, in the present case, the development corporation is not acting exclusively for its own benefit, unlike in Connecticut College, 76
Goebel testified that Corcoran Jennison will select the tenants for the office buildings; the development corporation has no say over who the tenants will be.
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wherein the college sought to acquire property to further its own operations. Connecticut College v. Calvert, supra, 87 Conn. at 423-24, 88 A. 633. In the present case, the development corporation is acting to implement a development plan whose property acquisition provisions already have been accepted by the city itself; indeed, as the city resolved in January, 2000, after approving the development plan, the development corporation acquired the properties in the name of the city, pursuant to § 8-193(a).77 Accordingly, we conclude that the delegation of the eminent domain authority to the development corporation was not unconstitutional. IV
PARCEL 3 REASONABLE NECESSITY CLAIMS A
Whether the Taking of the Properties on Parcel 3 Was Reasonably Necessary The plaintiffs next claim that the trial court improperly concluded that the taking of the four homes located on parcel 3 was “reasonably necessary” to achieve the intended public use because keeping the homes there would make the marketing and development of the intended office space more “difficult.” Specifically, they claim that expert testimony introduced at trial indicated that there were alternatives available that would permit the office space intended for parcel 3 to be constructed exactly as planned without taking the homes. The defendants contend, in response, that the trial court properly deferred to the legislative determination of necessity, with respect to the parcel 3 properties, because there was no evidence that the takings were unreasonable, the product of bad faith, or an abuse of the power conferred. We agree with the defendants. 77
We note that the parties dispute whether an agency relationship exists between the development corporation and the city, and that the plaintiffs cite several instances of the development corporation being less responsive to the inquiries of the city than an agent customarily should be to the questions of a principal. The trial court, however, concluded that an agency relationship did in fact exist between the city and the development corporation, as well as the development corporation and the department. Nevertheless, in light of our resolution of the plaintiffs’ claim by a straightforward application of the rule set forth in Carofano and Connecticut College, we note that the existence of an agency relationship is immaterial to the resolution of this appeal.
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The record and the trial court’s memorandum of decision reveal the following additional facts and procedural history. The trial court began its review of the necessity of taking the properties on parcel 3 by stating that it would follow the deferential approach articulated in Gohld Realty Co. v. Hartford, supra, 141 Conn. at 146, 104 A.2d 365, and would review the legislative determination of necessity to “discover if it was unreasonable or in bad faith or was an abuse of the power conferred.” The court reviewed the governing legal principles and the competing testimony submitted by the parties’ planning experts. The trial court then began its factual analysis by discussing the testimony of the plaintiffs’ expert, John Mullin, a professor of economic and industrial development at the University of Massachusetts.78 Mullin testified that he had reviewed the development plan and had visited the Fort Trumbull area, and that the plaintiffs’ four properties occupied slightly more than three quarters of one acre of parcel 3. He testified that it is uncommon for land and housing to be cleared entirely for new development in urban waterfront areas. Mullin testified that, in his opinion, the taking of the four homes on parcel 3 was not reasonably necessary to carry out the goals of the development plan in that parcel, which included offices, parking, and the retention of the Italian Dramatic Club. He testified that retaining the homes was a “no-brainer” because of the small amount of land that they occupy, as well as their location on the parcel in “reasonable clusters”; three homes together in a row and one immediately adjacent to the Italian Dramatic Club. The trial court acknowledged that Mullin “is a highly qualified and obviously knowledgeable individual.” His qualifications included numerous fellowships, teaching positions, academic publication, military experience and government planning work. Mullin then discussed an alternate proposal that he had created in conjunction with an architectural firm. He testified that this proposal provided the same parking and office space as the present development plan, without taking the plaintiffs’ homes, but also added new homes. On cross-examination, Mullin testified The trial court acknowledged that Mullin “is a highly qualified and obviously knowledgeable individual.” His qualifications included numerous fellowships, teaching positions, academic publication, military experience and government planning work.
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that his plan would have located the office buildings and new homes overlooking a sewage treatment plant; a location that ideally was better suited for parking than these structures, although such uses could be mixed.79 Mullin testified that, in his opinion, the development plan was a good plan with the exception of its treatment of the existing housing. The court then discussed the defendants’ evidence, which consisted chiefly of the testimony of Hicks from RKG Associates,80 which is the real estate planning and economic development consulting firm that aided the development corporation in preparing the development plan. Hicks stated that the team that prepared the plan primarily had wished to take advantage of Pfizer’s unique decision to build a major facility in the city.81 Hicks discussed the six alternate plans that were considered; see footnote 6 of this opinion; and testified that, although two of the plans provided for the retention of existing housing, they were unworkable because it is difficult to turn residential properties into office space, which would frustrate the plan’s goal of economic development. Hicks then explained how clearing all of the parcels was necessary to the success of the development plan, stating that RKG Associates had recommended this approach to the development corporation because it would make the area far more attractive for the crucial private sector investment and development. Moreover, Hicks testified that, even if retaining the homes under a plan like Mullin’s was feasible, in his professional opinion, “it would make it much, much more difficult for [the development corporation] 79
Mullin also testified that, in his opinion, prospective purchasers of single-family detached homes would not necessarily “be more inclined to look in the suburbs or someplace other than immediately adjacent to a [sewage] treatment plant.” 80 Hicks has had experience in planning waterfront development projects in other cities, including Lewiston, Maine, and Fall River, Massachusetts. He also has governmental and academic experience in addition to his private sector work. Hicks also has worked as a developer, in addition to planning. 81 In preparing the development plan, RKG Associates also worked on the statutorily required environmental impact evaluation, which described the city in great detail. Hicks testified that the environmental impact evaluation reflected the city’s declining population, housing stagnation and rising unemployment, particularly in light of the closing of the United States Naval Undersea Warfare Center.
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and probably would lead to a situation that certain parts of the site would probably have a much higher degree of difficulty in being developed.”82
office buildings without a full site available for the development of an office building and the associated parking.”85
The trial court also reviewed the deposition testimony of Marty Jones, the president of Corcoran Jennison.83 She testified that in early 1999, the development corporation selected Corcoran Jennison through a competitive bidding process to develop parcels 1, 2 and 3 of the development plan. A full development agreement between Corcoran Jennison and the development corporation still was being negotiated at the time of trial; there would, however, be a ground lease of the Fort Trumbull development area land from the development corporation to Corcoran Jennison for nominal rent, such as $1 per year. While the agreement was being negotiated between the development corporation, the department, and Corcoran Jennison, with the city being “intimate[ly]” involved, the development corporation and Corcoran Jennison had been working cooperatively under a letter of intent. Corcoran Jennison’s architectural staff has created site plans that comply with the terms of the development plan for the actual development of the parcels.84 With respect to parcel 3, the trial court credited Jones’ testimony that it would be “difficult [for Corcoran Jennison] to attract a commercial tenant to these commercial
After reviewing the testimony86 and the relevant exhibits, the trial court credited the effort that went into the creation and formatting of the development plan. The court stated that, although it did “not conclude there is an absolute necessity to take the property at the present time, [it] believes and, at the least, has no basis to doubt the reasonableness of the testimony of . . . Hicks and . . . Jones that development would be more difficult if these residences were allowed to remain.” The trial court concluded that accepting the plaintiffs’ argument would result in it “choos[ing] an alternative to development different from the alternative chosen by the agency appointed to prepare the [development plan],” and stated ultimately that “[t]he decision on which the necessity for the takings as set forth in the [development plan] and the present need for the takings of these particular properties involve the weighing of factors for which courts are not well equipped and which reflect broad ‘legislative’ type judgments which are best left to the appointed agencies of legislative bodies at state and local level and experienced state agencies all of which were involved and are involved in this taking process and the decisions which have led to it.” Accordingly, the trial court denied the
Specifically, Hicks testified as follows: “What they finally adopted was they would get a private sector develop[er] to come in. What that basically means is a common redevelopment approach as you prepare the site. You give them raw land with the necessary infrastructure, and the developer makes an investment. This site, though, has a lot of risk. It’s got hazardous waste. It’s got [geographic] constrainment. It’s got a lot of regulations dealing with it, and it’s in an urban setting. That’s not the most attractive for investment, and that’s the reality you have to face. There’s not a lot of people coming and investing in [the city]. So if you’re [going to] attract a private developer to this type of site setting, you’ve got to try to minimize as much uncertainty as much as possible. Most developers are good at understanding risks, but not uncertainty. If you said we’ll give you something that looks like a spotted leopard“Q. What’s the spotted leopard? “A. It’s where a leopard has spots, spots are things that stay the same and you’ve got to work around them. Spotted leopard is just a way to refer at the configuration of land uses. If you’re [going to] attract developers, if you’re [going to] put out what you call requests for proposals and get them interested in the site, and after they overcome all the inherent problems with redevelopment, say to them also, well, you’ve got to work around this contingency . . . you
greatly diminish your ability to finding competent capable people to come in. You take things that would possibly [be] risk and turn them into uncertainty. Developers operate with very short time frame financial conditions, and it was our recommendation that because the housing wasn’t adaptable and a long-term use to the office related things, and that three, four kinds of the hodgepodge of certain things that we recommended, that most of those facilities be demolished.” (Emphasis added.) 83 The parties had stipulated to the admission into evidence of the deposition of Jones. 84 Jones testified that public-private partnerships frequently have design review processes wherein the agency that selected the developer has a role in reviewing the developer’s site plan. Jones and Goebel testified that, in the present case, the development corporation and the department would be the reviewing agencies, and that they had in fact engaged in informal reviews of Corcoran Jennison’s plans. Jones also testified, however, that the formal process would occur pursuant to the development agreement, which had not yet been finalized. 85 Jones testified that it is important for Corcoran Jennison to have a full site because “[f]irst of all to be able to develop the amount of parking needed for economic feasibility, and also . . . that the grading issues in . . . [p]arcel 3 are very
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plaintiffs’ request for permanent injunctive relief against the condemnation of their properties located in parcel 3, although it did grant temporary injunctive relief pending the appellate resolution of this case. We begin by setting forth the standard of review. As an initial matter, the question of “[w]hether the purpose for which a statute authorizes the condemnation of property constitutes a public use is, in the end, a judicial question to be resolved by the courts . . . but, in resolving it, great weight must be given to the determination of the legislature.” (Citation omitted.) Gohld Realty Co. v. Hartford, supra, 141 Conn. at 141, 104 A.2d 365. In part II of this opinion, we concluded that economic development projects created and implemented pursuant to chapter 132 of the General Statutes that have the public economic benefits of creating new jobs, increasing tax and other revenues, and contributing to urban revitalization, namely, the development plan in the present case, satisfy the public use clauses of the federal and state constitutions. The level of judicial review applicable to a development agency’s determination of what land is reasonably necessary for the effectuation of an economic development plan, such as the development plan in this case, presents a matter of first impression for this court. The Appellate Court, however, in Bugryn v. Bristol, supra, 63 Conn.App. at 107-08, 774 A.2d 1042, has concluded that the deferential standards of review applicable to that determination by a redevelopment agency in a redevelopment case under chapter 130 of the General Statutes; see, e.g., Pequonnock Yacht Club, Inc. v. Bridgeport, supra, 259 Conn. at 599-601, 790 A.2d 1178; Gohld Realty Co. v. Hartford, supra, 141 Conn. at 146, 104 A.2d 365; also apply to the use of
complicated and the retention of isolated properties within that area could make it very difficult to develop this sort of property.” 86 The trial court also heard the testimony of Goebel, who stated that retention of the plaintiffs’ homes in parcel 3 did not conform with the development plan. He also described the process by which the present development plan was chosen, and eventually approved by the city, development corporation and department, and the fact that it was a composite of six alternate plans. See footnote 6 of this opinion. Goebel also stated that the development corporation’s decision to utilize the development plan at issue was informed by public comments during the selection process.
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eminent domain in an economic development case under chapter 132 of the General Statutes. Thus, “[i]t is well settled that ‘[t]he determination of what property is necessary to be taken in any given case in order to effectuate the public purpose is, under our constitution, a matter for the exercise of the legislative power. When the legislature delegates the making of that determination to another agency, the decision of that agency is conclusive; it is open to judicial review only to discover if it was unreasonable or in bad faith or was an abuse of the power conferred.’ Gohld Realty Co. v. Hartford, supra, [146].” Bugryn v. Bristol, supra, at 107, 774 A.2d 1042. We agree with the Appellate Court, and we conclude that this is the appropriate standard to apply during judicial review of the implementation of an economic development plan. Moreover, under this standard it is “the plaintiff [who has] the burden of establishing that the taking . . . was unreasonable, in bad faith or an abuse of power.” Hall v. Weston, 167 Conn. 49, 66, 355 A.2d 79 (1974); accord Pequonnock Yacht Club, Inc. v. Bridgeport, supra, at 598, 790 A.2d 1178; Gohld Realty Co. v. Hartford, supra, at 146, 104 A.2d 365. The trial court, of course, makes the first judicial assessment of the legislative or agency determination of necessity. Thus, “[a]s a reviewing court, we are bound to determine whether the court’s factual determination that the defendants did not act unreasonably in seeking to acquire all of the plaintiffs’ property was clearly erroneous.” (Emphasis added.) Bugryn v. Bristol, supra, 63 Conn.App. at 108, 774 A.2d 1042. Whether the legislative body acted in “bad faith or . . . abuse[d] . . . the power conferred” also are questions of fact for the trial court that an appeals court reviews for clear error. (Internal quotation marks omitted.) Id., at 107, 774 A.2d 1042; cf. AvalonBay Communities, Inc. v. Orange, 256 Conn. 557, 565, 579-80, 775 A.2d 284 (2001) (municipality’s project plan was “pretext . . . to thwart affordable housing”; “the record fully support[ed] the trial court’s finding that the [chapter 132] project plan was hastily assembled, poorly envisioned and incomplete”). It is well established that “[a] finding of fact is clearly erroneous when there is no evidence in the record to support it . . . or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks A M E R I C A N
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omitted.) DiMartino v. Richens, supra, 263 Conn. at 661, 822 A.2d 205. Furthermore, “[t]he governing principles for our standard of review as it pertains to a trial court’s discretion to grant or deny a request for an injunction [are]: A party seeking injunctive relief has the burden of alleging and proving irreparable harm and lack of an adequate remedy at law . . . . A prayer for injunctive relief is addressed to the sound discretion of the court and the court’s ruling can be reviewed only for the purpose of determining whether the decision was based on an erroneous statement of law or an abuse of discretion . . . . Therefore, unless the trial court has abused its discretion, or failed to exercise its discretion . . . the trial court’s decision must stand.” (Citations omitted; internal quotation marks omitted.) Pequonnock Yacht Club, Inc. v. Bridgeport, supra, 259 Conn. at 598, 790 A.2d 1178. We conclude that the trial court did not commit clear error in upholding as a factual matter the development corporation’s determination that the parcel 3 takings were reasonably necessary to effectuate the goals of the development plan. Noting that “there is no evidence, credible or otherwise, that the condemnations in parcel 3 as originally envisaged in the [development plan] or at the time of the taking were done in bad faith, or not with an honest motive, or based on [any] pretext given any reasonable definition of the word,” the court recognized that economic development planning is not the province of the courts and thus, properly deferred to the development corporation’s necessity determination. (Emphasis added.) The trial court’s determination with respect to parcel 3 derives ample support from the record, particularly as it credited the testimony of Goebel, Hicks and Jones as they described the deliberative process that ultimately produced the development plan. Accordingly, we conclude that the trial court did not commit clear error when it determined that the development corporation’s reasonable necessity determination was not the product of bad faith, unreasonableness, or an abuse of the power conferred. The court, therefore, did not abuse its discretion by denying the plaintiffs the injunctive relief requested. We note that the plaintiffs rely on our reasoning in Pequonnock Yacht Club, Inc. v. Bridgeport, supra, 259 Conn. 592, 790 A.2d 1178, G A L E
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and contend that the taking of their property is not reasonably necessary just because that taking will make it easier for Corcoran Jennison to market the office buildings to potential tenants. Specifically, the plaintiffs refer to our statements in Pequonnock Yacht Club, Inc., a redevelopment case under chapter 130 of the General Statutes, quoting the trial court as stating that “[j]ust because the property may be desirable to the defendants does not justify its taking by eminent domain”; (internal quotation marks omitted) id., at 606, 790 A.2d 1178; and that “[t]he city provided no specific reasons, other than to enhance desirability of the area to investors, as to why the plaintiff’s property, which both parties stipulated to be in good condition, is essential to the accomplishment of the redevelopment plan.” Id., at 605, 790 A.2d 1178. The plaintiffs’ reliance on Pequonnock Yacht Club, Inc., however, is misplaced because our holding in that case specifically was based on General Statutes § 8-125(b),87 which provides that nonblighted property located in a blighted area “may be taken by eminent domain when the property is essential to complete a development”; id., at 604-05, 790 A.2d 1178; as well as case law “establish[ing] that a redevelopment agency must make reasonable efforts to negotiate and consider the integration of the property that is not substandard into the overall redevelopment plan.” Id., at 603, 790 A.2d 1178. In Pequonnock Yacht Club, Inc., the plaintiffs’ property was in good condition, but was surrounded by a blighted area with deteriorating properties. Id., at 604, 790 A.2d 1178. The city, however, had refused to negotiate or correspond with the yacht club, General Statutes § 8-125(b) provides: “‘Redevelopment area’ means an area within the state which is deteriorated, deteriorating, substandard or detrimental to the safety, health, morals or welfare of the community. An area may consist partly or wholly of vacant or unimproved land or of land with structures and improvements thereon, and may include structures not in themselves substandard or insanitary which are found to be essential to complete an adequate unit of development, if the redevelopment area is deteriorated, deteriorating, substandard or detrimental. An area may include properties not contiguous to each other. An area may include all or part of the territorial limits of any fire district, sewer district, fire and sewer district, lighting district, village, beach or improvement association or any other district or association, wholly within a town and having the power to make appropriations or to levy taxes, whether or not such entity is chartered by the General Assembly . . . .” (Emphasis added.)
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or to consider integrating the yacht club’s property into the plan, despite the yacht club’s expressed willingness to be incorporated into the final redevelopment plan, which included making changes to its property if necessary. Id., at 605-06, 790 A.2d 1178. We concluded that the trial court properly ordered the city to reconvey the property back to the yacht club because “the defendants acted unreasonably when they failed to consider or even discuss integration of the plaintiff’s property into the redevelopment plan and that the defendants had failed to establish that taking of the plaintiff’s property by eminent domain was therefore necessary and essential to the redevelopment plan.” Id., at 606, 790 A.2d 1178. We conclude that the present case is readily distinguishable from Pequonnock Yacht Club, Inc. First, Pequonnock Yacht Club, Inc. v. Bridgeport, supra, 259 Conn. at 599-600, 790 A.2d 1178, is a redevelopment case under chapter 130 of the General Statutes; in such cases, the public use is blight clearance. Thus, the public use in such cases is accomplished as soon as the blighted conditions are cleared, regardless of the land’s subsequent attractiveness to investors. See, e.g., Gohld Realty Co. v. Hartford, supra, 141 Conn. at 143-44, 104 A.2d 365. Thus, nonblighted property located in blighted areas is subject to the essentiality requirement of § 8-125(b), a statutory requirement that does not exist under chapter 132 of the General Statutes. See Pequonnock Yacht Club, Inc. v. Bridgeport, supra, at 603-06, 790 A.2d 1178. In contrast, in the present case, the public use is, by itself, the economic revitalization of the city. See part II of this opinion. Thus, for the development corporation to ignore considerations of investment and marketability would frustrate the effectuation of its project’s public purpose, and would be an unreasonable and arbitrary legislative act. We, therefore, conclude that our decision in Pequonnock Yacht Club, Inc., does not require us to hold that the parcel 3 taking in the present case was not reasonably necessary. B
Whether the Parcel 3 Takings Are for Reasonably Foreseeable Needs The plaintiffs next contend that the trial court improperly concluded that the parcel 3 development was not impermissibly speculative because the office buildings will not be G A L E
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constructed unless a market develops for them. The defendants contend, in response, that the trial court properly concluded that the development of parcel 3 was not impermissibly speculative because of the logical progression that such long-term development projects necessarily follow. We agree with the defendants. The record reveals the following additional facts relevant to the disposition of this claim. A market analysis completed in January, 1999, by RKG Associates for the preparation of the development plan stated that, at that time, rent levels for class A office buildings had stabilized and that “[r]eal estate conditions in the [city] have shown signs of modest recovery,” as evidenced by a greater than 90 percent occupancy rate in those buildings. It acknowledged that those rent levels “remain below the level needed to support new speculative construction,” and that “the historic sales values of [c] lass A office space, created by the past imbalances in the market, have not recovered sufficiently to justify new construction except for an end-user.” It did state, however, that by 2010, a shortage of office and research and development space is expected within the Fort Trumbull area, and that “land area at Fort Trumbull should be reserved for the future development of office buildings.” In addition to the development plan, the trial court also considered a report entitled, “Marketing Plan for Commercial Development Space” (report), which was presented by Jones to other Corcoran Jennison officers in January, 2001. The report echoed the development plan’s analysis and concluded that then current “market conditions do not justify [the] construction of new commercial space at Fort Trumbull on a speculative basis.” In the short term, the report recommended the renovation of “[b]uilding 2,” which is an existing office building constructed in 1991 and located at the closed United States Naval Undersea Warfare Center. The report, however, stated that longterm commercial development would have a “target market” of “newly recruited companies evidencing Pfizer-related demand, whether it is for general office use or biotech/bioscience use. This demand will most likely come from outof-region companies that contract with Pfizer and value proximity to Pfizer’s [g]lobal [d]evelopment [f]acility.” A M E R I C A N
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The trial court noted that a major goal of the development plan is to capitalize on the presence of Pfizer, and that the report and the development plan both were prepared prior to the construction and occupancy of the new global research facility. The court then credited the testimony of Bruce Hyde, the city’s director of real estate development and planning, who testified that, although the market for office space in the city was “on the softer side,” since the Pfizer announcement in 1998, there had been increased interest in real estate development in the city.88 The court also noted Hicks’ testimony that Pfizer’s business associates likely would occupy future office space in the Fort Trumbull area. Finding no Connecticut authority directly on point, the trial court relied on sister state authority for the proposition that there need not be an immediate need for the property taken; planning for the future and changes in public needs are permissible, so long as the public use will be accomplished within a reasonable period of time. The trial court noted that “whether the effort is speculative in a particular case depends to a great extent on the nature of the public use involved,” and that the legislature’s assessment of whether a need is speculative receives the same judicial deference as other legislative necessity determinations; thus, the court will only disturb it if it is the product of bad faith, unreasonableness, or an abuse of discretion. Applying these standards, the court concluded that “at least that in selected cases, cities like New London, given its economic situation, should be given time to develop a site which has built-in features that would be attractive to users-here, we have a city just beginning to come out of the economic doldrums, with a major international company alighting in its midst that has the ability to attract other businesses . . . .” Noting the prediction of a demand for space by 2010, and that substantial
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Hyde testified that when the United States Naval Undersea Warfare Center was in the city, “spin-off development” occurred as satellite companies opened up in the city to service it. He testified that these satellite companies then followed the sound lab to Newport, Rhode Island, when it relocated there. Hyde stated that he would expect similar spin-off development in the city as a result of Pfizer, although he personally was unsure about the kind of outside contractors with whom Pfizer interacts.
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state and local resources and funds already had been spent on preparing the Fort Trumbull area for economic development, the court concluded that it could not “say that under the circumstances of this case that the planned development of parcel 3 is too speculative given the purpose of the development plan-economic development of an economically distressed community.” We will review the trial court’s decision, as we do other reasonable necessity determinations, for clear error in determining the existence of bad faith, unreasonableness, or abuse of power on the part of the legislature in making the initial determination of whether the need is speculative, and therefore, not reasonably foreseeable. See Pequonnock Yacht Club, Inc. v. Bridgeport, supra, 259 Conn. at 599-601, 790 A.2d 1178; Gohld Realty Co. v. Hartford, supra, 141 Conn. at 146, 104 A.2d 365; Adams v. Greenwich Water Co., 138 Conn. 205, 213-14, 83 A.2d 177 (1951); Bugryn v. Bristol, supra, 63 Conn.App. at 107-08, 774 A.2d 1042. We begin our analysis of the trial court’s conclusion by reviewing the applicable legal principles. A taking that is purely speculative is not reasonably necessary. New Haven Water Co. v. Russell, 86 Conn. 361, 369-70, 85 A. 636 (1912) (population growth and increasing demand justify taking of streams by water company). We note, however, that “[o]n the question of the necessity of a taking, needs which will arise in the reasonably foreseeable future must be taken into consideration.” Adams v. Greenwich Water Co., supra, 138 Conn. at 214, 83 A.2d 177 (considering ten year water demand projections and stating that it was reasonably necessary for water company to create reservoir by damming river); accord Phoenix v. McCullough, 24 Ariz.App. 109, 536 P.2d 230, 236 (1975) (“[T]he condemning authority may, in acquiring private property for public use, take not only such property as is necessary to satisfy present needs, but may acquire such additional property as will be put to public use within a reasonable time thereafter. In determining what constitutes a reasonable time, the surrounding circumstances must be considered.”); Grand Rapids Board of Education v. Baczewski, 340 Mich. 265, 271-72, 65 N.W.2d 810 (1954) (school board could not justify taking property thirty years before its need was anticipated solely on basis of saving future taxpayers’ money). A M E R I C A N
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Several sister state cases also considered by the trial court in its memorandum of decision have expanded upon these basic principles. For example, in an airport expansion case, the Florida Court of Appeals has stated that, the “condemning authority need not present evidence pinpointing the need for the specific property, rather it is sufficient to show that the taking is necessary for the accomplishment of an overall plan of development . . . . Funds need not be on hand, nor do plans and specifications need be prepared for a condemnor to determine the necessity of a taking; in fact, it is the duty of public officials to look to the future and plan for the future . . . . Thus, there need not be an immediate need for the property sought to be taken.” (Citations omitted; emphasis added.) Test v. Broward County, 616 So.2d 111, 113 (Fla. App.1993); cf. Alsip Park District v. D & M Partnership, 252 Ill.App.3d 277, 286, 192 Ill.Dec. 80, 625 N.E.2d 40 (“[A] condemning authority should ‘anticipate the future increased demands for the public use to which the land is to be devoted.’ . . . The advance acquisition of parkland is practical in a society with a growing population and changing recreational needs.” [Citation omitted.]), cert. denied, 152 Ill.2d 553, 190 Ill.Dec. 882, 622 N.E.2d 1199 (1993); but see Phoenix v. McCullough, supra, 536 P.2d at 237 (“if the condemning body is uncertain when future use shall occur, the future use becomes unreasonable, speculative and remote as a matter of law and defeats the taking”). The condemnor’s right “to acquire land for future expansion,” however, is tempered by the need for “a suitable investigation” to inform its assessment of future needs. In re Pittsburgh School District Condemnation Case, 430 Pa. 566, 573-74, 244 A.2d 42 (1968). Indeed, the Pennsylvania court emphasized that the acquisition of land may not be “for real estate speculation and future sale,” but rather, must be, in the “intelligent, informed judgment” of the condemnor, in furtherance of “an authorized public use . . . .” Id., at 574, 244 A.2d 42; see also Kansas City v. Hon, supra, 972 S.W.2d at 415 (deferring to city’s necessity conclusion that “it needs to acquire the land now so that it can compete with other cities for the location of aviation-related facilities”). With these principles, and the clearly erroneous standard of review, to guide our inquiry, we turn to the trial court’s decision in the present case. We conclude that the trial G A L E
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court’s determination that the parcel 3 takings were not impermissibly speculative was not clearly erroneous. Although the class A office building market was less than conducive to development and new construction at the time that the development plan was created, the trial court’s deference to the legislative determination nevertheless was amply supported by the projections of future demand as a result of the new Pfizer facility. Numerous market studies were available and considered by the development corporation. Indeed, the trial court astutely observed that, at the time of the trial, the Pfizer facility had just opened; it, therefore, did not have the opportunity to create demand. Moreover, the report formulated by RKG Associates for the development plan predicted demand in the Fort Trumbull area by 2010, which is less than seven years away, which certainly is reasonably foreseeable temporally. Compare Adams v. Greenwich Water Co., supra, 138 Conn. at 214, 83 A.2d 177 (ten year water demand projections acceptable for foreseeability), with Grand Rapids Board of Education v. Baczewski, supra, 340 Mich. at 271-72, 65 N. W.2d 810 (taking unjustified when school board anticipated need for property thirty years after time of taking). In light of our previous conclusion that the trial court properly had found that the reasonable necessity determination was not the product of bad faith, unreasonableness, or an abuse of power, we also conclude that the trial court properly determined that the parcel 3 takings were not impermissibly speculative. The plaintiffs rely on the holding in Phoenix v. McCullough, supra, 536 P.2d at 237, in support of their contention that the parcel 3 takings are impermissibly speculative. Their reliance on McCullough is misplaced. We acknowledge that the Arizona court concluded that, “if the condemning body is uncertain when future use shall occur, the future use becomes unreasonable, speculative and remote as a matter of law and defeats the taking.” (Internal quotation marks omitted.) Id. In McCullough, the Arizona court arrived at that standard after applying a reasonableness standard to a fact pattern wherein the city sought to acquire the plaintiffs’ property for airport expansion purposes, but did not have a reasonably accurate time line for that expansion; the city planners’ estimates for the date of use varied from fifteen to forty-six years. Id., at A M E R I C A N
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236-37. Moreover, the city in McCullough had admitted that it did not have a specific plan for the use of the plaintiffs’ properties within that expansive time frame. Id. We conclude that the reasoning of McCullough is inapposite to the present case because it developed out of a vastly different set of facts. In contrast to the airport expansion plans in McCullough, the development plan in the present case contains carefully considered predictions of development and market growth, spurred by the opening of Pfizer’s major facility. It also projects demand for space by 2010, which is less than ten years from now, and thus, presents a dramatically different time frame than the uncertain fifteen to forty-six year gap of McCullough.89 We, therefore, conclude that the trial court did not commit clear error when it deferred to the legislative necessity determination and concluded that the parcel 3 takings were not impermissibly speculative. Accordingly, we further conclude that, because the trial court’s decision regarding reasonable necessity was not the product of a legal error or an abuse of its discretion, we must uphold its denial of permanent injunctive relief to the plaintiffs with respect to those properties that are located on parcel 3. See Pequonnock Yacht Club, Inc. v. Bridgeport, supra, 259 Conn. at 598-99, 790 A.2d 1178. 89
Additionally, in support of their claim that courts reject projects that are on uncertain timetables, the plaintiffs point us to San Diego Gas & Electric Co. v. Lux Land Co., 194 Cal. App.2d 472, 479-80, 14 Cal.Rptr. 899 (1961), State v. 0.62033 Acres of Land, 49 Del. 174, 179-80, 112 A.2d 857 (1955), and Meyer v. Northern Indiana Public Service Co., 254 Ind. 112, 113-15, 258 N.E.2d 57 (1970), superseded on other grounds, 259 Ind. 408, 287 N.E.2d 882 (1972). Their reliance on these cases is misplaced because of the considered effort that went into the development plan in the present case, and the fact that the marketing studies and other evidence have indicated a foreseeable need for office space as a result of the new Pfizer facility. In contrast, we note that the California court concluded that, on the facts of that case, “the taking of the defendants’ property by the plaintiff [power company] for [gas and telephone lines] is not necessary . . . because the plaintiff has no present or prospective plans to use it for that purpose.” San Diego Gas & Electric Co. v. Lux Land Co., supra, 194 Cal.App.2d at 481, 14 Cal.Rptr. 899. Similarly, the Indiana court rejected the electric company’s attempt to maintain a 200 foot right-of-way for electric lines when the company had admitted that all it needed for the near future was the 150 feet that they already had; there was no evidence
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EQUAL PROTECTION CLAIMS The plaintiffs next claim that the condemnation of the properties located on parcel 3 violated the equal protection clauses of the Connecticut90 and United States91 constitutions because the development corporation spared the Italian Dramatic Club (club) that also was located on that parcel. Specifically, they contend that the trial court improperly concluded that: (1) the club and the homes were not similarly situated; and (2) even if the club and the homes were similarly situated, the trial court utilized an improper legal standard by focusing on the defendants’ subjective motivation in making the condemnation decision, rather than on whether the decision itself was arbitrary or irrational. The defendants claim, in response, that the trial court properly determined that the condemnations did not violate the equal protection clause of the federal constitution because: (1) the homes and the club are not similarly situated under the terms of the development plan or the relevant zoning laws; and (2) the development corporation’s distinction between the two uses had a rational basis.92 We agree with the defendants, and we conclude that the development corporation did not violate the plaintiffs’ equal protection rights by condemning their properties, but not the club’s building. The trial court’s memorandum of decision reveals the following additional facts relevant to of plans that would require more room. Meyer v. Northern Indiana Public Service Co., supra, 254 Ind. at 115, 258 N.E.2d 57. Moreover, the Delaware court concluded that the taking for highway construction was impermissible when no present or future need had been established, and the department of transportation had taken “no official action” toward the highway’s construction. State v. 0.62033 Acres of Land, supra, 49 Del. at 179-80, 112 A.2d 857. Accordingly, these cases are distinguishable from the present case wherein a carefully considered projection of need, and plans for achieving it, were in place prior to the taking. 90 Article first, § 20, of the constitution of Connecticut provides in relevant part: “No person shall be denied the equal protection of the law . . . .” 91 The fourteenth amendment to the United States constitution, § 1, provides in relevant part: “No State shall . . . deny to any person within its jurisdiction the equal protection of the laws.” 92 In their brief, the plaintiffs do not “provide an independent analysis asserting the existence of greater protection under the state constitutional provision than its federal counterpart . . . [and] we will not of our own initiative address that question . . . . Accordingly, the federal equal protection standard is considered prevailing for the purposes of our
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our resolution of this claim. The club is a longstanding private social organization93 in the Fort Trumbull area; its building is located on parcel 3 of the development plan. Originally, the club’s building had been slated for acquisition and demolition in the development plan as approved by the city in January, 2000. In October, 2000, however, the development corporation determined that the club’s building could remain on parcel 3. The trial court concluded that the plaintiffs did not satisfy the “preliminary step” of establishing that they and the club were “similarly situated”;94 the court, therefore, concluded that it did not need to proceed further with the equal protection analysis. The trial court based this conclusion on the properties’ locations within the parcel; it concluded that the club’s building was on the border, while two of the plaintiffs’ properties were within the interior and ultimately would lack roadway access. The trial court also cited the previously credited testimony of Hicks and Jones that retaining the residences would pose problems for the future development of the parcel, while the club’s building would not.
the development corporation’s decision was the “irrational”95 result of politically motivated favoritism toward the club. The court analyzed the record and testimony with respect to the development plan’s process of creation and approval, and concluded that it was “being asked to rely on speculation and conjecture by parties who . . . have the burden of proof.”96 The court, therefore, rejected the plaintiffs’ equal protection claim.
Nevertheless, the trial court did not end its equal protection analysis with the similarly situated issue. It went on to assume hypothetically that the properties were similarly situated, and it addressed the plaintiffs’ claim that their right to equal protection was violated because
“The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution is essentially a direction that all persons similarly situated should be treated alike.” (Internal quotation marks omitted.) Thomas v. West Haven, 249 Conn. 385, 392, 734 A.2d 535 (1999), cert. denied, 528 U.S. 1187, 120 S.Ct. 1239, 146 L.Ed.2d 99 (2000). Thus, we ordinarily would have to address the plaintiffs’ claim that the trial court improperly concluded, as a preliminary matter, that they were not similarly situated with the club’s building. In light of the trial court’s comprehensive memorandum of decision and the parties’ thorough briefing, however, we will assume without deciding97 that the plaintiffs’ homes and the club are similarly situated for equal protection purposes.98 Accordingly, we now will proceed to determine whether the trial court properly determined that the development corporation’s decision had a rational basis and, therefore, did not violate the plaintiffs’
review of both the state and federal equal protection claims in this case.” (Internal quotation marks omitted.) Donahue v. Southington, supra, 259 Conn. at 794 n. 7, 792 A.2d 76. 93 Membership in the club is limited to descendants of people who emigrated from a certain region in Italy. The club holds dinners for its members; they may bring guests to the dinners. 94 In so concluding, the trial court rejected the defendants’ contention that the club and the plaintiffs were not similarly situated because the club’s building was a commercial property while the plaintiffs’ homes were residential. The court expressly noted that the club was not commercial property. The trial court, however, also rejected the plaintiffs’ contention that they were similarly situated because both were slated for acquisition and demolition under the development plan and wanted to stay, but that the club’s building was spared. The court concluded that this was more “[a] statement of the problem, not the solution.” 95 The plaintiffs had claimed in the trial court that the taking implicated a fundamental right to property ownership, and that the development corporation’s decision thus was subject to the strict scrutiny standard of review. The trial court concluded that the right to property ownership was not fundamental for equal protection purposes and,
therefore, the development corporation’s action was subject only to the rational basis standard of review. On appeal, the plaintiffs do not contest the trial court’s decision to use the rational basis standard of review. 96 Specifically, the trial court noted the testimony of Mahoney and James Dunn, the director of real estate acquisition for the development corporation, to the effect that condemnation of the club and a nearby church could be politically difficult. Nevertheless, the trial court concluded that in January, 2000, the city council approved the development plan with the club condemnation intact. The trial court also noted the testimony of Goebel and Damon Hemmerdinger, a consultant to, and former director of real estate development for the development corporation, to the effect that, even after the city had approved the development plan, the development corporation, in response to public comments, continued to consider not demolishing other properties in addition to the club. The trial court concluded that the plaintiffs’ claim that Milne spoke to the governor about retaining the club was pure speculation, particularly because Milne was never deposed or called to testify, and the development corporation officers were never questioned about their involvement in this conversation. The trial court also noted multiple substantial state expenditures in support of the project,
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equal protection rights. We conclude that the trial court correctly determined that there was a rational basis for the development corporation’s condemnation decision. Whether the development corporation’s action sparing the club’s building, but not the plaintiffs’ residences, from condemnation violated the equal protection clause “must be gauged under the rational basis test. In the context of an equal protection challenge to social and economic legislation that does not infringe upon a fundamental right or affect a suspect group, the classification drawn by the statute will not violate the equal protection clause if it is rationally related to a legitimate public interest. Nordlinger v. Hahn, 505 U.S. 1, 8, 112 S.Ct. 2326, 120 L.Ed.2d 1 (1992); Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 439-41, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985) . . . . “The United States Supreme Court has recently summarized the rational basis test as applied to social and economic legislation that does not infringe upon a fundamental right or affect a suspect group. Nordlinger v. Hahn, supra, [505 U.S. at 11-12, 112 S.Ct. at 2332-33]. In general, the Equal Protection Clause is satisfied so long as there is a plausible policy reason for the classification, see United States Railroad Retirement Board v. Fritz, 449 U.S. 166, 174, 179 [101 S.Ct. 453, 66 L.Ed.2d 368 (1980), reh. denied, 450 U.S. 960, 101 S.Ct. 1421, 67 L. Ed.2d 385 (1981)], the legislative facts on which the classification is apparently based rationally may have been considered to be true by the government decisionmaker, see Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 464 [101 S.Ct. 715, 66 L.Ed.2d 659, reh. denied, 450 many months before the decision was made to retain the club’s building. 97 See, e.g., State v. Ferguson, 260 Conn. 339, 365-66, 796 A.2d 1118 (2002) (“[e]ven if we were to assume, without deciding, that the statement had been made with knowledge of its falsity and that this fact should therefore be excised from the affidavit, we conclude that probable cause still existed for the warrant to issue”). 98 “[E]qual protection does not just mean treating identically situated persons identically . . . . Moreover, the requirement imposed upon [p]laintiffs claiming an equal protection violation [is that they] identify and relate specific instances where persons situated similarly in all relevant aspects were treated differently . . . .” (Citation omitted; emphasis altered; internal quotation marks omitted.) Thomas v. West Haven, supra, 249 Conn. at 402, 734 A.2d 535, quoting Dartmouth Review v. Dartmouth College, 889 F.2d 13, 19 (1st Cir.1989);
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U.S. 1027, 101 S.Ct. 1735, 68 L.Ed.2d 222] (1981), and the relationship of the classification to its goal is not so attenuated as to render the distinction arbitrary or irrational, see Cleburne v. Cleburne Living Center, Inc., [supra, 473 U.S. at 446, 105 S.Ct. 3249]. Nordlinger v. Hahn, supra, [at 11, 112 S.Ct. 2326] . . . . “Therefore, the presumption of constitutionality can be overcome only by the most explicit demonstration that the classification is a hostile and oppressive discrimination against particular persons and classes. The burden is on the one attacking the legislative arrangement to negative every conceivable basis which might support it . . . . Miller v. Heffernan, 173 Conn. 506, 509-10, 378 A.2d 572 (1977), appeal dismissed, 434 U.S. 1057, 98 S.Ct. 1226, 55 L. Ed.2d 758 (1978) . . . . Johnson v. Meehan, 225 Conn. 528, 535-37, 626 A.2d 244 (1993). Furthermore, when a court determines whether a legislative classification is a hostile and oppressive discrimination against a particular class, the challenger must establish that the legislature selected or reaffirmed a particular course of action at least in part because of, not merely in spite of, its adverse effects upon an identifiable group. Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256, 279, 99 S.Ct. 2282, 60 L.Ed.2d 870 (1979).” (Citations omitted; emphasis altered; internal quotation marks omitted.) Stafford Higgins Industries, Inc. v. Norwalk, 245 Conn. 551, 567-69, 715 A.2d 46 (1998); accord City Recycling, Inc. v. State, 257 Conn. 429, 445-46, 778 A.2d 77 (2001). Armed with these well established principles, we now turn to whether the trial court properly concluded that the plaintiffs failed to prove that there was no conceivable rational accord Cadlerock Properties Joint Venture, L.P. v. Commissioner of Environmental Protection, 253 Conn. 661, 672, 757 A.2d 1 (2000), cert. denied, 531 U.S. 1148, 121 S.Ct. 1089, 148 L.Ed.2d 963 (2001). Entities are “situated similarly in all relevant aspects” if “a prudent person, looking objectively at the incidents, would think them roughly equivalent and the protagonists similarly situated. Much as in the lawyer’s art of distinguishing cases, the relevant aspects are those factual elements which determine whether reasoned analogy supports, or demands, a like result. Exact correlation is neither likely nor necessary, but the cases must be fair congeners. In other words, apples should be compared to apples.” (Internal quotation marks omitted.) Dartmouth Review v. Dartmouth College, supra, at 19; accord Equus Associates, Ltd. v. Southampton, 37 F. Sup.2d 582, 599 (E.D.N.Y.1999) (utilizing test); Kirschner v. Zoning Board of Appeals, 924 F.Supp. 385, 392 (E.D.N.Y.1996) (same).
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basis for the development corporation’s decision to spare the club’s building, but not the plaintiffs’ residential properties, from condemnation. At the outset, we note that the parties do not dispute that this is a pure question of law; accordingly, we will engage in plenary review of the trial court’s conclusion. The plaintiffs contend that in determining whether there was a rational basis for the development corporation’s decision, the trial court utilized an improper legal standard by focusing on the defendants’ subjective motivation in making the condemnation decision, rather than on whether the decision itself was arbitrary or irrational. The plaintiffs also contend that the “defendants did not provide to the trial court a rational justification for its differential treatment between the property owners.” The defendants claim, in response, that the plaintiffs have not carried their burden of proof, and that the decision to retain the club’s building was rationally related to the achievement of the urban mixed-use community atmosphere of the development plan as a whole. We address each contention in turn. We first address the plaintiffs’ claim that the trial court applied an improper legal standard in its rational basis determination. Specifically, the plaintiffs contend that the trial court incorrectly had focused on the fact that they did not demonstrate adequately an improper or political motivation for the retention of the club’s building, in violation of the United States Supreme Court’s holding in Willowbrook v. Olech, 528 U.S. 562, 565, 120 S.Ct. 1073, 145 L. Ed.2d 1060 (2000), as adopted by this court in City Recycling, Inc. v. State, supra, 257 Conn. at 447, 778 A.2d 77. We disagree, and we conclude that the trial court did in fact apply the correct 99
In Willowbrook v. Olech, supra, 528 U.S. at 563, 120 S.Ct. 1073, property owners had asked village officials to connect their property to the municipal water supply. The village conditioned the connection on the property owners granting the village a thirty-three foot easement, despite the fact that it had connected other properties to the water supply upon the grant of fifteen foot easements. Id. After a three month delay, the village relented and connected the subject property to the water supply with a fifteen foot easement. Id. Thereafter, the property owners brought an action, contending that their equal protection rights had been violated by the thirty-three foot demand, which they alleged was “‘irrational and wholly arbitrary’” and the result of ill will by the village toward them because of a prior action between the parties. Id. The District Court dismissed the claim; on appeal, the “Seventh Circuit reversed, holding that
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legal standard in evaluating the plaintiffs’ claims. In Willowbrook v. Olech, supra, 528 U.S. at 564, 120 S.Ct. 1073, the United States Supreme Court concluded that “[o]ur cases have recognized successful equal protection claims brought by a class of one, where the plaintiff alleges that she has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment . . . . In so doing, we have explained that [t]he purpose of the equal protection clause of the Fourteenth Amendment is to secure every person within the State’s jurisdiction against intentional and arbitrary discrimination, whether occasioned by express terms of a statute or by its improper execution through duly constituted agents.” (Citations omitted; internal quotation marks omitted.) The court concluded that allegations of “‘irrational and wholly arbitrary’” treatment by village officials “quite apart from the [v]illage’s subjective motivation, [were] sufficient to state a claim for relief under traditional equal protection analysis.”99 Id., at 565, 120 S.Ct. 1073. We discussed the principles set forth in Willowbrook in City Recycling, Inc. v. State, supra, 257 Conn. 429, 778 A.2d 77. In that case, the commissioner of environmental protection (commissioner) had refused to process a recycling facility’s application to expand its existing facility. Id., at 431, 778 A.2d 77. The commissioner’s refusal was pursuant to General Statutes § 22a-208a (a), as amended by No. 97300, § 2, of the 1997 Public Acts (P.A. 97-300), which “prohibit[ed] the commissioner . . . from approving, for a city with a population of greater than 100,000, the establishment or a plaintiff can allege an equal protection violation by asserting that state action was motivated solely by a ‘spiteful effort to “get” him for reasons wholly unrelated to any legitimate state objective.’” Id., at 563-64, 120 S.Ct. 1073. Applying this reasoning, the Supreme Court affirmed the Seventh Circuit’s decision and concluded that the property owners’ complaint stated a cause of action, stating that the allegations that “the [v]illage’s demand was ‘irrational and wholly arbitrary’ and that the [v]illage ultimately connected [the] property after receiving a clearly adequate [fifteen] foot easement . . . quite apart from the [v]illage’s subjective motivation, are sufficient to state a claim for relief under traditional equal protection analysis.” Id., at 565, 120 S.Ct. 1073. In so concluding, the court expressly did “not reach the alternative theory of ‘subjective ill will’ relied on by [the Seventh Circuit].” Id.
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construction of ‘a new volume reduction plant or transfer station located, or proposed to be located, within one-quarter mile of a child day care center . . . .’ The statute also excepts from its purview existing volume reduction facilities and transfer stations without regard to their location.” City Recycling, Inc. v. State, supra, at 431-32, 778 A.2d 77. After reviewing the extensive factual findings and the relevant legislative history, this court concluded in City Recycling, Inc., that “[u]nder the principles of our equal protection jurisprudence, we conclude that P.A. 97-300, § 2, is unconstitutional as applied, because it is violative of the plaintiff’s equal protection rights. The factual findings of the trial court negate any rational basis of which we can conceive, the most obvious of which is that the expansion of the plaintiff’s facility would have some negative impact on children in the day care center located within one-quarter mile of the facility. The plaintiff’s equal protection claim is particularly compelling in light of the legislative history of P.A. 97-300, § 2, which demonstrates that the legislation was aimed solely at the plaintiff’s permit application.” Id., at 449, 778 A.2d 77. Our review of the trial court’s memorandum of decision in the present case indicates that, as the plaintiffs claim, the court did in fact devote a great deal of analysis to the evidence of the process by which the decisions to condemn properties, and later to spare the club’s building, were made. The memorandum states, however, that the court did so because the plaintiffs “strenuously argued that the true and only motive of the decision to allow the [club] to remain while the same right was not extended to [the plaintiffs] was based not on any purpose to accomplish the [development plan’s] goals, but to placate important political interests represented by the [club], its supporters and members.” Our review indicates that the trial court’s analysis and discussion of the decisional process supports its conclusion that the plaintiffs failed to carry their burden of proving that the development corporation acted arbitrarily or irrationally in making its decision to spare the club’s building. Moreover, our review of the record, including the plaintiffs’ trial briefs and the trial court’s memorandum of decision, indicates that beyond claims of preferential treatment for the G A L E
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club, the plaintiffs failed to offer arguments in support of the determinative proposition that the development corporation’s decision to spare the club completely lacked any conceivable rational basis. Indeed, the trial court expressly found that the club’s social functions were related to the community and social aspects of the development plan, including the hotel. The court also found that, with respect to the goal of tying the development plan to other development in the downtown New London area, it “cannot say [that] it is beyond the realm of rational consideration to want to have a social club of admittedly some political clout, with members and guests from outside the Fort Trumbull area, remain in that area.” The plaintiffs also claim that the “defendants did not provide to the trial court a rational justification for its differential treatment between the property owners.” The plaintiffs misstate the applicable burden of proof; indeed, as the trial court noted, they bear the burden of proving that there is no conceivable rational basis for the retention of the club’s building. See, e.g., City Recycling, Inc. v. State, supra, 257 Conn. at 446, 778 A.2d 77. Indeed, the plaintiffs’ principal brief to this court discusses the applicable legal standard, but does not attempt to negative all conceivable reasons for keeping the club’s building, but not their properties. Moreover, the city offers as a rational basis for the decision that the club’s social functions are consistent with the social elements and community atmosphere of the development plan as a whole. Although the plaintiffs attack this determination in their reply brief as not worthy of being taken seriously, when engaging in analysis under the rational basis standard of review, we are constrained by the well established proposition, that “the Equal Protection Clause is satisfied so long as there is a plausible policy reason for the classification . . . the legislative facts on which the classification is apparently based rationally may have been considered to be true by the government decisionmaker . . . and the relationship of the classification to its goal is not so attenuated as to render the distinction arbitrary or irrational . . . .” (Citations omitted; internal quotation marks omitted.) Id., at 445, 778 A.2d 77. Thus, the rational basis proffered by the city, in combination with the plausible reasons found by the trial court, and the plaintiffs’ failure to carry their high burden of proof, compel us to A M E R I C A N
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conclude that the plaintiffs’ rights to the equal protection of the laws have not been violated by the development corporation’s decision to retain the club’s building, but not their properties. VI
CROSS APPEAL: WHETHER THE TAKING OF PARCEL 4A WAS REASONABLY NECESSARY We now turn to the defendants’ cross appeal, wherein they contend, inter alia, that the trial court improperly concluded that the takings of the plaintiffs’ properties on parcel 4A were not reasonably necessary and, therefore, improperly granted the plaintiffs permanent injunctive relief. Specifically, the defendants claim that the trial court’s conclusion that the properties on parcel 4A were not reasonably necessary because proposals, but no definite plan, were yet in place for the use of that parcel, was the product of an improperly broad review that did not afford the appropriate deference to the legislative necessity determination. The development corporation also contends that the trial court incorrectly allocated the burden of proof to the defendants. The plaintiffs contend, in response, that the trial court: (1) utilized the correct legal standard in its inquiry; and (2) correctly concluded that the properties on parcel 4A were not reasonably necessary because, unlike with parcel 3, the trial court did not have sufficient information before it to pass on the necessity of those properties to the development as a result of the lack of plans for parcel 4 development. We agree with the defendants, and we conclude that the trial court did not utilize the correct legal standard in evaluating the plaintiffs’ parcel 4A claims and, therefore, improperly granted the plaintiffs permanent injunctive relief. We begin by setting forth the standard of review applicable to a legislative or agency determination of reasonable necessity. As an initial matter, the question of “[w]hether the purpose for which a statute authorizes the condemnation of property constitutes a public use is, in the end, a judicial question to be resolved by the courts . . . but, in resolving it, great weight must be given to the determination of the legislature.” (Citation omitted.) Gohld Realty Co. v. Hartford, supra, 141 Conn. at 141, 104 A.2d 365. In part II of this opinion, we concluded that economic development projects created and implemented pursuant to chapter G A L E
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132 of the General Statutes that have the public economic benefits of creating new jobs, increasing tax and other revenues, and contributing to urban revitalization, namely, the development plan in the present case, satisfy the public use clauses of the federal and state constitutions. Once this court concludes that the enabling statutes support a public purpose, however, our review becomes much more limited in scope. “The determination of what property is necessary to be taken in any given case in order to effectuate the public purpose is, under our constitution, a matter for the exercise of the legislative power. When the legislature delegates the making of that determination to another agency, the decision of that agency is conclusive . . . . The agency’s decision, however, is open to judicial review only to discover if it was unreasonable or in bad faith or was an abuse of the power conferred.” (Citation omitted; internal quotation marks omitted.) Pequonnock Yacht Club, Inc. v. Bridgeport, supra, 259 Conn. at 600, 790 A.2d 1178; Gohld Realty Co. v. Hartford, supra, 141 Conn. at 146, 104 A.2d 365; accord Adams v. Greenwich Water Co., supra, 138 Conn. at 213-14, 83 A.2d 177; Bugryn v. Bristol, supra, 63 Conn.App. at 10708, 774 A.2d 1042. Moreover, under this standard it is “the plaintiff [who has] the burden of establishing that the taking . . . was unreasonable, in bad faith or an abuse of power.” (Emphasis added.) Hall v. Weston, supra, 167 Conn. at 66, 355 A.2d 79; accord Pequonnock Yacht Club, Inc. v. Bridgeport, supra, at 598, 790 A.2d 1178; Gohld Realty Co. v. Hartford, supra, at 146, 104 A.2d 365. As stated in part IV A of this opinion, on appeal this court will apply the clearly erroneous standard of review to the trial court’s underlying factual determination of whether the legislative or agency determination of necessity “‘was unreasonable or in bad faith or was an abuse of the power conferred.’ Gohld Realty Co. v. Hartford, supra, 141 Conn. at 146, 104 A.2d 365.” Bugryn v. Bristol, supra, 63 Conn.App. at 107, 774 A.2d 1042. It is well established that “[a] finding of fact is clearly erroneous when there is no evidence in the record to support it . . . or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) DiMartino v. Richens, supra, 263 Conn. at 661, 822 A.2d 205. A M E R I C A N
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Furthermore, “[t]he governing principles for our standard of review as it pertains to a trial court’s discretion to grant or deny a request for an injunction [are]: A party seeking injunctive relief has the burden of alleging and proving irreparable harm and lack of an adequate remedy at law . . . . A prayer for injunctive relief is addressed to the sound discretion of the court and the court’s ruling can be reviewed only for the purpose of determining whether the decision was based on an erroneous statement of law or an abuse of discretion . . . . Therefore, unless the trial court has abused its discretion, or failed to exercise its discretion . . . the trial court’s decision must stand.” (Citations omitted; internal quotation marks omitted.) Pequonnock Yacht Club, Inc. v. Bridgeport, supra, 259 Conn. at 598, 790 A.2d 1178. The record reveals the following additional facts relevant to our resolution of this claim. As mentioned previously in this opinion, parcel 4 is subdivided into two smaller parcels, 4A and 4B. Eleven properties owned by four of the plaintiffs are located on parcel 4A; they occupy 0.76 acres out of the 2.4 acre parcel. Under the development plan, parcel 4A is designated for “park support” or “marina support . . . .” There is no development commitment or formal site plan in place for parcel 4A.
alternative use for parcel 4A, which is “the development of support facilities for a marina, or a marina training facility, to be developed to the south on [p]arcel 4B and the Fort Trumbull State Park to the east. Any development of ancillary buildings that may be located on these two parcels shall be oriented to help define their edges . . . . Surface parking developed on either of these parcels shall be appropriately screened.”101 Claire Gaudiani, president of the development corporation, testified that the development corporation also was working with the United States Coast Guard to explore the possibility of placing its museum on parcel 4A.102 The development corporation has not, however, obtained a commitment from the Coast Guard for museum development on parcel 4A, because the Coast Guard was still choosing sites; indeed, the museum also had been considered for parcel 2, as well. Gaudiani testified that, to her personal knowledge, parcel 4A was the “preferred” and more likely site for the museum.103
Although the development plan does not define the term “park support” expressly,100 in describing the parcel’s intended use, it states that “[a] portion of [p]arcel 4A will be redeveloped for uses that support the state park, such as parking, or for uses such as retail that will serve park visitors and members of the community.” As the trial court correctly noted, the development plan later describes an
The trial court began its analysis with the proposition that, “it is not necessary that the officials proceed to make immediate use of the property thus acquired, or that they have ‘plans and specifications prepared and all other preparations necessary for immediate construction before it [the county] can determine the necessity for taking private property for public purpose.’ Carlor Co. v. [Miami, 62 So.2d 897, 902 (Emphasis added.) (Fla.1953)].” Wright v. Dade County, 216 So.2d 494, 496 (Fla. App.1968), cert. denied, 225 So.2d 527 (Fla.1969), cert. denied, 396 U.S. 1008, 90 S.Ct. 565, 24 L.Ed.2d 500 (1970). The trial
100 In its memorandum of decision, the trial court expressed its concern that the phrase “park support” is vague and undefined. Damon Hemmerdinger, who had been the development corporation’s director of real estate development and presently serves as a consultant to the development corporation, called it “broad” and “[not] a statutory term,” stating that parcel 4A would serve uses such as parking or “other ancillary uses” for the park or marina. Indeed, Claire Gaudiani, president of the development corporation, also was not sure of the exact definition of the phrase “park support.” We note, as did the trial court, that Mullin, the plaintiffs’ expert, testified that he had never heard the term before, but understood it to mean “parking, storage [and] warehousing.” Mullin also referred to parcel 4A as “a big nothing,” but then acknowledged that it could provide parking for both the
parcel 4B marina, as well as the state park. He did state that he had insufficient information to estimate the parking demand as a result of those two facilities. 101 This section of the development plan also states that parcel 4B “is intended to accommodate a mix of waterdependent uses centered around the rehabilitated Fort Trumbull Marina, which will provide boat slips and upland support. The Marina may be developed as a working marina training center, with facilities designed in conjunction with improvements made to parcel 4A.” 102 Gaudiani testified that the museum would not be on the tax rolls, but would provide jobs and generate revenue by attracting thousands of visitors. If built, the museum would preclude the use of parcel 4A for parking. 103 Goebel also testified that he was hoping for the museum to be located on parcel 4A.
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court then stated that when the Florida court applied this proposition in Miami Beach v. Broida, 362 So.2d 19, 20 (Fla.App.1978), cert. denied, 372 So.2d 466 (Fla.1979), it had noted that there was a partially completed plan in place that justified taking the condemnees’ property for a convention center. The trial court then cited State Highway Commission v. Yost Farm Co., 142 Mont. 239, 243-44, 384 P.2d 277 (1963), and Krauter v. Lower Big Blue Natural Resources District, 199 Neb. 431, 439, 259 N.W.2d 472 (1977),104 for the proposition that the “[condemnor] must in the first instance produce sufficient evidence to establish facts indicating the taking is necessary.” The trial court then stated that, under these standards, the statements in the development plan regarding parcel 4A are “too vague and uncertain to allow [it] to conclude [that] the takings here are necessary and would not be reasonable.” It concluded that the hopes of placing the museum on the parcel were too speculative to justify the condemnations, and that the other plans were too vague to allow it to engage in a necessity analysis; in other words, “[e]ven if the court were prepared to give the legislative agency all the deference in the world under these circumstances . . . the court just cannot make the requisite constitutionally required necessity determination based on the information before it.” On the basis of this conclusion, the court granted permanent injunctive relief against the demolition of the plaintiffs’ properties located on parcel 4A, and ordered that the statements of compensation and certificates of taking with respect to those properties be dismissed. On the basis of our review of the record and the trial court’s memorandum of decision, we conclude that the trial court’s review of the parcel 4A taking utilized a legal standard that
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The trial court quoted Krauter v. Lower Big Blue Natural Resources District, supra, 199 Neb. at 439, 259 N.W.2d 472, as stating that “[t]he landowner’s right to own, possess, and enjoy his property free from an unlawful and unconstitutional exercise of the sovereign power of eminent domain may best be insured by requiring specific pleadings and proof. We hold that in a condemnation action under the power of eminent domain, the condemn[or] must allege the specific public purposes for which the condemn[or] seeks to acquire and use the property sought to be taken.” (Emphasis added.)
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permitted review far in excess of that provided for by our well established case law. More specifically, although the trial court did acknowledge nominally the judicial deference owed to the legislative necessity determination, our review of its analysis, particularly the inclusion of the Montana and Nebraska cases, indicates that it did not utilize the proper legal standard, as set forth in Pequonnock Yacht Club, Inc. v. Bridgeport, supra, 259 Conn. at 598-601, 790 A.2d 1178, and Gohld Realty Co. v. Hartford, supra, 141 Conn. at 146, 104 A.2d 365, in reviewing the parcel 4A takings. The trial court cited State Highway Commission v. Yost Farm Co., supra, 142 Mont. at 243-44, 384 P.2d 277, and Krauter v. Lower Big Blue Natural Resources District, supra, 199 Neb. at 439, 259 N.W.2d 472, for the proposition that the “[condemnor] must in the first instance produce sufficient evidence to establish facts indicating the taking is necessary.” As the development corporation correctly contends, this proposition improperly interposes burdens of production and persuasion that are dramatically different than the burden our state applies in cases wherein the necessity of a taking is attacked. In Connecticut it is not the condemnor, but rather “the plaintiff [who has] the burden of establishing that the taking . . . was unreasonable, in bad faith or an abuse of power.” (Emphasis added.) Hall v. Weston, supra, 167 Conn. at 66, 355 A.2d 79; accord Pequonnock Yacht Club, Inc. v. Bridgeport, supra, 259 Conn. at 598, 790 A.2d 1178; Gohld Realty Co. v. Hartford, supra, 141 Conn. at 146, 104 A.2d 365. We note further that the Montana and Nebraska decisions followed by the trial court utilize an approach to the necessity determination that is dramatically different from the deferential standard that our state applies in cases wherein the necessity of a taking is attacked. Unlike Connecticut, these courts consider necessity to be a question of fact for the judiciary. For example, in State Highway Commission v. Yost Farm Co., supra, 142 Mont. at 243-44, 384 P.2d 277, the court stated: “The foregoing statutes and cases clearly reflect that under [Montana’s] eminent domain statutory provisions, the trial judge not only has the power to determine the question of necessity, but has been directed to make a finding that the public interest requires the taking of the lands A M E R I C A N
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before he has power to issue an order of condemnation.”105 In Connecticut, to the contrary, a trial court is limited to the factual determination of whether the legislative or agency determination of necessity “was unreasonable or in bad faith or was an abuse of the power conferred.” Gohld Realty Co. v. Hartford, supra, 141 Conn. at 146, 104 A.2d 365. Despite acknowledging this deferential standard of review, and properly applying it in its review of the necessity of the taking of parcel 3 properties, the trial court improperly conducted a necessity review that went beyond the scope of review permitted and based its decision to grant permanent injunctive relief on an incorrect statement of the law with respect to the parcel 4A properties.106 Accordingly, its decision to grant permanent injunctive relief to those plaintiffs who own property located on parcel 4A was an abuse of its discretion.107 Furthermore, we note that the plaintiffs claim only that the trial court properly determined that the taking of parcel 4A was not reasonably necessary. As previously discussed, this argument is premised on the trial court applying a standard of review that is not applicable in Connecticut. The plaintiffs did not claim that the development corporation’s decision violated the proper standard utilized in Connecticut for reviewing such decisionswhether the decision was “unreasonable or in bad faith or was an abuse of the power
conferred.” Gohld Realty Co. v. Hartford, supra, 141 Conn. at 146, 104 A.2d 365. In reviewing the plaintiffs’ parcel 3 claim, we affirmed the trial court’s determination that “there is no evidence, credible or otherwise, that the condemnations in parcel 3 as originally envisaged in the [development plan] or at the time of the taking were done in bad faith, or not with an honest motive, or based on [any] pretext given any reasonable definition of the word . . . .” See part IV A of this opinion. Similarly, our review of the record as it concerns the development corporation’s necessity determination for parcel 4A reveals that it was not the product of bad faith, unreasonableness, or an abuse of the power conferred. Compare AvalonBay Communities, Inc. v. Orange, supra, 256 Conn. at 565, 579-80, 775 A.2d 284 (municipality’s project plan was “pretext . . . to thwart affordable housing”; “the record fully support [ed] the trial court’s finding that the [chapter 132] project plan was hastily assembled, poorly envisioned and incomplete”).
105 The court in State Highway Commission v. Yost Farm Co., supra, 142 Mont. at 243-44, 384 P.2d 277, stated: “In an action to condemn private property for a public use, the question of necessity is one of fact, to be determined as other questions of fact, in view of all the evidence in the case. The evidence should show that the land is reasonably required for the purpose of effecting the object of its condemnation . . . . The question of necessity in a given case involves a consideration of facts which relate to the public and also to the private citizens whose property may be injured. The greatest good on the one hand and the least injury on the other are the questions of fact to be determined in passing upon the question of necessity . . . . “The foregoing statutes and cases clearly reflect that under our eminent domain statutory provisions, the trial judge not only has the power to determine the question of necessity, but has been directed to make a finding that the public interest requires the taking of the lands before he has power to issue an order of condemnation.” (Citations omitted; internal quotation marks omitted.) Similarly, the court in Krauter v. Lower Big Blue Natural Resources District, supra, 199 Neb. at 439, 259 N.W.2d 472, stated that “[i]n a condemnation case issues as to the amount of property needed and the estate or interest in such
property are questions of fact for the court.” See also footnote 104 of this opinion. 106 Accordingly, we need not address the plaintiffs’ factual contentions in support of the trial court’s opinion because they are offered in support of a factual finding that was the product of the application of an improper legal standard. 107 We also need not address the defendants’ other claim in support of their cross appeal, which is that the trial court improperly refused to permit the defendants to take the plaintiffs’ properties on parcel 4A for the purpose of roadway and infrastructure improvements. 108 As the development corporation points out, accomplishment of the development plan’s general plan for development requires that the development corporation have flexibility in carrying out the plan. The general plan states that “[t]he Fort Trumbull [development plan] area shall be developed as a dynamic mixed-use urban district that fully develops the opportunities presented by its waterfront location and its adjacency to the developing regional assets of the Fort Trumbull State Park and the Pfizer [g]lobal [d]evelopment [f]acility. The development of its proposed land uses shall support the formation of a vibrant Waterfront Urban Village, which binds each of its components into a highly cohesive urban district.
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While there was no development commitment or formal site plan in place for parcel 4A, this is not necessarily indicative of bad faith, unreasonableness or abuse of power. As the trial court stated, “master planning is a process that evolves over time and must be flexible and subject to change as conditions warrant.”108 Similarly, this court has rejected a challenge to a
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town’s condemnation based upon the town’s lack of a detailed plan designating exactly what part of the defendants’ land it needed for what purpose. West Hartford v. Talcott, 138 Conn. 82, 91, 82 A.2d 351 (1951); cf. American Trading Real Estate Properties, Inc. v. Trumbull, 215 Conn. 68, 79, 574 A.2d 796 (1990) (“land is indeed held for public use even when a municipality is not presently making use of the land but is simply holding it for development at some later time”). Furthermore, the development plan reveals that intended uses of parcel 4A include parking for a state park, or retail that will serve visitors and members of the community, or support facilities for a marina or a marina training facility. These intended uses, while not subject to definite commitments, do demonstrate that the development corporation has given reasonable attention and thought to the potential use of parcel 4A. Accordingly, under our deferential standard of review, the record does not support a finding that the development corporation acted in bad faith, unreasonably or in abuse of its power when it decided that parcel 4A was necessary to accomplish the objectives of the development plan. See Berman v. Parker, supra, 348 U.S. at 35-36, 75 S.Ct. 98 (“It is not for the courts to oversee the choice of the boundary line nor to sit in review on the size of a particular project area. Once the question of the public purpose has been decided, the amount and character of land to be taken for the project and the need for a particular tract to complete the integrated plan rests in the discretion of the legislative branch.”); Gohld Realty Co. v. Hartford, supra, 141 Conn. at 146, 104 A.2d 365 (necessity determination open to judicial review only to discover if it was “unreasonable or in bad faith or was an abuse of the power conferred”).
In this opinion BORDEN, PALMER and VERTEFEUILLE, Js., concurred. ZARELLA, J., with whom SULLIVAN, C. J., and KATZ, J., join, concurring in part and dissenting in part.
The judgment is affirmed with respect to the parcel 3 takings; the judgment is reversed with respect to the parcel 4A takings, and the case is remanded to the trial court with direction to render judgment for the defendants.
I believe that the majority reaches the wrong result with respect to the plaintiffs’ properties, in part because it overlooks the fact that private economic development differs in many important respects from how we have defined a public
“The integrated nature of the proposed development shall (a) increase public access and use of the waterfront, (b) maintain a community atmosphere, and (c) enhance the location’s attractiveness and desirability. The establishment of strong functional, spatial and physical interrelationships between the district’s various buildings, streets, public spaces and the waterfront, shall orient the development of each of the proposed land use components.” (Emphasis added.)
1 “It is a fundamental principle of law that the power to appropriate private property for public use is an attribute of sovereignty and essential to the existence of government . . . . It attaches to every man’s land and is paramount to his right of ownership . . . . It lies dormant in the state until set in motion by legislative enactment.” (Citations omitted.) Northeastern Gas Transmission Co. v. Collins, 138 Conn. 582, 586, 87 A.2d 139 (1952).
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Another court observed in a different context: “A man’s home may be his castle, but that does not keep the Government from taking it.” Hendler v. United States, 952 F.2d 1364, 1371 (Fed.Cir.1991). That is because, “[a]s an incident to its sovereignty, the Government has the authority to take private property for a public purpose.”1 1 Id. At the time that our federal constitution was written, a government taking meant just that, namely, a taking for a government purpose such as for a public building. Id. As the population grew and the collective needs of our society changed, however, the takings power was construed more broadly. Governmental authorities condemned private properties not just for a “public use,” but also to achieve a “public benefit” such as the elimination of urban blight. Today, an even more expansive interpretation of public use in certain jurisdictions permits the taking of property for private economic development. To many, this represents a sea change in the evolution of the law of takings because it blurs the distinction between public purpose and private benefit and cannot help but raise the specter that the power will be used to favor purely private interests. This case therefore presents the court with a rare and timely opportunity to address a constitutional issue of great significance, that is, whether there are limits to the government’s authority to take private property by eminent domain when the public purpose is private economic development, and, if so, how those limits should be defined and enforced.
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use in the past. Accordingly, although I concur in parts I,2 III and V3 of the majority opinion regarding the applicability of chapter 132 of the General Statutes4 to nonvacant land, the constitutionality of delegating the eminent domain power to the New London Development Corporation (development corporation), and the plaintiffs’ equal protection claims, respectively, I disagree with the majority’s conclusions in parts II, IV and VI pertaining to private economic development5 as a public use under the Connecticut and federal constitutions and the taking of the plaintiffs’ properties on parcels 3 and 4A. I begin by noting that, because this is a case of first impression, this court has not considered, prior to today, many of the issues raised by the parties to this appeal, including whether chapter 132 of the General Statutes is constitutional. I further note that this court has not examined, for nearly a century, the authority of the state to exercise its power of eminent domain for the public benefit when accompanied by a corresponding benefit to private interests.6 See Connecticut College v. Calvert, 87 Conn. 421, 424-28, 88 A. 633 (1913); Evergreen Cemetery Assn. v. Beecher, 53 Conn. 551, 553, 5 A. 353 (1886). Thus, it is important to undertake a review of property rights, the eminent domain power and the evolution of the public use requirement before addressing the issues raised by the plaintiffs in this appeal. Part I A of this dissent briefly explores, from a historical standpoint, both the nature of the sovereign’s taking authority and the development of the concept of private property rights. Part I B examines the historical development of the takings clauses of the state and federal constitutions, with particular emphasis on the changing concept of public use. 2
I disagree in large part with the majority’s analysis in part I of its opinion. Any discussion about this issue is unnecessary, however, in light of my conclusion that chapter 132 of the General Statutes applies to nonvacant land. 3 Although I agree with the majority’s conclusion in part V of its opinion, my conclusion that the taking of the plaintiffs’ properties is unconstitutional for other reasons is dispositive of the appeal, and, thus, the court need not reach the plaintiffs’ equal protection claims. 4 General Statutes §§ 8-186 through 8-200b. 5 The term “private economic development,” as used in this opinion, refers to the type of development permitted under chapter 132 of the General Statutes. 6 In redevelopment projects, it is the elimination of blight, and not the development that follows, that constitutes the public benefit. See generally General Statutes § 8-124.
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Part II examines the degree of deference due to the legislature in its determination of what constitutes a public use, as well as the appropriate role of the court in ensuring that the condemnees’ constitutional rights under the state and federal constitutions are not infringed. This part of the opinion also addresses whether different levels of judicial review are required depending on the nature of the public use under consideration. Part III applies the principles enunciated in part II to the specific facts of this case as found by the trial court. Part IV summarizes my concerns, expressed throughout this opinion, as to the use of the eminent domain power in furtherance of private economic development. In summary, I conclude that the legislature should be accorded great deference in determining what constitutes a public use, that the courts have a limited role in reviewing that determination, that chapter 132 of the General Statutes is facially constitutional, that, as the category of public use changes from one of direct public use to indirect public benefit in the form of private economic development, the level of judicial inquiry must increase in order to protect the legitimate interests of the condemnee, and, finally, that the taking of homes on parcels 3 and 4A, as described in the development plan, was not warranted on the basis of the facts found by the trial court and the principles set forth in this opinion. I
HISTORICAL DEVELOPMENT OF PRIVATE PROPERTY RIGHTS, EMINENT DOMAIN AND THE PUBLIC USE CLAUSE A
Private Property Rights and Eminent Domain I agree with this court’s observation that “[a] public use defies absolute definition, for it changes with varying conditions of society, new appliances in the sciences, changing conceptions of the scope and functions of government, and other differing circumstances brought about by an increase in population and new modes of communication and transportation.” (Internal quotation marks omitted.) Katz v. Brandon, 156 Conn. 521, 532, 245 A.2d 579 (1968). I also recognize that the concept of public use has evolved over the course of our nation’s history from the taking of private property for actual use by the public to the taking of property to further the public good or to secure some public A M E R I C A N
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benefit. See 2A P. Nichols, Eminent Domain (3d Ed. Rev.2003, J. Sackman ed.) § 7.01[1], p. 7-16. I believe, however, that when this court is called upon to decide claims arising under chapter 132 of the General Statutes, it must be ever mindful, not only of a sovereign’s historical power to acquire private property for a public use, but also of our nation’s long-held commitment, shared by this state, to protect private property from unnecessary takings. See J. Lazzarotti, “Public Use or Public Abuse,” 68 UMKC L.Rev. 49, 55 (1999); see also Pequonnock Yacht Club, Inc. v. Bridgeport, 259 Conn. 592, 601, 790 A.2d 1178 (2002) (authority to condemn strictly construed against taking party). Private property rights developed as a legal concept in Europe during the demise of feudalism. See J. Lazzarotti, supra, 68 UMKC L.Rev. 53. The Magna Carta recognized the necessity of protecting private property rights in 1225 in providing that “[n]o Freeman shall be . . . desseised of his Freehold . . . but by lawful Judgment of his Peers, or by the Law of the Land.” Magna Carta, c. XXIX (1225). The text of our federal constitution reflects a similar intent that private property rights be fully protected. See, e.g., U.S. Const., amends. V and XIV. The idea that the protection of private property is a principal aim of our society was affirmed by former United States Representative John A. Bingham, drafter of the fourth amendment, when he declared that “natural or inherent rights, which belong to all men irrespective of all conventional regulations, are by this constitution guarantied by the broad and comprehensive word ‘person’ . . . guarding those sacred rights which are as universal and indestructible as the human race, that ‘no person shall be deprived of life, liberty, or property but by due process of law, nor shall private property be taken without just compensation.’” Cong. Globe, 35th Cong., 2d Sess., p. 983 (1859). Bingham also declared that “the absolute equality of all, and the equal protection of each, are principles of our Constitution . . . . It protects not only life and liberty, but also property, the product of labor.” Cong. Globe, 34th Cong., 3d Sess., App., p. 140 (1857). In Connecticut, private property rights were so firmly entrenched by the time of the state constitutional convention in 1818 that the takings clause of the new constitution, which provided that “[t]he property of no person shall G A L E
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be taken for public use without just compensation therefor”; Conn. Const. (1818), art. I, § 11; was adopted without debate. W. Horton, The Connecticut State Constitution: A Reference Guide (1993) p. 70. Nevertheless, the right of the sovereign to condemn private property also has deep historical roots, purportedly dating back to the Romans. L. Berger, “The Public Use Requirement in Eminent Domain,” 57 Or. L.Rev. 203, 204 (1978). The term “eminent domain” was used in the seventeenth century work, De Jure Belli et Pacis, in which Hugo Grotius, a renowned legal scholar, discussed the government’s authority “to take private property for reasons of extreme necessity or public utility upon payment of compensation.” Id. In our own country, the taking of private property for a public use was a well accepted principle in colonial times. 2A P. Nichols, supra, § 7.01[3], p. 7-17. Eminent domain was employed to support mills, to create roads, to build canals and bridges; id., § 7.07[3], p. 7-200.1; and to drain private lands. Id., § 7.01[3], p. 7-17. As the power was used more frequently, however, controversy ensued. Id., pp. 7-17 through 7-18. Beginning with Pennsylvania and Vermont, in 1776 and 1777, states sought in their early constitutions to place specific limitations on the power of eminent domain. Id., p. 7-18. Since that time, courts have sought, and sometimes struggled, to interpret the public use clause in light of state regulations and changes in the nation’s economy that have transformed our society in unforeseen ways. B
Evolution of the Public Use Requirement A review of the law on takings reveals that the definition of “public use,” when considered in the context of the eminent domain power, has no precise or fixed meaning. Id., § 7.02[1], p. 7-24. Some courts have narrowly construed the public use clause to mean that property acquired by eminent domain actually must be used by the public, or that the public must have the opportunity to use the acquired property. Id., § 7.02[2], p. 7-26; see, e.g., Rockingham County Light & Power Co. v. Hobbs, 72 N.H. 531, 534, 58 A. 46 (1904). Under a narrow reading of the term, public use includes public buildings, utilities, schools and roads. Pocantico Water-Works Co. v. Bird, 130 N.Y. 249, 259, 29 A M E R I C A N
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N.E. 246 (1891); 2A P. Nichols, supra, § 7.02 [6], p. 7-36.1. Other courts have construed the public use clause more broadly to include a use that furthers the public good or the general welfare, or one that secures some public benefit. 2A P. Nichols, supra, § 7.01[1], pp. 7-15 through 7-16; see id., § 7.02[3], p. 7-29; see also Olmstead v. Camp, 33 Conn. 532, 546 (1866) (“‘[p]ublic use’ may . . . mean public usefulness, utility or advantage, or what is productive of general benefit”). Under this more expansive interpretation of the term, the United States Supreme Court has held that the scope of eminent domain is “coterminous with the scope of a sovereign’s police powers.”7 Hawaii Housing Authority v. Midkiff, 467 U.S. 229, 240, 104 S.Ct. 2321, 81 L.Ed.2d 186 (1984). Historically, the most dramatic example of takings under a broad construction of the public use clause is the acquisition of property for the redevelopment of blighted areas, whereby the stated public purpose is to reduce the menace to the public health, safety, morals and welfare of the community by “eliminating substandard, insanitary, deteriorated, deteriorating, slum or blighted conditions . . . [and] preventing recurrence of such conditions in the area . . . .” General Statutes § 8-124. Private economic development pursuant to chapter 132 of the General Statutes can be distinguished in at least two important respects from previous notions of public use. First, traditional takings almost always are followed by an immediate or reasonably foreseeable public benefit. See, e.g., Gohld Realty Co. v. Hartford, 141 Conn. 135, 138-39, 104 A.2d 365 (1954) (condemnation of properties followed soon thereafter by relocation of project area residents and demolition of substandard structures); Olmstead v. Camp, supra, 33 Conn. at 551 (land taken by flooding contemporaneously with continuous operation of grist mill). In contrast, large-scale, private economic development projects authorized under chapter 7 The police power has been described as “extensive, elastic, and constantly evolving to meet new and increasing demands for its exercise for the benefit of society and to promote the general welfare. It embraces the state’s power to preserve and to promote the general welfare and it is concerned with whatever affects the peace, security, safety, morals, health, and general welfare of the community . . . .” 16A Am.Jur.2d 251, Constitutional Law § 315 (1998).
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132 of the General Statutes may not be completed for decades. In the present case, the municipal development plan (development plan), by its own terms, will be in full force and effect for a period of thirty years.8 Accordingly, there may be much more uncertainty as to when and how the public may benefit when property is condemned for private economic development. Second, the public benefit derived from a conventional taking typically flows from the actions of the taking party. See, e.g., Hawaii Housing Authority v. Midkiff, supra, 467 U.S. 229, 104 S.Ct. 2321, 81 L.Ed.2d 186 (public benefit achieved as result of housing authority’s transfer of title from lessors to lessees); Gohld Realty Co. v. Hartford, supra, 141 Conn. at 142, 104 A.2d 365 (public benefit achieved by redevelopment agency’s elimination of substandard structures and other evidence of blight on condemned properties); Olmstead v. Camp, supra, 33 Conn. at 551 (public benefit achieved by private property owner’s operation of grist mill). In contrast, takings for private economic development require the taking party to transfer ownership of the condemned land to private developers who subsequently execute a plan to accomplish the public purpose. Because public agencies must work hand in glove with private developers to achieve plan objectives, the taking agency may employ the power to favor purely private interests. See, e.g., Southwestern Illinois Development Authority v. National City Environmental, LLC, 199 Ill.2d 225, 240-41, 263 Ill.Dec. 241, 768 N.E.2d 1 (taking of property for expansion of private parking facility deemed not for public purpose), cert. denied, 537 U.S. 880, 123 S.Ct. 88, 154 L.Ed.2d 135 (2002). The trial court in the present case recognized this problem when it stated in its memorandum of decision that “powerful business groups or companies [may] exercise their influence to gain their ends with . . . little corresponding benefit to the public.” The majority makes a similar observation. See part II A of the majority opinion (recognizing “potential for abuse of the eminent domain power”).
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Section 12.0 of the development plan provides in relevant part: “This [development plan] and/or any modification hereof shall be in full force and effect for a period of thirty . . . years from the date of first approval . . . by the City Council of the City of New London . . . .”
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A direct comparison of the statutory provisions on redevelopment and the corresponding provisions pertaining to private economic development illustrates the unique constitutional problem that may arise when the taking of private property for a public purpose also bestows significant benefits on private developers. Under chapter 130 of the General Statutes,9 the redevelopment scheme, an area in need of revitalization is identified, properties are acquired, structures are demolished as necessary to eliminate blighted conditions and site improvements are made prior to the disposition of the cleared and improved land. See generally General Statutes § 8-124 et seq. The declaration of public policy contained in chapter 130 expressly provides that the disposition of property is “incidental to” the elimination of blight and the activities surrounding the elimination of blight enumerated in the statute,10 which are “public uses and purposes for which public money may be expended and the power of eminent domain exercised . . . .” General Statutes § 8-124. Consequently, the public benefit in a redevelopment project is clearly defined and well understood. It also can be accomplished relatively quickly and with a high degree of certainty because a public agency, funded with public money, is charged with bringing it about. In contrast, municipal development projects undertaken pursuant to chapter 132 of the General Statutes involve the expenditure of funds to acquire and to improve land, water and vacated commercial plants for the far more abstract and ill-defined goals of promoting the “continued growth of industry and business within the state” and “meet[ing] the needs of industry and business . . . .”11 General Statutes § 8-186. The statutory scheme contains no clear description of how those goals are to be
accomplished, except by conveyance of the properties to private parties. Disposition of the properties is thus essential, rather than incidental, to achieving the public purpose. Although the properties, once conveyed, are subject to land use restrictions and, in some cases, oversight by state agencies, there is no statutory assurance that the public will benefit from the development to follow or that the development even will occur. As the trial court observed, “[t]he very nature of economic developmenttype projects is such that their accomplishment [is] based on financial predictions and possibilities that cannot be certain and [is] dependent on equally uncertain competitive factors.” The underlying uncertainty as to whether the public benefit will be achieved as planned in private economic development projects is expressly recognized in General Statutes § 8200(b). That statute provides that a development plan may be abandoned within three years of its approval, and that any properties acquired thereunder may be conveyed free of the plan’s restrictions if they cannot be conveyed to a private party at fair market value pursuant to the plan.12 General Statutes § 8-200(b). The statutory scheme dealing with redevelopment contains no similar provision, and need not, because the public purpose of eliminating blight is accomplished at the time of the taking. Whatever occurs thereafter is irrelevant to the takings issue. Accordingly, under chapter 132 of the General Statutes, the possibility that a project may be abandoned after properties have been taken by eminent domain, when combined with the inherent uncertainty that the expected public benefit will be achieved in any particular case, raises serious concerns regarding the limits of the takings power that cannot be ignored. Recent developments in the law of certain jurisdictions that permit condemnations for
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General Statutes §§ 8-125 through 8-169w. Pursuant to § 8-124, those activities include the acquisition of property, the removal of structures, the improvement of sites, the exercise of powers by municipalities, and any assistance offered by any public body. 11 General Statutes § 8-187(10) defines the term “business purpose” as “includ[ing] . . . any commercial, financial or retail enterprise and . . . any enterprise which promotes tourism and any property that produces income.” This definition does little, however, to illuminate the meaning of “private economic development” as that term is used in chapter 132 of the General Statutes. 10
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General Statutes § 8-200 provides in relevant part: “(b) If after three years from the date of approval of the development plan the development agency has been unable to transfer by sale or lease at fair market value or fair rental value, as the case may be, the whole or any part of the real property acquired in the project area to any person in accordance with the project plan, and no grant has been made for such project pursuant to section 8-195, the municipality may, by vote of its legislative body, abandon the project plan and such real property may be conveyed free of any restriction, obligation or procedure imposed by the plan but shall be subject to all other local and state laws, ordinances or regulations.”
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private economic development have caused one commentator to remark that most observers believe that the public use limitation on the power of eminent domain is a “dead letter.” T. Merrill, “The Economics of Public Use,” 72 Cornell L.Rev. 61, 61 (1986). Critics question the propriety of condemning private property merely because a newly proposed use promises a greater public benefit than an existing use. See, e. g., Poletown Neighborhood Council v. Detroit, 410 Mich. 616, 647, 676, 304 N.W.2d 455 (1981) (Ryan, J., dissenting). They note that “[a]ny business enterprise produces benefits to society at large,” and, consequently, “there is virtually no limit to the use of condemnation to aid private businesses.” Id., at 644, 304 N.W.2d 455 (Fitzgerald, J., dissenting). Thus, it is not surprising, as the majority concedes, that many “express alarm at what they consider to be a situation rife with the potential for abuse of the eminent domain power.” Part II A of the majority opinion. In its memorandum of decision, the trial court acknowledged the danger of rendering the takings clauses of the federal and state constitutions meaningless and ignoring the private values of home and property “by allowing free rein to expanding capital markets.” Ironically, the controversy has developed notwithstanding the existence of well established law advising that “[t]he authority to condemn is to be strictly construed in favor of the owner and against the condemnor.” Pequonnock Yacht Club, Inc. v. Bridgeport, supra, 259 Conn. at 601, 790 A.2d 1178; accord State v. McCook, 109 Conn. 621, 630, 147 A. 126 (1929); see also 3 P. Nichols, supra, § 9.02[3], pp. 9-19 through 9-20. Growing fears regarding the potential abuse of the eminent domain power cannot be dismissed as idle speculation on the part of commentators. As municipalities increasingly struggle to provide public services with limited financial resources, governmental authorities are encouraging more intensive economic development to generate additional tax revenue, to create new jobs and to jump start local economies. Accordingly, there is a gathering storm of public debate as to whether the use of eminent domain to acquire property for private economic development in nonblighted areas is justified. I believe that such debate is essential to clarify the role of the legislature in making determinations of public use and the corresponding role of the courts in safeguarding the G A L E
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rights of private property owners who fear that the takings power will be used solely to benefit private interests. The complementary roles of the legislature and the judiciary as interpreters and guardians of the takings power thus require further examination. II
JUDICIAL DEFERENCE TO LEGISLATIVE DETERMINATIONS OF PUBLIC USE A
Determinations by State Legislatures The suggestion frequently is made that courts have abdicated their role as interpreter of the law by showing unusual deference to legislative determinations of public use. See, e.g., S. Jones, Note, “Trumping Eminent Domain Law: An Argument for Strict Scrutiny Analysis Under the Public Use Requirement of the Fifth Amendment,” 50 Syracuse L.Rev. 286, 301 (2000). Proper consideration of the issue, however, requires that a distinction be made between public use determinations by state legislative bodies and determinations by local public authorities that specific properties should be condemned. It is well established that judicial deference to determinations of public use by state legislatures is appropriate. E.g., Berman v. Parker, 348 U.S. 26, 32, 75 S.Ct. 98, 99 L.Ed. 27 (1954) (“[s]ubject to specific constitutional limitations, when the legislature has spoken, the public interest has been declared in terms wellnigh conclusive”); see Hawaii Housing Authority v. Midkiff, supra, 467 U.S. at 241, 104 S.Ct. 2321. The logic behind this principle is that the power to take property is a function of the “principle of consent inherent in a representative government.” M. Harrington, “‘Public Use’ and the Original Understanding of the SoCalled ‘Takings’ Clause,” 53 Hastings L.J. 1245, 1247 (2002). “[L]egislatures are better able to assess what public purposes should be advanced by an exercise of the taking power.” Hawaii Housing Authority v. Midkiff, supra, at 244, 104 S.Ct. 2321. Nevertheless, judicial deference to legislative declarations of public use does not require complete abdication of judicial responsibility. Id., at 240, 104 S.Ct. 2321 (“There is . . . a role for courts to play in reviewing a legislature’s judgment of what constitutes a public use . . . . A M E R I C A N
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But . . . it is an extremely narrow one.” [Internal quotation marks omitted.]); Olmstead v. Camp, supra, 33 Conn. at 551 (“[t]he sole dependence must be on the presumed wisdom of the sovereign authority, supervised, and in cases of gross error or extreme wrong, controlled, by the dispassionate judgment of the courts”). In fact, the last Connecticut case to address the issue recognized that the question of “[w]hether the purpose for which a statute authorizes the condemnation of property constitutes a public use is, in the end, a judicial question to be resolved by the courts . . . but, in resolving it, great weight must be given to the determination of the legislature.” (Citation omitted.) Gohld Realty Co. v. Hartford, supra, 141 Conn. at 141, 104 A.2d 365. Accordingly, I agree with the majority that judicial deference to determinations of public use by state legislative bodies is appropriate, but emphasize that the courts are empowered to resolve disputes when such determinations are challenged. B
Determinations by Local Public Agencies The majority notes, with respect to the decisions of local public authorities regarding specific condemnations, that “[t]he determination of what property is necessary to be taken in any given case in order to effectuate the public purpose is, under our constitution, a matter for the exercise of the legislative power.” (Internal quotation marks omitted.) Part IV A of the majority opinion; accord Gohld Realty Co. v. Hartford, supra, 141 Conn. at 146, 104 A.2d 365. The majority further notes that Connecticut courts typically defer to the legislative determination of necessity and limit their review to whether the decision of the taking agency was unreasonable, had been made in bad faith or constituted an abuse of power. See part IV A of the majority opinion; see also Gohld Realty Co. v. Hartford, supra, at 146, 104 A.2d 365; Adams v. Greenwich Water Co., 138 Conn. 205, 213-14, 83 A.2d 177 (1951); Water Commissioners v. Johnson, 86 Conn. 151, 159, 84 A. 727 (1912). For example, when a local legislative body determines that a new road is required, the court must defer to the local determination as to where the prospective road should be located and which properties should be taken to accomplish that purpose. In the absence of G A L E
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unreasonableness, fraud, or abuse of power, the determination regarding the location of the prospective road falls within the discretion of the local legislative body. The fact that there may be another possible road location that would accomplish the same objective will not avail a property owner who seeks to challenge the taking because local legislative determinations concerning what constitutes a public use and what properties need to be taken to effectuate that use are entitled to judicial deference. I agree with the majority with respect to these principles. Where I part company from the majority is on the issue of whether the actual use to be implemented will serve the public purpose described in the development plan at issue in the present case. The trial court and the majority frame the issue as whether there are reasonable assurances of a future public use. They treat the matter as one of control over development of the property following its disposition and focus on the statutory and contractual constraints in place to ensure that private sector participants will adhere to the provisions of the development plan. The majority concludes that the terms of the development plan regarding parcel-specific uses and continuing state oversight during the development process will provide sufficient assurances that the properties will be developed in accordance with the plan’s objectives. I submit that such an analysis must focus not only on the possible statutory, contractual and planning constraints that would ensure a public use, but also on the temporal question of whether there is any reasonable prospect that the expected development will, in fact, occur. Moreover, in determining whether the actual use to be implemented will serve a public purpose, I would follow the standard established in two earlier cases and grant no deference to the legislative authority because such a determination lies within the province of the trial court. See, e.g., Connecticut College v. Calvert, supra, 87 Conn. at 428, 88 A. 633. In Connecticut College, this court “accept [ed] and endors[ed] the legislative declaration that the higher education of women is in its nature a public use” for which the eminent domain power may be exercised. Id. The court reserved for itself, however, the authority to resolve questions regarding the implementation of the claimed public use in any specific case. A M E R I C A N
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See id., at 423-24, 428, 88 A. 633. “It is for the legislature to say whether any given use is governmental in its nature or not, subject to review by the courts only in exceptional cases of extreme wrong . . . . But the question whether in any given instance the use is or will be administered as a public or as a private use, is a question which must of necessity be determined by the courts in accordance with the facts of the particular case in hand.” (Emphasis added.) Id., at 428, 88 A. 633. In making the foregoing distinction, the court relied on Evergreen Cemetery Assn. v. Beecher, supra, 53 Conn. 551, 5 A. 353, in which the court sustained a demurrer to a petition for the appointment of appraisers in condemnation proceedings brought under state law concerning the taking of property for the establishment of cemeteries. Id., at 552-53, 5 A. 353; see Connecticut College v. Calvert, supra, 87 Conn. at 428-29, 88 A. 633. The court in Connecticut College noted: “[I]n the course of its opinion [the court in Evergreen Cemetery Assn.] pointed out that although the establishment of cemeteries was a use which was public in its nature . . . the petition was insufficient because it did not appear that the petitioner’s cemetery was one in which the public had or could acquire the right to bury their dead . . . .” Connecticut College v. Calvert, supra, at 429, 88 A. 633; see Evergreen Cemetery Assn. v. Beecher, supra, at 553, 5 A. 353. That precedent, which the majority, sub silentio, overrules today, stands for the proposition that a trial court charged with determining whether the actual use of the property taken will in fact be for a public or private purpose need not defer to the views of the local legislative body.13 See Connecticut College v. Calvert, supra, at 428, 88 A. 633. The majority’s claim that its “conclusion in the present case is consistent with the principles set forth in [Connecticut College and Evergreen Cemetery Assn.]”; footnote 62 of the majority opinion; is misplaced. The majority misses the point in concluding “that the trial court properly determined that there are sufficient statutory and contractual constraints in place to [ensure] that private sector participants will adhere to the provisions of the development plan.” Part II C of the majority opinion. As I note in this opinion the question is not whether the development plan and the statutes reasonably ensure adherence to the development plan, but, rather, whether “private sector participants” are available and willing to develop the property and whether the terms by which they agree to develop the property will result in a public benefit such that the private benefit will be incidental thereto.
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Connecticut is not alone in concluding that courts may inquire into the actual purpose for which property is to be condemned, even when it is claimed that the condemnation is for a public purpose. See 27 Am.Jur.2d 112-13, Eminent Domain § 555 (1996). In State ex rel. Tacoma Industrial Co. v. White River Power Co., 39 Wash. 648, 82 P. 150 (1905), the respondent power company was authorized to build and operate water-generated power plants that supply electricity to, inter alia, public users in designated cities in the state of Washington. Id., at 661, 82 P. 150. The power company filed a petition seeking to condemn certain private property. Id. At a preliminary hearing on the matter, the lower court found that the proposed use was public in nature and ordered a jury impaneled to assess the damages owed to the property owners. Id. In reviewing the lower court’s order, the Washington Supreme Court concluded that “the grounds of public benefit upon which the taking is proposed are vague, and the use which the public is to have of the property, or how the public is to be benefited by the use of it . . . is by no means fixed and definite . . . . “It is not claimed that there is a present demand for the 50,000 electrical horse power. It is not claimed that the [power company] has a franchise to enter any of the cities or towns mentioned, or that it will or can obtain one. It does not appear that there are any street or other railways to utilize its product. It is not under contract or obligation to furnish electricity to any person, or for any purpose.” Id., at 667, 82 P. 150. The court determined that the proposed condemnation was not for a public purpose and, therefore, reversed the lower court’s order. Id., at 670-71, 82 P. 150. Significantly, the Washington Supreme Court did not rely merely on the stated purpose of the taking in reaching its conclusion but, rather, examined all of the available evidence to determine whether the actual use would, in fact, be for a public or private purpose. See id., at 667-71, 82 P. 150. Many other courts have adopted similar reasoning. See Kessler v. Indianapolis, 199 Ind. 420, 426, 157 N.E. 547 (1927) (courts not limited to consideration of whether use described in condemnation proceedings is public but may consider “surrounding facts and circumstances tending to show what is the actual, principal and real use to be made of the property” [emphasis added]); see also Walker v. Shasta Power Co., 160 F. 856, 860 (9th Cir.1908) A M E R I C A N
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(corporation’s right of eminent domain is not tested solely by description of public uses and private purposes contained in articles of incorporation, but may be determined “by evidence aliunde showing the actual purpose in view” [emphasis added]); Wilton v. St. Johns, 98 Fla. 26, 47, 123 So. 527 (1929) (“courts have the ultimate power and duty to determine . . . whether . . . [condemnation in any given case] is in fact for [a] public or a private use” [emphasis added]); Brown v. Gerald, 100 Me. 351, 357, 61 A. 785 (1905) (actual purpose of taking authorized by power company’s charter was “open to judicial inquiry”); Kirkwood v. Venable, 351 Mo. 460, 466-68, 173 S.W.2d 8 (1943) (inasmuch as evidence indicated that condemned property was needed for public park, was suitable for public park and would be used by city for public park, court determined that condemnation was for public use); Kansas City v. Liebi, 298 Mo. 569, 591, 593, 252 S.W. 404 (1923) (evidence established that protective ordinance restricting use of and condemning rights to property would prevent overcrowding and make city more attractive, thereby promoting health, general welfare, growth and general prosperity of city, and that considerable part of community would actually use or benefit from contemplated improvement); Charlotte v. Heath, 226 N.C. 750, 754, 756, 40 S.E.2d 600 (1946) (evidence established that intended use of right-of-way allowing property owners living outside city limits to connect to sewer lines would be public); State ex rel. Harlan v. Centralia-Chehalis Electric Ry. & Power Co., 42 Wash. 632, 639-40, 85 P. 344 (1906) (in determining question of public use in case in which power company sought to condemn land, court was “not confined to . . . the description of those objects and purposes as set forth in the [company’s] articles of [incorporation], but [could consider] evidence aliunde . . . showing the actual business proposed to be conducted” [emphasis added; internal quotation marks omitted]); cf. Linggi v. Garovotti, 45 Cal.2d 20, 27, 286 P.2d 15 (1955) (private party authorized by statute to acquire easement by eminent domain for sewer connection to existing public sewer system must make strong evidentiary showing establishing that taking will benefit public). Accordingly, judicial review to determine whether a particular use will in fact be for a public or private purpose has been an accepted practice for nearly a century. G A L E
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The importance of judicial review in determining whether property taken by eminent domain for private economic development will in fact be used for a public purpose cannot be underestimated. Economic growth is a far more indirect and nebulous benefit than the building of roads and courthouses or the elimination of urban blight. Indeed, plans for future hotels and office buildings that purportedly will add jobs and tax revenue to the economic base of a community are just as likely to be viewed as a bonanza to the developers who build them as they are a benefit to the public. Furthermore, in the absence of statutory safeguards to ensure that the public purpose will be accomplished, there are too many unknown factors, such as a weak economy, that may derail such a project in the early and intermediate stages of its implementation. The economic conditions that existed when this court rendered its earliest decision regarding a taking for private economic development;14 Olmstead v. Camp, supra, 33 Conn. 532; were very different in nature from the economic conditions that now define our world. The petitioner in that case, Samuel E. Olmstead, was a grocery merchant in a manufacturing community in which the public relied on Olmstead’s store for all of their supplies, including ground feed for pigs, poultry, cows and other domestic animals. Id., at 536 (reporter’s case summary). Olmstead owned land upon which he had erected a water mill “for the purpose of grinding [the] flour and feed [that were sold at his store] and for doing custom work such as is usually done in a country mill . . . .”15 Id., at 533 (reporter’s case summary). The land also contained a mill pond and a dam. Id. Olmstead found it necessary to raise the dam and flood the property of the respondent, Samuel R.P. Camp, in order to ensure the proper operation
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In Olmstead, a private party effected the taking; see Olmstead v. Camp, supra, 33 Conn. 532 (reporter’s case summary); but for a purpose that the court concluded was public. Id., at 551. 15 The court found that Olmstead had leased the mill to his brother-in-law, Jonathan Camp, Jr., for an indefinite period. Olmstead v. Camp, supra, 33 Conn. at 535 (reporter’s case summary). The court also found that “there was no agreement that Camp should do custom grinding for the public, which obligated him to do it; but such had been the practice from the time when the mill was erected, and it was the expectation of the parties to the lease that the practice would be continued.” Id., at 535-36 (reporter’s case summary).
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of the mill. Id. Olmstead petitioned the court under the Flowage Act of 186416 to grant him the right to flood Camp’s land and to determine the damages owed. Id., at 532 (reporter’s case summary). A court-appointed committee concluded that the flooding of Camp’s property was for a public use. Id., at 534 (reporter’s case summary). The committee determined that Olmstead could raise the dam, had a right to keep and to maintain it permanently and, consequently, owed certain damages to Camp. Id. Camp appealed from the committee’s decision. On appeal, this court upheld the committee’s decision and found in favor of Olmstead. Id., at 552. The court characterized the issue to be decided as one “involving [the] rights of property guaranteed by the fundamental law, and . . . the interests of business and the prosperity of the state.” Id., at 545. The court concluded: “From the first settlement of the country grist-mills of this description have been in some sense peculiar institutions, invested with a general interest. Towns have procured them to be established and maintained. The state has regulated their tolls. In many instances they have been not merely a convenience, but almost a necessity in the community.” Id., at 552. The court thus observed that grist mills played an integral part in the subsistence of the local community because they ground the feed and flour upon which the economic lifeblood of the community depended. The court described the proper functioning of grist mills not only as consonant with the public interest, but, in 16
Public Acts 1864, c. XXVI, §§ 1 and 2, codified as amended at General Statutes (1866 Rev.) tit. 1, c. 16, § 388, provided: “Sec. 1. That when any person shall desire to set up a water mill on his own land, or upon land of another with his consent, and to erect a dam on the same, for working such mill by water, which dam would flow water on to land belonging to any other person, he may obtain the right to flow said land upon the terms and conditions, and subject to the regulations, hereinafter expressed. “Sec. 2. Any person wishing to flow land as aforesaid, if he can not agree with the owner, or owners, as to the damages to be paid, may bring his petition to the superior court for the county where the land to be overflowed, or any part of it, lies, which petition shall contain such a description of the land to be overflowed and of the dam, its location, and proposed height, as that the record will show with certainty the matter that shall be determined, and shall be served on the respondent according to law requiring service of petitioners in such court.”
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certain instances, as essential to the community’s continued viability. Accordingly, the raising of the height of the dam and the taking of Camp’s property were akin to the taking of property today for use by a public utility. See, e.g., Connecticut College v. Calvert, supra, 87 Conn. at 426, 88 A. 633 (characterizing public use for which land was taken in Olmstead as “governmental” in nature because of great advantage to community). In stark contrast, the private development contemplated under chapter 132 of the General Statutes only can be described as “governmental” in nature if the benefits of increased tax revenue and new jobs are actually realized. I therefore submit that, just as the taking of nonblighted property in a blighted area is subject to additional scrutiny to determine whether the taking is “essential” to the redevelopment plan; see Pequonnock Yacht Club, Inc. v. Bridgeport, supra, 259 Conn. at 605, 790 A.2d 1178; so, too, should a heightened standard of judicial review be required to ensure that the constitutional rights of private property owners are protected adequately when property is taken for private economic development under chapter 132 of the General Statutes. Justice demands no less. C
Heightened Judicial Review Other jurisdictions with similar concerns have attempted to create more exacting standards of judicial scrutiny in the context of takings for private economic development. In Poletown Neighborhood Council v. Detroit, supra, 410 Mich. 616, 304 N.W.2d 455, in which property was to be acquired for the construction of a General Motors assembly plant; id., at 628, 304 N.W.2d 455; the majority adopted a standard of heightened scrutiny requiring substantial proof of a clear and significant public benefit in determining whether the contemplated use constituted a legitimate public purpose. Id., at 634-35, 304 N. W.2d 455. Finding that standard insufficient, one of the two dissenting justices in Poletown Neighborhood Council proposed a stricter standard of review that would require a showing of “1) public necessity of the extreme sort, 2) continuing accountability to the public, and 3) selection of land according to facts of independent public significance.” (Emphasis in original.) Id., at 674-75, 304 N.W.2d 455 (Ryan, J., dissenting). More recently, the suggestion has been made that A M E R I C A N
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property rights should be elevated to the status of a “fundamental” right and that a strict scrutiny analysis should be conducted when property is taken for private economic development. See S. Jones, Note, supra, 50 Syracuse L.Rev. 314. In its memorandum of decision, the trial court in the present case declared that “[t]here are, in fact, limits on the constitutional propriety of using the power of eminent domain for . . . ‘pure economic development . . . .’” The trial court rejected a standard of heightened scrutiny, however, on the basis of Bugryn v. Bristol, 63 Conn.App. 98, 774 A.2d 1042, cert. denied, 256 Conn. 927, 776 A.2d 1143, cert. denied, 534 U.S. 1019, 122 S.Ct. 544, 151 L.Ed.2d 422 (2001), in which the Appellate Court stated that “our Supreme Court has not applied a heightened standard of review in previous disputes concerning the nature of a taking . . . .” Id., at 102 n. 7, 774 A.2d 1042. The present case, therefore, provides this court with an opportunity to consider the heightened standard of judicial review that the court in Bugryn identified as lacking. I submit that judicial review of the condemnations in the present case should consist of a four step process in which the burden of proof is shifted between the respective parties at various stages in the analysis. See, e.g., Potter v. Chicago Pneumatic Tool Co., 241 Conn. 199, 235-37, 694 A.2d 1319 (1997) (setting forth evidentiary framework through which burden of proof is shifted between parties in product liability action). Judicial review should begin with consideration of whether the statutory scheme is facially constitutional. In light of well established judicial deference to determinations of public use by state legislative bodies, the party opposing the taking should bear the initial burden of proving that the contemplated public use of private economic development is unconstitutional. Should that party succeed in meeting its difficult burden, the inquiry should end and no taking should be permitted. If the court concludes, however, that the proposed economic development is a valid public use, the party opposing the taking should bear the additional burden of proving, in accordance with the deferential standard of review afforded to legislative determinations of public use, that the primary intent of the particular economic development plan is to benefit private, rather than public, interests. G A L E
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Should that burden also be met, any taking pursuant to the plan should be deemed unconstitutional and the inquiry should end. In the event that the court concludes that the plan is constitutional, the burden should shift to the taking party to prove that the specific economic development contemplated by the plan will, in fact, result in a public benefit.17 “[T]he burden [of proof] properly rests upon the party who must establish the affirmative proposition, to whose case the fact in question is essential, who has the burden of pleading a fact, who has readier access to knowledge about the fact, or whose contention departs from what would be expected in the light of everyday experience.” Albert Mendel & Son, Inc. v. Krogh, 4 Conn.App. 117, 124 n. 6, 492 A.2d 536 (1985). Accordingly, shifting the burden of proof is appropriate at this point in the inquiry because the taking party has greater access than the opposing party to information regarding developer interest in the properties and the progress of negotiations relating to the disposition of the properties. The level of proof necessary to meet the burden of establishing that the anticipated economic development will result in a public benefit should be clear and convincing evidence. The clear and convincing standard traditionally applies in civil cases “to protect particularly important individual interests . . . .” (Internal quotation marks omitted.) State v. Rizzo, 266 Conn. 171, 211 n. 22, 833 A.2d 363 (2003), quoting Addington v. Texas, 441 U.S. 418, 424, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979). “[I]n cases governed by this The majority’s conclusion that there is “no basis, in reason, precedent, policy or practicality” for judicial review to determine whether the proposed economic development will, in fact, occur; footnote 62 of the majority opinion; reflects a complete misunderstanding of the law of this and other jurisdictions. See part II B of this opinion; see also Walker v. Shasta Power Co., supra, 160 F. at 860; Connecticut College v. Calvert, supra, 87 Conn. at 428, 88 A. 633; Evergreen Cemetery Assn. v. Beecher, supra, 53 Conn. at 553, 5 A. 353; Linggi v. Garovotti, supra, 45 Cal.2d at 27, 286 P.2d 15; Wilton v. St. Johns, supra, 98 Fla. at 47, 123 So. 527; Kessler v. Indianapolis, supra, 199 Ind. at 426, 157 N.E. 547; Brown v. Gerald, supra, 100 Me. at 357, 61 A. 785; Kirkwood v. Venable, supra, 351 Mo. at 466-68, 173 S.W.2d 8; Kansas City v. Liebi, supra, 298 Mo. at 591, 252 S.W. 404; Charlotte v. Heath, supra, 226 N.C. at 754, 756, 40 S.E.2d 600; State ex rel. Harlan v. Centralia-Chehalis Electric Ry. & Power Co., supra, 42 Wash. at 639-40, 85 P. 344; State ex rel. Tacoma Industrial Co. v. White River Power Co., supra, 39 Wash. at 667-71, 82 P. 150.
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burden, because society regards the individual interests involved to be very important, and because society imposes most of the risk of error on the party so burdened, we also require a very high degree of subjective certitude for the burden to be satisfied: the fact finder must be persuaded to a high degree of probability.”18 State v. Rizzo, supra, at 211 n. 22, 833 A.2d 363. In other words, the party must prove that “the evidence induces in the mind of the trier a reasonable belief that the facts asserted are highly probably true, that the probability that they are true or exist is substantially greater than the probability that they are false or do not exist . . . . [The clear and convincing standard is] a very demanding standard that should operate as a weighty caution upon the minds of all judges, and it forbids relief whenever the evidence is loose, equivocal or contradictory.” (Citation omitted; internal quotation marks omitted.) Durso v. Vessichio, 79 Conn.App. 112, 123, 828 A.2d 1280 (2003). In civil cases involving property disputes, differing levels of proof are required depending on the type of claim under consideration. For example, clear and convincing evidence is required to prove a claim that land has been taken by adverse possession. E.g., Wildwood Associates, Ltd. v. Esposito, 211 Conn. 36, 42, 557 A.2d 1241 (1989). This is because title becomes absolute in the adverse possessor if that standard of proof is satisfied. Takings for private economic development resemble takings by 18
I contrast this standard of proof with the standard of proof in the typical civil case between private parties, i.e., preponderance of the evidence. In the typical civil case, society is minimally concerned with the outcome, and the litigants share the risk of error in roughly equal fashion. E.g., State v. Rizzo, supra, 266 Conn. at 210, 833 A.2d 363. In such a case, “we require only a modicum of subjective certitude on the part of the fact finder: [as] long as the fact finder is persuaded that the plaintiff’s assertions are probably more true-by no more than a ratio of fifty-one to forty-nine-the plaintiff has met his burden of persuasion. “At the other end of the spectrum is the criminal case. In such a case, the interests of the defendant are of such magnitude that historically and without any explicit constitutional requirement they have been protected by standards of proof designed to exclude as nearly as possible the likelihood of an erroneous judgment. In the administration of criminal justice, our society imposes almost the entire risk of error on itself . . . by requiring . . . that the state prove the guilt of an accused beyond a reasonable doubt.” (Internal quotation marks omitted.) Id., at 210-11, 833 A.2d 363.
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adverse possession because property owners in both situations lose title to their land. Accordingly, it is consistent with existing law to place the burden on the taking party and to require that the standard of proof be clear and convincing evidence when property is taken by eminent domain for private economic development. I also believe that the clear and convincing standard is compelled in this context because of the tremendous social costs of the takings, costs that are difficult to quantify but that are nonetheless real. The fact that certain families have lived in their homes for decades and wish to remain should not, in my view, be summarily dismissed as part of a cost-benefit analysis typically performed by the legislature. At a minimum, the distress suffered by the plaintiffs because of their relocation to another neighborhood that lacks the same comforting familiarity and associations as their old neighborhood should be considered as additional justification for a higher level of proof. I therefore believe that the best way to protect the rights of property owners in cases involving takings for private economic development is to require that the taking party prove by clear and convincing evidence that development prospects are such that the condemned property will, in fact, be used for the intended public purpose. Courts and legislatures have employed the clear and convincing standard of proof in other constitutional, legislative and common-law contexts involving important questions of fact. Miller v. Commissioner of Correction, 242 Conn. 745, 796, 700 A.2d 1108 (1997). For example, when constitutional rights are at stake, as in the present case, a nonparent petitioning for visitation pursuant to General Statutes § 46b59 must prove the requisite relationship and the harm that would result from the denial of visitation by clear and convincing evidence in order to protect the parents’ liberty interests in the care, custody and control of their children. Roth v. Weston, 259 Conn. 202, 228, 232, 789 A.2d 431 (2002). “[D]ue process [also] requires [that] the clear and convincing test be applied to the termination of parental rights because it is the complete severance by court order of the legal relationship, with all its rights and responsibilities, between the child and his parent . . . .” (Emphasis in original.) Id., at 231, 789 A.2d
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431. In still another context, we have held that, in order to protect a criminal defendant’s constitutional right of confrontation, the state must prove “a compelling need for excluding the defendant from the witness room during the videotaping of a minor victim’s testimony”; State v. Jarzbek, 204 Conn. 683, 704, 529 A.2d 1245 (1987), cert. denied, 484 U.S. 1061, 108 S.Ct. 1017, 98 L.Ed.2d 982 (1988); by establishing, by clear and convincing evidence, that the defendant’s presence would seriously call into question the trustworthiness of the victim’s testimony. Id., at 704-05, 529 A.2d 1245. I submit that the taking of private property for private economic development is equally deserving of this very demanding standard of proof for all of the foregoing reasons,19 especially in light of the fact that such projects may be abandoned within three years of their approval if market conditions change and the plan of development cannot be implemented. See General Statutes § 8-200(b). The trial court’s subsidiary findings as to the actual future use of the properties taken are findings of fact that should not be overturned unless they are clearly erroneous. See, e.g., State v. Pinder, 250 Conn. 385, 420, 736 A.2d 857 (1999); State v. Atkinson, 235 Conn. 748, 759, 670 A.2d 276 (1996). In light of the constitutional interests at stake, however, the issue of whether the properties actually will be used for a public purpose is an ultimate issue that should be reviewed by this court on the basis of its own “scrupulous examination” of the record. State v. Pinder, supra, at 420, 736 19
The majority’s assertion that the clear and convincing standard should not be applied to evidence that the proposed development will, in fact, occur because the standard “is reserved for past events, and not for predictions of future events”; footnote 62 of the majority opinion; is not only incorrect, but entirely misses the point of the present analysis. As to the assertion’s validity, the majority need only consider the fact that when the state wishes to exclude a criminal defendant from the witness room during the videotaping of a minor victim’s testimony, it must establish by clear and convincing evidence that the defendant’s presence “would . . . seriously [call] into question” the trustworthiness of the victim’s testimony. State v. Jarzbek, supra, 204 Conn. at 704-05, 529 A.2d 1245. Obviously, the testimony in question is the future testimony of the minor victim. The clear and convincing standard also is used in proceedings involving the termination of parental rights to determine whether the evidence is sufficient to establish that “the natural parent cannot or will not provide a normal
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A.2d 857. This is necessary to ensure that judicial review “comports with constitutional standards of due process.” (Internal quotation marks omitted.) State v. Hafford, 252 Conn. 274, 298, 746 A.2d 150 (trial court’s finding that confession was voluntary closely scrutinized to protect defendant’s constitutional rights), cert. denied, 531 U.S. 855, 121 S.Ct. 136, 148 L. Ed.2d 89 (2000). Finally, if the trial court concludes that the condemned property will be used for a public purpose, it should be incumbent upon the party opposing the taking, on the basis of the deferential standard of review that we accord to legislative determinations of public use, to prove that the specific condemnation at issue is not reasonably necessary to implement the plan. The shifting of the burden of proof, as suggested, is not unusual in circumstances in which we have deemed constitutional interests to be extremely significant. For example, a burden shifting analysis has been adopted in employment discrimination cases. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) (after complainant establishes prima facie case of discrimination, employer must articulate legitimate, nondiscriminatory reasons for adverse employment action and complainant then must prove employer engaged in intentional discrimination); see also Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 142-43, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000); Board of Education v. Commission on Human Rights & Opportunities, 266 Conn. 492, 505-06, 832 family home for the child.” (Emphasis added; internal quotation marks omitted.) Santosky v. Kramer, 455 U.S. 745, 767, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982), quoting N.Y. Soc. Serv. Law § 384-b (1)(a)(iv) (McKinney Sup.1981). More important, however, is the fact that the evidentiary showing suggested in the present case does not require a prediction of future events, but testimony and documentation as to the present development environment, which, if persuasive, might include signed development agreements, marketing studies that indicate a near-term demand for the proposed uses and evidence of economic trends that would support economic development within the three year time period before the condemnor is permitted to abandon the project and convey the acquired properties to developers free of the plan’s restrictions. See General Statutes § 8-200 (b). In other words, although the purpose of such evidence is to document the probability that future development will occur as planned, the evidence itself would be grounded in present realities.
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A.2d 660 (2003). The burden of proof also is shifted to the decision-making party in affordable housing land use appeals. General Statutes § 8-30g (in administrative appeal from decision to deny application, burden on local commission to prove that decision is supported by sufficient evidence in record); see Quarry Knoll II Corp. v. Planning & Zoning Commission, 256 Conn. 674, 733, 780 A.2d 1 (2001); see also West Hartford Interfaith Coalition, Inc. v. Town Council, 228 Conn. 498, 514, 636 A.2d 1342 (1994) (legislature “placed the burden of proof on the commission . . . and not, as in traditional land use appeals, on the applicant” [internal quotation marks omitted]). Claims that a prosecutor has used peremptory challenges in violation of the equal protection clause are treated in a similar manner. See, e.g., Batson v. Kentucky, 476 U.S. 79, 97-98, 106 S. Ct. 1712, 90 L.Ed.2d 69 (1986) (following defendant’s prima facie showing that prosecutor exercised peremptory challenge on basis of race, burden shifts to prosecutor to articulate raceneutral explanation for striking juror after which burden shifts to defendant to show that prosecutor’s articulated reasons are insufficient or merely pretextual); see also State v. Dehaney, 261 Conn. 336, 344-45, 803 A.2d 267 (2002), cert. denied, 537 U.S. 1217, 123 S.Ct. 1318, 154 L.Ed.2d 1070 (2003). Harmless error analysis involves a comparable approach when the alleged impropriety is of constitutional magnitude in that the burden to prove that the constitutional error was harmless beyond a reasonable doubt rests with the state. E.g., State v. Francis, 267 Conn. 162, 188, 836 A.2d 1191 (2003); State v. Cavell, 235 Conn. 711, 720, 670 A.2d 261 (1996). Accordingly, the adoption of a burden shifting analysis in cases involving the taking of property for private economic development is consistent with our approach in other contexts in which a constitutional right is at stake. The adoption of a burden shifting analysis also is consistent with the takings procedure followed in other jurisdictions that do not place the burden of attacking a routine taking on the property owner, as Connecticut does. See generally 27 Am.Jur.2d 45, supra, § 479. General Statutes § 48-23 provides in relevant part: “When, under the provisions of any statute authorizing the condemnation of land in the exercise of the right of eminent domain, an appraisal of damages has been returned to the G A L E
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clerk of the Superior Court . . . and when the amount of appraisal has been paid or secured to be paid or deposited with the State Treasurer . . . any judge of the Superior Court may, upon application and proof of such payment or deposit, order such clerk to issue an execution commanding a state marshal to put the parties entitled thereto into peaceable possession of the land so condemned.”20 The procedure for taking property by eminent domain in Connecticut is less hospitable to the property owner than in most other jurisdictions because “the party to whom is delegated the right to determine whether particular land is necessary for a public use need only allege in his application to the court that he has so determined, leaving the burden of attack upon the adverse party.” Bridgeport Hydraulic Co. v. Rempsen, 124 Conn. 437, 442, 200 A. 348 (1938); see also Hall v. Weston, 167 Conn. 49, 63, 355 A.2d 79 (1974) (“burden of attacking [town’s statutory] authority [to condemn land] rested upon the [property owner]”). The primary means available to challenge the condemnation are: (1) an action to enjoin the taking; e.g., Bridgeport Hydraulic Co. v. Rempsen, supra, at 442, 200 A. 348; or (2) a request that the court review the statement of compensation filed by the taking party. See General Statutes § 8-132. In contrast, the most common method of condemning land in other jurisdictions is for the taking party to file in court a petition to take the property. 27 Am.Jur.2d 45, supra, § 479. After the property owner and all other persons having an interest in the land sought to be condemned are joined in the action, a hearing is held at which the condemnor first must establish “its right to condemn the land, and, in some [jurisdictions], the necessity of the taking.” Id. If the court is satisfied that the taking is justified, damages are assessed and a final award is rendered. Id. In jurisdictions that follow this procedure, the burden, therefore, is not on the property owner to attack the condemnation but, rather, on the condemnor to establish its right to condemn. See id. A similar approach has been adopted for use in the federal courts. Pursuant to rule 71A of the Federal Rules of Civil Procedure, the condemning party files a complaint identifying the
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See also General Statutes §§ 8-128 through 8-133.
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property to be taken. Fed.R.Civ.P. 71A (c)(2). If the property owner objects to the taking, he may file an objection or defense, and the issue subsequently may be tried to the court or a jury. Fed.R.Civ.P. 71A (e) and (h). Accordingly, shifting the burden of proof, as proposed in this opinion, is consistent with the allocation of the burden of proof in other jurisdictions. III
JUDICIAL REVIEW OF THE CONDEMNATIONS Applying the foregoing principles to the facts of this case, I agree with the majority that the legislative determination of public use, as expressed in chapter 132 of the General Statutes, is constitutional. I also agree that the primary purpose of the takings is to benefit the public. I do not agree, however, that the condemnations are constitutional in light of the fact that the record does not contain clear and convincing evidence to establish that the properties actually will be developed to achieve a public purpose. The foregoing conclusion being dispositive of this appeal, the court need not reach the issue of whether the condemnations are reasonably necessary to implement the development plan. A
The Facial Constitutionality of Chapter 132 of the General Statutes The first issue to be addressed under the proposed standard of review is whether chapter 132 of the General Statutes- § 8-186 in particular-is facially constitutional insofar as it authorizes the use of the eminent domain power for private economic development. The majority explains that its analysis of this issue will be guided by the principle that the challenging party must prove the unconstitutionality of the statute beyond a reasonable doubt; e.g., State v. Ball, 260 Conn. 275, 280-81, 796 A.2d 542 (2002); and that it will review the statutory scheme pursuant to the well settled standard of substantial deference to the legislature’s determination of public use. See part II A of the majority opinion. After examining the relevant case law of our state, our sister states and the United States Supreme Court, the majority ultimately concludes that private economic development projects, created and implemented pursuant to chapter 132 of the General G A L E
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Statutes, which create new jobs, increase tax revenue, and contribute to urban revitalization, satisfy the takings clauses of the federal and state constitutions. See id. I agree with the conclusion of the majority but do not agree entirely with the majority’s analysis. Although the plaintiffs must prove the unconstitutionality of the statutory scheme beyond a reasonable doubt, the proper standard for reviewing the underlying claim is whether the state legislature “rationally could have believed that the [statute] would promote its objective.” (Emphasis in original.) Western & Southern Life Ins. Co. v. State Board of Equalization, 451 U.S. 648, 672, 101 S.Ct. 2070, 68 L.Ed.2d 514 (1981); accord Hawaii Housing Authority v. Midkiff, supra, 467 U.S. at 242, 104 S.Ct. 2321; see also Housing Authority v. Higginbotham, 135 Tex. 158, 165, 143 S.W.2d 79 (1940) (legislative declaration of particular use is “binding upon the courts unless such use is clearly and palpably of a private character” [internal quotation marks omitted]); 26 Am. Jur.2d 503, Eminent Domain § 61 (1996). In Hawaii Housing Authority, the United States Supreme Court declared that “[t]he ‘public use’ requirement is . . . coterminous with the scope of a sovereign’s police powers.” Hawaii Housing Authority v. Midkiff, supra, 467 U.S. at 240, 104 S.Ct. 2321. As was previously noted; see footnote 7 of this opinion; the police power is commonly understood as “the state’s power to preserve and to promote the general welfare and . . . whatever affects the peace, security, safety, morals, health, and general welfare of the community . . . .” 16A Am.Jur.2d 251, Constitutional Law § 315 (1998); see also Reid v. Zoning Board of Appeals, 235 Conn. 850, 855, 670 A.2d 1271 (1996); Raybestos-Manhattan, Inc. v. Planning & Zoning Commission, 186 Conn. 466, 471, 442 A.2d 65 (1982). Guided by the principle of judicial deference to the legislative determination of public use, I therefore conclude, like the majority, that takings for private economic development are facially constitutional because Connecticut and federal courts have embraced, for more than a century, a broad construction of the public use clauses of the federal and state constitutions. Almost 140 years ago, this court expressly rejected a narrow interpretation of the term “public use” as “possession, occupation . . . [or] direct enjoyment . . . by the public”; A M E R I C A N
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Olmstead v. Camp, supra, 33 Conn. at 546; and determined, instead, that the term means “public usefulness, utility or advantage, or what is productive of general benefit . . . .” Id. The court in Olmstead also advocated an interpretation of public use that could include private economic development when it made the following remarks about the far-reaching regional, and even national, effects of the water powered grist mill: “It would be difficult to conceive a greater public benefit than garnering up the waste waters of innumerable streams and rivers and ponds and lakes, and compelling them with a gigantic energy to turn machinery and drive mills, and thereby build up cities and villages, and extend the business, the wealth, the population and the prosperity of the state. It is obvious that those sections of the country which afford the greatest facilities for the business of manufacturing and the mechanic arts, must become the workshops and warehouses of other vast regions not possessing these advantages . . . . It is of incalculable importance to this state to keep pace with others in the progress of improvements, and to render to its citizens the fullest opportunity for success in an industrial competition.” Id., at 551. The court’s broad definition of public use in Olmstead was reaffirmed in Gohld Realty Co. v. Hartford, supra, 141 Conn. at 141, 104 A.2d 365 (“public use means ‘public usefulness, utility or advantage, or what is productive of general benefit” ’), and later echoed in Katz v. Brandon, supra, 156 Conn. at 532-33, 245 A.2d 579 (“The modern trend of authority is to expand and liberally construe the meaning of public purpose. The test of public use is . . . the right of the public to receive and enjoy its benefit.” [Internal quotation marks omitted.]). 21
I note that the plaintiffs have not raised the issue of whether the statutory scheme is facially unconstitutional on the basis of a lack of adequate standards to ensure that the public purpose will be achieved. “When a legislative body retains a police power, articulated standards and guidelines to limit the exercise of the police power are unnecessary . . . . Police powers which are delegated, however, must include minimum standards and guidelines for their application . . . . The failure to provide standards and guidelines for the application of the police power constitutes a delegation of legislative power repugnant to the due process clause of the Fourteenth Amendment.” (Citations omitted.) Cary v. Rapid City, 559 N.W.2d 891, 895, (S.D.1997); see 16A Am.Jur.2d 257, supra, § 320; see also Berman v. Parker, supra, 348 U.S. at 35, 75 S.Ct. 98
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In Hawaii Housing Authority, the United States Supreme Court determined that a compensated taking is not proscribed by the takings clause when it is “rationally related to a conceivable public purpose . . . .” Hawaii Housing Authority v. Midkiff, supra, 467 U.S. at 241, 104 S.Ct. 2321. Accordingly, the definition of public use in General Statutes § 8-186, namely, “the continued growth of industry and business within the state,” survives the plaintiffs’ facial constitutional challenge inasmuch as our legislature rationally could have concluded that the taking of private property for such a purpose would be of general benefit to the public.21 B
Whether the Primary Purpose of the Condemnations Is to Serve the Public Interest The next step in the analysis is to consider, under the deferential standard of review, whether the primary purpose of the condemnations is to serve the public interest, with private benefits being incidental thereto, or whether private interests are paramount and the public purpose is incidental. In its discussion of this issue, the majority characterizes the trial court’s determination that the takings were intended primarily to benefit the public as a finding of fact to be reviewed by this court under the clearly erroneous standard. See part II B of the majority opinion. The majority then concludes that the trial court’s finding that the takings primarily were intended to serve the public interest, with private benefits being incidental thereto, was not clearly erroneous. See id. I agree with the majority that the takings were intended primarily to benefit the public. I disagree, however, that the trial court’s (standards contained in redevelopment statute sufficiently definite to sustain delegation of authority to administrative agencies to execute plan for eliminating blight). Chapter 132 of the General Statutes contains numerous technical specifications regarding the content and adoption of a plan, project financing, the acquisition and transfer of properties and other matters. See generally General Statutes § 8-186 et seq. There are no statutory guidelines and criteria, however, to ensure that the plan primarily will benefit the public and, thereafter, that the proposed public benefit will be achieved. This is in stark contrast to chapter 130 of the General Statutes, in which the public purpose is defined as the elimination of blight and detailed guidance is provided as to how that purpose is to be accomplished. See generally General Statutes § 8-124 et seq.
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determination regarding the public purpose of the condemnations is a factual finding subject to deferential review. “The question [of] what is a public use is always one of law”; 2 T. Cooley, Constitutional Limitations (8th Ed.1927) p. 1141; accord Poletown Neighborhood Council v. Detroit, supra, 410 Mich. at 639, 304 N.W.2d 455 (Fitzgerald, J., dissenting); or, as in the present case, a mixed question of fact and law, because the trial court’s determination as to public use rests on numerous factual findings regarding the goals, motives and interests of the public officials and private parties associated with the project. See, e.g., State v. Silva, 65 Conn.App. at 234, 255, 783 A.2d 7 (mixed questions of fact and law involve application of legal standard to historical fact determinations), cert. denied, 258 Conn. 929, 783 A.2d 1031 (2001). Accordingly, we review the trial court’s factual findings for clear error but review de novo the court’s legal determination that the takings primarily were intended to serve the public interest. See, e.g., State v. Gibbs, 254 Conn. 578, 592, 758 A.2d 327 (2000). “[T]he line of demarcation between a use that is public and one that is strictly and entirely private is a line not eas[ily] . . . drawn.” (Internal quotation marks omitted.) Olmstead v. Camp, supra, 33 Conn. at 547. This is especially true in the present case, in which private interests potentially stand to gain significant financial benefits under the development plan. I nonetheless agree with the majority that the evidence in the record supports a finding that the condemnations of the plaintiffs’ properties primarily were intended to serve the public interest, and that the development plan, on its face, and the goals and objectives set forth therein are in accord with chapter 132 of the General Statutes. Accordingly, there is no need to repeat in detail all of the facts upon which the majority relies. The record clearly demonstrates that the development plan was not intended primarily to serve the interests of Pfizer, Inc., or any other private entity but, rather, to revitalize the local economy by creating temporary and permanent jobs, generating a significant increase in tax revenue, encouraging spin-off economic activities and maximizing public access to the waterfront. Furthermore, the proposed project is being undertaken in an economically G A L E
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“distressed” municipality in need of a stimulus to invigorate the local economy. Accordingly, the goals of the development plan are consistent with the important public interest described in General Statutes § 8-186 of promoting the economic welfare of the state through the “growth of industry and business within the state” and “meet[ing] the needs of industry and business . . . .” Nevertheless, the conclusion that the development plan was intended primarily to benefit the public, per se, is insufficient to justify the takings. C
Whether the Development Plan Will Result in a Public Benefit In my view, the development plan as a whole cannot be considered apart from the condemnations because the constitutionality of condemnations undertaken for the purpose of private economic development depends not only on the professed goals of the development plan, but also on the prospect of their achievement. Accordingly, the taking party must assume the burden of proving, by clear and convincing evidence, that the anticipated public benefit will be realized. The determination of whether the taking party has met this burden of proof involves an independent evaluation of the evidence by the court, with no deference granted to the local legislative authority. In the present case, the evidence fails to establish that the foregoing burden has been met.22 The record contains scant evidence to suggest that the predicted public benefit will be realized with any reasonable certainty. To the contrary, the evidence establishes that, at the time of the takings, there was no signed agreement to develop the properties, the economic climate was poor and the development plan contained no conditions pertaining to future development agreements that would ensure achievement of the intended public benefit if development were to occur. The development plan calls for a hotel and conference center on parcel 1, residential dwellings on parcel 2, commercial office space on parcel 3, parking and marina support on 22
In my view, the evidence in the record also is insufficient to establish that the preponderance of the evidence standard has been met.
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parcel 4A, marina and water-related uses on parcel 4B, commercial office and retail space on parcels 5A, 5B and 5C, waterfront commercial uses on parcel 6, and additional office space on parcel 7. Despite extensive negotiations, however, no development agreement, which the trial court described as a “necessary engine to start any development project,” had been signed at the time of the takings. In fact, Marty Jones, president of Corcoran Jennison, the designated developer for parcels 1, 2 and 3, testified at a deposition that she could not even predict when such an agreement would be signed, although she was “optimistic” that it would be soon. Without an agreement, however, it is impossible to determine whether future development of the area primarily will benefit the public or even benefit the public at all. Several key project participants expressly recognized the importance of an agreement to such a determination in correspondence regarding the project and anticipated lawsuit.23 Nevertheless, some minimal evidence was admitted as to the terms of a “proposed” agreement,24 and, insofar as those terms provide for the leasing of parcels 1, 2 and 3 to Corcoran Jennison by the development corporation at a rate of $1 per year for a term of ninety-nine years, they appear to be more beneficial to the developer than to the city. Under the agreement, it appears that the city would be locked into a long-term commitment to a single developer, who then would be in a position to reap substantial financial rewards without a corresponding penalty if the developer does not perform as expected. In addition, the very generous terms of the proposed agreement are indicative of either an extremely weak real estate market or a possible violation of
General Statutes § 8-200(b) because that statute suggests that property acquired pursuant to chapter 132 of the General Statutes must be sold or leased to a developer at “fair market value” or “fair rental value . . . .” Accordingly, the terms of the unsigned, proposed agreement do not appear to be consistent with the long-term public interest. Furthermore, the evidence in the record establishes that the real estate market at the time of the takings was depressed and that prospects, therefore, were poor that the contemplated public use could be achieved with any reasonable certainty. Specifically, the trial court stated that “[t]he [development plan] itself says that as of the date of its preparation its studies show that rent levels [of] class A office buildings have stabilized, but are below the level needed to support new speculative construction. In fact, historical values of class A office buildings have not recovered sufficiently to justify new construction except for end users.” The trial court also referred to testimony that “[the city of] New London is still recovering from the recession of the early 1990s . . . market values are still well below replacement cost and new construction is generally not feasible . . . . [T]he demand for class A office space in New London at the present time is soft . . . .” (Internal quotation marks omitted.) Indeed, testimony revealed that newly constructed office buildings in Shaw’s Cove, an area adjacent to the project area, had not been fully occupied for more than fifteen years. Similar testimony described unsuccessful efforts by the redevelopment agency, over the course of several years, to attract investor interest in the construction of commercial office space at still another nearby location.
23
also realized the importance of a signed development agreement when Jones testified in a deposition taken on June 22, 2001, that she had received communications from others involved in the project that such an agreement should be in place prior to commencement of the trial in order to demonstrate that the project was moving forward. 24 The court’s knowledge of the agreement is derived from the very brief document entered into evidence as plaintiff’s exhibit JJJ and the testimony of various witnesses and deponents. The document in evidence contains only the first page of the proposed agreement. That page refers to the acquisition and demolition of properties by the development corporation, but not to any obligation on the part of the developer or other terms regarding the leasing of the properties in question.
On March 6, 2002, Claire Gaudiani, president of the development corporation, sent an e-mail to several other project participants, including Jones and David Goebel, executive director of the development corporation, which stated: “What became clear during the executive committee meeting with the [development corporation] yesterday morning [is] that we absolutely posi[tively] need a fully signed and executable set of documents, including the real estate agreement, by May [1]. The importance of this fact to the law suit is apparently very high.” The same sentiment was expressed by Goebel in an e-mail sent to Jones, among others, on March 27, 2001, when he stated that “concluding the development agreement prior to the start of the Institute law suit will go a long way to deflate the argument that property is being taken with no plan in place. In fact, we feel this is crucial.” Corcoran Jennison
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Additional testimony revealed that commercial real estate brokers had received few inquiries from companies with similar needs to those of Pfizer, Inc., and that, because it is difficult for the city of New London to compete against the city of New Haven in the market for biotechnology-bioscience office space, it is not economically feasible to develop this type of office space without a definite end user that will pay the rent to support the cost. Specific testimony adduced as to parcel 3 revealed that, in light of the uncertainty surrounding demand and the feasibility of creating biotechnologybioscience office space, and in light of the fact that office development on parcel 3 probably would be deferred until after the development of office space on parcel 2, any design should remain flexible to accommodate future demand. The trial court relied on testimony that “market conditions do not justify construction of new commercial space . . . on a speculative basis.” (Internal quotation marks omitted.) Furthermore, the trial court noted that “buildings are not built without tenants and as of June, 2001, there were no tenant commitments as to . . . the new[ly] proposed office buildings.” (Internal quotation marks omitted.) The court also relied on testimony that “flexibility is needed in this type of planning. Market conditions change and sites are developed over decades not years. There must be an ability reserved to make alterations as market conditions change.” A close examination of the proposed plan from a financial standpoint also suggests that there were only limited prospects of a public benefit at the time of the takings. Although the trial court noted that the project ultimately would generate increased tax revenue, there apparently was no consideration of the loss in revenue that could result from the relocation of former residents and taxpayers out of the area during the ten, twenty or even thirty years that might be needed to fully implement the development plan. Moreover, although the city tax assessor projected that annual tax revenue from the project, when fully implemented, was expected to increase sevenfold to approximately $2.6 million, she also testified that her projection was based on an estimate of the square footage to be constructed, a figure that was subject to change. Indeed, testimony confirmed that the square footage and proposed uses very likely would G A L E
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change over the course of the project. In addition, due to the lack of a development schedule, there was no testimony as to when the projected tax revenue would be realized. Accordingly, the tax assessor’s revenue projection may not come to fruition if the area is not developed in the manner and in the time frame predicted. For example, the projected receipt of $422,100 in annual revenue from parcel 4A does not take into account the tax assessor’s opinion that the property may be exempt from taxation if developed for a museum owned by the federal government, as one proposal had suggested. State or nonprofit ownership of the museum would generate a portion of the projected revenue, but revenue would fall well below the $422,100 currently estimated. Moreover, the tax assessor’s opinion that the market value of a museum that costs $30 million to build would be only $18 million is yet another indication of the depressed real estate market. Finally, and perhaps most significantly, the expected public investment in the project area of close to $80 million for a potential increase in annual tax revenue of $680,544 to $1,249,843,25 at best, hardly can be considered a major financial benefit to the public. Accordingly, the projected increase in tax revenue should not be accepted at face value and does not support the conclusion that the project will further the public good. Various other elements of the plan also are problematical. The record contains no evidence that the indirect benefits projected under the plan, namely, spin-off economic activities and between 500 and 940 indirect new jobs, will indeed be realized. There also is no evidence as to when in the next thirty years such benefits might be realized. In addition, although the trial court relied on testimony that the city of New London has limited high end housing, it also noted that there was little explanation as to why seventy to ninety high end attached residences 25
These figures, which differ from the figures to which the tax assessor testified, are the figures contained in the development plan and quoted in the majority opinion. According to the tax assessor, the annual property tax revenue derived from the project area was approximately $362,111 prior to project approval, but was expected to increase to approximately $2,603,696 following completion of the project. If borne out, this constitutes an increase of approximately $2,241,585, far more than that projected by the development plan.
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would significantly improve the overall housing situation in a distressed municipality. The trial court further noted that high end housing concentrated in one small area of the city would not be likely to have a multiplier effect. Accordingly, the only possible positive consequence of the housing to be constructed appears to be a limited increase in tax revenue. This revenue is impossible to evaluate, however, because it is not yet known whether a future development agreement will include a tax abatement incentive to encourage development of the property or other terms and conditions that may not be in accord with the general purposes set forth in the development plan or the applicable statutory scheme. The development plan also contains few, if any, performance requirements for future developers. Section 6.2 of the plan, which concerns the disposition of the properties, contains a general description of restrictions on parcel use but no firm timetable for project implementation, no indication as to whether future developers will be offered tax abatements or other incentives that might not be in the public interest, and no indication of possible penalties if developers do not perform as required. Moreover, § 6.2.3 of the development plan provides that “[p]roceeds from sale of disposition parcels shall be used to offset costs of implementation of this [development plan].” The provision in the development plan that purports to lease parcels 1, 2 and 3 to a developer at the sum of $1 per year for a term of ninety-nine years is particularly troubling when viewed in this context. The defendants note that the budget for the project is almost $80 million, of which approximately $31.1 million has been spent to date, that the project has been approved by numerous state and local agencies, that the city of New London has spent thousands of dollars planning road improvements to make the site more attractive to prospective tenants and that other properties in the project area have been acquired in accordance with the plan objectives. This has little bearing, however, on whether there is any reasonable certainty that the planned public benefit will be realized. As the trial court conceded, “the protections afforded by the [takings] clauses of the federal and state constitutions would be hollow indeed” if takings were found to be constitutional merely because the condemning authority and various G A L E
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government agencies thought and acted as if they were so. The record, therefore, fails to establish that there was any momentum in the project from a development standpoint or any reasonable development prospects for parcels 3 and 4A at the time of the takings. Evidence to the contrary consists of vague predictions of future demand. The trial court noted, for example, that according to the development plan, “the city [of New London] is at the threshold of major economic revitalization and the key catalyst is the Pfizer [Inc.] research facility”; (emphasis added); and that “a significant shortage of office space [was expected] by 2010,” but none of the evidence in the record supports this conclusion. In most of the important economic development cases cited by the majority to support its analysis, developers had been identified and were prepared to develop the properties in question. See, e. g., Poletown Neighborhood Council v. Detroit, supra, 410 Mich. at 628, 304 N.W.2d 455 (property to be conveyed to General Motors Corporation for construction of automobile assembly plant); Southwestern Illinois Development Authority v. National City Environmental, LLC, supra, 199 Ill.2d at 229-30, 263 Ill.Dec. 241, 768 N.E.2d 1 (property to be conveyed to Gateway International Motorsports Corporation for expansion of racetrack parking facilities); Olmstead v. Camp, supra, 33 Conn. at 551 (property subject to taking to be used in operation of existing grist mill). Although the trial court acknowledged that, for economic development policy to be practical, a substantial period of time might have to pass before a project plan can be accomplished, it nonetheless declared that “[t]he intent of chapter 132 [of the General Statutes] would be crippled if government intervention would only be feasible if immediate project development is possible-economically distressed communities are the very ones where, despite state intervention, project accomplishment might be difficult.” On the other hand, I would submit that government intervention to take nonblighted properties by eminent domain is unwarranted in any circumstance in which there is no realistic prospect of a future public benefit. In the present case, there is no development agreement or time frame within which the proposed development must take place; indeed, all of the evidence suggests that the real estate market is depressed and the development plan A M E R I C A N
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itself contains no detailed provisions to ensure that the future use will serve the public interest. Accordingly, the record in the present case does not contain clear and convincing evidence to establish that this portion of the test has been satisfied. I therefore would conclude that the takings are unconstitutional. Having concluded that there is no reasonable certainty that the proposed public benefit will be accomplished, there is no need to consider whether the condemnations are reasonably necessary to implement the plan.26 I therefore need not address the majority’s analysis of that issue. IV
CONCLUSION In summary, I believe that chapter 132 of the General Statutes is constitutional on its face.27 Additionally, there is very little evidence to support the plaintiffs’ claim that the development plan was created primarily for the benefit of private interests. The benefits expressed in the development plan, namely, an increased tax base, job creation and the revitalization of the city of New London, as well as other evidence presented at trial, support the majority’s conclusion that the plan is consistent with the public purpose and the goals set forth in chapter 132 of the General Statutes. See part II of the majority opinion. Nevertheless, the takings of the plaintiffs’ properties are unconstitutional because, in my view, the evidence is not clear and convincing that the property taken actually will be used for a public purpose. To highlight this concern, consider the following hypothetical. A town is economically distressed and has seen no significant development for years. In good faith, and in accordance with the procedural prerequisites contained in chapter 132 of the General Statutes, the town creates a master plan of development in 1999 that designates an area within the city limits for mixed use development. A marketing study is
26 I note, however, that I disagree with the majority’s conclusion that the trial court improperly determined that the takings on parcel 4A were not reasonably necessary because the proposed use was too vague and uncertain. See part VI of the majority opinion. 27 See footnote 21 of this opinion, however, for a brief discussion of constitutional concerns that the plaintiffs have not raised on appeal.
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completed while the plan is being drafted and demonstrates no significant shortage of office space until 2010, no immediate demand for hotel space without a corporate user that will subsidize the occupancy of up to one half of the projected 200 room facility, and no demonstrated demand for up-scale residential units to fulfill local housing needs. Despite this scenario, the town proceeds with the plan of development and settles on the above uses. Further efforts result in a determination regarding the scope of the project and the location and general size of various proposed buildings. The master plan is submitted to a public hearing and subsequently approved by the local governing body. The plan projects that the new development will create between 518 and 867 construction jobs and 1200 and 2300 direct or indirect permanent jobs, and will result in an estimated sevenfold increase in annual property tax revenue. The master plan does not include any minimum standards that the contemplated private developer will be required to satisfy.28 While the taking authority has had numerous discussions with a particular developer, there has been no agreement on the terms of a development agreement. Nevertheless, the taking authority purchases certain parcels of land in the economic development area and takes other properties by eminent domain. No one contends, under this scenario, that the properties acquired by eminent domain are not reasonably necessary for development to occur as provided in the master plan. Now consider the following scenario. Six months after the takings are completed, an interested developer is located. The developer contends that the economic conditions of the town and region are such that the project is not economically feasible unless the development agreement requires the town and the taking authority to do the following: (1) remediate the environmental conditions affecting the property, (2) replace the road and utility infrastructure, and (3) take measures to reduce the risk of
28
Such minimum standards might include a commencement date for the project, a construction schedule, a guaranteed number of jobs to be created, selection criteria for potential developers, financing requirements, the nature and timing of land disposition and a commitment as to the amount received in property taxes as a percentage of assessed value.
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coastal flooding, all at a cost of more than $70 million. Additionally, the developer insists that the town abate property taxes on properties located in the development area for a period of years and, rather than require the developer to purchase the improved property at fair market value, enter into an agreement with the developer to lease the property for ninety-nine years for the sum of $1 per year. Furthermore, the developer agrees to commence construction only after he is able to find viable tenants for the property or when a particular economic index for the area indicates demand for the uses, such as when the vacancy rate for class A office space drops below a certain level. As I understand the majority’s view, after according deference to the taking authority, the takings in the above scenario, which occur six months before any of the terms of the development agreement are known, would withstand a challenge by property owners who wish to remain in their homes. I, however, would find the takings to be, at best, premature. The majority has created a test that can aptly be described as the “Field of Dreams”29 test. The majority assumes that if the enabling statute is constitutional, if the plan of development is drawn in good faith and if the plan merely states that there are economic benefits to be realized, that is enough. Thus, the test is premised on the concept that “if you build it, [they] will come,” and fails to protect adequately the rights of private property owners.
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To conclude, I would grant the legislature no deference on this issue and place the burden on the taking authority to establish by clear and convincing evidence that the public benefit anticipated in the economic development agreement is reasonably ensured. This, in my view, cannot be accomplished without knowing initially what the actual public benefit will be. In the present case, it is entirely unknown whether the public interest will be served. There are no assurances of a public use in the development plan; there was no signed development agreement at the time of the takings; and all of the evidence suggests that the economic climate will not support the project so that the public benefits can be realized. The determination of whether the private benefit will be incidental to the public benefit requires an examination of all of the pieces to the puzzle. Accordingly, I respectfully dissent from parts II, IV and VI of the majority opinion. [Appendix Omitted]
Field of Dreams (Universal Studios 1989).
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I am not suggesting that an absolute guarantee is necessary to ensure that private economic development will occur as planned. Such a guarantee would be unrealistic in light of the fact that many unforeseen events could affect the plan’s implementation. For example, positive economic trends might falter and committed developers might be confronted with unanticipated difficulties that impair their ability to carry out plan objectives. When such difficulties are apparent at the very outset of the planning process, however, a course of action should not be endorsed based entirely on speculation.
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In the United States Supreme Court December 2004
ECONOMIC DEVELOPMENT VIOLATES THE PUBLIC USE REQUIREMENT OF THE FIFTH AMENDMENT. A. The Use Of Eminent Domain For Private Economic Development Obliterates The Line Between Public And Private Takings.
BRIEF OF PETITIONER No. 16742 Susette KELO, Thelma BRELESKY, Pasquale CRISTOFARO, Wilhelmina and Charles DERY, James and Laura GURETSKY, PATAYA CONSTRUCTION LIMITED PARTNERSHIP, and William Von WINKLE, Petitioners,
v. CITY OF NEW LONDON, and NEW LONDON DEVELOPMENT CORPORATION, Respondents.
No. 04-108 Filed December 3, 2004 On Writ Of Certiorari To The Supreme Court Of Connecticut
Brief of Petitioners
B. Eminent Domain For Economic Development Should Not Receive The Same Deference As More Conventional Uses Of The Power. C. Economic Development Condemnations Carry Greater Constitutional Risk. 1. Eminent domain forces some people to bear a burden that should be, but cannot be, borne by all. 2. The public benefits of economic development condemnations are far less certain than the vast majority of other condemnations.
TABLE OF CONTENTS
D. A Reasonable Certainty Test Counterbalances The Unique Risks Of Economic Development Condemnations.
QUESTION PRESENTED PARTIES TO THE PROCEEDINGS
1. In economic development condemnations, a public use should be a known use.
TABLE OF AUTHORITIES OPINIONS BELOW JURISDICTION
2. The condemnations of Petitioners’ homes lack immediate or reasonably foreseeable uses.
CONSTITUTIONAL AND STATUTORY PROVISIONS STATEMENT OF THE CASE
3. Economic development condemnations should require minimum standards and controls over future use and benefit.
A. Facts B. Procedural History SUMMARY OF THE ARGUMENT ARGUMENT I. THE CONDEMNATION OF PETITIONERS’ HOMES FOR THE SOLE PURPOSE OF
4. These condemnations lack binding contractual or statutory minimum standards to make realization of the public benefit reasonably certain. 5. The Kelo dissent’s test of examining if the actual use of the property will
*
Counsel of Record
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II. EVEN IF THIS COURT HOLDS THAT EMINENT DOMAIN FOR ECONOMIC DEVELOPMENT IS NOT CATEGORICALLY UNCONSTITUTIONAL, THESE PARTICULAR CONDEMNATIONS STILL DO NOT CONSTITUTE A PUBLIC USE. A. “Public Use” Has Independent Significance In The Text Of The Fifth Amendment.
Institute for Justice William H. Mellor Scott G. Bullock* Dana Berliner 1717 Pennsylvania Ave., NW Washington, DC 20006 (202) 955-1300 Sawyer Law Firm, LLC Scott W. Sawyer The Jill S. Sawyer Building 251 Wilhams Street New London, CT 06320 (860) 442-8131 Counsel for Petitioners
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B. The Use Of Eminent Domain For Economic Development Purposes Is Not Supported By This Court’s Eminent Domain Jurisprudence Concerning The Transfer Of Condemned Land To Private Parties.
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produce public benefit could also be a factor in determining public use in economic development condemnations.
BRIEF OF THE PETITIONER
III. THE SKY WILL NOT FALL IF THIS COURT RULES IN FAVOR OF PETITIONERS, WHILE A RULING AFFIRMING THE CONNECTICUT SUPREME COURT WILL OPEN THE FLOODGATES.
CONCLUSION QUESTION PRESENTED
What protection does the Fifth Amendment’s public use requirement provide for individuals whose property is being condemned, not to eliminate slums or blight, but for the sole purpose of “economic development” that will perhaps increase tax revenues and improve the local economy? PARTIES TO THE PROCEEDINGS
Petitioners, who were plaintiffs below, are Susette Kelo; Thelma Brelesky; Pasquale Cristofaro; Wilhelmina and Charles Dery; James and Laura Guretsky; Pataya Construction Limited Partnership; and William Von Winkle.1 Respondents, who were defendants below, are the City of New London, Connecticut; and the New London Development Corporation. OPINIONS BELOW
The opinion of the Supreme Court of Connecticut (Pet. App. 1-190)1 is reported at 843 A.2d 500 (Conn. 2004). The opinion of the Superior Court of Connecticut, Judicial District of New London (Pet. App. 191-424), is unreported. JURISDICTION
The opinion and judgment of the Supreme Court of Connecticut was entered on March 9, 2004. The motion for reconsideration filed by Petitioners was denied on April 20, 2004. Pet. App. 427. This Court has jurisdiction pursuant to 28 U.S.C. § 1257(a). CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
This case implicates the public use provision of the Takings Clause of the Fifth Amendment to the United States Constitution. Pet. App. 428. 1
None of the Petitioners are corporations, and have no parent companies or subsidiaries. 1 References to the Appendix to the Petition for a Writ of Certiorari are noted as “Pet. App.” References to the Joint Appendix are noted as “J.A.”
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The statute involved is Chapter 132, C.G.S. § 8-186, et seq., Municipal Development Projects, of Connecticut General Statutes. Pet. App. 429-453. STATEMENT OF THE CASE A. Facts
Petitioner Wilhelmina Defy was born in her house in the Fort Trumbull neighborhood of New London, Connecticut in 1918.2 Her family, the Ciavaglias, first moved to Fort Trumbull from Italy in the early 1880s. Mrs. Dery still lives in her home on Walbach Street, which was purchased by her family in 1901, as she has for her entire life. Her husband, Charles, lives there as well, and moved into the house when the couple married fifty-nine years ago. The Derys’ son, Matthew, was born in Fort Trumbull and grew up there. He, his wife, and his son currently live right next door to Mr. and Mrs. Defy at 28 East Street in a home he received from his grandmother as a wedding present. The home has been in his family since 1903. Petitioner Susette Kelo, a registered nurse, lives down the block from the Derys at 8 East Street. Tr. Vol. I, p. 71, lns.l-10. She purchased the Victorian-era house in 1997 and since that time has made extensive improvements to it. Id. at pp. 71-72. She loves the water view from her home, the people in the area, and the fact that she can get in a boat and be out in the Long Island Sound in less than ten minutes. Id. at pp. 76, lns. 1-11. Wilhelmina Dew, Susette Kelo, and their neighbors, the other Petitioners in this case, stand to lose their homes through eminent domain to make way for private business development in the hope that the new development projects will create more tax revenue and jobs than the homes that currently occupy this peninsula of land along the Thames River. Petitioners have poured their labor and love into the fifteen homes they own in total. Pet. App. 8-9. They are places where they have lived for years, have raised their families, and have grown old. Petitioners do not want money or damages. They only seek to stop the use of 2 The information concerning Petitioner Wilhelmina Dery and her family is drawn from the trial transcript in this matter, Vol. I., pp. 40-53. (All future references to the trial transcript will be referred to as “Tr.” followed by the volume, page number, and, where appropriate, the line numbers.)
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eminent domain so that they may hold on to their most sacred and important of possessions: their homes. In February 1998, Pfizer, Inc. announced that it was developing a global research facility on a site adjacent to the Fort Trumbull neighborhood where Petitioners live. Pet. App. 4. In April 1998, the city council of Respondent City of New London (“the City”) gave initial approval to Respondent New London Development Corporation (“NLDC”) to prepare a development plan for the Fort Trumbull area. Id. The NLDC is a private, nonprofit corporation formed in 1978 to assist the City in planning economic development. Pet. App. 3-4, 211. Like any such entity, it is not elected by popular vote and has a privatelyappointed Board of Directors and employees. Pet. App. 211. The NLDC prepared the Fort Trumbull Municipal Development Plan (“development plan”) that sought to create economic development complementing the facility that Pfizer was planning to build. Pet. App. 5. On January 18, 2000, the City adopted the development plan as prepared by the NLDC. Pet. App. 8. The development plan covers approximately 90 acres located on the Thames River and adjacent to both the Pfizer facility and the Fort Trumbull state park. Pet. App. 4. The development plan area is comprised of approximately 115 land parcels and includes the presently closed U.S. Naval Undersea Warfare Center, which consists of 32 acres currently available to Respondents for development. Id. The 90-acre development plan is divided into seven “parcels” of land slated for different development projects. Pet. App. 5-6. Parcel 1 is slated for a waterfront hotel and conference center along with marinas and a public walkway along the water. Pet. App. 5; J.A. 109. Parcel 2 is to provide approximately 80 new residences and possibly a museum for the U.S. Coast Guard. Pet. App. 5; J.A. 109-110. The development plan calls for Parcel 3 to contain 90,000 square feet of high technology and other private office space and parking.3 Pet. App. 5-6; J.A. 110-11. Although originally slated for acquisition and demolition under the plan, Parcel 3 will retain the existing Italian Dramatic Club, a private 3 The parcel was also originally slated for a health club, but that use has been moved to Parcel 1.
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social organization with its own building. Pet. App. 6. Parcel 4 is subdivided into two smaller parcels, 4A and 4B. J.A. 111-12. Parcel 4A is designated as “Park Support.” Pet. App. 6; J.A. 112. The development plan envisions several possible future uses for 4A, including a “stateof-the-art marina training center,” which presumably would encompass both Parcel 4B and 4A, undefined “uses that support the state park,” and parking or retail establishments. Id. During trial, no witness could explain what “Park Support” meant and all witnesses admitted that it could be a wide range of possible but undefined uses. Pet. App. 346 (summarizing trial testimony).4 See also Tr. Vol. II, p. 185, lns. 1-4, p. 207, lns. 15-18 (testimony of NLDC real estate development director); Vol. II, p. 236, lns. 12-20 (testimony of NLDC president); Vol. II, p. 37, lns. 16-24 (testimony of Petitioners’ expert); Vol. II, p. 371, lns. 17-18 (“We didn’t have configuration of what would be there”) (testimony of Respondents’ expert). Parcel 4B is supposed to consist of a marina, the same as the current use for the parcel. Pet. App. 6; J.A. 111. Parcel 5 is also subdivided into three smaller parcels that will cumulatively include 140,000 square feet of office space. Pet. App. 6; J.A. 112. Parcel 6 is designated for development of a variety of water-dependent commercial uses while Parcel 7 is slated for additional office space or research and development use. Pet. App. 6; J.A. 112-13. In discussions as to what would constitute the future uses in the development plan, Pfizer was the “10,000 pound gorilla,” according to Respondents’ expert. Tr. Vol. II, p. 428, lns. 1-3. Indeed, the development plan contains all of Pfizer’s “requirements” that it set forth in agreeing to build its global research facility in New London: a luxury hotel for its clients, upscale housing for its employees, and office space for its contractors (in existing buildings if no new ones are constructed) as well as the overall “redevelopment” of the Fort Trumbull neighborhood adjacent to Pfizer, in addition to other upgrades to the area that it demanded: 4
See also Tr. Vol. II, p. 185, Ins. 1-4, p. 207, Ins. 15-18 (testimony of NLDC real estate development director); Vol. II, p. 236, Ins. 12-20 (testimony of NLDC president); Vol. II, p. 37, Ins. 16-24 (testimony of Petitioners’ expert); Vol. II, p. 371, Ins. 17-18 (“We didn’t have configuration of what would be there”) (testimony of Respondents’ expert).
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renovation of the state park and sewage treatment plant upgrades.5 The NDLC estimates that the development plan, which is a composite of six alternative development plans it considered, will produce a significant economic impact in a city that is struggling economically, including the creation of jobs and between $680,544 and $1,249,843 in property tax revenue. Pet. App. 7. The instant case concerns homes located on only two parcels of the plan area: four properties owned by three Petitioners are situated on Parcel 3, which, as noted, is currently slated for development as private office space and parking, while eleven homes owned by four Petitioners are situated on Parcel 4A, designated in the development plan as the undefined “Park Support.” Pet. App. 6; J.A. 3 (map showing Petitioners’ homes); J.A. 4 (map showing development parcels in the development plan). In total, Petitioners’ homes constitute 1.54 acres of the ninety-acre project area. Tr. Vol. II, p. 14, lns. 21-24, p. 37, lns 10-12. The remainder of the development parcels, including the entirety of Parcels 1, 2, 4B, 5, 6, and 7, are unaffected by the instant lawsuit and remain available to Respondents for new development projects. J.A. 4. The NLDC will own the land located in the development area but lease it to private developers for $1 per year. Pet. App. 6, 7. At the time of the trial, the NLDC was negotiating with Corcoran Jennison, a private developer, to enter into a 99 year lease for development projects in parcels 1, 2, and 3 of the area although a development agreement had not been signed. Id. at 6-7. Corcoran Jennison would then develop the land and select tenants for the projects in its sole discretion. Id. However, the developer’s own market study found new office construction on Parcel 3 to be “uncertain” (J.A. 47) and “not feasible at this time.” J.A. 64. The study concluded that “market conditions do not justify construction 5 Compare J.A. 18 (listing commitments of NLDC to Pfizer); J.A. 21-25 (listing Pfizer requirements); Tr. Vol. II, p. 363, lns. 9-15; p. 387, lns. 6-17 (hotel); p. 163, lns. 19-21; p. 386, ln. 23 - p. 387 (conference center); Vol. II, p. 387, ln. 26 p. 388, ln. 7 (upscale housing); Vol. II, p. 386, lns. 17-20 (office space); Vol. V(A), p. 71, lns. 19-24, p. 93, lns. 7-16, Vol. II, p. 104, lns. 22-27 (state park renovation); Vol. V(A), p. 70, lns. 26 - p. 71 lns. 1-3; Vol. II, p. 79, lns. 14-18 (sewage treatment upgrades) with J.A. 4 (showing planned uses in the development plan).
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of new commercial space at Fort Trumbull on a speculative basis.” J.A. 64. At the time of the trial, there were no current plans for what projects would go in Parcel 4A apart from clearing the land of Petitioners’ homes. Pet. App. 125 (majority opinion), 348 (trial court opinion). When it adopted the development plan in January 2000, the City delegated to the NLDC the power of eminent domain to acquire properties within the development plan. Pet. App. 8. In October 2000, the NLDC voted to use eminent domain to acquire the remaining properties in the area from owners who would not sell voluntarily, including the homes owned by Petitioners. Pet. App. 8; J.A. 9-12 (resolution authorizing condemnations). Starting in November 2000, the NLDC began to file condemnation actions against Petitioners that gave rise to the present case. Pet. App. 8; J.A. 6-8 (representative statement of compensation accompanying condemnation action). The NLDC brought all condemnation actions in this case not under Connecticut’s urban renewal law (C. G.S. Chapter 130), which permits the use of eminent domain to clear slums or blighted areas, but rather under C.G.S. Chapter 132 governing Municipal Development Projects. Pet. App. 25-26, 246-247; J.A. 6 (property condemned pursuant to Chapter 132). B. Procedural History
Under Connecticut law, property owners in the context of an eminent domain action can challenge only the amount of compensation offered, not the right of the government to take their property. So, wishing to keep their homes, Petitioners brought the instant action on December 20, 2000 seeking declaratory and injunctive relief, and other relief under C.G.S. Chapter 916 and 42 U.S.C. § 1983. Pet. App. 8. Petitioners alleged that Respondents’ exercise of eminent domain violated the U.S. and Connecticut Constitutions, C.G.S. Chapter 132, and the New London City Charter. Following a seven-day bench trial in 2001, the New London Superior Court issued a Memorandum of Decision (Pet. App. 191-424), which granted permanent injunctive relief and dismissed the eminent domain actions against the four Petitioners who live on Parcel 4A while upholding the takings of the properties of the three Petitioners on Parcel 3. Pet. App. 9, 424. With regard to Parcel 4A, the trial court ruled A M E R I C A N
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that Respondents had not demonstrated reasonable necessity for the condemnations and that the condemnations lacked assurances of future public use, because the Respondents had not identified the future use. Pet. App. 343-350. The trial court ruled in favor of the Respondents on the remaining claims. Although the trial court ruled against the Parcel 3 property owners, it granted a temporary injunction, allowing the owners to remain in their homes while the case was resolved in the appellate courts. Pet. App. 412-424.
whether a specific economic development will, in fact, result in public benefit; and whether the condemnation is reasonably necessary to implement the plan. Pet. App. 134-190. The dissenting justices found that the condemnations of all of Petitioners’ homes failed that test.
An appeal by Petitioners and a cross-appeal by Respondents to the Connecticut Appellate Court followed. The Connecticut Supreme Court transferred the appeal and cross-appeal to itself pursuant to C.G.S. § 51-199. Pet. App. 2 n.3. On March 9, 2004, a four-justice majority of the Court affirmed in part and reversed in part, holding that none of the challenged condemnations violated the U.S. or Connecticut Constitutions or C.G.S. Chapter 132. Pet. App. 3. Three of the justices concurred in part with the majority on other constitutional and statutory issues but dissented on the “majority’s conclusions . . . pertaining to private economic development as a public use under the Connecticut and federal constitutions and the taking of [Petitioners’] properties on parcels 3 and 4A.” Pet. App. 135-36.
The homeowners filed a Petition for a Writ of Certiorari with this Court on July 19, 2004. Petitioners did not seek review by this Court of the other issues decided by the Connecticut Supreme Court but rather petitioned for review of the primary issue in this case: the limits under the public use requirement of the U.S. Constitution when government takes land for private economic development. On September 28, 2004, this Court granted certiorari on the question presented.
The majority opinion in this case held that the public use clause of the Fifth Amendment to the U.S. Constitution authorizes the use of eminent domain for economic development that is prognosticated to increase future tax revenue and improve the local economy. Pet. App. 25-79. The standard adopted by the majority focused on the intent and motives of the government in determining whether the government satisfied the public use requirement. Pet. App. 28, 39, 42. As the dissenting justices noted, “[t]he majority assumes that if the enabling statute is constitutional, if the plan of development is drawn in good faith and if the plan merely states that there are economic benefits to be realized, that is enough.” Pet. App. 189. In contrast, the dissenting opinion, while agreeing that economic development was validly declared a public purpose under Connecticut law, went on to establish a test that evaluated whether the primary intent of the economic development plan was to benefit public interests; G A L E
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The Connecticut Supreme Court denied Petitioners’ motion for rehearing on April 20, 2004. Pet. App. 427. On the same day, the Court stayed its judgment pending resolution of a petition for certiorari to this Court or, if applicable, a decision on the merits. Pet. App. 425-426.
SUMMARY OF ARGUMENT
To Petitioners, like most Americans, their homes are their castles. In this case, they face the loss of the homes and neighbors they cherish through the use of eminent domain not for a traditional public use, such as a road or public building, nor even for the removal of blight. Rather, Respondents - a local government and a private development corporation seek to take Petitioners’ 15 homes to turn them over to other private parties in the hope that the City may benefit from whatever trickle-down effects those new businesses produce. This Court should reject the use of eminent domain purely for private business development because that is not a public use under the Fifth Amendment to the U.S. Constitution. The majority opinion below incorrectly equated “public use” with the ordinary “public” benefits - taxes and jobs - that typically flow from private business enterprises. But if nothing more is required to constitute a public use than listing expected tax revenue and job growth that might result from private development, then there is scarcely any private use or business for which the power of eminent domain could not be used. No court would then be able to distinguish between public uses and private A M E R I C A N
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ones. Such a result would violate this Court’s consistent holdings that eminent domain authority cannot be employed for private uses. A finding that economic development is a public use would also be contrary to this Court’s previous decisions that authorize the transfer of condemned land to private parties in only limited and specific circumstances, none of which apply to economic development condemnations. Petitioners advocate a bright-line rule that the possible increase in taxes and jobs does not qualify as a public use. If, however, this Court finds that economic development can qualify as a public use, it still should reject these condemnations. Respondents seek to take Petitioners’ homes for an office building that will not be built in the foreseeable future, if ever, and for some other, unidentified use. With no reasonably foreseeable use and no standards to ensure that “economic development” will ever result from these condemnations, Respondents seek to remove Petitioners from their homes on the assumption that someone will figure out what to do with the property later. Economic development condemnations bring enormous social costs and significant constitutional risk. At the very least, there must be a reasonable certainty of realization of the “public” benefits used to justify the takings in the first place. Here, there is no such reasonable certainty. The taking of Petitioners’ homes is not for public use. This case is not about whether economic development is a valid public policy goal. Instead, it is about whether the government and private corporations can forcibly acquire property for the sole reason that someone else may be able to put the land to more “productive” use that will produce more tax revenue and jobs. Government may pursue tax revenue and economic development, and corporations may pursue profits, but not at the expense of constitutional rights. ARGUMENT
I. THE CONDEMNATION OF PETITIONERS’ HOMES FOR THE SOLE PURPOSE OF ECONOMIC DEVELOPMENT VIOLATES THE PUBLIC USE REQUIREMENT OF THE FIFTH AMENDMENT. The Connecticut Supreme Court held that the use of eminent domain in the hope that G A L E
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private development may generate taxes and jobs and improve the local economy did not violate the public use requirement of the Fifth Amendment. But this Court has never gone so far. Thus, this case presents an issue of first impression. The Court should take this opportunity to reject the use of eminent domain purely for private business development because that is not a public use. The use of eminent domain for private development conflates the public use clause of the Fifth Amendment with any private taking that could be claimed to benefit the public. Moreover, while the majority of the Connecticut Supreme Court portrays the condemnations at issue here as merely an application of this Court’s prior eminent domain decisions, the use of eminent domain for private development represents a dramatic departure from this Court’s jurisprudence. A. The Use Of Eminent Domain For Private Economic Development Obliterates The Line Between Public And Private Takings. While substantial deference must be given to legislative determinations of public use, this Court has consistently held that private takings cannot withstand the scrutiny of the public use requirement.6 Accordingly, the definition of public use must allow for the identification of private uses. As set forth below, in upholding eminent domain for private economic development, the majority of the Connecticut Supreme Court effectively nullified the public use clause by making it virtually impossible to distinguish a public use from private takings. Additionally, the unfettered sweep of the majority’s opinion places all home and small business owners at risk, especially property owners of more modest means. In addition to making a profit for themselves and their shareholders, businesses, if they 6 See, e.g., Hawaii Housing Auth. v. Midkiff, 467 U.S. 229, 245 (1984) (“[a] purely private taking could not withstand the scrutiny of the public use requirement; it would serve no legitimate purpose of government and would thus be void); Thompson v. Consolidated Gas Utilities Corp., 300 U.S. 55, 80 (1937) (“one person’s property may not be taken for the benefit of another private person without a justifying public purpose, even though compensation be paid”); Missouri Pacific Railway Co. v. Nebraska, 164 U.S. 403, 417 (1896) (“[t]he taking by a State of the private property of one person or corporation, without the owner’s consent, for the private use of another” violates the Constitution).
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are successful, generate tax revenue, employ individuals, and contribute to the overall economic vitality of a community. Indeed, the incidental benefits that flow to the government and the community from private businesses are commonly recognized as virtues of a free enterprise system. Under the standard adopted by the majority below, however, private business development is transformed into a public use simply because of the “secondary”7 or “trickle-down”8 benefits a business may produce.9 The majority opinion below declared that even though these incidental benefits of business development can now be considered a public use under the Fifth Amendment, “unreasonable” uses of the condemnation power for private business development would still not be permitted. Pet. App. 71. Despite this assurance, the only ground the court suggested could be sufficient to strike down the taking of homes or small businesses for the purported public benefits claimed by a city government and private developers was if “the taking specifically is intended to benefit a private party.” Id. The standard for public use adopted by the majority opinion focuses on the intent and motive of the government decision-makers in determining whether the condemnations are for a “public use.” Pet. App. 42 (placing “overwhelming emphasis on the legislative purpose and motive behind the taking”). According to the majority opinion, so long as the City declares in good faith that there are economic benefits to be realized from condemnations and there is no overwhelming evidence that the takings were intended only to benefit a private party, any lower-tax generating use, such as a home or small business, could be taken and given to a larger 7 Daniels v. Area Plan Comm’n of Allen County, 306 F.3d 445, 464-65 & n.19 (7th Cir. 2002) (“secondary benefits” from business development cannot alone constitute a public use). 8 Southwestern Illinois Development Authority v. National City Environmental, 768 N.E.2d 1, 10-11 (Ill. 2002), cert. denied, 537 U.S. 880 (2002) (“trickle-down” benefits from business development not a public use). 9 See also Georgia Dept. of Transportation v. Jasper County, 586 S.E.2d 853, 856 (S.C. 2003) (“[a]lthough the projected economic benefit to County is very attractive, it cannot justify condemnation”); City v. Owensboro v. McCormick, 581 S.W.2d 3, 7-8 (Ky. 1979) (same); Opinion of the Justices, 131 A.2d 904, 907 (Me. 1957) (same).
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private business that might be able to put the land to more “productive” use.10 A fundamental flaw of the majority opinion’s emphasis on whether a governmental body intended to benefit a private interest or the public is that once the spin-off benefits of large private businesses become per se public uses, there really is no difference between intending to benefit a private party and intending to promote economic development. For instance, in 99 Cents Only Stores v. Lancaster Redevelopment Agency, 237 F.Supp.2d 1123 (C.D. Cal. 2001), appeal dismissed and remanded, 60 Fed. Appx. 123 (9th Cir. 2003), the City clearly intended to benefit a private party by condemning a rival discount store and giving the property to Costco. However, the City was motivated by a desire to reap the greater tax dollars Costco would possibly create. Likewise, in this case, Respondents clearly intended to benefit Pfizer, the “10,000 pound gorilla” in discussions of the development plan, by meeting all of its “requirements” in developing the Fort Trumbull area. Tr. Vol. II, p. 428, lns. 1-3; see also footnote 5 of this brief. But the motivation in doing so was to reap the supposed trickle-down benefits Pfizer-related development would bring to the area. When the “public uses” of greater tax revenue and employment are achieved only through the success of private parties, a distinction between an intent to benefit a private party and an intent to benefit the public becomes meaningless. As a result, eminent domain for economic development has no limiting principle. Economic development condemnations also do not have any geographic limitations. Unlike condemnations for blight, which are confined to certain areas that meet statutorily-defined criteria,11 the eminent domain power for economic development under Chapter 132 applies to all areas throughout the state. Two or more parcels of property can be condemned for a “business purpose,” which is defined As the dissenting opinion in this case notes: “The majority assumes that if the enabling statute is constitutional, if the plan of development is drawn in good faith and if the plan merely states that there are economic benefits to be realized, that is enough.” Pet. App. 189 (footnote omitted). 11 For example, redevelopment areas in Connecticut must be “deteriorated, deteriorating, substandard or detrimental to the safety, health, morals or welfare of the community.” C. G.S. § 8-125(b). 10
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under Chapter 132 as “any commercial, financial or retail enterprise . . . .” C.G.S. § 8-187(10). Thus, all of downtown Greenwich or New Haven, the suburbs of Hartford, the farms of the northwestern part of the state, or any other area in Connecticut, regardless of its condition, is subject to eminent domain for “commercial, financial or retail enterprise[s].”
that the government specifically intends to benefit only private interests through the condemnations, a governmental body would be completely justified in using eminent domain to take tax-exempt property to give to a profit-making entity that could possibly produce more tax dollars and jobs for the City.12
By encouraging a vision of eminent domain where virtually any property can be taken for virtually any private business, the majority opinion invites abuse by governmental bodies and private parties. To give but two examples outside of the context of Connecticut, the District of Columbia meets the exact same criteria identified by New London and the majority of the Connecticut Supreme Court as justifying the use of eminent domain. The District needs more tax revenue, and it has high unemployment in comparison to the greater metropolitan area. Compare Pet. App. 7. The District is a small city with much of its land devoted to tax-free purposes. Compare id. Under the Connecticut court’s reasoning, these factors suffice to justify condemnation anywhere in D.C. for any private business so long as the District government in good faith intends that the new development creates more taxes and jobs than the existing uses.
Although all property owners would be affected by a ruling affirming the decision below, property owners of more modest means - in particular, middle-class and working-class home and small business owners like Petitioners would be most at risk.13 Indeed, the whole idea behind economic development projects is replacing lower-income residents with higher-income ones and smaller, lower-tax stores and services with larger businesses.
While the District could use eminent domain in a blighted neighborhood, as noted, economic development condemnations are not tied to the condition of the area. If developers were more interested in Georgetown than Southwest, the City could condemn there. Georgetown’s somewhat upscale shopping could be replaced by truly expensive designer shopping, more like that on Rodeo Drive in Beverly Hills. Georgetown’s older townhomes could be replaced by taller condos and office buildings. Would successful businesses and viable homes be uprooted? It doesn’t matter. The District intends the new development will produce more taxes and jobs, and that is enough. Under another scenario, a tax-hungry city could want a Wal-Mart or another big-box retail store rather than a non-tax producing property like a church facility or a Moose lodge. Again, under the reasoning of the Connecticut Supreme Court, so long as there is no evidence G A L E
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If a government agency can decide property ownership solely upon its view of who would put that property to more productive or attractive use, the inalienable right to own and enjoy property to the exclusion of others will pass to a privileged few who constitute society’s elite. The rich may not inherit the earth, but they most assuredly will inherit the means to acquire any part of it they desire.14 The use of eminent domain for economic development collapses public use into private takings and must therefore be declared unconstitutional under the Fifth Amendment. 12
The above examples are not mere hypotheticals. See Cottonwood Christian Center v. Cypress Redevelopment Agency, 218 F.Supp.2d 1203 (C.D. Ca. 2002) (City of Cypress, CA resolved to file eminent domain proceedings against owners of a piece of vacant land upon which a church sought to build, so that Costco, a major warehouse- style discount retail outlet, which the City hoped would produce more tax revenue, could build there instead); Sue Britt, “Authority votes to force out Moose Lodge,” Belleville News-Democrat, March 22, 2002, at 3B (government authority authorized condemnation of local Moose Lodge to make way for a Home Depot in Swansea, IL). 13 See Brief of Amici Curiae NAACP, AARP, et al. at 7-15 (disproportionate effects of economic development eminent domain on minorities and elderly); Brief of Amica Curiae Jane Jacobs at Part I.C. (destruction of poor and politically weak communities). 14 Southwestern Illinois Development Authority v. National City Environmental, 710 N.E.2d 896, 906 (Ill. App. 1999) (Kuehn, J., concurring), aff’d, 768 N.E.2d 1 (Ill. 2002).
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B. The Use Of Eminent Domain For Economic Development Purposes Is Not Supported By This Court’s Eminent Domain Jurisprudence Concerning The Transfer Of Condemned Land To Private Parties. In addition to conflating public and private use, eminent domain for economic development has no support in this Court’s previous statements as to what constitutes a public use under the Fifth Amendment. Eminent domain can unquestionably be used for traditional public uses such as the construction of public buildings and the creation of national parks.15 Moreover, this Court has noted that the public use clause of the Fifth Amendment does not absolutely prohibit the transfer of condemned land to private parties. But this Court has permitted the use of eminent domain to take private land and subsequently transfer it to other private parties only in specific and limited circumstances. Economic development is neither specific nor limited, and it falls under none of the categories this Court has previously approved. The eminent domain cases decided by this Court that concerned subsequent transfers of property to private parties are similar to circumstances discussed in the recent decision of County of Wayne v. Hathcock, 684 N.W.2d 765 (Mich. 2004). In Hathcock, the Michigan Supreme Court unanimously overturned its previous holding in Poletown Neighborhood Council v. City of Detroit, 304 N.W.2d 455 (Mich. 1981), which had upheld economic development as a public use under the Michigan Constitution.16 Poletown had been the emblematic case cited by courts and commentators alike for permitting the use of eminent domain to take non-blighted areas for private 15
See, e.g., Kohl v. United States, 91 U.S. 367 (1876) (use of eminent domain to build federal courts, custom house, U.S. depository, post-office, and internal revenue and pension offices); United States v. Gettysburg Electric Railway Co., 160 U.S. 668 (1896) (approving use of eminent domain for creation of Gettysburg Battlefield memorial). 16 Even though Hathcock is based on interpretation of the “public use” clause of the Michigan Constitution, the language of that state’s constitution and the Takings Clause of the U.S. Constitution are virtually identical: “Private property shall not be taken for public use without just compensation therefor being first made or secured in a manner prescribed by law.” Mich. Const. Art. X, § 2; “nor shall private property be taken for public use without just compensation.” U.S. Const., Amend. 5. 17 Indeed, the Connecticut majority opinion below declared Poletown a “landmark decision” and relied upon it in part to
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economic development.17 Petitioners discuss the Hathcock case in some detail because it analyzes the exact same issue presented in this case and demonstrates a recent and reasoned explanation of why economic development alone is not a public use. Hathcoch, like Poletown and the instant matter, concerned the condemnation of property for the purpose of facilitating private economic development. The County of Wayne condemned 19 non-blighted parcels of property near an airport as part of a planned 1,300-acre business and technology park. Hathcock, 684 N.W.2d at 769. The park was to consist of such uses as a hotel, conference center, and a recreational facility. Id. at 769-70. The economic benefits the business park was predicted to generate were very significant, much more than in this case. The park was to raise $350 million in additional tax revenue for the county and create 30,000 new jobs. Id. at 770-71. Importantly, the court in Hathcock also noted that, like Connecticut’s Chapter 132, Michigan law expressly authorized the county to engage in condemnation for economic development purposes and that the condemnations at issue fit within the purposes for which the statute was created. Id. at 775-76. But, as here, the question was whether the condemnations satisfied constitutional requirements. Hathcock discarded the notion that a private entity’s pursuit of profit could be a “public use” for constitutional purposes simply because that entity’s profit maximization might contribute to the overall health of the general economy. In rejecting economic development as a public use, the Michigan Supreme Court surveyed its previous eminent domain jurisprudence and noted that before Poletown, its cases upholding hold that economic development constitutes a valid public use for the exercise of eminent domain. Pet. App. 43, 43-45 n.39. See also, e.g., City of Jamestown v. Leevers Supermarkets, Inc., 552 N.W.2d 365, 372 (N.D. 1996) (citing Poletown as part of a national trend to “sanction broad legislative discretion to use eminent domain for a variety of economic development purposes”); City of Duluth v. Minnesota, 390 N.W.2d 757, 763 n.2 (Minn. 1986) (using Poletown as a justification for private-to-private transfers of land “on the ground that the economic benefit that results is ‘public’ in nature”); Nichols on Eminent Domain § 7.07[2][a] (3rd ed. 2004) (describing Poletown as an “important precedent” that interpreted public use “quite broadly”); Mark A. Richardson, The Role of Public Trust Doctrine in Eminent Domain Decisions, 1995 Det. C.L. Rev. 55, 58 (“Poletown stands for an extraordinarily broad interpretation of public use/public purpose in condemnation law.”).
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the transfer of property from one private party to another fell under three general categories. Economic development did not fall into any of these categories, and it could not be justified by the same rationale. As set forth below, this Court’s previous decisions authorizing the transfer of condemned property to private parties also fall into the same categories discussed in Hathcock. The use of eminent domain for private development is a radical departure from these conventional categories. The first category concerns condemnations in which condemned land is constitutionally transferred to a private entity because “public necessity of the extreme sort” requires collective action. Hathcock, 684 N.W.2d at 781-82. The primary example in this category is the construction of “instrumentalities of commerce,” such as railroads, gas lines, and canals, all of which require coordination of land assembly. Id. at 781. In these cases, the land must be condemned because of the inherent nature of the instrumentalities. They typically require narrow, generally straight pieces of land and could be thwarted by hold-outs. Id. at 781-82.
Most of this Court’s condemnation decisions have permitted the taking of land and its subsequent transfer to private owners in situations described in these first two Hathcock categories. Like the state court decisions mentioned in Hathcock, the condemnations in this area most often involved construction of “instrumentalities of commerce,” such as railroads, canals, and mine tramways.18 The uses to which the condemned land was put were also subject to public controls and were designed to address coordination problems that made the assembly of land for various networks or infrastructure often difficult to carry out if eminent domain were not available.19
The second category involves the private transferees that remain subject to strict operational controls in carrying out the public use. Id. at 782. These cases typically concern the instrumentalities of commerce mentioned above or other closely regulated entities such as water or power companies that might be privatelyowned, but are nonetheless performing vital public services. Id. In these instances, a public body such as a utility commission must maintain sufficient control of the private company to ensure that the public services are provided. Id.
Condemnations for economic development do not fall into either of these categories. As the Hathcock court noted, the nation is unquestionably “flecked” with “shopping centers, office parks, clusters of hotels, and centers of entertainment and commerce.” Hathcock, 684 N.W.2d at 783. Likewise, the planned uses in Fort Trumbull, such as a hotel, condominiums, private office space, and other unspecified development projects are ubiquitous across Connecticut and throughout the nation. They are most certainly not “instrumentalities of commerce” requiring government coordination or uses “whose very existence depends on the use of land that can be assembled only by the coordination central government alone is capable of achieving.” Id. at 781 (quoting Poletown, 304 N.W.2d at 478 (Ryan, J., dissenting)). Indeed, there is nothing “public” about them. Moreover, the private development project in Fort Trumbull is not subject to strict operating limitations so as to ensure that the
18 See, e.g., National Railroad Passenger Corp. v. Boston and Maine Corp., 503 U.S. 407 (1992) (approving condemnation of railroad track for the facilitation of rail service); Albert Hanson Lumber Co., Ltd. v. U.S., 261 U.S. 581 (1923) (upholding condemnation by federal government for a canal and strips of land on the sides of the canal); Mt. Vernon-Woodberry Cotton Duck Co. v. Alabama Interstate Power Co., 240 U.S. 30 (1916) (property condemnation for purpose of an egress of water to power a hydroelectric dam and whose power would be made available to the public); Hairston v. Danville and Western Railroad Co, 208 U.S. 598 (1908) (use of eminent domain for construction of railroad spur track that would be open to the public); Strickley v. Highland Boy Mining Co., 200 U.S. 527 (1906) (upholding construction of aerial bucket line for mining); Clark v. Nash, 198 U.S. 361 (1905) (use of eminent domain to create “absolutely necessary” irrigation ditch for one property owner as part of state-wide effort to provide networks for water distribution in arid Utah environment); Missouri
Pacific Railway Co. v. Nebraska, 164 U.S. 403 (1896) (acknowledging eminent domain authority to build railroads but striking down taking of railroad’s property to build a private grain elevator); Boom Co. v. Patterson, 98 U.S. 403 (1879); see also Brief of Amicus Curiae the Reason Foundation at 10-13 (discussing condemnation for railroads, utilities and other common carriers). 19 The Mill Acts discussed in Head v. Amoskeag, 113 U.S. 9 (1885), also fall into these two categories. Mills could only be built and operated in a very limited number of places, and their successful construction required coordination of riparian rights. See Brief of the Cato Institute as Amicus Curiae at 13-16; Brief Amicus Curiae of Property Rights Foundation of America, Inc. (“PRFA”) at Part I.B. Moreover, the early mills were analogous to public utilities now and subject to common carrier regulations. Amoskeag, 113 U.S. at 19 (“[A] grist-mill which grinds for all comers, at tolls fixed by law, is for a public use.”); see also PRFA Brief at Part I.B.
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property continues to be “used for the commonweal after being sold to private entities.” Hathcock, id. at 784; see also Poletown, 304 N.W.2d at 479 (Ryan, J., dissenting) (noting such entities as railroads being “subject to a panoply of regulations”). Rather, Respondents here intend for private developers to pursue their own financial welfare like any other private enterprise. Whatever developments eventually go in this area will be controlled and operated by the private parties.20 To give but one example, the developer of the office space in Parcel 3 of the Fort Trumbull development plan, not the City or the NLDC, will on its own select the tenants if private offices are eventually built in the area. See Pltfs. Exh. HHH at 27, lns. 1-12 (“As a developer, we will seek tenants and we will make selections of tenants.”) (testimony of Marty Jones, president of developer Corcoran Jennison) (emphasis added). Unlike private entities such as railroads or utilities, the developer in this case will be able to decide who is serviced by the new office buildings and who is not and will be able to set the rents for the tenants without being subject to a thorough regulatory regime like common carriers face. Accordingly, the development projects here are completely different than the use of eminent domain for such enterprises as railroads, utilities, and other closely-regulated companies.21 The third category discussed in Hathcock covers instances where the land transferred to a private party is selected on the basis of “facts of independent public significance.” Hathcock, id. As the court in Hathcock noted: “The public benefit arising from the Pinnacle Project [the project at issue in Hathcock] is an epiphenomenom of the eventual property owners’ collective attempts at profit maximization. No formal mechanisms exist to ensure that the businesses that would occupy what are now defendants’ properties will continue to contribute to the health of the local economy.” Id. at 784. 21 The lack of minimum standards and requirements for the use of the property after condemnation in the instant matter is discussed in greater detail in Part II.D.4 of this brief. 22 See, e.g., Allydon Realty v. Holyoke, 23 N.E.2d 665, 668 (Mass. 1939) (“the analogy between a slum and a public nuisance cannot be overlooked . . . The abatement of a public nuisance may well be a public purpose”); Gohld Realty Co. v. City of Hartford, 104 A.2.d 365, 369-70 (Conn. 1954) (“the public use which justifies the exercise of eminent domain in the first instance is the use of the property for purposes other than slums”); Randolph v. Wilmington Housing Authority, 139 A.2d 476, 482 (Del. 1958) (the “elimination of slums” is “the abatement of a public nuisance” and therefore a public use). 20
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at 782-83. The condemnation of blighted property is the most common example that falls into this last category. In blight condemnations, the property is selected for condemnation for a public reason - the removal of blight independent of the use to which the condemned property will eventually be put. The two main public use cases decided by this Court in the past 50 years - Berman v. Parker, 348 U.S. 26 (1954) and Hawaii Housing Auth. v. Midkiff, 467 U.S. 229 (1984) - were also based on “facts of independent public significance.” Berman concerned the question of whether the government could condemn property necessary to clear “slums” and subsequently transfer the cleared or improved property to another private party. A slum was defined as “the existence of conditions injurious to the public health, safety, morals and welfare.” Berman, 348 U.S. at 31 (internal quotation omitted). Likewise, other blight cases stress that the existence of blight is a harm, the removal of which serves the public and provides a justification for the taking.22 See, e. g., Allydon Realty v. Holyoke, 23 N.E.2d 665, 668 (Mass. 1939) (“the analogy between a slum and a public nuisance cannot be overlooked . . . The abatement of a public nuisance may well be a public purpose”); Gohld Realty Co. v. City of Hartford, 104 A.2d 365, 369-70 (Conn. 1954) (“the public use which justifies the exercise of eminent domain in the first instance is the use of the property for purposes other than slums”); Randolph v. Wilmington Housing Authority, 139 A.2d 476, 482 (Del. 1958) (the “elimination of slums” is “the abatement of a public nuisance” and therefore a public use). Thus, the land at issue in Berman was selected to clear slums and remedy urban blight.23 It is important to note the conditions of the area in Southwest Washington, D.C. at 23
It is important to note the conditions of the area in Southwest Washington, D.C. at issue in Berman. This court cited surveys finding that “64.3% of the dwellings were beyond repair . . . 57.8% of the dwellings had outside toilets . . . 83.8% lacked central heating” Berman, 348 U.S. at 30. The district court’s decision reveals even more about the conditions of the area. The death rate for the subject area was 50% higher than in the remainder of the District of Columbia. Schneider v. District of Columbia, 117 F.Supp. 705, 709 (D.D.C. 1953). Moreover, the death rate from tuberculosis was two and a half times greater and the death rate from syphilis infection was more than six times the general rate in the District of Columbia. Id. at 709. Of course, the properties and area at issue in this case display none of those characteristics.
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issue in Berman. This Court cited surveys finding that “64.3% of the dwellings were beyond repair . . . 57.8% of the dwellings had outside toilets . . . 83.8% lacked central heating.” Berman, 348 U.S. at 30. The district court’s decision reveals even more about the conditions of the area. The death rate for the subject area was 50% higher than in the remainder of the District of Columbia. Schneider v. District of Columbia, 117 F.Supp. 705, 709 (D.D.C. 1953). Moreover, the death rate from tuberculosis was two and a half times greater and the death rate from syphilis infection was more than six times the general rate in the District of Columbia. Id. at 709. Of course, the properties and area at issue in this case display none of those characteristics. Once that public use was accomplished and the blight removed, transfer of the cleared land to a private party was acceptable. In the instant matter, Respondents are not operating under Connecticut’s urban renewal law nor claiming that the purpose of the condemnations is the removal of blight. The condemnations are therefore decidedly not based upon facts of independent public significance. Likewise, in Midkiff, this Court upheld condemnations based upon Hawaii’s oligopolistic pattern of landownership stemming from the state’s early monarchical days of feudal land tenure. There, too, the public use was the elimination of the undesirable conditions, not the land’s subsequent use. As noted in Midkiff, the state and federal governments owned almost 49 percent of Hawaii land while 47 percent of the land was in the hands of a mere 72 private landowners. Midkiff, 467 U.S. at 232. The use of eminent domain legislation in Midkiff was specifically targeted to address this oligopoly of land ownership. “Regulating oligopoly and the evils associated with it is a classic exercise of a State’s police powers.” Id. at 242.24 In contrast, there is nothing unique or significant about the land at issue in the instant case. It is simply a middle-class, mixed-use neighborhood that just happened to be at the right place (a desirable location) at the wrong time (when the City and private developers wanted it). As noted by the dissent below, unlike in blight cases and in Midkiff, there is nothing in 24
This Court also noted in Midkiff, 467 U.S. at 241 n.5, that there was an historical tradition in this country of breaking up “feudal incidents” of land ownership following the American Revolution.
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the act of condemning non-blighted properties that constitutes a public purpose. Pet. App. 141-47. Therefore, no public purpose will be accomplished simply by the taking of the existing properties, unlike the public purposes that are immediately fulfilled in the condemnation of blighted areas or the divestiture of oligopolies. Id. Rather, in economic development condemnations, the only public benefits that might arise, if they ever come about, are completely reliant upon the private transferees of the properties putting it to private use (and their subsequent ability to make profits in an uncertain and competitive real estate market). The use of eminent domain for economic development is therefore not in keeping with the purposes of the condemnations upheld in Berman and Midkiff. In sum, the ordinary benefits that derive from private enterprise cannot constitute a public use under the Fifth Amendment. If all private business development is a “public use,” it will be virtually impossible to distinguish between a public use and a private one. That result would violate this Court’s repeated admonishments that private takings are prohibited by the Constitution. The use of eminent domain for private business development also conflicts with this Court’s prior jurisprudence that permits the transfer of property from one private owner to another in only limited and specific circumstances. This Court should reject private economic development as a public use. II. EVEN IF THIS COURT HOLDS THAT EMINENT DOMAIN FOR ECONOMIC DEVELOPMENT IS NOT CATEGORICALLY UNCONSTITUTIONAL, THESE PARTICULAR CONDEMNATIONS STILL DO NOT CONSTITUTE A PUBLIC USE. Petitioners endorse a clear, bright-line rule that the trickle-down benefits of successful business do not make private business a public use. See Part I, supra. Nonetheless, if this Court holds that economic development could constitute a public use, it still should find that these condemnations do not satisfy the constitutional requirement. Economic development condemnations are not like other uses of eminent domain. Because the public benefits occur, if ever, long after the condemnation and as a result of third-party activities, there must at least be a reasonable certainty that the condemnations will
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result in those public benefits. The condemnor must actually have a use for the property, and there must be contractual, statutory, or other minimum standards in place to ensure the likelihood of realization of the public benefits that justified the condemnation in the first place. This type of analysis does not require the courts to decide if a particular project is a good idea, but it does allow them to assess the connection between the goals of the project and the means used to achieve them. In this case, the condemnors have no reasonably foreseeable use for the property. That fact alone renders the condemnation of Petitioners’ homes not for “public use.” In addition, the condemnations lack minimum standards to ensure realization of public benefit, and the actual use of the property would not result in the purported public benefits. A. “Public Use” Has Independent Significance In The Text Of The Fifth Amendment. Constitutional interpretation begins with the text, and this case concerns the meaning of “public use” in the Takings Clause - “Nor shall private property be taken for public use without just compensation.” U.S. Const., Amend. V.25 This Court presumes that every term in the Constitution has meaning and that nothing is superfluous. See, e.g., Wright v. United States, 302 U.S. 583, 588 (1938). As this Court has recognized in another context, the very act of enumeration of a particular power “presupposes something not enumerated.” United States v. Lopez, 514 U.S. 549, 552 (1995) (quoting Federalist No. 45). In the case of eminent domain, government is permitted to take property only for the enumerated purpose of “public use.” Using the term “public use” presupposes the existence of something else a private use; otherwise, “public use” would have no content at all. Accordingly, this Court consistently has held that the Takings Clause prohibits eminent domain for private use. See e.g., footnote 6, supra. To state the obvious, in the Takings Clause, “public use” is contrasted with “private property.” Public use therefore meant something The “public use” requirement applies to the states through the Fourteenth Amendment. See Chicago B. & Q. R. Co. v. Chicago, 166 U.S. 226 (1897). 25
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other than ordinary private property, used in an ordinary private manner. Living on one’s property or operating an ordinary business upon it were accepted and commonplace private uses of private property, just as they are now. See generally, 1 William Blackstone, Commentaries on the Laws of England 134 (Stanley Katz, intro., 1979) (1765) (right to free use and enjoyment of property). See Brief Amicus Curiae of the Claremont Institute. They were not, however, public uses. Moreover, the use of the word “public” in other portions of the Constitution confirms that its meaning was either governmental26 or the public at large.27 Similarly, other instances of the word “use” confirm that the Framers used it to mean employment or utilization, not incidental benefit.28 The judicial interpretation of “public use” has, of course, expanded in the years since the Constitution was ratified, most notably to encompass the removal of slums and blight. See Berman, supra. But it is still an independent clause that retains an independent meaning. As the use of eminent domain moves further and further from the text, however, courts should take greater care to ensure that the exceptions are not allowed to swallow the rule. B. Eminent Domain For Economic Development Should Not Receive The Same Deference As More Conventional Uses Of The Power. The Connecticut court specifically rejected any kind of heightened scrutiny and declined to adopt even Poletown’s modest limitations on eminent domain for economic development. See Pet. App. 45 n.39, 73 n.62; compare Poletown Neighborhood Council v. City of Detroit, 304 N.W.2d 455, 459-60 (Mich. 1981) (public benefits in economic development condemnations must be “clear and significant”). Even if this Court finds that economic development as a Art. I., § 9, cl. 7 (expenditures of “public” money); Art. II, § 2, cl. 2 (“public” ministers and consuls); Art. II, § 3, cl. 1 (“public” ministers); Art. III, § 2, cl. 1 & 2 (same); Art. IV, § 1, cl. 1 (recognition given to “public” Acts); Art. VI, cl. 3 (office of “public” trust). 27 See Art. I, § 9, cl. 2a (protection of “public” safety against invasion); Art. V, § 1, cl. 1 (time of war or “public” danger); Art. VI, cl. 1 (right to a speedy and “public” trial). 28 See Art. I, § 8, cl. 12 (appropriation of money to “use” of raising and supporting armies); Art. I, § 10, cl. 2 (money for “use” of the treasury); see also Bailey v. United States, 516 U.S. 137, 144-46 (1995) (“use” means active employment). 26
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general matter can be a public use, there is no doubt that economic development condemnation projects are much more “private” than those for privately owned transportation or utilities. Economic development condemnations are intimately tied to private interest, private benefit, and private economic success. Because such condemnations have unique risks, those risks must be countered by a stronger connection between the use of eminent domain and the benefits sought to be achieved. See also Brief of Amici Curiae Professor David Callies, et al. at 21-27. In fact, this Court has in the past suggested the need for more careful scrutiny of condemnations for private ownership than those for public ownership. “[T]he presumption that the intended use for which the corporation proposes to take the land is public is not so strong as where the government intends to take the land itself.” United States v. Gettysburg Electric Railway Co., 160 U.S. 668, 680 (1896); cf. Pet. App. 137 (dissent) (“as the category of public use changes from one of direct public use to indirect public benefit in the form of private economic development, the level of judicial inquiry must increase in order to protect the legitimate interests of the condemnee”). Indeed, the standard that the Court has actually applied in cases where property has been taken for private ownership has generally been more searching and less deferential in examining the connection to the stated public use and the degree of necessity for the condemnation.29
29 See, e.g., Thompson v. Consolidated Gas Utilities Corp., 300 U.S. 55 (1937) (taking of natural gas production did not substantially promote stated goal of limiting waste of natural gas); Brown v. United States, 263 U.S. 78, 84, 81 (1923) (dam would flood town so “removal of the town is a necessary step in the public improvement itself” and land chosen for relocation was “only practical and available place”); Clark v. Nash, 198 U.S. 361 (1905) (taking of drainage easement for private party absolutely necessary); Fallbrook Irrigation Dist. v. Bradley, 164 U.S. 112, 166-67 (1896) (individual could not be compelled to participate in irrigation scheme unless benefit to individual was “substantial”); cf. Union Lime Co. v. Chicago & N.R. Co., 233 U.S. 211, 221-22 (1914) (railroad spur would be open to the public and land for spur was “practically indispensable” to operation of lime company); Hairston v. Danville & Western Railway Co., 208 U.S. 598, 608 (1908) (spur track would be open to the public); Strickley v. Highland Boy Gold Mining Co., 200 U.S. 527, 531-32 (1906) (tramway carrying ore for all who seek to use it and necessary to transport ore down from mountain).
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In prior cases of eminent domain for private ownership, at least this Court was certain of the intended use of the property and its connection to the public interest. In contrast, in many economic development condemnations, and in these condemnations in particular, there is far less certainty about the use of the condemned property. With that uncertainty comes a far greater risk that property will be taken for private use or for no use at all. C. Economic Development Condemnations Carry Greater Constitutional Risk. All eminent domain actions have the potential to expose condemnees to significant and uncompensable losses. In most condemnations, however, the public benefit is both certain and obvious - public works, public utilities, and infrastructure are all acknowledged and unremarkable uses of eminent domain. Condemnations to eliminate slum and blight have the immediate effect of removing an area causing public harm. The public benefit from economic development projects, however, is far less certain. There are at least two major distinctions between economic development condemnations and more traditional uses of eminent domain: first, economic development condemnations often lack “an immediate or reasonably foreseeable public benefit” and second, any public benefit from economic development condemnations flows from the actions of a third party, rather than the condemnor. Pet. App. 142. 1. Eminent domain forces some people to bear a burden that should be, but cannot be, borne by all. One of the core principles of the Takings Clause is “to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.” Armstrong v. United States, 364 U.S. 40, 49 (1960). Eminent domain, however, imposes unique, sometimes devastating, burdens on condemnees. Some of these burdens simply cannot be “shared” by the act of compensation. The pain of losing one’s cherished home, the separation from family members and community, and other intangible but profound personal losses are not and cannot be shared or A M E R I C A N
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compensated.30 Indeed, the personal value of property ownership was a vital part of our nation’s founding. A few courts, like New Hampshire, explicitly balance such “social loss” against public benefit. See Merrill v. City of Manchester, 499 A.2d 216, 217-19 (N.H. 1985). While this Court has never specifically looked at “social loss” as part of public use analysis, it is interesting to note that very few of the condemnations for private parties considered by this Court have involved the destruction of viable businesses, and none has approved the destruction of viable homes for private ownership.31 If Petitioners lose their homes, they will suffer just these types of personal and uncompensable losses. For example, there is no way to “justly” compensate Petitioner Wilhelmina Dery, a woman in her late 80s and in poor health, for being forced out of the only home she has ever known. Forced displacements can have serious health consequences for elderly condemnees, and those consequences cannot be shared. See Brief of Amicus Curiae NAACP, AARP, et al. at 14-15. Nor is compensation possible for her son, Matt Dery, who will have to move his parents from their home a few steps away and watch them spend the last years of their lives uprooted and unhappy. In light of these significant and often uncompensable losses it becomes even more important that the condemnation really will yield the benefits that justified the taking in the first place. See Pet. App. 163 (citing dissent “tremendous social cost” as important reason for requiring higher level of proof that condemnation will result in its intended benefits). Economic development condemnations have a much greater risk that the benefits that were 30
See, e.g., Margaret Jane Radin, The Liberal Conception of Property: Cross Currents in the Jurisprudence of Takings, 88 Colum L. Rev. 1667, 1689-91 (1988) (making the case for limitations on the eminent domain power because of the connection between “personal property” and individuals’ sense of personhood and community); Frank I. Michelman, Property, Utility, and Fairness: Comments on the Ethical Foundations of “Just Compensation” Law, 80 Harv. L. Rev. 1165, 1210-11 (1967) (owners suffer significant demoralization costs when their property is taken by government); see also Lynch v. Household Finance Corp., 405 U.S. 538, 552 (1972) (“Property does not have rights. People have rights.”). Brief of Amicus Curiae of Better Government Association, et al. at 9-12, 16-18 (loss of community); Brief of Amici Curiae Mary Bugryn Dudko, et al. at 8-17 (havoc on family and society).
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used to justify the condemnation will never materialize. 2. The public benefits of economic development condemnations are far less certain than the vast majority of other condemnations.
The Connecticut dissent described the majority’s public use standard as a “Field of Dreams” - “if you build it, they will come” approach. Pet. App. 189. Though the dissent’s characterization is illuminating, the majority’s standard is perhaps better described in this instance as “if you raze it, they will come.” 31 See, e.g., Clark v. Nash, 198 U.S. 361 (1905) (noting that condemnation for widened ditch would have no negative effect on condemnee); Brown v. United States, 263 U.S. 78 (1923) (land); Union Lime Co. v. Chicago & N.R. Co., 233 U.S. 211, 221-22 (1914) (easement over land); Hairston v. Danville & Western Railway Co., 208 U.S. 598, 608 (1908) (same); Strickley v. Highland Boy Gold Mining Co., 200 U.S. 527, 531-32 (1906) (same); Fallbrook Irrigation Dist. v. Bradley, 164 U.S. 112 (1905) (same). Berman v. Parker, 348 U.S. 26, 31 (1954) and Otis Co. v. Ludlow Manufacturing Co., 201 U.S. 140, 150-51 (1906) (one mill rendered another unusable) appear to be two of the few cases to come before this Court that involved the destruction of viable businesses for ultimately private ownership. 32 See, e.g., Brief Amici Curiae of the American Farm Bureau, et al., at 16-24; Brief Amicus Curiae of John Norquist at Part I.
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There are at least two significant differences between many economic development condemnations and other, more conventional uses of eminent domain. First, economic development condemnations often lack an “immediate or reasonably foreseeable” achievement of the purposes justifying the condemnation. Pet. App. 141-142. Second, in economic development condemnations, public benefits, if they occur at all, depend on the actions of third parties rather than the condemnor. Id. Economic development projects are uncertain ventures that often do not live up to their original promises.32 But if the benefits of economic prosperity never materialize, condemnees have suffered significant personal losses for no benefit at all. The condemnations at issue in this case vividly demonstrate those risks. There is no immediate or reasonably foreseeable use of any kind for the land where Petitioners’ homes now sit. The City will not own the property or participate in any development contracts relating to the property. And the realization of the public benefit of economic development will occur only if private parties are able to generate successful development.
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There was no planned use for the homes on Parcel 4A, and the chosen developer did not plan to build on Parcel 3 in the reasonably foreseeable future, if ever. According to the majority, however, the Constitution was satisfied if the Respondents believed in good faith in a strategy of clearing the land, hoping a market would develop once it was cleared, and hoping that the subsequent new construction would bring taxes and jobs. Petitioners, however, will lose their homes now. Then, much later, they will learn if they lost their homes for public use or for a high-stakes crapshoot on the possibility of a “public use” that never materialized. Those risks are unusual in eminent domain actions. Conventional condemnations almost always have a reasonably foreseeable use. Although projects to rehabilitate slum or blighted neighborhoods may take time, the elimination of blight occurs almost immediately - with demolition - and such projects are subject to stricter statutory controls than economic development condemnations. See Pet. App. 134-190. Thus, in the cases considered by this Court in the past, the public benefits have been almost immediate and effectuated by the condemnor, not third parties.33 D. A Reasonable Certainty Test Counterbalances The Unique Risks Of Economic Development Condemnations. The condemnation of property for economic development projects should only occur if and when the government can show that there is reasonable certainty that the project will proceed and yield the public benefits that are used to justify the condemnation. This level of certainty would bring economic development condemnations on par with more traditional condemnations, in which the public benefit is both more recognizable and more immediate. The Connecticut dissent is by no means the first opinion or court to be concerned about the lack of immediate or reasonably foreseeable benefit in condemnations. Nor is it the first to object to a condemnation where the condemnor has no control over the future achievement of
the goals of condemnation. There are few federal cases on this issue, but this Court can also look to standards developed in state caselaw. See, e.g., Dolan v. City of Tigard, 512 U.S. 374, 389-91 (1994) (reviewing different state standards and selecting). There is a substantial body of state caselaw holding that property cannot be condemned when the use is unknown or will occur at an unknown time and that it cannot be condemned if there are insufficient binding standards or assurances that it will be used to achieve the purpose or benefit for which it is being condemned. These cases form a rough consensus that is an appropriate test for economic development condemnations in particular: There must be a planned, reasonably foreseeable use and sufficient contractual, statutory, or other minimum standards in place to make the realization of the promised economic benefits from the condemnation reasonably certain. While Petitioners do not think it is a necessary part of a reasonable certainty test, the Connecticut dissent also suggests a useful and slightly different analysis of whether the actual planned uses of the property will result in the purported public benefits. A reasonable certainty test counters the unique risks of condemnation for economic development. If the benefits are not immediate, at least the use should be reasonably foreseeable. If the public benefit will arise from the actions of third parties, at least there are binding contractual or statutory standards to ensure the realization of the goals of the condemnation. A reasonable certainty test does not require courts to decide if a particular project is a good idea. Instead, it asks courts to look at plans and timelines to see if there is a reasonably foreseeable use of the property and to look at standards and restrictions in contracts, statutes, and other documents to see if they assure a substantial likelihood of the purported public benefits. While absolute certainty will never be possible, reasonable certainty at least ensures that there is a strong likelihood that the prognosticated public benefits will actually occur. Without that reasonable certainty, people’s homes and businesses can and will be taken with no public use and no public benefit.
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See, e.g., Hawaii Housing Auth. v. Midkiff, 467 U.S. 229 (1984) (act of transfer immediately achieves goal of greater diversity of ownership); Berman v. Parker, 348 U.S. 26 (1954) (removal of area of slum, high crime, disease, and infant mortality); United States v. Carmack, 329 U.S. 230 (1948) (post office).
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1. In economic development condemnations, a public use should be a known use. The Constitution requires that property be taken only for public use. If the use is unknown, A M E R I C A N
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it is impossible to evaluate if it is being condemned for public use or not. It is therefore not surprising that courts have expressed grave discomfort with takings that lack a stated use or where there is no immediate or reasonably foreseeable use for the property. In Cincinnati v. Vester, 281 U.S. 439, 448 (1930), this Court refused to uphold a condemnation without knowing what the City would actually do with the property. The Court construed an excess condemnation statute to require a statement of the purpose of the condemnation, because construing the statute to permit condemnation for an “independent and undisclosed public use” would raise constitutional problems. Id. at 448. The original project was for the widening of a street, but the City sought to condemn additional property, possibly to recoup the costs of street construction, possibly to promote “harmonious development” along the street. This Court explained that the use could not be “to be determined only by such future action as the City may hereafter decide upon” and that “[i]t is not enough that property may be devoted hereafter to a public use for which there could have been an appropriate condemnation.” Id.; see also Brown v. United States, 263 U.S. 78, 83-84 (1923) (upholding condemnation and explaining that land was being condemned for actual use of relocating town and not for “speculation”). State courts also have expressed concern about “speculative” condemnations, often treating the issue as a problem of lack of necessity, in a temporal sense, or a hybrid of public use and necessity.34 In other words, if there is no immediate or reasonably foreseeable need for
the property, the condemnation is premature. Notably, the state cases requiring an immediate or reasonably foreseeable use for condemned property almost all address takings for conventional, uncontroversial public uses. Here, where the property is being taken for unspecified economic development uses, the potential for abuse and the need for reasonable foreseeability are much greater. This Court’s decision in Cincinnati v. Vester, as well as the various state court cases, suggest a workable standard: When property is being condemned for economic development, there must be a planned use for the property that will be implemented in the immediate or reasonably foreseeable future.
34
need.”), superceded on unrelated grounds, 287 N.E.2d 882 (Ind. 1972); People ex Rel. Director of Finance v. YWCA, 427 N.E.2d 70 (Ill. 1981) (finding condemnation unnecessary where contracts for construction and use of building not in place); Regents of Univ. of Minnesota v. Chicago and North Western Transp. Co., 552 N.W.2d 578 (Minn. App. 1996) (where there were three potential uses for land but they were mutually exclusive and none had been approved and soil contamination precluded current development, taking not necessary); City of Helena v. DeWolf, 508 P.2d 122, 128 (Mont. 1973) (where parking would be needed only if other parts of the project succeeded, government could not seek property now “to await money, motivation, and the hopes of the planners”); see also Piedmont Triad Regional Water Auth. v. Sumner Hills, Inc., 543 S.E.2d 844, 847-48 (N.C. 2001) (construing statute to avoid constitutional problem and holding that condemnor could not take property in excess of that needed for stated public use).
See, e.g., City of Phoenix v. McCullough, 536 P.2d 230, 232-37 (Ariz. App. 1975) (“if the condemning body is uncertain when future use shall occur, the future use becomes unreasonable, speculative, and remote as a matter of law and defeats the taking”); San Diego Gas & Electric Co. v. Lux Land Co., 14 Cal. Rptr. 899, 904 (Cal. App. 4 Dist. 1961) (taking of easement for telephone, gas, and electrical use is speculative where utility has no present intention to install transmission lines); Silver Dollar Metro. Dist. v. Goltra, 66 P.3d 170 (Colo. App. 2002) (condemnation premature when no reasonable likelihood project will proceed); State v. 0.62033 Acres of Land, 112 A.2d 857, 860 (Del. 1975) (taking of land for highway without plan and that may be needed “some time in the future” not sufficiently in the reasonably foreseeable future to necessitate taking); Meyer v. Northern Indiana Public Service Co., 258 N.E.2d 57, 58-59 (Ind. 1970) (taking of right of way for “sometime in the future, maybe as much as six or ten years,” considered a “purely speculative future
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2. The condemnations of Petitioners’ homes lack immediate or reasonably foreseeable uses. In this case, Respondents seek to take Petitioners’ homes for (1) an office building that the developer has no plans to build and (2) some other, unknown use. Not only is there no reasonable certainty of public benefit, there is reasonable certainty that those benefits will not occur. These condemnations blatantly violate the principle that property should not be taken without a reasonably foreseeable use, and the Court can reject them solely on that narrow basis. The homes lie in two nearby areas of the development plan. Four of the homes, those in “Parcel 3,” are being taken for an office building that the developer admits that it does not plan to build in the foreseeable future, if ever. J.A. 47 (office development “uncertain”); J.A. 64 (“not feasible at this time”). Indeed, the developer’s
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study described the construction of the building as “speculative.” J.A. 64. If and when the developer began the project, it planned to develop other offices first and did not plan on constructing office space on Parcel 3 in the foreseeable future. J.A. 64 (existing office building will be developed first; other office space “not feasible”). The developer planned to build the office building that would occupy the land of the former homes dead last, if it built it at all. J.A. 33-34; 46-48, 73 (development descriptions and timeline). The developer would not put in office space on Parcel 3 without known tenants. There were, however, no contracts with future tenants and indeed little interest from potential tenants of any office space. Pet. App. 180-81 (dissent); see also Pet. App. 330 (trial court opinion). The other eleven homes are in an area known as “Parcel 4A,” which is labeled “Park Support” in the development plan and appears as a blank space on the current site plan. See Pet. App. 6; J.A. 5. No witness knew what “Park Support” meant and all witnesses admitted it could be a wide range of possible uses. See Pet. App. 125 (majority opinion); 348 (trial court opinion); see also footnote 4, supra. Thus, at the time of the condemnation, there was no identified use for the area and certainly no “immediate” or “reasonably foreseeable” use of any kind. The Connecticut Supreme Court was unfazed by the speculativeness of these condemnations. Regarding Parcel 3, it thought that a 1999 study stating that there was a “potential” demand by 2010 for an additional 8,400 to 245,100 square feet of office space somewhere in the Fort Trumbull area made the use foreseeable enough. To translate, a 1999 study said that there was “potential” demand in 11 years for as much as one additional office building or as little as one medium-sized office. By 2001, and before the condemnations took place, the chosen developer had concluded that construction of offices on Parcel 3 - the specific location of four of Petitioners’ homes - would be “speculative,” that the developer would try to develop other office space not on Parcel 3, and that it would reconsider Parcel 3 only if the market changed sometime in the future. Pet. App. 102-103; J.A. 47, 64. The majority’s additional reasoning is even more disturbing. The majority took comfort in the fact that once Pfizer opened, more demand for office space G A L E
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might develop. “[A]t the time of trial, the Pfizer facility had just opened; it therefore did not have the opportunity to create demand.” Pet. App. 107-08. In other words, there was no reasonable foreseeable use for the property when Respondents condemned it, but perhaps some use might develop after the condemnations were complete. This analysis is exactly backwards and makes the condemnations, at best, premature. Petitioners’ response is simple: There must be a reasonably foreseeable use for the property at the time that condemnation is sought, not a hope that a use will become reasonably forseeable at some unknown point in the future. Regarding Parcel 4A, the majority pointed out that although no witness could define Park Support, the witnesses were able to name some possible uses that “Park Support” could include. Pet. App. 346. Indeed, the witnesses were able to hypothesize some possible, mutually incompatible uses for Parcel 4A. Perhaps Respondents would settle on one of these or come up with something else to do with the property once it was condemned, and perhaps not. But saying that property could perhaps be used as parking, retail, a museum, warehouses, storage, or something else does nothing to establish that any particular use of the property is reasonably foreseeable. Indeed, the complete lack of any planned use for the 11 homes on Parcel 4A was what led the trial court to hold that those takings were improper. According to the trial court, it was impossible to say that a use was public without knowing what the use would be, and it was similarly impossible to find that the condemnation of the property was necessary for the unknown use. Pet. App. 348-350. These condemnations are utterly speculative and for this reason alone, they must be declared unconstitutional. 3. Economic development condemnations should require minimum standards and controls over future use and benefit. Courts also have been uncomfortable with condemnations transferring property to private parties without significant assurances of future use or benefit. This Court does not appear to have considered a case such as this one, where the future use of condemned property was unknown and would be determined by third parties. Most of the condemnations considered by this Court were for very specific purposes. See, e.g., footnotes 15, 18, 29, supra. A M E R I C A N
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Examination of constraints upon future use of condemned property is not unusual. This examination typically takes the form of examining the development agreement to see if there are contractual obligations ensuring that the intended public benefits actually occur, rather than vague and general promises.35 The Connecticut dissent also notes many types of minimum standards or requirements that could be relevant in evaluating reasonable certainty (Pet. App. 183, 188 n.28) and notes that statutory constraints would also be important to ensure the realization of the purported public benefits especially when a public body is not carrying out the project. Pet. App. 143-45. Again, the state caselaw suggests a workable judicial approach: There must be binding contractual, statutory, or other minimum standards or requirements in place that ensure the private party uses the property in the manner approved by the condemnor and that make the realization of the tax revenue and job benefits reasonably certain. 4. These condemnations lack binding contractual or statutory minimum standards to make realization of the public benefit reasonably certain. Although the lack of a reasonably foreseeable use for the property alone renders these condemnations unconstitutional, they also lack minimum standards and mechanisms for ensuring the public benefits that were used to justify the takings in the first place. At the time of the condemnation, there was no development agreement for Parcel 3, although negotiations with the developer indicated it would receive the property on a lease for $1 per year for 99 years.36 Pet. App. 177-79. As there was no 35
See, e.g., United States v. Agee, 322 F.2d 139, 143 (6th Cir. 1963) (condemnation had sufficient assurances because title to property retained by Tennessee Valley Authority and lease with Girl Scouts permitted termination at will of TVA and flooding by the TVA); County of San Francisco v. Ross, 279 P.2d 529, 532 (Cal. 1955) (In Bank) (holding that agreement lacked controls over the use of the property and “[s]uch controls are designed to assure that use of the property condemned will be in the public interest”); Mayor of the City of Vicksburg v. Thomas, 645 So.2d 940, 943 (Miss. 1994) (holding that property may only be condemned for transfer to “private parties subject to conditions to insure that the proposed public use will continue to be served”); Casino Reinvestment Dev. Auth. v. Banin, 727 A.2d 102, 108-11 (N.J. Super. Ct. 1998) (noting importance of having “restrictions in the agreement
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contract, there also was no contractual timeline or other requirement to ensure the development of Petitioners’ land or any public benefits that are supposed to flow from that development. Pet. App. 183-84. For the homes in Parcel 4A, there was no planned use at all and thus no means of ensuring the planned use would lead to economic development. There are no statutory assurances or requirements for the course of an economic development plan. Pet. App. 174 n.21. In fact, the statutes allow the abandonment of the plan after a minimum of three years. Pet. App. 142. If it is not abandoned, the plan, under its own terms, will stay in effect for as long as 30 years. During those three to 30 years, the achievement of tax or job growth - the public use for which Petitioners may lose their homes - is completely out of the City’s hands. The achievement of economic growth, should it occur, will be wholly contingent on the economic success of private businesses. If they do well, the City may see the “trickle-down” benefits of additional tax revenue and jobs. See SWIDA, 768 N.E.2d at 1011. If they do not, Petitioners’ homes will be long gone. The Connecticut majority pointed to two factors in ruling against Petitioners: first, that the development plan stated that future contracts with developers should include a commitment that property would be developed pursuant to the development plan and that a state agency would have some continuing involvement in the development. Pet. App. 74-76. The difficulty, however, is that none of that creates any assurance that Petitioners’ land will be developed at all, much less that it will produce economic development. As the dissent explained, “[s]uch minimum standards might between the public agency and the private developer” and finding contract lacked sufficient binding obligations); City of Virginia Beach v. Christopoulos Family, 54 Va. Cir. 95, 108 (Va. Cir. 2000) (contract gave developer complete control over future use of property); see also Condemnation of 110 Washington Street, 767 A.2d 1154, 1160 (Pa. Commw. 2001), app. denied, 767 A.2d 379 (2001) (contract gave private party authority to decide whether or not to condemn each piece of property); cf. Hathcock, 684 N.W.2d at 784 (noting importance of existing “mechanisms” that “ensure” future public use). 36 There will be no financial benefit to the City from the lease, and the dissent notes that since the terms of the contract (other than the $1 lease price) were unknown, it is possible that tax revenues would not increase even if the businesses did succeed. Pet. App. 182-184.
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include a commencement date for the project, a construction schedule, a guaranteed number of jobs to be created, selection criteria for potential developers, financing requirements, the nature and timing of land disposition and a commitment as to the amount received in property taxes as a percentage of assessed value.” Pet. App. 188 n.28. Instead, there is “no development agreement, no firm timetable for project implementation, no indication as to whether future developers will be offered tax abatements or other incentives . . . , and no indication of possible penalties if developers do not perform as required.” Pet. App. 183. Accordingly, there are insufficient contractual or statutory minimum standards to ensure a reasonable certainty of public benefit. The lack of such standards leads to yet a further danger - that of undue private benefit or purpose. When all of the crucial determinations that will give rise to public benefit or private advantage can be made after the condemnations take place, then the possibilities for abuse multiply exponentially. Many condemnation projects have significant benefits for private parties. A rule allowing condemnation in advance positively encourages speculation, because the easiest way to withstand a public use challenge will be to say that there is insufficient evidence (yet) of undue private benefit. Once the condemnation has taken place, the condemnee will have no legal recourse. Minimum standards are essential to ensure that such abuses do not occur. 5. The Kelo dissent’s test of examining if the actual use of the property will produce public benefit could also be a factor in determining public use in economic development condemnations. The dissent also used a reasonable certainty standard but had an additional and slightly 37
The dissent below proposed a four-step test in which the court evaluates: (1) whether the statutory scheme is facially constitutional; (2) whether “the primary intent of the particular economic development plan is to benefit . . . public [] interests;” (3) whether “the specific economic development contemplated by the plan will, in fact, result in public benefit;” and (4) whether the condemnation is reasonably necessary to implement the plan. Pet. App. 159-70. The third step is the one that differs significantly from the majority opinion, and thus it is the one Petitioners discuss in this brief. 38 See also Patel v. Southern California Water Co., 119 Cal. Rptr. 2d 119 (Cal. App. 2002) (land condemned by water
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different focus, asking whether the actual, currently planned use of the property was reasonably certain to bring the prophesied economic development.37 In other words, the dissent asked if, at the time of the taking, there was a reasonable certainty that if the stated improvements were constructed as planned, they would indeed promote economic development. This approach is one that also has been suggested by this Court and used by some other courts. See, e.g., Thompson v. Consol. Gas Utilities Corp., 300 U.S. 55, 78 (1937) (finding actual “necessary operation and effect” of natural gas regulation to transfer benefits from one person to another); Brown v. United States, 263 U.S. 78, 83-84 (1923) (explaining that land was being condemned for actual use of relocating town and not for speculative purposes).38 Petitioners believe this could be another factor for courts to look at in evaluating economic development condemnations. The condemnations of Petitioners’ homes would fail such a standard. As explained by the dissent, an office building with no market and an area for which there are no plans do not have a reasonable certainty of producing economic development. Pet. App. 177-86. This test responds to the majority’s holding that a mere claim that a project will lead to economic development constitutes a sufficient connection between the condemnation and economic development. The dissent suggested, in effect, that “public use” means more than a wish list of benefits that the City hopes, after condemnation, someone else will bring about. Petitioners believe, however, that these condemnations may be rejected by looking at whether the use is reasonably foreseeable and binding minimum standards for ensuring public benefit are in place, without needing to project the actual use and whether public benefits would result from that use. company would actually be used for cell phone tower); Georgia Dept. of Transportation v. Jasper County, 586 S.E.2d 853, 857 (S.C. 2003) (noting that actual use would be “gated facility with no general right of public access”). Many of the cases examining whether the public use is “primary” or “incidental” also look to the actual use in making that determination. See, e.g., Baycol, Inc. v. Downtown Dev. Auth., 315 So.2d 451, 456-58 (Fla. 1975) (examining planned use to determine if private benefits were primary or incidental and discussing other cases also looking at actual use); City of Bozeman v. Vaniman, 898 P.2d 1208, 1214 (Mont. 1995) (examining planned actual use of property to determine primary benefit).
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III. THE SKY WILL NOT FALL IF THIS COURT RULES IN FAVOR OF PETITIONERS, WHILE A RULING AFFIRMING THE CONNECTICUT SUPREME COURT WILL OPEN THE FLOODGATES. It is important to note the limited nature of Petitioners’ challenge. Petitioners challenge the condemnation of their homes for economic development alone. They do not challenge other government methods of trying to promote economic development. They do not challenge condemnations to eliminate blighted and harmful conditions. Connecticut and the five other states that have ruled that government may condemn for economic development all have urban renewal statutes that will remain in place. A ruling in favor of Petitioners would not even prevent Respondents from pursuing this particular development project. Petitioners’ homes comprise a miniscule portion of the land in the Fort Trumbull development plan and are situated only on Parcels 3 and 4A. Tr. Vol. II, p. 14, lns. 21-24, p. 37, lns 10-12; J.A. 3 (map showing Petitioners’ homes); J.A. 4 (map showing development parcels in the development plan). Respondents will be able to develop the hotel (Parcel 1), upscale condominiums (Parcel 2), and currently planned office space (on Parcel 2) and other unplanned uses on Parcels 4B, 5, 6, and 7, if they so choose. J.A. 4. In contrast, a ruling upholding the decision below will indicate to lower courts throughout the country that have not ruled on this issue
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that there is no bar under the U.S. Constitution against the use of eminent domain to raise more tax revenue or to improve the local economy, thus placing at risk all home and small business owners outside of the limited number of states that prohibit these takings. Henceforth, private business development will itself be a public use, and property may be forcibly acquired for private business, as long as the government claims that the project will lead to an increase in tax revenues or jobs. Such a claim will not be difficult to make. Every city desires more tax dollars, and a more “productive” use can be imagined for almost every property in the country. Only an utterly unimaginative and incompetent condemnor could fail to come up with a justification, and the public use requirement will be reduced to the question of whether the government body has a “stupid staff.” See Lucas v. South Carolina Coastal Council, 505 U. S. 1003, 1025 n.12 (1992). CONCLUSION
If the “public use” requirement means anything, it means that the government may not take A’s home and give it to B, because B is likely to employ more people and produce more tax revenue. Condemnation for economic development goes far beyond anything this Court has previously considered. Such a radical leap is unwarranted, and unsupported by our Constitution or caselaw. Petitioners respectfully ask this Court to reverse the decision of the Connecticut Supreme Court.
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KELO V. CITY OF NEW LONDON
MILESTONES IN THE LAW
QUESTION PRESENTED
U.S. Supreme Court, January 2005
U.S. SUPREME COURT, JANUARY 2005
BRIEF OF THE RESPONDENTS
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No. 16742 SUSETTE KELO, THELMA BRELESKY, PASQUALE CRISTOFARO, WILHELMINA AND CHARLES DERY, JAMES AND LAURA GURETSKY, PATAYA CONSTRUCTION LIMITED PARTNERSHIP AND WILLIAM VON WINKLE, PETITIONERS,
v. CITY OF NEW LONDON AND NEW LONDON DEVELOPMENT CORPORATION, RESPONDENTS.
No. 04-108. FILED JANUARY 21, 2005 ON WRIT OF CERTIORARI TO THE SUPREME COURT OF THE STATE OF CONNECTICUT
The petitioners, who were the plaintiffs below, are: Susette Kelo, Thelma Brelesky, Pasquale Cristofaro, Wilhelmina and Charles Dery, James and Laura Guretsky, Pataya Construction Limited Partnership and William Von Winkle.
RULE 29.6 DISCLOSURE STATEMENT
The New London Development Corporation is a non-stock, non-profit development corporation designated by the City of New London, pursuant to Conn. Gen. Stat. §8-188, as the official development agency for the Fort Trumbull Municipal Development Project.
Thomas J. Londregan Jeffrey T. Londregan Conway & Londregan, P.C. 38 Huntington Street New London, CT 06320 (860) 447-3171 Edward B. O’Connell David P. Condon Waller, Smith & Palmer, P.C. 52 Eugene O’Neill Drive New London, CT 06320 (860) 442-0367 Counsel for the Respondents
STATEMENT OF THE CASE A. The Facts of the Case
TABLE OF CONTENTS
QUESTION PRESENTED LIST OF PARTIES TO THE PROCEEDINGS BELOW RULE 29.6 DISCLOSURE STATEMENT TABLE OF AUTHORITIES STATEMENT OF THE CASE SUMMARY OF ARGUMENT ARGUMENT CONCLUSION
Counsel of Record
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LIST OF PARTIES TO THE PROCEEDINGS BELOW
The respondents, who were the defendants below are: the City of New London, Connecticut, and the New London Development Corporation.
Wesley W. Horton Daniel J. Krisch Horton, Shields & Knox, P.C. 90 Gillett Street Hartford, CT 06105 (860) 522-8338
G A L E
Does the Takings Clause of the Fifth Amendment forbid an economically distressed city from employing its eminent domain power to condemn, and pay just compensation for, private property in order to reverse decades of economic decline, create thousands of jobs and significantly increase property taxes and other sources of revenue for the city, and to realize immediate structural and environmental benefits for the city and its residents?
O F
The respondent City of New London occupies 5.79 square miles at the junction of the Thames River and Long Island Sound in southeastern Connecticut. (Joint Appendix, (“J.A.”) 91, 93). New London, which is geographically the second smallest of the 169 municipalities in Connecticut, was once a center of the whaling industry and later a manufacturing hub. (J.A. 91, 93, 303). However, New London has suffered through decades of economic decline. (Appendix to Petition for Certiorari, (“Pet. App.”) 196, 27273). Staggering economic woes - which include an unemployment rate close to double that of the rest of the state, a shrinking population, a dearth of new home and business construction and the departure of one of the region’s principal employers - caused the State of Connecticut Office of Planning and Management (OPM) to A M E R I C A N
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designate New London a “distressed municipality”. (J.A. 239, 253, 298, 303-04; Pet. App. 70-71, 272-73). In addition, local property taxes are the main source of municipal funding in Connecticut, but 54 percent of New London’s land is taxexempt. (J.A. 91). Faced with this untenable economic situation, the respondent New London Development Corporation (NLDC) planned a development project for the city’s Fort Trumbull section, which is located on a peninsula that juts out into the Thames River. (J.A. 4, 36, 212). The NLDC is a statutory, non-stock, non-profit development corporation with a volunteer board and no independent power of eminent domain. Under Connecticut law, a city may designate such a corporation to act as its development agent for an economic development project. See Conn. Gen. Stat. §8-188. A city may then authorize the development corporation to acquire real property through eminent domain in the project area in the city’s name. See Conn. Gen. Stat. §8-193. Pursuant to this statutory authority, the New London City Council designated the NLDC as its development agent for the Fort Trumbull Municipal Development Plan (MDP), and authorized the use of eminent domain on New London’s behalf. (J.A. 26-29). The MDP was designed, in the words of the trial court, to “provide an economic and social uplift for [the] city. . . . ” (Pet. App. 197). Maps of the MDP area are at pages 3-4 and 212 of the Joint Appendix. The undisputed facts regarding the steady deterioration of New London’s economy from the 1970’s onwards demonstrate the dire need for such a project. These facts include: The 1990 designation of New London as a “distressed municipality” by OPM, pursuant to Conn. Gen. Stat. §32-9p. (Pet. App. 272). The steady decline of New London’s population from a high of 34,182 in 1960 to 23,860 in 1998, its lowest since 1930. (J.A. 298; Pet. App. 272). An unemployment rate, 7.6 percent, almost twice as high as the overall figure for the state and three percent higher than the neighboring town of Groton. (J.A. 239; Pet. App. 272). The 1996 closure of the Naval Undersea Warfare Center (NUWC), located on the Fort Trumbull peninsula, which employed
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as many as 1500 people in the late 1980’s.1 (J.A. 253). A sluggish labor market that has been outperformed by a wide margin by both the state as a whole and the surrounding region. (Pet. App. 272). Sixty-one percent of the city’s housing was built before 1950, with a high percentage of vacant housing. (Pet. App. 273). In addition to these city-wide problems, the Fort Trumbull area itself suffers from numerous ills: An
82 percent vacancy rate for nonresidential buildings and a 20 percent rate for non-commercial property. (J.A. 191; Pet. App. 273). Very low tax revenue for the MDP area ($325,000). (J.A. 191; Pet. App. 273). 55 percent of the buildings in the MDP area were built prior to 1950. (J.A. 322). Sixty-six percent of the non-residential buildings are in fair to poor condition and less than twelve percent of the residential buildings are in average or better condition. (J.A. 323; Pet. App. 273). Since 1990, existing buildings in the area have undergone minimum private investment with some sections of Fort Trumbull suffering from disinvestment and owner neglect. (Pet. App. 273). It is little wonder, then, that the trial court found New London to be a “city buffeted for decades by hard times and until recently declining prospects.” (Pet. App. 196). The record is clear that New London was a city desperate for economic rejuvenation. The NLDC, which originally was established in 1978, was re-formed in 1997 following the closure of NUWC to assist the city in planning that economic rebirth at the site of the closed base. (J.A. 264; Pet. App. 3). In January 1998, the first step in that rebirth occurred when Connecticut’s State Bond Commission authorized $5.35 million in bonds to support planning activities and limited property 1 As a part of the MDP, New London acquired the 32 acres formerly occupied by NUWC from the federal government via an economic development conveyance pursuant to the Base Closure and Realignment Act, 10 U.S.C. §2687. Eighteen of those acres are now Fort Trumbull State Park. (Pet. App. 4-5).
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acquisition and a further $10 million in bonds towards the creation of Fort Trumbull State Park. (J.A. 4, 264). The following month Pfizer, Inc., a world leader in pharmaceutical development, announced its plan to build a global research facility in New London, on a site adjacent to the Fort Trumbull peninsula. (J.A. 264; Pet. App. 4). Construction of the $300 million Pfizer facility began in April 1999. By the time the petitioners’ properties were condemned in November 2000, the facility was almost completed. Pfizer staff began moving in early in 2001. (Trial Tr., 8/13/01, 69-70). In April 1998, the New London City Council gave its initial approval for the NLDC to prepare an economic development plan for a 90-acre section of Fort Trumbull. (J.A. 264-65; Pet. App. 4). Fort Trumbull was selected as the best site for a planned development because of the availability of the NUWC site and because the majority of Fort Trumbull is a “regional center”2, for which the Connecticut legislature has set the following goal: Revitalization of the economic base of urban areas by rebuilding older commercial and industrial areas, and encouraging new industries to locate in the central cities in order to protect existing jobs and create new job opportunities needed to provide meaningful economic opportunity for inner city residents . . . . Conn. Gen. Stat. §4-66b. This goal has special applicability here, as most of the 90 acres including the areas in which the petitioners own properties - have been zoned for commercial and light industrial use since 1928.3 (J.A. 113-16, 288-91). Upon initial approval by the city council, the NLDC began a series of neighborhood meetings to educate the residents about the development process. (J.A. 264; Pet. App. 4). The NLDC utilized a combination of notice techniques to encourage resident attendance and participation at these meetings - e.g., newspaper advertisements, direct mail, and public announcements at city council meetings. 2 Pursuant to state planning guidelines, regional centers “encompass land areas containing traditional core area commercial, industrial, transportation, specialized institutional services, and facilities of intertown significance.” (J.A. 276). 3 All of the residential properties in Fort Trumbull including those owned by the petitioners - were built before 1940, and most predate zoning in New London. (J.A. 322; Def. City Exh. 6).
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In addition, the meetings received extensive newspaper coverage. (J.A. 654-55). The NLDC held six such meetings between April and October 1998, with speakers from the NLDC, the City of New London and the State of Connecticut Department of Economic and Community Development (DECD). (J.A. 655). In May 1998, the city formally authorized the NLDC to begin the development process. (J.A. 89; Pet. App. 4). In June 1998, DECD found that the Fort Trumbull project could have a significant environmental impact. (J.A. 90, 265). Under Connecticut law, see Conn. Gen. Stat. §22a-1, et seq., this finding mandated a full-scale Environmental Impact Evaluation. The Evaluation involved extensive investigation of the effect of any development at Fort Trumbull on the water supply, traffic patterns, noise and air pollution levels, historically important buildings, flood prevention, and a host of other concerns.4 (J.A. 90, 239-41). The Evaluation also included the neighborhood meetings, the solicitation of comments from members of the community, and review of proposed findings by the community. (J.A. 90, 239-41). In addition, Conn. Gen. Stat. §8-189 requires a finding that any economic development plan be in accordance with the plan of development for the municipality adopted by its planning commission and the plan of development of the regional planning agency, if any, for the region within which the municipality is located [and] that the plan is not inimical to any state-wide planning program objectives of the state or state agencies as coordinated by the Secretary of the Office of Policy and Management . . . . §8-189. In accordance with this directive, the Evaluation carefully considered a number of state and regional planning documents detailing the already-existing policies for economic development in the region and the state. (J.A. 272-73).5 The Evaluation, started in June 1998, was completed in November 1998. (J.A. 213, 241). After a mandatory 45-day public comment
4 The entire Environmental Impact Evaluation is at pages 213-735 of the J.A. (Volumes II & III). 5 Section 8-189 contains a number of other requirements for economic development projects relevant to the question of public use. See Section II of the Respondents’ Brief, infra.
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period, the Evaluation was formally approved and forwarded to OPM. (J.A. 90-91). In April 1999, OPM made the findings required by §8189 and determined that the Fort Trumbull project met all relevant regulatory requirements. (J.A. 91). As required by Connecticut law; see Conn. Gen. Stat. §8-191; DECD, the Connecticut Department of Environmental Protection and the Southeastern Connecticut Council of Governments also approved the development plan. (Pet. App. 8 n.8). The NLDC then began formulating the specifics of the MDP. As part of that process, the NLDC considered six possible plans of action for the Fort Trumbull area previously set out in the EIE.6 (Pet. App. 7). The draft plan, (J.A. 83-212), completed in August 1999 and thereafter adopted by the NLDC, is a composite of the positive elements of alternatives 2, 4, 5, and 6. The plan carefully balances the many environmental and developmental concerns expressed during the Evaluation process and contains the fewest negative impacts for Fort Trumbull. (J.A. 195-97). The plan divides the 90 acres into seven parcels: Parcel 1: A waterfront hotel and conference center, marinas for tourist boats and commercial vessels, and the Riverwalk (a public walkway along the waterfront). Parcel 2: Eighty new residential properties organized in a planned urban-style neighborhood and linked by a public walkway to the rest of the plan area; this parcel also includes space reserved for the new site of the United States Coast Guard Museum. Parcel 3: 90,000 square feet of high technology research and development office space and parking with direct vehicular access from outside the plan area. 6
The alternate plans considered and rejected by the NLDC were: “(1) no action, with the assumption that some development activities would proceed under the direction of other entities, such as the United States Navy, without action by the development corporation; (2) recreational and cultural facilities to complement the adjacent state park; (3) residential construction with minor amounts of retail and office space; (4) a business campus supported by the hotel and conference center; and (5) two mixed use alternates combining residences, recreational, commercial, hotel and retail uses in differing arrangements.” (Pet. App. 7 n.6). These alternatives are described in more detail at pages 193-95 of the J.A., and in a chart on page 248 of the J.A.
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Parcel 4: Divided into two subparcels - 4A, which will provide park support and marina support, including parking and retail services; and 4B, which will include a renovated marina for both recreational and commercial boating. In addition, the Riverwalk will continue through Parcel 4B. Parcel 5: 140,000 square feet of office space, parking and retail space. Parcel 6: Development of water-dependent commercial uses. Parcel 7: Additional office space and/or research and development space. (J.A. 109-113; Pet. App. 5-6). Although divided into parcels for ease of administration, the MDP does not consist of seven independent development plans. Rather, it is one plan to be considered as an integrated whole. (J.A. 139-40). The petitioners own fifteen properties located in the middle of the Fort Trumbull peninsula. (J.A. 3, 4). Four properties owned by three of the petitioners are located in Parcel 3. Eleven properties owned by the remaining petitioners are located in Parcel 4A and comprise 0.76 acres. (Pet. App. 6, 125). The properties owned by petitioners Kelo, Brelesky, Cristofaro and Dery are either owner-occupied or occupied by a family member. However, the lots owned by petitioners Pataya Construction Ltd. Partnership and Von Winkle, which constitute almost half the total, are investment or commercial properties for which the petitioners are absentee landlords. (J.A. 10-11, 702703; Trial Tr., 7/23/01, 97, 111). The potential economic benefits of this plan as a whole to the people of New London are enormous. The record below demonstrates that the plan is expected to generate approximately between: (1) 518 and 867 construction jobs; (2) 718 and 1362 direct jobs; and (3) 500 and 940 indirect jobs. The composite parcels of the development plan also are expected to generate between $680,544 and $1,249,843 in [annual] property tax revenues for the city . . . . (Pet. App. 7; J.A. 203). As found by the trial court, this influx of jobs and revenue will be critical in continuing the economic revitalization of the city. (Pet. App. 196, 282, 327). In addition to the jobs and tax revenues, the MDP will have a number of immediate benefits for the people of New London. Areas within the 100-year floodplain will be filled to be made A M E R I C A N
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suitable for development. (Pet. App. 356 n.20). There will be extensive improvements to the streets, sewers and utilities in the MDP area, as well as much-needed environmental remediation.7 (J.A. 143-47, 159-60, 180-81, 442-43, 718-21). The Riverwalk will provide public access to, and use of, the waterfront, which was previously unavailable due to the presence of the NUWC facility. (J.A. 140-41). Nor are the needs of those residents displaced by the MDP ignored. To the contrary, the MDP complies with the Uniform Relocation Assistance Act; Conn. Gen. Stat. §8-266, et seq.; and earmarks over $10 million in relocation assistance funds for displaced home and business owners, over and above the amounts for just compensation. (J.A. 206-207). On January 18, 2000, the NLDC board adopted the development plan. (J.A. 12). On the same day, the New London City Council approved it and authorized the NLDC to acquire the properties located in the plan area, by eminent domain if necessary, in the name of the City of New London. (J.A. 26). Thereafter, DECD also approved the plan. (J.A. 12). The 90 acres contained approximately 115 parcels, (J.A. 91), the vast majority of which the NLDC acquired voluntarily. (Trial Tr., 7/25/ 01, 224-25). In October 2000, after months of unsuccessful negotiations with the petitioners, the NLDC voted to acquire their properties by eminent domain. In November 2000, the NLDC, acting as the statutorily-designated development agent for the city, brought condemnation actions for the petitioners’ properties pursuant to Chapter 132 of the Connecticut General Statutes (Conn. Gen. Stat. §§8-186 to 8-200b). (Pet. App. 8). The statements of compensation describe the city, acting by the NLDC, as the official condemnor. (J.A. 6). In keeping with those statements of compensation, and pursuant to Connecticut law, over $1.6 million has been placed in escrow with the clerk 7 The MDP earmarks $20 million in public funds for the creation of the Fort Trumbull State Park on the former NUWC site; $7 million to upgrade the regional sewage treatment facility located in Fort Trumbull; $9 million for environmental remediation; and $24 million for plan preparation, property acquisition and infrastructure development, $2 million of which came from the United States Commerce Department in the form of a Financial Assistance Award. (J.A. 258; Trial Tr., 7/24/01, 109; see also J.A. 186).
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of the Connecticut trial court as compensation for the petitioners’ properties. The NLDC will own all 90 acres in the project area and will lease portions of that property to private developers. (Pet. App. 6). B. The State Court Proceedings
The respondents agree with the petitioners’ statement of the proceedings in the trial court.8 After the trial court’s decision, the petitioners appealed and the respondents cross appealed the trial court’s decision. (Pet. App. 2). The Connecticut Supreme Court held that the public use clauses of the federal and state constitutions authorize the exercise of the eminent domain power in furtherance of a significant economic development plan that is projected to create in excess of 1000 jobs, to increase tax and other revenues, and to revitalize an economically distressed city, including its downtown and waterfront areas.
(Pet. App. 2). The majority upheld the trial court’s ruling with respect to Parcel 3. The majority further held that the trial court’s findings with respect to the necessity of the takings on Parcel 4A were clearly erroneous and remanded the case to the trial court with direction to render judgment for the defendants with respect to the eleven properties located in Parcel 4A. (Pet. App. 133). The majority based its decision on Berman v. Parker, 348 U.S. 26 (1954), and Hawaii Housing Authority v. Midkiff, 467 U.S. 229 (1984), and employed a “broad purposive approach to the interpretation of the federal public use clause.” (Pet. App. 39). This approach, in keeping with Berman and Midkiff, emphasizes “the legislative purpose and motive behind the taking, and give[s] substantial deference to the legislative determination of purpose.” (Pet. App. 42). Three justices concurred in part and dissented in part in one opinion. The three dissenters “agree[d] with the conclusion of the The trial court put the issue most eloquently: “On the other side of this controversy [from the petitioners] are what may be considered abstract entities - the City of New London, the New London Redevelopment Agency. But the people behind these abstractions have a dream also . . . Their dream is for their city buffeted for decades by hard times and until recently declining prospects.” (Pet. App. 196) (emphasis added).
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majority” that “private economic development projects . . . which create new jobs, increase tax revenue, and contribute to urban revitalization, satisfy the takings clauses of the federal and state constitutions.” (Pet. App. 171). With respect to this specific case, the dissent also agreed with the majority that [t]he record clearly demonstrates that the development plan was not intended primarily to serve the interests of Pfizer, Inc., or any other private entity but, rather, to revitalize the local economy by creating temporary and permanent jobs, generating a significant increase in tax revenue, encouraging spin-off economic activities and maximizing public access to the waterfront. Furthermore, the proposed project is being undertaken in an economically ‘distressed’ municipality in need of a stimulus to invigorate the local economy.
(Pet. App. 176) (emphasis added); (Pet. App. 70-71) (majority opinion). The dissent took issue only with the analytical process employed by the majority, which it viewed as too deferential. In place of the majority’s “purposive” test, the dissent called for a heightened degree of judicial scrutiny to ensure that a taking for economic development will, in fact, result in a public benefit. (Pet. App. 134-90). SUMMARY OF ARGUMENT
At the heart of this case are a series of decisions made by the Connecticut legislature and the elected officials of the City of New London as to what will best serve the economic, social, structural and environmental interests of New London’s citizens. In the exercise of its traditional police power, the Connecticut legislature has declared that economic development, and the acquisition of private property to further such development “are public uses and purposes for which public moneys may be expended. . . . ” Conn. Gen. Stat. §8-186. In accordance with this statutory directive and after a painstaking deliberative process, the respondents determined that the economic revitalization of New London, as well as its environmental, social and structural health, would best be served by enacting the MDP and, as a necessary consequence thereof, taking the petitioners’ properties through eminent domain. This Court has a long history of deference to legislative and municipal wisdom in exercising G A L E
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the power of eminent domain. See National Railroad Passenger Corp. v. Boston & Maine Corp., 503 U.S. 407 (1992); Midkiff, supra; Berman, supra. This deference is premised on two well-settled principles: (1) that courts are “unsuited to gather the facts upon which economic predictions can be made, and professionally untrained to make them [,]” General Motors v. Tracy, 519 U.S. 278, 308 (1997); and (2) that the primary purpose of the Takings Clause is not to act as a substantive restraint on government behavior, but to assure compensation for any affected property owners should the government choose to exercise its eminent domain power; see Eastern Enterprises v. Apfel, 524 U.S. 498, 545 (1998) (Kennedy, J., concurring). In keeping with these principles, only once in its over two hundred years of existence has the Court held a compensated physical taking of property to be unconstitutional. Such jurisprudential caution is in keeping with this Court’s longstanding policy - aside from the ill-starred era of Lochner v. New York, 198 U.S. 45 (1905) of showing great deference to economic decisions made by legislative and municipal officials. This Court should adhere to these precedents and affirm the judgment of the Connecticut Supreme Court. This Court first should hold that economic development constitutes a public use within the meaning of the Fifth Amendment. It is undisputed that maintaining the economic health of a city falls within the police powers traditionally reserved to the states, and this Court has held that “[t]he ‘public use’ requirement is thus coterminous with the scope of a sovereign’s police powers.” Midkiff, 467 U.S. at 240. Therefore, employing the power of eminent domain to revitalize a municipality’s economy satisfies the public use requirement. This is especially true in urban settings, in which the problem of land assembly often acts as a barrier to economic revitalization. Such holding is no less valid merely because the economic improvements in question will be achieved by allowing private entities to lease the property taken through eminent domain. The principal focus of the public use equation has always been whether the taking will produce a significant benefit to the public and not the means by which that benefit comes into being. Moreover, such a holding would not only preserve the appropriate balance between the A M E R I C A N
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legislative and judicial branches, but it would be in keeping with the division between federal and state authority that is at the core of our federalist system of government. This Court should then hold that the particular condemnations at issue in the present case satisfy the Public Use Clause. As it has in the past, this Court should eschew a lot-by-lot, building-by-building inquiry into whether each individual piece of property is essential for the project as a whole because such scrutiny interferes with the legislature’s role as “the main guardian of the public needs to be served by social legislation. . . . ” Berman, 348 U.S. at 32. However, even under the intrusive and unwieldy level of scrutiny for compensated takings proposed by the petitioners, the particular condemnations at issue are constitutional because they are reasonably certain to achieve significant public benefits - e.g., the creation of thousands of jobs, significant increases to New London’s annual revenues, environmental remediation and improvements to Fort Trumbull’s decaying infrastructure. Some of these benefits - environmental remediation and infrastructure improvements - already have taken place. With respect to the economic benefits, the reasonable assurances and enforcement mechanisms that are in place here are sufficient to satisfy the Takings Clause. ARGUMENT
I. THIS COURT SHOULD ADHERE TO ITS DEFERENTIAL STANDARD OF REVIEW FOR LEGISLATIVE OR MUNICIPAL DETERMINATIONS OF PUBLIC USE AND HOLD THAT ECONOMIC REVITALIZATION CONSTITUTES A PUBLIC USE WITHIN THE MEANING OF THE TAKINGS CLAUSE. In his dissent in Keystone Bituminous Coal Ass’n v. DeBenedictis, 480 U.S. 470 (1987), Chief Justice Rehnquist summed up the guiding principle of this Court’s Takings Clause jurisprudence: [O]ur inquiry into legislative purpose is not intended as a license to judge the effectiveness of legislation. When considering the Fifth Amendment issues presented by Hawaii’s Land Reform Act, we noted that the Act, “like any other, may not be successful in achieving its intended goals. But ‘whether in fact the provisions will accomplish the objectives is not the question: the [constitutional requirement] is satisfied if . . . the . . . [State] G A L E
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Legislature rationally could have believed that the [Act] would promote its objective.’” Id. at 511 n.3 (quoting Midkiff, 467 U.S. at 242) (emphasis and ellipses in original). This settled wisdom, agreed with by the majority in Keystone - that an exercise of eminent domain authority passes constitutional muster so long as the legislative or municipal authority “rationally could have believed” in its potential effectiveness - has long guided this Court’s consideration of Takings Clause cases. It is wisdom born out of this Court’s recognition of the necessary primacy of legislative judgment in the realm of public welfare and the Court’s self-admitted inadequacy at making predictive judgments about society’s economic or social future. It is wisdom that acknowledges that the proper role of unelected, federal judges in a democracy is to act with restraint when reviewing economic or social policy choices made by a state’s elected representatives. And, in spite of the frenzied heat of the petitioners’ arguments, it is wisdom that remains as valid in the twenty-first century as it was in the nineteenth and twentieth, and as valid for economic revitalization as it was for the myriad of other public purposes upheld by this Court. A. The deferential standard employed by this Court since Berman v. Parker remains the appropriate standard by which to judge legislative or municipal claims of public use. It long has been recognized by this Court that the primary responsibility for addressing society’s economic and social ills belongs to the legislative branch. As this Court noted in Schweiker v. Wilson, 450 U.S. 221 (1981), the legislature is “the appropriate representative body through which the public makes democratic choices among alternative solutions to social and economic problems.” Id. at 230. Such an approach is no less warranted simply because the democratic choice in question involves the legislative or municipal decision to spend public money in order to acquire property through eminent domain. In either case, for the judicial branch, deference is the better part of valor. Indeed, a half-century ago this Court spoke clearly as to the limits of judicial authority in takings cases: Subject to specific constitutional limitations, when the legislature has spoken, the public
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interest has been declared in terms well-nigh conclusive. In such cases the legislature, not the judiciary, is the main guardian of the public needs to be served by social legislation . . . . This principle admits of no exception merely because the power of eminent domain is involved. The role of the judiciary in determining whether that power is being exercised for a public purpose is an extremely narrow one.
Berman, 348 U.S. at 32 (emphasis added). Thirty years later, in Midkiff, this Court reiterated and refined the holding of Berman. Although the courts have a role to play in reviewing the determination of a public use, that role is “an extremely narrow” one. Midkiff, 467 U.S. at 240 (quoting Berman, 348 U.S. at 32). Because “[t]he ‘public use’ requirement is thus coterminous with the scope of a sovereign’s police powers[,]” Midkiff, 467 U.S. at 240, the standard of review for Takings Clause cases is extremely deferential: “[W]here the exercise of the eminent domain power is rationally related to a conceivable public purpose, the Court has never held a compensated taking to be proscribed by the Public Use Clause.” Id. at 241. A court should be unwilling to “substitute its judgment for a legislature’s judgment as to what constitutes a public use ‘unless the use be palpably without reasonable foundation.’” Id. (quoting United States v. Gettysburg Electric R. Co., 160 U.S. 668, 680 (1896)). Eight years after Midkiff, this Court again emphasized its extremely limited role in reviewing questions of public use. In National Railroad Passenger Corp., supra, which, involved retransfer of ownership of the condemned property to another private entity, this Court repeated its earlier holding that “the public use requirement of the Takings Clause is coterminous with the regulatory power, and that [we] will not strike down a condemnation on the basis that it lacks a public use so long as the taking is ‘rationally related to a conceivable public purpose.’” National Railroad, 503 U.S. at 422 (quoting Midkiff, 467 U.S. at 240-41). One of the primary lessons of Berman, Midkiff and National Railroad is that the need for such deference does not depend on the nature of the public use at issue. After all, deference was the guiding principle in Berman, Midkiff and National Railroad even though those three cases concerned three widely G A L E
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divergent government endeavors: the elimination of blighted slums9 (Berman); the dissolution of an oligarchic property ownership structure (Midkiff ); and the facilitation of interstate rail service (National Railroad). What matters about those three cases is their recognition that unelected judges are ill-suited to the task of determining what is an appropriate public use. The historical, legal and logical bases for Berman, Midkiff and National Railroad remain unaltered in this case. A review of those principles makes it clear that economic revitalization constitutes a public use pursuant to the Takings Clause. 1. The text and history of the Takings Clause demonstrates that its principal focus is to provide compensation and not to act as a substantive restraint on government behavior. The text of a constitutional provision is the starting point for its construction. See Crawford v. Washington, 541 U.S. 36, ____, 124 S. Ct. 1354, 1359 (2004). In this case, that text - “nor shall private property be taken for public use without just compensation” - contains a clear syntactic signal that its primary purpose is not to regulate legislative determinations of public use. That signal is the placement of the word “without,” which announces the emphasized prepositional phrase in the Clause, i.e., “without just compensation”. In contrast, “public use” appears in the Clause without any exclusionary word to complement “nor”. Indeed, in its phrasing the Clause almost assumes that any private property taken by eminent domain would ipso facto be for a public use, otherwise one would expect “for public use” to be preceded by “except,” or some other exclusionary preposition. See Laurence H. Tribe, American Constitutional Law 589-90 & 590 n.10 (2nd Ed. 1988) (compensation is surrogate assurance of public use). This construction is borne out by the history of the Clause. In an earlier draft of the Fifth Amendment, James Madison proposed that the Clause should read, “[n]o person shall be . . . obliged to relinquish his property, where As the trial court observed, “[t]he bleak economic conditions that earned [New London’s designation as a distressed municipality] are conditions just as worthy of attention and dangerous to the economic and moral health of the state as slum or blighted areas. . . . ” (Pet. App. 255 n.10).
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it may be necessary for public use, without just compensation.” 4 Documentary History of the First Federal Congress: Legislative Histories 10 (Charlene B. Bickford & Helen E. Veit eds., 1986) (emphasis added). Madison’s draft which was amended without comment by the House to its present form - arguably places more emphasis on the public use question. See Matthew P. Harrington, “Public Use” and the Original Understanding of the So-Called “Takings” Clause, 53 Hastings L.J. 1245 (2002). Madison’s draft seems to call for an inquiry akin to that proposed by the petitioners; i.e., whether a particular taking is, in fact, “necessary” for public use. However, our founding fathers chose, by their alteration of Madison’s proposal, not to endorse such an intrusion into what was thought to be a legislative area (although they did reject purely private takings). See id. at 1248. The notion that the Takings Clause was not primarily meant to act as a restraint on government action in the realm of compensated takings is a familiar one to the Court. Indeed, Justice Scalia’s majority opinion in Nollan v. California Coastal Comm’n, 483 U.S. 825 (1987), concludes with this telling comment: The Commission may well be right that [beach access] is a good idea, but that does not establish that the Nollans (and other coastal residents) alone can be compelled to contribute to its realization. Rather, California is free to advance its comprehensive program, if it wishes, by using its power of eminent domain for this public purpose . . . but if it wants an easement across the Nollans’ property, it must pay for it.
Id. at 841-42 (emphasis added; internal citation and quotation marks omitted); see Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415 (1922) (“[t]he rights of the public in a street purchased . . . by eminent domain are those that it has paid for”). Finally, in Eastern Enterprises v. Apfel, supra, Justice Kennedy wrote that the Takings Clause “operates as a conditional limitation, permitting the government to do what it wants so long as it pays the charge.” Eastern Enterprises, 524 U.S. at 545 (Kennedy, J., concurring). His concurrence, quoting this Court’s earlier decision in First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304, 314-15 (1987), pointed out that the language of the Takings Clause “makes clear that it is designed not to G A L E
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limit the governmental interference with property rights per se, but rather to secure compensation in the event of otherwise proper interference amounting to a taking.” Eastern Enterprises, 524 U.S. at 545. Justice Breyer, writing for himself and the three other dissenting Justices, agreed with Justice Kennedy - and numerous earlier decisions of this Court - that “at the heart of the Clause lies a concern, not with preventing arbitrary or unfair government action, but with providing compensation for legitimate government action that takes ‘private property’ to serve the ‘public’ good.” Id. at 554 (Breyer, J., dissenting) (emphasis in original). The plurality opinion in Eastern Enterprises did not quarrel with these observations by Justices Kennedy and Breyer. Eastern Enterprises, 524 U.S. at 522-23. 2. The courts are ill suited to determining whether a taking is for a legitimate public use. In our constitutional system, the judiciary appropriately has a very limited role in reviewing the wisdom of economic decisions made by the legislature. See United States ex rel. TVA v. Welch, 327 U.S. 546, 552 (1946) (“[a]ny departure from this judicial restraint would result in courts deciding on what is and is not a governmental function and in their invalidating legislation on the basis of their view on that question at the moment of decision”). Since the demise of the Lochner era, this Court no longer strikes down economic choices made by the legislature “because they may be unwise, improvident, or out of harmony with a particular school of thought.” Williamson v. Lee Optical Co., 348 U.S. 483, 488 (1955). It would be a mistake similar in scope to the improvident jurisprudence of Lochner and its progeny for this Court once again to substitute its judgment as to the wisdom of an economic choice made by legislative and municipal officials. It would be ironic if the economic choice to declare a public use and spend the public’s money for that use were subjected to stricter judicial review under the Takings Clause than the economic choice to regulate an employer’s relationship with its employees under the Due Process Clause, given that even the Lochner era saw great deference to legislative determinations of public use; see Gettysburg, 160 U.S. at 680; Clark v. Nash, 198 U.S. 361 (1905); no doubt because legislation with compensation is more palatable than legislation without.
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As this Court recently noted in support of the decision to uphold Washington’s IOLTA program against a Takings Clause challenge, “[i]f the State had imposed a special tax, or perhaps a system of user fees, to generate the funds to finance the legal services supported by the Foundation, there would be no question as to the legitimacy of the use of the public’s money.” Brown v. Legal Foundation of Washington, 538 U.S. 216, 232 (2003) (emphasis added). But while due process and equal protections challenges to economic legislation receive the tender mercies of rational basis review, the petitioners would have this Court eviscerate the power of a state or municipality to use eminent domain in order to achieve precisely the same end - economic health - by barring the use of eminent domain for economic revitalization.10 This Court should not sanction such an illogical dichotomy. The very same institutional concerns that historically have motivated judicial deference to economic regulation apply with equal force to economic action through eminent domain. First, reviewing courts simply are “institutionally unsuited to gather the facts upon which economic predictions can be made, and professionally untrained to make them.” General Motors, 519 U.S. at 308. As a result, this Court “customarily . . . declin[es] to engage in elaborate analysis of real-world economic effects . . . .” Id. at 309. Answering such questions, fraught as they are with the “complexities of factual economic proof,” is a task with which courts generally have little familiarity and even less expertise. Fulton Corp. v. Faulkner, 516 U.S. 325, 342 (1996). The answers are better left to state and municipal governments, which have
10
The dissent in Brown raises the question whether an analogy to taxation would reduce the public use requirement to a “negligible impediment” because taxation is not subject to that requirement. Brown, 538 U.S. at 242 n.2 (Scalia, J., dissenting). But taxation, in most states, is subject to the well-recognized bounds of the police power. A classic case is from Connecticut, State v. Travelers Ins. Co., 47 A. 299, 302-03 (Conn. 1900). This traditional police power informs the limits of the public use requirement. Berman, 348 U.S. at 31-32. To say that courts must give great deference to legislative findings of public use is not to say that public use is a negligible impediment. No one suggests, for example, that rational basis review under the Fourteenth Amendment is a negligible impediment. See, e.g., Allegheny Pittsburgh Coal Co. v. Comm’n of Webster City, 488 U.S. 336 (1989) (applying rational basis review and overturning West Virginia property tax ruling an Equal Protection grounds).
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the freedom and expert ability to conduct “novel social and economic experiments.” New State Ice Co. v. Liebman, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting). The second institutional concern arises out of the insularity of courts from the democratic process. When state and municipal officials make economic or social policy decisions, the people whom those officials represent have the opportunity to voice their opinions on those decisions at the next election. So if the choice is disagreeable to enough people, the consequences of that disagreement will become evident through the political process. See Printz v. United States, 521 U.S. 898, 957 n.18 (1997) (Stevens, J., dissenting) (“to the extent that a particular action proves politically unpopular, we may be confident that elected officials charged with implementing it will be quite clear to their constituents where the source of the misfortune lies”). The same cannot be said for economic choices made by unelected judges, for whom the will of the people does not act as a brake on their power. It is for this reason that, in a democracy, judicial deference to economic decisions is the appropriate course. See Food & Drug Administration v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 132 (2000) (“[t]he responsibilities for assessing the wisdom of such policy choices and resolving the struggle between competing views of the public interest are not judicial ones”). Finally, federal court deference to the economic and other policy decisions of state legislatures and municipalities helps retain the appropriate balance between state and federal power that is a hallmark of our federalist system. Abandoning such deference in the name of the Takings Clause by requiring the courts to engage in close scrutiny of proposed takings would result in the undue concentration of power in federal hands at the expense of the states. See Brief of the National League of Cities, et al., as Amici Curiae (“NLC Brief”), at 12-17; Brief of the Connecticut Conference of Municipalities, et al., as Amici Curiae (“CCM Brief”), at 3-4 & n.2-3. The federal courts - perhaps through the medium of actions under 42 U.S.C. §1983 (which was asserted here, although the petitioners chose to file in state court) - would become the de facto arbiters in areas such as economic health that traditionally are within the police powers reserved to the states; areas in which this Court historically has given state and A M E R I C A N
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local governments a great deal of leeway to explore policy solutions. This result would threaten not merely state and local authority, but individual liberty as well. See New York v. United States, 505 U.S. 144, 181 (1992) (“the Constitution divides authority between federal and state governments for the protection of individuals”). In sum, the reasons behind this Court’s traditional deference to legislative or municipal determinations of public use are valid ones which this Court should not abandon. To the contrary, that deference should be the lens through which the Court views the issues and facts of this case. B. Economic development constitutes a public use as this Court traditionally has understood that term because it is rationally related to a conceivable public purpose. The appropriate starting point for this Court’s inquiry is the clear statement by the Connecticut legislature that economic development, and the acquisition of private property necessary to further such development, is a public use: It is found and declared that the economic welfare of the state depends upon the continued growth of industry and business within the state; that the acquisition and improvement of unified land and water areas and vacated commercial plants to meet the needs of industry and business should be in accordance with local, regional and state planning objectives; that such acquisition and improvement often cannot be accomplished through the ordinary operations of private enterprise at competitive rates of progress and economies of cost; that permitting and assisting municipalities to acquire and improve unified land and water areas and to acquire and improve or demolish vacated commercial plants for industrial and business purposes and, in distressed municipalities, to lend funds to businesses and industries within a project area in accordance with such planning objectives are public uses and purposes for which public moneys may be expended; and that the necessity in the public interest for the provisions of this chapter is hereby declared as a matter of legislative determination.
which the concept of public use is “coterminous” - encompasses the maintenance of a state’s economic well-being through the promotion of private business and industry.11 See id. at 239-40. As this Court pointed out 168 years ago, the police power is not only the right, but the bounden and solemn duty of a state, to advance the safety, happiness and prosperity of its people, and to provide for its general welfare, by any and every act of legislation, which it may deem conducive to these ends.
Mayor of New York v. Miln, 36 U.S. (11 Pet.) 102, 139 (1837); see also Berman, 348 U.S. at 32. Under this expansive definition, promoting the economic health of a state by encouraging the development of business and industry and thereby ensuring jobs for that state’s citizens and tax revenues for its coffers certainly qualifies as a valid exercise of the police power. Indeed, the Connecticut Supreme Court was unanimous on this point. (Pet. App., 42, 172). Although the dissent was not convinced that the petitioners’ properties “actually will be developed to achieve a public purpose”; (Pet. App. 170); the dissent agreed that the legislative determination of public use in §8-186 is constitutional, and that “the primary purpose of the takings is to benefit the public.” (Pet. App. 176). The petitioners, on the other hand, dispute the validity of economic development as a public purpose and - in spite of clear findings to the contrary by the trial court and the emphatic rejection of their claim by the Connecticut Supreme Court - continue to insinuate that the primary purpose of such takings generally, and these takings in particular, is to benefit a specific private party, in this case, Pfizer. The petitioners would have the Court lay down a bright-line rule barring the use of eminent domain for economic development simply because the very real public benefits achieved by that development will come to pass, in part, through the activity of private entities. Such a rule has no basis in this Court’s jurisprudence or the history of the Takings Clause; nor will a holding that
Conn. Gen. Stat. §8-186. As discussed supra in Section IA, this statement of public use is entitled to great deference. Midkiff, 467 U.S. at 241. Moreover, it is beyond dispute that the police power - with G A L E
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Even the petitioners concede the importance of encouraging such development to the lifeblood of a community. See Pet. Brief at 12 (“businesses, if they are successful, generate tax revenue, employ individuals, and contribute to the overall vitality of a community”).
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economic development constitutes a public use result in the parade of horribles that the petitioners posit. This Court therefore should reject the petitioners’ attempt to circumscribe the power of eminent domain in such a dangerous fashion. 1. This Court consistently has upheld the constitutional validity of using eminent domain to create public benefits through the retransfer of private property. On five occasions in the past half-century, this Court has upheld the re-transfer of private property to another private party against Takings Clause challenges because of the public benefits created by the re-transfer. This clear line of precedent - which receives scant attention in the petitioners’ brief - should be controlling on the general question of whether economic development is permitted under the Takings Clause. The seminal case in this Court’s modern12 Takings Clause jurisprudence is Berman v. Parker, supra. In Berman, owners of property condemned pursuant to the District of Columbia Redevelopment Act challenged the Act’s constitutionality. Berman, 348 U.S. at 28. One of the specific challenges was that the Act authorized the resale of the condemned properties to other private entities; in fact, §7(g) of the Act specifically gave “[p]reference . . . to private enterprise over public agencies in executing the redevelopment plan.” Id. at 30. The owners argued that “this makes the project a taking from one businessman for the benefit of another businessman.” Id. at 33. The Court unanimously rejected this claim. In keeping with the deference to legislative wisdom discussed in Section IA, supra, the Court held that “the means of executing the project are for Congress and Congress alone to determine, once the public purpose has been established.” Id. The Court then recognized that “[t]he public end may be as well or better served through an agency of private enterprise than through a department of Even prior to Berman, this Court “long ago rejected any literal requirement that condemned property be put into use for the general public.” Midkiff, 467 U.S. at 244; see Rindge Co. v. Los Angeles, 262 U.S. 700, 707 (1923) (“[i]t is not essential that the entire community, nor even any considerable portion, should directly enjoy or participate in an improvement in order to constitute a public use”). 12
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government - or so the Congress might conclude. We cannot say that public ownership is the sole method of promoting the public purposes of community redevelopment projects.” Id. at 33-34 (emphasis added). The petitioners attempt to minimize the significance of Berman by arguing that the public purpose in that case was the removal of blighted slums, and that “[o]nce that public use was accomplished and the blight removed, transfer of the cleared land to a private party was acceptable.” (Pet. Brief at 25). But the petitioners never offer any authority for their novel proposition that re-transfer to a private party for economic development - which the D.C. Act specifically envisioned - suddenly becomes constitutionally “acceptable” merely because of an intervening event. Moreover, the petitioners’ exclusive focus on blight elimination ignores §6 of the D.C. Act, which, like the Fort Trumbull MDP, mandated the creation of “‘a comprehensive or general plan’ of the District, including ‘a land-use plan’ which designates land for use for ‘housing, business, industry, recreation, education, public buildings, public reservations, and other . . . public and private uses of the land.’” Berman, 348 U.S. at 29. This part of the Act, with its requirement of a plan for Washington’s rejuvenation, employs the tool of re-transfer in order to do far more than merely eliminate blight. This Court reached a similar conclusion in Hawaii Housing Authority v. Midkiff, supra, in which the Court unanimously upheld the constitutionality of Hawaii’s Land Reform Act, which authorized the condemnation of large tracts of leased residential property and the subsequent transfer of ownership of the condemned parcels to their respective lessees, who provided the funds for the just compensation payments. Id. at 233. Although it is true that the principal public use in that case was the dismantling of Hawaii’s feudal property system, that public use has an ironic analogy in the present case. In Midkiff, the concentration of the land ownership led to a failure of the market economy necessitating government intervention; here the wide dispersal of land ownership (into tenths of an acre) also leads to a failure of the market economy due to the inability to assemble commercially viable parcels for development, as Connecticut’s statutory scheme clearly anticipates.
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In any event, Midkiff is not solely about oligopoly. The Hawaii Act also contains requirements governing the future use of the condemned land - e.g., that a lessee, in order to be eligible, must have “a bona fide intent to live on the lot or be a resident of the State. . . . ” Id. at 233 n.1. Such a requirement is an expression of public purpose beyond the mere elimination of an oligarchy. Finally, Midkiff reaffirms the broad language of Berman about the extremely limited judicial role in determining public use. This Court issued yet another clear statement regarding the constitutionality of retransfer to a private party in National Railroad Passenger Corp. v. Boston & Maine Corp., supra. In National Railroad, the Interstate Commerce Commission - at the behest of the petitioner National Railroad (AMTRAK) condemned 48.8 miles of railroad track owned by Boston & Maine (BM). National Railroad, 503 U.S. at 409-10. Prior to the condemnation, AMTRAK had entered into an agreement with the Central Vermont Railroad (CV), BM’s chief competitor, “to at once reconvey the track to CV, and to provide up to $3.1 million to upgrade and rehabilitate the segment.” Id. at 412. In spite of this obvious boon to a specific private party (CV), this Court soundly rejected Boston & Maine’s claim that the taking was not for a public use because the re-transfer to CV was intended to effect significant long-term public benefits (i.e., improving passenger rail service). Id. at 422. According to Justice Kennedy’s majority13 opinion: In both Midkiff and Berman, as in the present case, condemnation resulted in the transfer of ownership from one private party to another, with the basic use of the property by the government remaining unchanged. The Court held these exercises of the condemnation power to be constitutional, as long as the condemning authorities were rational in their positions that some public purpose was served. . . . That suffices to satisfy the Constitution, and we need not make a specific factual determination whether the condemnation will accomplish its objectives.
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Justices White, Blackmun and Thomas dissented on an issue unrelated to the public use question. National Railroad, 503 U.S. at 424-28.
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Id. at 422-23 (emphasis added).14 See also Brown, 538 U.S. at 232 (taking of interest on clients’ funds to fund legal services for indigent litigants valid public use); Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1014-16 (1984) (public disclosure of pesticide data pursuant to FIFRA, which made data available to other manufacturers and effected taking, valid public use). At the end of the day, the petitioners advance no cogent reason for this Court to reverse this long line of decisions upholding the re-transfer of condemned property to a private party, so long as the re-transfer will result in a substantial public benefit. While the Berman-Midkiff-National Railroad line of cases is, by itself, reason enough to uphold the validity of a taking for economic development, both the history of takings in our country and considerations of public policy also support such a holding. 2. There is a long history of using the power of eminent domain to achieve a public good through re-transfer of condemned property to a private entity. This Court’s Takings Clause jurisprudence has, for more than a century, taken a “broad” view of public use. Moreover, the narrow reading urged by the petitioners is more wishful thinking than historical fact. The history of eminent domain authority demonstrates that a taking could be for a public use even if a private entity benefited from the taking or if a private entity was the condemnor. Indeed, the common thread running through this entire history, from colonial times until the present, is that the public often benefits greatly from takings that result in use of the condemned property by another private entity - and that the only relevant constitutional inquiry is whether the public benefits from the condemnation. 14 The petitioners’ assessment of National Railroad as merely another common carrier case ignores the crucial distinctions between National Railroad and those cases. See infra, Section IB(2). In National Railroad, unlike this Court’s railroad decisions from the late nineteenth and early twentieth centuries, the condemnation was not necessary to allow the construction of a straight line of track because the track had already been built and was in operation. The government was therefore taking a functioning segment of railway track from one operator and giving it to another. What is more, in National Railroad, the beneficiary of the government’s use of eminent domain was a specific, known private company in competition with the condemnee - a situation not found in earlier railroad cases, nor in this case.
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The framers of our Constitution drafted the Takings Clause against the background of “a concept of property which permitted extensive regulation of the use of that property for the public benefit. . . . ” Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1056 (1992) (Blackmun, J., dissenting) (citation omitted). Proscribing limits on this power via a restrictive view of public use apparently “was not high Among the concerns of those debating the Bill of Rights . . . [as] the framers may well have assumed that representative government would adequately protect against abuses of eminent domain . . . .” Errol E. Meidinger, The “Public Uses” of Eminent Domain: History and Policy, 11 Envtl. L. 1, 17-18 (1980) (emphasis added). This is not surprising, given the Lockean premise that the consent necessary for the expropriation of property could be implied from the decision of Parliament to take the property. See John Locke, Two Treatises of Government 378, 380 (Peter Laslett ed., 1967). This deferential attitude necessarily informs any understanding of colonial land use policy. During the colonial era, the government often exercised its eminent domain authority, or permitted private individuals to do so on its behalf, in ways which specifically benefited private parties. For example, a number of colonies imposed affirmative use requirements on landowners - so that if a property owner failed to make proper use of his land, he would forfeit title and the land might be sold to another private owner. John F. Hart, Colonial Land Use Law and Its Significance for Modern Takings Doctrine, 109 Harv. L. Rev. 1252, 1260 (1996). This process occurred in urban settings as well. During the period of Dutch ownership of New York (then New Amsterdam), owners of unimproved lots often forfeited title to the government, which then conveyed those lots to new purchasers, in return for a “reasonable indemnity at the discretion of the Street Surveyors”. Id. at 1277-78 (citation omitted). Nor was unused land the only context in which colonial era state governments exercised the power of eminent domain for the benefit of private entities. Legislatures often redirected private property towards some other private use thought to be more advantageous for the common good - e.g., land thought to be suitable for mills or ironworks, or land being farmed individually that legislators thought better suited for a common field. Hart, supra at G A L E
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1282-83. In addition, eminent domain sometimes was used to take land for private rights-ofway. While these roads often were built to allow landlocked owners access to public highways, many of the roads thus created remained private even though eminent domain had been used to acquire the land for them. Meidinger, supra at 14; Lawrence Berger, The Public Use Requirement in Eminent Domain, 57 Oregon L. Rev. 201, 207 (1978). Finally, a number of states enacted legislation during the colonial era that compelled owners of wetlands to engage in compulsory drainage projects and share the costs of drainage projects for the financial benefit of neighbors who could farm the drained areas. Hart, supra at 1270. Although colonial governments generally were scrupulous about providing compensation for outright takings, their aggressive land use policy speaks volumes with respect to any original understanding of the Takings Clause. As Professor Hart summarizes it, in colonial times [t]he preferences of landowners were regularly subordinated to a vision of the public good that embraced many objectives beyond protecting health and safety. In regulating land use, the government sought benefits for the public, not just avoidance of harm. The government often acted simply to encourage a publicly preferred use of private land - to rationalize or optimize private land use.
Id. at 1291. The notion of using eminent domain authority to achieve a public good - even if the method includes re-transfer to another private owner - did not end with the enactment of the Fifth Amendment. In the late eighteenth and nineteenth centuries, numerous states passed so-called Mill Acts, pursuant to which the owner of downstream land could build a dam to power a mill even if that dam caused the flooding of an upstream owner’s land. Berger, supra at 206. By 1884, twenty-nine states had such Acts. Id. These mills were not always “analogous to public utilities now and subject to common carrier regulations.” (Pet. Brief at 22). In one of the seminal mill cases, Olmstead v. Camp, 33 Conn. 532 (1866), the Connecticut Supreme Court permitted a mill owner to flood his neighbor’s land, in exchange for compensation, even though the owner was under no legal obligation to grant public access to his mill, or A M E R I C A N
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to mill grain himself for the public at-large.15 Id. at 537, 552. In language that would be echoed by this Court more than a century later, the Olmstead Court justified its decision by noting that “any appropriating of private property by the state under its right of eminent domain for purposes of great advantage to the community, is a taking for public use.” Id. at 546. That the public had no right of access to, or right to use, the mill itself, did not alter the Olmstead Court’s conclusion. Id. at 551. Olmstead was cited favorably by this Court in Head v. Amoskeag Mfg. Co., 113 U.S. 9, 26 (1885). The development of our nation’s railroads continued this trend of permitting a private company to benefit directly from the taking of private property, so long as the main beneficiary was the public. Indeed, in many of the railroad cases, the power of eminent domain was delegated to the railroad companies themselves, to use as the companies deemed necessary. See Charlotte, C. & A. R. Co. v. Gibbes, 142 U.S. 386, 393 (1892). Although part of the justification for this was the status of railroads as common carriers and the regulation of the railroad industry by the federal government, that is hardly the end of the story. Indeed, this Court and other courts have permitted railroad condemnations that were not necessary for the assembly of narrow, straight tracts of land, but which were useful to the railway companies’ fiscal health. See Hairston v. Dansville & Western Railroad Co., 208 U.S. 598 (1908) (railroad permitted to condemn land for spur track to reach factory of large tobacco shipper); Wilson v. Pittsburgh & L.E. Railroad Co., 72 A. 235 (Pa. 1909) (railroad permitted to condemn private property for water tanks). Moreover, even those condemnations that involved only the acquisition of land necessary for straight lines of track also involved direct and immediate benefits to the railroad companies - i.e., the massive profits generated by a 15
Olmstead is not alone in this conclusion. See Harding v. Funk, 8 Kan. 315, 1871 WL 785 at 7 (1871) (“[i]t has never been deemed essential that the entire community, or considerable portion of it, should directly enjoy or participate in an improvement or enterprise in order to constitute a public use”); Miller v. Troost, 14 Minn. 365, 1869 WL 2322 at 2 (1869); Scudder v. Trenton Delaware Falls Co., 1832 WL 2274 at 21 (N.J. Ch. 1832) (mill was for public use even though owners were “under no obligation to let the public participate in the immediate profits of their undertaking”); see also Brief of the American Planning Association, et al., as Amici Curiae (“APA Brief”) at 9.
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virtual monopoly on interstate commerce and travel. Although very real, the public goods created by the railroads arose as a by-product of that monopoly. This is not unlike the public benefits from economic development, which, although very real and often substantial, come into being as a result of private profit and private benefit due to an earlier taking. In sum, the history of land use policy in this country demonstrates a willingness to allow the re-transfer of private property to another private owner to ensure that the property was being put to the most economically beneficial use. Any original understanding of the Takings Clause must take that history into account. 3. The power of eminent domain is a necessary tool in urban development for overcoming barriers to land assembly. There is another significant similarity between the use of eminent domain for railroads and the use of eminent domain for economic development - a similarity that belies the petitioners’ attempt to distinguish the railroad cases. Relying on County of Wayne v. Hathcock, 684 N.W.2d 765 (Mich. 2004), the petitioners assert that railroad cases are unusual because they require “coordination of land assembly . . . and could be thwarted by hold-outs.” (Pet. Brief at 21). The petitioners then quote the Hathcock Court’s distinction of economic development from uses “whose very existence depends on the use of land that can be assembled only by the coordination central government alone is capable of achieving.” Hathcock, 684 N.W.2d at 781 (emphasis in original).16 What the petitioners refuse to acknowledge is that this very same problem exists to just as great a degree in urban economic development as it does in railroad building. It has long been recognized that eminent domain authority serves the valuable function in our society of providing the means for the government to overcome market barriers that might otherwise halt economic and social progress. See, e.g., Richard Posner, Economic Analysis of Law §§3.6-3.7 (3rd Ed. 1986); Frank Michelman, Property, Utility, and Fairness: Comments on the Ethical Foundations of “Just Compensation” Law, 16
Hathcock also holds, solely under the Michigan Constitution, that “public use” is narrower than “public purpose”. Hathcock, 684 N.W.2d at 775-76. It thus follows a different path than has this Court - a path without sound logical or jurisprudential federal underpinnings. See APA Brief, at 14-19.
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80 Harv. L. Rev. 1165, 1175-76 (1967). In this fashion, eminent domain acts as a lubricant for the market machinery, overcoming “barriers to voluntary exchange created when a seller of resources is in position to extract economic rents from a buyer.” Thomas Merrill, The Economics of Public Use, 72 Cornell L. Rev. 61, 65 (1986). In his seminal study of the purpose of the power of eminent domain in a free market, Professor Merrill notes the danger to necessary economic and social development of so-called hold-outs. In a “thin market,” where the seller owns property uniquely suitable for the buyer’s needs, it “can lead to monopoly pricing by the seller, to unacceptably high transaction costs, or to both.” Id. Such market barriers often are found in the assembly of the numerous contiguous pieces of land needed for major public or private developments. Id. at 75-76. In such a scenario, “each owner is a monopolist, effectively dominating a resource needed to complete the project. Each owner can thereby engage in monopoly pricing, that is, can set his price well above the opportunity cost of the needed resource.” Id. at 75. This danger is even greater when subjective factors - such as sentimental attachment to the property - enter into the equation. Id. at 83. In such a scenario, no amount of money would persuade these sentimental hold-outs to sell, creating a high obstacle to a project for the greater good. In the urban setting, this assembly problem often is the biggest barrier to development, a fact expressly recognized by the Connecticut legislature. See Conn. Gen. Stat. §§ 4-66b & 8-186. While the land necessary for economic revitalization in suburban or rural areas often can be acquired from a handful of landowners, in a city assembling a parcel large enough to be of use in improving the city’s economy necessitates dealing with dozens of landowners.17 Indeed, this Court recognized that very dilemma in Berman, noting that “[i]f owner after owner were permitted to resist these redevelopment programs on the ground that his particular property was not being used against the public interest, integrated plans for redevelopment would suffer greatly.” Berman, 348 U.S. at 35; see also 17
New London is a classic example of the urban assembly problem: a geographically minuscule city composed of hundreds of small properties. See Part II of Respondents’ Brief, infra.
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Fallbrook Irrigation Dist. v. Bradley, 164 U.S. 112, 161-62 (1896). If a few hold-outs may block a development project designed to renew the economic prosperity of a city, opportunities for urban economic development in the near future will be few and far between. Having the tools necessary to overcome these obstacles - including, if necessary, the power of eminent domain is therefore vital to the economic health of every city in this country. See NLC Brief, at 20-30; CCM Brief, at 3-4 & n.2-3. 4. The inherent transaction costs of eminent domain, and the inherent checks on the abuse of eminent domain that exist in a democracy, provide sufficient assurance that economic development will not render the public use requirement a nullity. In lieu of a coherent constitutional theory grounded in this Court’s prior decisions, the petitioners devote the first half of their brief to an exercise in Chicken Littleism. According to the petitioners, “the unfettered sweep of the [Connecticut Supreme Court’s] opinion places all home and small business owners at risk, especially property owners of more modest means.” (Pet. Brief at 12). However, the petitioners ignore several important brakes along their slippery slope. First, there are inherent transaction costs that often make eminent domain an unattractive or even unfeasible alternative for municipalities and would-be developers. According to Professor Merrill: First, and most important, legislatures must authorize the exercise of eminent domain. It is thus necessary to persuade a legislature to grant the power of eminent domain, or, if a general grant of the power already exists, to persuade officials to exercise it. Second, the due process clauses of the fifth and fourteenth amendments, as well as local statutes and rules, impose various procedural requirements upon the exercise of eminent domain. At a minimum, these include drafting and filing a formal judicial complaint and service of process on the owner. Third, nearly all jurisdictions require at least one professional appraisal of the condemned property, something generally not done (or not done as formally) in a private sale. Finally, both courtmade and statutory law guarantee a person whose property is subject to condemnation some sort of hearing on the condemnation’s legality and the amount of compensation due.
Merrill, supra at 77. These inherent transaction costs were incurred in this case - as well as A M E R I C A N
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the more obvious costs of millions of dollars in just compensation and millions more in relocation assistance, none of which will be paid by a private party.18 Given these transaction costs, which often make eminent domain a much more expensive method of acquiring property than market exchange, “the decision whether to use eminent domain should be, from an economic perspective, self-regulating.” Id. at 78. In other words, because it requires the expenditure of significant sums of public money - to plan an economic development project, to acquire the property and to litigate - eminent domain is likely to remain a tool of last resort for municipalities. Economic self-interest is hardly the only built-in check on eminent domain; political self-interest will have that effect as well. As with the abuse of any form of government power, popular dissatisfaction with the abuse of eminent domain, especially if used for the benefit of private industry, will eventually make itself felt at the ballot box. Indeed, the threat of such electoral consequences likely will act as a deterrent to most questionable uses of the power of eminent domain. Although the petitioners prophesy a world in which churches are replaced by Walmarts, that cynical forecast does not account for the democratic process.19 In fact, the petitioners’ dire predictions notwithstanding, their brief actually identifies yet another potential check on the abuse of eminent domain - the state courts. The petitioners cite several recent state court decisions striking down an exercise of eminent domain to further economic development as not being for a valid public use. See Hathcock, supra; Georgia Dept. of Transportation v. Jasper County, 586 S.E.2d 853 (S.C. 2003); Southwest 18
Under Connecticut law, the taking authority must pay the condemnee the full and fair market value of his property and deposit that sum in escrow with the Connecticut Superior Court at the time of the condemnation. See Conn. Gen. Stat. §8-193 (incorporating Conn. Gen. Stat. §§8-129 & 8-130). 19 Eminent domain presents a situation far different from one in which the constitutional rights of a small minority of the population are threatened by the tyranny of the majority because of unpopularity or bigotry. Because the exercise of eminent domain does not single out a particular group, property rights therefore are not subject to attack in the same fashion as the right to free speech or the rights of religious, racial or ethnic minorities.
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Illinois Development Authority v. National City Environmental, 768 N.E.2d 1 (Ill. 2002) (SWIDA). These cases - which invalidated takings either solely or principally under their respective state constitutions - serve as examples of the healthy balance between state and federal judicial authority necessary in a federalist system of government. Nor is it mere wishful thinking to regard the state courts as the principal bulwarks against the abuse of eminent domain. See Merrill, supra at 96-97 (between 1954 and 1985, over 16 percent of state court decisions on public use question invalidated takings as not being for public use); Corey J. Wilk, The Struggle Over the Public Use Clause: Survey of Holdings and Trends, 1986-2003, 39 R. Prop., Probate & Trust J. 251, 258 (2004) (over 17 percent between 1986 and 2003). Finally, to the extent that the petitioners raise the specter of the arbitrary or capricious exercise of the power of eminent domain by municipalities without any judicial check, the Connecticut Supreme Court has demonstrated several times in the past few years that it will not tolerate such nefarious behavior. See Aposporos v. Urban Redevelopment Commission, 790 A.2d 1167 (Conn. 2002) (reversing condemnation due to inadequate findings of blight); Pequonnock Yacht Club, Inc. v. City of Bridgeport, 790 A.2d 1178 (Conn. 2002) (affirming injunction against condemnation due to failure of defendants to consider integration of plaintiff’s property); AvalonBay Communities, Inc. v. Town of Orange, 775 A.2d 284 (Conn. 2001) (affirming injunction barring implementation of plan adopted in bad faith as pretext to thwart affordable housing). The Connecticut Supreme Court’s opinion in the present case only reinforces that intolerance of municipal misbehavior. First, although it generally adhered to the deference mandated by Berman and Midkiff, the “primary purpose” standard enunciated in Kelo actually is more stringent than either Berman or Midkiff. This standard presupposes at least some inquiry into the reasons for the legislative or municipal takings decision beyond whether it is “rationally related to a conceivable public purpose”. This is buttressed by the Court’s detailed discussion of the “particularly egregious set of facts” that led the Illinois Supreme Court to declare a taking unconstitutional in SWIDA. The Connecticut Supreme Court’s express acknowledgement that it may be appropriate to invalidate a taking A M E R I C A N
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when, as in the SWIDA case, an agency clearly has exercised its eminent domain authority for the primary benefit of another, specific private entity, belies the petitioners’ contention that the Kelo decision drains the meaning and substance out of the public use requirement. II. THE EXERCISE OF EMINENT DOMAIN AUTHORITY BY THE RESPONDENTS IN THIS CASE SATISFIES THE PUBLIC USE REQUIREMENT. In keeping with this Court’s oft-stated rule of great deference to legislative statements of public use, “it is only the takings purpose, and not its mechanics, that must pass scrutiny under the Public Use Clause.” Midkiff, 467 U.S. at 244. For the reasons that follow, this Court should decline the petitioners’ invitation to impose a new and more rigorous standard of review for compensated takings. However, even under the intrusive system of means-ends scrutiny proposed in the petitioners’ brief, the specific benefits that are the likely result of the MDP are more than sufficient for the plan to pass constitutional muster. A. This Court should adhere to the level of scrutiny traditionally employed for compensated takings. For the reasons discussed in more detail supra, this Court has been loath to scrutinize a legislative determination as to whether an economic decision serves a public purpose. Courts are not only institutionally unsuited to making such predictive judgments, but also are unbound by the restraints of the democratic process that limit elected officials. As such, great deference to legislative decisionmaking in this area is the proper judicial role. See Nectow v. City of Cambridge, 277 U.S. 183, 187-88 (1928). This Court employs precisely the same deference in the Takings Clause context. In fact, the Court has never imposed any form of heightened scrutiny with respect to a compensated taking, even though several of this Court’s cases involved takings for the benefit of a private party. See NLC Brief at 8-11. To the contrary, in National Railroad, after concluding that the condemnation and re-transfer to a private party was a proper public use, this Court declined to “make a specific factual determination whether the condemnation will accomplish its objectives.” National Railroad, 503 U.S. at 422-23. The Court has required greater scrutiny only G A L E
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with respect to uncompensated exactions; i.e., when the government conditions the grant of a building permit on the permittee’s willingness to allow a public right-of-way across his property. See Dolan v. City of Tigard, 512 U.S. 374 (1994); Nollan v. California Coastal Comm’n, supra. The Nollan/Dolan rule - which requires a “nexus” between some substantial public purpose and the means chosen to achieve that interest and, if such a nexus exists, “rough proportionality” between the government-imposed condition and the anticipated impacts of the permitted construction - makes sense only in the narrow realm of uncompensated exactions. See Dolan, 512 U.S. at 385, 391; Nollan, 483 U.S. at 836 n.3, 837. Indeed, this Court expressly held as much in City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 702-03 (1999). The need for heightened scrutiny in the Nollan/Dolan scenario was born out of the concern that the government might use a property owner’s desire for a permit to compel the owner’s acquiescence to a permanent physical occupation of his property - an occupation that otherwise would constitute a per se taking requiring compensation. See Nollan, 483 U.S. at 834. In other words, the concern was that the government would use the permitting process as an end-run around the just compensation requirement. This concern obviously does not apply to the compensated takings in this case. See First English, 482 U.S. at 314-15. The “reasonable certainty” test proposed by the petitioners for takings involving a retransfer of the condemned property lacks any foundation in either logic or this Court’s jurisprudence. The petitioners cite only one decision of this Court as even arguably supporting heightened scrutiny: United States v. Gettysburg Electric R. Co., 160 U.S. at 680. However, the quoted dicta in Gettysburg must be read in light of its actual holding: [W]hen the legislature has declared the use or purpose to be a public one, its judgment will be respected by the courts, unless the use be palpably without reasonable foundation. Many authorities are cited in the note, and, indeed, the rule commends itself as a rational and proper one. Id. Indeed, Midkiff expressly relies on Gettysburg in its formulation of the deferential A M E R I C A N
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standard of review on public use.20 Midkiff, 467 U.S. at 241. The petitioners’ other arguments are equally meritless. Their (somewhat mutually contradictory) assertions that the benefits of the MDP are too speculative, and that it is not necessary to take the petitioners’ properties in order to achieve those benefits, are discussed infra in Section IIB. Their claim that heightened scrutiny is warranted because “[e]minent domain forces some people to bear a burden that should be, but cannot be, borne by all [,]” (Pet. Brief at 32), says nothing unique about either eminent domain for economic development or about re-transfer cases. After all, in every instance that it is used, the power of eminent domain places a greater burden on certain individuals than society at large - this is true for roads, schools, prisons, all of the “traditional” public uses lauded by the petitioners. The constitutional remedy for that (however little the petitioners wish to acknowledge it) is just compensation. In sum, there simply is no principled reason to impose - for the first time with respect to compensated takings - a heightened degree of scrutiny. This Court has never countenanced such an interference with the legislative and municipal prerogative and it should not do so here. So long as a taking is related to a rational public purpose, this Court should do what it did in National Railroad and uphold the taking. B. Under any standard of review, the takings in this case satisfy the public use requirement. It is clear that, as a general matter, economic development satisfies the public use requirement, even when that development takes place through the medium of re-transfer to a private entity. In the present case, the need for such development is undisputed - the petitioners quibble only with the efficacy and necessity of the methods chosen by the respondents and set forth in the MDP to achieve the asserted public purpose. However, those quibbles are not supported by the factual record. To the 20
The petitioners also cite Cincinnati v. Vester, 281 U.S. 439 (1930), for the proposition that a public use must be “a known use” in order to pass constitutional muster. The petitioners simply ignore the fact that this Court expressly refused to decide the constitutional issue presented in Vester because the case could be resolved on a point of Ohio statutory law. Id. at 448-49.
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contrary, the facts demonstrate that there is more than a reasonable likelihood that the projected benefits of the MDP will come to pass and that the proposed takings are therefore necessary to the economic rejuvenation of New London.21 New London’s severe economic distress, discussed in detail supra, makes the need for economic revitalization much more compelling than would be the case in a city that was thriving. In any takings situation, a municipal exercise of eminent domain power must bear some rational relationship to a problem of which the correction is within the sphere of the police power. Midkiff, 467 U.S. at 240. Therefore, the more severe the problem, the more necessary is a municipal response to it, if municipal authorities are to fulfill their role to adjust “the burdens and benefits of economic life. . . . ” Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 15 (1976). Moreover, the MDP already has resulted in significant non-economic benefits for the people of New London. These immediate benefits include large-scale environmental remediation; creation of public access to the Thames River via the Riverwalk; improvements to the city’s roads, sewers, water and power lines; and the filling of flood plain areas. (J.A. 140-41, 143-47, 159-60, 180-81, 442-43, 718-21). It is equally as important that the MDP was not a hastily cobbled-together midnight deal. It was the product of a comprehensive and public process designed to alleviate many of New London’s problems by creating thousands of jobs, greatly increasing the city’s tax revenues and modernizing its building stock, streets and sewers. This process included a detailed analysis of six possible options for the MDP. See note 21
For the reasons set forth in Sections IA and IIA, the respondents believe that it would be inappropriate for this Court to adopt a heightened standard of proof for economic development takings. However, it is noteworthy that the Connecticut Supreme Court, in considering whether the claimed public benefits of the MDP would come to pass, required a finding of “reasonable assurances of future public use. . . . ” (Pet. App. 73). If the petitioners are attempting to impose an even stricter standard of proof with their “reasonable certainty” test, they simply are trying to halt most economic development condemnations through the back door of an unreasonable standard of proof. To paraphrase the Connecticut Supreme Court, it would be hard to see how predictions of future economic events ever can be proved with the high level of certainty proposed by the petitioners. (Pet. App. 74 n.62).
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10, supra. Thereafter, a detailed marketing study was conducted by a potential developer, Corcoran Jennison, which ultimately was selected from a group of applicants to be the developer for much of the MDP. (J.A. 30-82; Pet. App. 66). Moreover, contrary to the suggestion in the petitioners’ brief, the NLDC, and any private developers to whom property is leased, will not simply be left to run things as they see fit while the city and its residents hope that these benefits materialize. In fact, the MDP is subject to numerous statutory and contractual controls. Chief among these is Conn. Gen. Stat. §8189, which requires multiple and specific details in any development plan regarding the need for development and the benefits of the proposed plan - e.g., a statement of the number of jobs to be created; a marketability plan; a financing plan; an administrative plan; and a finding that the plan will contribute to the economic welfare of the municipality and the state. Id. Section 8189 also requires oversight of the development by the state to ensure that any development plan conforms to state regulations and other statewide and regional plans of development. Id. Furthermore, in Connecticut, no municipality can use eminent domain for economic development without the approval of the Executive Branch and continued state oversight. All of those requirements were met in this case. A number of other statutes provide control over economic development plans as well. See Conn. Gen. Stat. §8-190 (state may make planning grants and advise development agency); Conn. Gen. Stat. §8-191 (state must approve final development plan if state grants have been made); Conn. Gen. Stat. §8-193(a) (if state grants have been made, department and city must approve land transfers by sale or lease in accordance with plan); and Conn. Gen. Stat. §8-200(a) (“substantial” changes to development plan require approval in same manner as original plan). In fact, the state itself is a “signatory to the development agreement; it ‘provides the funding without which nothing goes forward.’” (Pet. App. 74). The MDP, and any modifications thereto, is in effect for 30 years, and any parcel in the plan area must be devoted principally to the uses contemplated by the MDP. (Pet. App. 75 & n.64). In accordance with these statutory controls, both the trial court and the Connecticut Supreme Court concluded that state and city G A L E
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would have sufficient control over the NLDC to ensure that neither it nor any private developer leasing any part of the property would be “able to act according to its own ‘will and caprice’. . . . ” (Pet. App. 75 n.63). This conclusion is buttressed by the MDP’s requirement that any redeveloper [agree] for itself and its successors and assigns as successors in interest to the parcel, or any part thereof, that the deed conveying the Parcel shall contain language covenanting on the part of Redeveloper and its successors and assigns that: The Parcel shall be devoted principally to the uses contemplated by the Plan, and shall not be used or devoted for any other purpose, or contrary to any of the limitations or requirements of said Plan. All improvements made pursuant to the Plan and this Agreement shall be used in accordance with the Plan unless prior written consent is given by the [development corporation] and [department] for a different use; The Parcel shall not be sold, leased, or otherwise disposed of for the purposes of speculation.
(Pet. App. 75 n.64) (emphasis added). These contractual obligations act as a bar to any future redeveloper that might lease property in the MDP area from the NLDC from making use of the property in a way not in accordance with the MDP. Moreover, these obligations are buttressed by the fact that the redeveloper will not own the property, but will lease it from the NLDC. There is also no evidence that any nongovernmental entity will pay any portion of the just compensation to the petitioners. Taken together, these statutory and contractual controls give reasonable assurance that it is the State of Connecticut and the City of New London, and not either the NLDC or those developers to whom space is leased, which will exercise final control over the future of the MDP. Indeed, although the city has designated the NLDC as its agent for economic development pursuant to §8-188, nothing in that statute, or Connecticut law in general, prevents that designation from being withdrawn. In that sense, the city always has the ultimate form of control over the NLDC because the city can take away all of the NLDC’s power by simply undesignating it. (Pet. App. 219). The same reasonable assurance exists that the proposed benefits to New London’s economy and infrastructure are likely to take place. With respect to Parcel 3, the petitioners have A M E R I C A N
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taken a few isolated comments from a marketing study performed in 2000 by Corcoran Jennison (the company designated to lease the office space in Parcel 3) and simply ignored the many other parts of the record that demonstrate the viability of the use of Parcel 3. For example, that very same marketing study found that “rental rate and occupancy trends [in New London] have been generally positive over the past few years. . . . ” (J.A. 38). The study characterizes the market for Class A office space in New London as “quite healthy,” and notes that “there has been a positive demand for Class A & B office space over the past four years. Between October 1996 and October 1999, approximately 185,000 square feet were absorbed in New London.” (J.A. 41-42) (emphasis added). It is telling that the petitioners’ brief never addresses this fact.22 In addition, there was ample testimony that the presence of Pfizer in New London would act as a spur in the commercial real estate market in keeping with the demand for office and research space envisioned by Parcel 3.23 The proposed uses for Parcel 4A also are sufficiently well-defined. As the Connecticut Supreme Court opinion notes, the MDP envisions two uses for Parcel 4A: park support and marina support.24 24] (Pet. App. 125-26; J.A. 111-12). Understood in their proper context the size of Parcel 4A, and its placement within the overall plan for Fort Trumbull - these proposed uses are not speculative. Parcel 4A is 2.4 acres in size and is situated in the middle of the plan area, sandwiched between a waste water treatment facility and Fort Trumbull State Park. (J.A. 4). It is the only parcel which can possibly be used to connect the rest of the project to the marina and Fort Trumbull State Park. It certainly is not irrational to designate a small parcel of land adjoining a 16-acre state park for park support, especially when that 22 The petitioners’ assertion that the office space will only be built at some unknown, and likely far-off, time in the future also is belied by the facts. According to the record, Corcoran Jennison “intend[ed] to select a brokerage firm no later [than] March 31, 2001 and to commence the marketing of the commercial space as soon as possible thereafter.” (J.A. 75-76). Indeed, a careful examination of the very time-line trumpeted by the petitioners in their brief shows that - were it not for the current litigation much of the office space slated for Parcel 3 could have been either completed or under construction. (J.A. 46-48, 73). 23 The petitioners’ assertion that the clear intent of the MDP was to benefit Pfizer, rather than merely to take advantage of
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parcel’s other principal neighbor, a waste water treatment facility, makes it less suitable for other functions. The same thing is true regarding use of Parcel 4A for marina support because immediately to the south of Parcel 4A is Parcel 4B, which is slated to contain a marina. Viewed in light of its location, the proposed uses of Parcel 4A make a great deal of sense. That the 90-acre plan area itself is surrounded on three sides by water has an obvious impact on the uses of Parcel 4A. (J.A. 4). It means that parking, and most other park or marina support facilities, cannot go in those directions. This supports the reasonableness of the taking of Parcel 4A for those uses. Not to take Parcel 4A also would leave 11 tiny plots totaling 0.76 acres - completely surrounded by a 90-acre development project that cannot expand in three directions due to its peninsular nature. Furthermore, to the extent that the petitioners argue that these proposed uses are too speculative, that argument is actually no more than a thinly-disguised attempt to trap the city between a constitutional Scylla and Charibdis. On the one hand, the petitioners note the constitutional bar against takings designed solely to benefit a private party. See Midkiff, 467 U.S. at 245. So, if an economic development plan were to contain very specific details as to specific private companies that were going to be given the use of properties taken through eminent domain, that in the petitioners’ view would run afoul of the public use requirement because those private companies, and not the public, would be the true beneficiaries of the takings. On the other hand, the petitioners want this Court to bar any plan unless it states who will develop the condemned land and for what specific uses. Of course, it is precisely economically-distressed cities that have the most difficulty in enticing private developers its presence in the city, is not only contradicted by the findings of the trial court and the majority opinion of the Connecticut Supreme Court, but by the dissent as well. (Pet. App. 70-71, 176). Moreover, as the majority opinion notes, Pfizer’s supposed “requirements,” which is the only evidence proffered by the petitioners of any intent to benefit Pfizer, do not impact Parcels 3 and 4A. (Pet. App. 65, 69). Furthermore, Pfizer will have no ownership or management interest in any of the facilities in the plan area. (Pet. App. 63). 24 Another possible use of Parcel 4A is for a United States Coast Guard Museum. (Pet. App. 126-27).
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to commit themselves to urban revitalization and it is these same cities (and their millions of residents) that will be the losers if they must prove to a high degree of certainty that their plans will succeed. This sort of gamesmanship which ignores the clear distinction between judicial review of the overarching public use and judicial review of the means by which that use is implemented - cannot be what the constitution intended. As this Court said in Rindge, supra, 262 U.S. at 707, a public use may be a use “fairly anticipated in the future.” Finally, the petitioners contend that, because their properties “comprise a miniscule portion of the land” in the MDP, it is not necessary to take their properties in order to advance the public good. (Pet. Brief at 48). In Berman, this Court rejected an identical argument by the owners of a non-blighted department store situated in the part of Washington designated for redevelopment. Berman, 348 U.S. at 31, 34. The store owners claimed that, because “their building [did] not imperil health or safety nor contribute to the making of a slum or a blighted area,” id. at 34, it should have been exempted from the dictates of the District redevelopment. In response, this Court emphatically rejected such a piecemeal approach. The Court deferred to the expertise of the legislators and administrators who formulated the redevelopment and held: It is not for the courts to oversee the choice of the boundary line nor to sit in review on the size of a particular project area. Once the question of the public purpose has been decided, the amount and character of land to be taken for the project and the need for a particular tract to complete the integrated plan rests in the discretion of the legislative branch. Id. at 35-36 (emphasis added). A property-by-property approach to the question of constitutionality would pose just as grave a threat to the integrated plan in this case as it did in Berman. First, as Berman intimates, it would be incongruous, to say the least, to have the federal courts micromanage state and local development projects. Not only are judges professionally ill-suited to such a role, but that sort of heavyhanded intrusion into state and local affairs does not comport with our federalist system of government. G A L E
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Second, there is the “spotted leopard” problem.25 This occurs when there are small parcels of untouchable land scattered within an area set for development. It is an enormous hindrance for the project as a whole to have to build around these so-called spots. For example, much of the MDP area will be raised above the flood plain. Obviously, this cannot take place if there are little exempted islands of property within the area to be raised. For this and other reasons, building around the petitioners is not a feasible alternative. Moreover, even if development of the property could go forward, the spotted leopard problem would be just as great a hindrance once the development was complete. It is important to remember that the land in Parcels 3 & 4A has been zoned for commercial and light industrial use for decades and, under the MDP, will be zoned for “water dependent and water related industrial and major commercial use. . . . ” (J.A. 114, 116, 126). The properties, which cannot be renovated for commercial use, therefore will simply be incompatible with all of the uses going on around them. Indeed, this is another important facet of the assembly problem faced by cities. See supra, Section IB3. In suburban and rural areas, there generally is no spotted leopard problem because the land needed for development often can be acquired through the marketplace from a few owners. In cities, however, properties are generally much smaller in size and owned by many more individuals. As such, a city that wants to improve a downtrodden economy and revamp its infrastructure must contend with the spotted leopard. Too often, the result is the exodus of businesses and developers to the suburbs and the creation of still more suburban sprawl. The condemnation of the petitioners’ properties is clearly rational. If the Court believes that a higher standard should be imposed for compensated takings, this case falls on the constitutional side of any reasonable line. New London is economically downtrodden and has given all of the assurances of successful development that reasonably can be expected of a city. The respondents have provided a 25
According to the record, the residential properties are “scattered throughout the MDP area contributing to a sawtooth visual impression in the various blocks.” (J.A. 323); see also (Pet. App. 301-305).
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carefully thought-out and publicly-vetted plan with state and local oversight; a plan that is subject to detailed statutory and contractual requirements; and an economic revitalization area designed to capture the maximum benefit from being located next door to a $300,000,000 global research facility that was almost completed by the time the NLDC condemned the petitioners’ properties. To ask for any more would be asking for an absolute guarantee of the future - and that is a standard too harsh for any city to satisfy. For most of this century, our courts have followed the time-honored “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.” Ferguson v. Skrupa, 372 U.S. 726, 730 (1963). The power of eminent domain,
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although formidable, is merely one of the many tools that the Constitution grants to the legislative branch in order to fulfill its role as the progenitors of economic and social policy. Contrary to the petitioners’ assertion that a ruling in their favor would have only a limited impact, such a ruling would result in a seismic shift in our constitutional landscape that would upset not only the careful balance between judicial and legislative authority, but would also result in the intrusion of federal courts into state and local affairs. CONCLUSION
For the foregoing reasons, the judgment of the Connecticut Supreme Court should be affirmed. [Appendix omitted]
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In the United States Supreme Court, June 2005 OPINION OF THE UNITED STATES SUPREME COURT, JUNE 23, 2005 NO. 04-108 SUSETTE KELO, ET AL., PETITIONERS,
v. CITY OF NEW LONDON, CONNECTICUT, ET AL.
NO. 04-108. ARGUED FEB. 22, 2005. DECIDED JUNE 23, 2005. REHEARING DENIED AUG. 22, 2005. SYLLABUS
After approving an integrated development plan designed to revitalize its ailing economy, respondent city, through its development agent, purchased most of the property earmarked for the project from willing sellers, but initiated condemnation proceedings when petitioners, the owners of the rest of the property, refused to sell. Petitioners brought this state-court action claiming, inter alia, that the taking of their properties would violate the “public use” restriction in the Fifth Amendment’s Takings Clause. The trial court granted a permanent restraining order prohibiting the taking of some of the properties, but denying relief as to others. Relying on cases such as Hawaii Housing Authority v. Midkiff, 467 U.S. 229, 104 S.Ct. 2321, 81 L.Ed.2d 186, and Berman v. Parker, 348 U.S. 26, 75 S.Ct. 98, 99 L. Ed. 27, the Connecticut Supreme Court affirmed in part and reversed in part, upholding all of the proposed takings. Held: The city’s proposed disposition of petitioners’ property qualifies as a “public use” within the meaning of the Takings Clause. Pp. 2661-2669. (a) Though the city could not take petitioners’ land simply to confer a private benefit on a particular private party, see, e.g., Midkiff, 467 U.S., at 245, 104 S.Ct. 2321, the takings at issue here would be executed pursuant to a carefully considered development plan, which was not adopted “to benefit a particular class of identifiable individuals,” ibid. Moreover, while the city is not planning to
The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337, 26 S.Ct. 282, 50 L. Ed. 499.
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open the condemned land-at least not in its entirety-to use by the general public, this “Court long ago rejected any literal requirement that condemned property be put into use for the . . . public.” Id., at 244, 104 S.Ct. 2321. Rather, it has embraced the broader and more natural interpretation of public use as “public purpose.” See, e.g., Fallbrook Irrigation Dist. v. Bradley, 164 U.S. 112, 158-164, 17 S.Ct. 56, 41 L.Ed. 369. Without exception, the Court has defined that concept broadly, reflecting its longstanding policy of deference to legislative judgments as to what public needs justify the use of the takings power. Berman, 348 U.S. 26, 75 S.Ct. 98; Midkiff, 467 U.S. 229, 104 S.Ct. 2321; Ruckelshaus v. Monsanto Co., 467 U.S. 986, 104 S.Ct. 2862, 81 L.Ed.2d 815. Pp. 2661-2664. (b) The city’s determination that the area at issue was sufficiently distressed to justify a program of economic rejuvenation is entitled to deference. The city has carefully formulated a development plan that it believes will provide appreciable benefits to the community, including, but not limited to, new jobs and increased tax revenue. As with other exercises in urban planning and development, the city is trying to coordinate a variety of commercial, residential, and recreational land uses, with the hope that they will form a whole greater than the sum of its parts. To effectuate this plan, the city has invoked a state statute that specifically authorizes the use of eminent domain to promote economic development. Given the plan’s comprehensive character, the thorough deliberation that preceded its adoption, and the limited scope of this Court’s review in such cases, it is appropriate here, as it was in Berman, to resolve the challenges of the individual owners, not on a piecemeal basis, but rather in light of the entire plan. Because that plan unquestionably serves a public purpose, the takings challenged here satisfy the Fifth Amendment. Pp. 2664-2665. (c) Petitioners’ proposal that the Court adopt a new bright-line rule that economic development does not qualify as a public use is supported by neither precedent nor logic. Promoting economic development is a traditional and long-accepted governmental function, and there is no principled way of distinguishing it from the other public purposes the Court has recognized. See, e.g., Berman, 348 U.S., at 33, 75 S.Ct. 98. Also rejected is petitioners’ argument that for takings of this kind the Court should require a “reasonable certainty” that the expected public benefits will actually accrue. A M E R I C A N
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Such a rule would represent an even greater departure from the Court’s precedent. E.g., Midkiff, 467 U.S., at 242, 104 S.Ct. 2321. The disadvantages of a heightened form of review are especially pronounced in this type of case, where orderly implementation of a comprehensive plan requires all interested parties’ legal rights to be established before new construction can commence. The Court declines to second-guess the wisdom of the means the city has selected to effectuate its plan. Berman, 348 U.S., at 35-36, 75 S.Ct. 98. Pp. 2665-2669. 268 Conn. 1, 843 A.2d 500, affirmed. STEVENS, J., delivered the opinion of the Court, in which KENNEDY, SOUTER, GINSBURG, and BREYER, JJ., joined. KENNEDY, J., filed a concurring opinion, post, p. 2669. O’CONNOR, J., filed a dissenting opinion, in which REHNQUIST, C. J., and SCALIA and THOMAS, JJ., joined, post, p. 2671. THOMAS, J., filed a dissenting opinion, post, p. 2677. ON WRIT OF CERTIORARI TO THE SUPREME COURT OF CONNECTICUT Institute for Justice, William H. Mellor, Scott G. Bullock, Counsel of Record, Dana Berliner, Steven Simpson, Washington, DC, Sawyer Law Firm, LLC, Scott W. Sawyer, New London, CT, Counsel for Petitioners. Wesley W. Horton, Counsel of Record, Daniel J. Krisch, Horton, Shields & Knox, P.C., Hartford, CT, Thomas J. Londregan, Jeffrey T. Londregan, Conway & Londregan, P.C., New London, CT, Edward B. O’Connell, David P. Condon, Waller, Smith & Palmer, P.C., New London, CT, Counsel for the Respondents. Justice STEVENS delivered the opinion of the Court. In 2000, the city of New London approved a development plan that, in the words of the Supreme Court of Connecticut, was “projected to create in excess of 1,000 jobs, to increase tax and other revenues, and to revitalize an economically distressed city, including its downtown and waterfront areas.” 268 Conn. 1, 5, 843 A.2d 500, 507 (2004). In assembling the land needed for this project, the city’s development agent has purchased property from willing sellers and proposes to use the power of eminent domain to acquire the remainder of the property from unwilling owners in exchange for just compensation. The question presented is whether the city’s proposed disposition of this property qualifies as a “public G A L E
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use” within the meaning of the Takings Clause of the Fifth Amendment to the Constitution.1 I
The city of New London (hereinafter City) sits at the junction of the Thames River and the Long Island Sound in southeastern Connecticut. Decades of economic decline led a state agency in 1990 to designate the City a “distressed municipality.” In 1996, the Federal Government closed the Naval Undersea Warfare Center, which had been located in the Fort Trumbull area of the City and had employed over 1,500 people. In 1998, the City’s unemployment rate was nearly double that of the State, and its population of just under 24,000 residents was at its lowest since 1920. These conditions prompted state and local officials to target New London, and particularly its Fort Trumbull area, for economic revitalization. To this end, respondent New London Development Corporation (NLDC), a private nonprofit entity established some years earlier to assist the City in planning economic development, was reactivated. In January 1998, the State authorized a $5.35 million bond issue to support the NLDC’s planning activities and a $10 million bond issue toward the creation of a Fort Trumbull State Park. In February, the pharmaceutical company Pfizer Inc. announced that it would build a $300 million research facility on a site immediately adjacent to Fort Trumbull; local planners hoped that Pfizer would draw new business to the area, thereby serving as a catalyst to the area’s rejuvenation. After receiving initial approval from the city council, the NLDC continued its planning activities and held a series of neighborhood meetings to educate the public about the process. In May, the city council authorized the NLDC to formally submit its plans to the relevant state agencies for review.2 Upon “[N]or shall private property be taken for public use, without just compensation.” U.S. Const., Amdt. 5. That Clause is made applicable to the States by the Fourteenth Amendment. See Chicago, B. & Q.R. Co. v. Chicago, 166 U.S. 226, 17 S.Ct. 581, 41 L.Ed. 979 (1897). 2 Various state agencies studied the project’s economic, environmental, and social ramifications. As part of this process, a team of consultants evaluated six alternative development proposals for the area, which varied in extensiveness and emphasis. The Office of Policy and Management, one of the primary state agencies undertaking the review, made findings that the project was consistent with relevant state and municipal development policies. See App. 89-95. 1
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obtaining state-level approval, the NLDC finalized an integrated development plan focused on 90 acres of the Fort Trumbull area. The Fort Trumbull area is situated on a peninsula that juts into the Thames River. The area comprises approximately 115 privately owned properties, as well as the 32 acres of land formerly occupied by the naval facility (Trumbull State Park now occupies 18 of those 32 acres). The development plan encompasses seven parcels. Parcel 1 is designated for a waterfront conference hotel at the center of a “small urban village” that will include restaurants and shopping. This parcel will also have marinas for both recreational and commercial uses. A pedestrian “riverwalk” will originate here and continue down the coast, connecting the waterfront areas of the development. Parcel 2 will be the site of approximately 80 new residences organized into an urban neighborhood and linked by public walkway to the remainder of the development, including the state park. This parcel also includes space reserved for a new U.S. Coast Guard Museum. Parcel 3, which is located immediately north of the Pfizer facility, will contain at least 90,000 square feet of research and development office space. Parcel 4A is a 2.4acre site that will be used either to support the adjacent state park, by providing parking or retail services for visitors, or to support the nearby marina. Parcel 4B will include a renovated marina, as well as the final stretch of the riverwalk. Parcels 5, 6, and 7 will provide land for office and retail space, parking, and water-dependent commercial uses. App. 109-113.
As a consequence, in November 2000, the NLDC initiated the condemnation proceedings that gave rise to this case.3 II
Petitioner Susette Kelo has lived in the Fort Trumbull area since 1997. She has made extensive improvements to her house, which she prizes for its water view. Petitioner Wilhelmina Dery was born in her Fort Trumbull house in 1918 and has lived there her entire life. Her husband Charles (also a petitioner) has lived in the house since they married some 60 years ago. In all, the nine petitioners own 15 properties in Fort Trumbull-4 in parcel 3 of the development plan and 11 in parcel 4A. Ten of the parcels are occupied by the owner or a family member; the other five are held as investment properties. There is no allegation that any of these properties is blighted or otherwise in poor condition; rather, they were condemned only because they happen to be located in the development area. In December 2000, petitioners brought this action in the New London Superior Court. They claimed, among other things, that the taking of their properties would violate the “public use” restriction in the Fifth Amendment. After a 7-day bench trial, the Superior Court granted a permanent restraining order prohibiting the taking of the properties located in parcel 4A (park or marina support). It, however, denied petitioners relief as to the properties located in parcel 3 (office space). App. to Pet. for Cert. 343-350.4
The NLDC intended the development plan to capitalize on the arrival of the Pfizer facility and the new commerce it was expected to attract. In addition to creating jobs, generating tax revenue, and helping to “build momentum for the revitalization of downtown New London,” id., at 92, the plan was also designed to make the City more attractive and to create leisure and recreational opportunities on the waterfront and in the park.
After the Superior Court ruled, both sides took appeals to the Supreme Court of Connecticut. That court held, over a dissent, that all of the City’s proposed takings were valid. It began by upholding the lower court’s determination that the takings were authorized by chapter 132, the State’s municipal development statute. See Conn. Gen.Stat. § 8-186 et seq. (2005). That statute
The city council approved the plan in January 2000, and designated the NLDC as its development agent in charge of implementation. See Conn. Gen.Stat. § 8- 188 (2005). The city council also authorized the NLDC to purchase property or to acquire property by exercising eminent domain in the City’s name. § 8-193. The NLDC successfully negotiated the purchase of most of the real estate in the 90-acre area, but its negotiations with petitioners failed.
3 In the remainder of the opinion we will differentiate between the City and the NLDC only where necessary. 4 While this litigation was pending before the Superior Court, the NLDC announced that it would lease some of the parcels to private developers in exchange for their agreement to develop the land according to the terms of the development plan. Specifically, the NLDC was negotiating a 99-year ground lease with Corcoran Jennison, a developer selected from a group of applicants. The negotiations contemplated a nominal rent of $1 per year, but no agreement had yet been signed. See 268 Conn. 1, 9, 61, 843 A.2d 500, 509-510, 540 (2004).
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expresses a legislative determination that the taking of land, even developed land, as part of an economic development project is a “public use” and in the “public interest.” 268 Conn., at 18-28, 843 A.2d, at 515-521. Next, relying on cases such as Hawaii Housing Authority v. Midkiff, 467 U.S. 229, 104 S.Ct. 2321, 81 L.Ed.2d 186 (1984), and Berman v. Parker, 348 U.S. 26, 75 S. Ct. 98, 99 L.Ed. 27 (1954), the court held that such economic development qualified as a valid public use under both the Federal and State Constitutions. 268 Conn., at 40, 843 A.2d, at 527. Finally, adhering to its precedents, the court went on to determine, first, whether the takings of the particular properties at issue were “reasonably necessary” to achieving the City’s intended public use, id., at 82-84, 843 A.2d, at 552-553, and, second, whether the takings were for “reasonably foreseeable needs,” id., at 93-94, 843 A.2d, at 558-559. The court upheld the trial court’s factual findings as to parcel 3, but reversed the trial court as to parcel 4A, agreeing with the City that the intended use of this land was sufficiently definite and had been given “reasonable attention” during the planning process. Id., at 120-121, 843 A.2d, at 574. The three dissenting justices would have imposed a “heightened” standard of judicial review for takings justified by economic development. Although they agreed that the plan was intended to serve a valid public use, they would have found all the takings unconstitutional because the City had failed to adduce “clear and convincing evidence” that the economic benefits of the plan would in fact come to pass. Id., at 144, 146, 843 A.2d, at 587, 588 (Zarella, J., joined by Sullivan, C. J., and Katz, J., concurring in part and dissenting in part). We granted certiorari to determine whether a city’s decision to take property for the purpose of economic development satisfies the “public 5
See also Calder v. Bull, 3 Dall. 386, 388, 1 L.Ed. 648 (1798) (“An ACT of the Legislature (for I cannot call it a law) contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority . . . . A few instances will suffice to explain what I mean . . . . [A] law that takes property from A. and gives it to B: It is against all reason and justice, for a people to entrust a Legislature with SUCH powers; and, therefore, it cannot be presumed that they have done it. The genius, the nature, and the spirit, of our State Governments, amount to a prohibition of such acts of legislation; and the general principles of law and reason forbid them” (emphasis deleted)).
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use” requirement of the Fifth Amendment. 542 U.S. 965, 125 S.Ct. 27, 159 L.Ed.2d 857 (2004). III
Two polar propositions are perfectly clear. On the one hand, it has long been accepted that the sovereign may not take the property of A for the sole purpose of transferring it to another private party B, even though A is paid just compensation. On the other hand, it is equally clear that a State may transfer property from one private party to another if future “use by the public” is the purpose of the taking; the condemnation of land for a railroad with common-carrier duties is a familiar example. Neither of these propositions, however, determines the disposition of this case. As for the first proposition, the City would no doubt be forbidden from taking petitioners’ land for the purpose of conferring a private benefit on a particular private party. See Midkiff, 467 U.S., at 245, 104 S.Ct. 2321 (“A purely private taking could not withstand the scrutiny of the public use requirement; it would serve no legitimate purpose of government and would thus be void”); Missouri Pacific R. Co. v. Nebraska, 164 U.S. 403, 17 S.Ct. 130, 41 L.Ed. 489 (1896).5 Nor would the City be allowed to take property under the mere pretext of a public purpose, when its actual purpose was to bestow a private benefit. The takings before us, however, would be executed pursuant to a “carefully considered” development plan. 268 Conn., at 54, 843 A.2d, at 536. The trial judge and all the members of the Supreme Court of Connecticut agreed that there was no evidence of an illegitimate purpose in this case.6 Therefore, as was true of the statute challenged in Midkiff, 467 U.S., at 245, 104 S.Ct. 2321, the City’s development plan
6 See 268 Conn., at 159, 843 A.2d, at 595 (Zarella, J., concurring in part and dissenting in part) (“The record clearly demonstrates that the development plan was not intended to serve the interests of Pfizer, Inc., or any other private entity, but rather, to revitalize the local economy by creating temporary and permanent jobs, generating a significant increase in tax revenue, encouraging spin-off economic activities and maximizing public access to the waterfront”). And while the City intends to transfer certain of the parcels to a private developer in a long-term leasewhich developer, in turn, is expected to lease the office space and so forth to other private tenants-the identities of those private parties were not known when the plan was adopted. It is, of course, difficult to accuse the government of having taken A’s property to benefit the private interests of B when the identity of B was unknown.
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was not adopted “to benefit a particular class of identifiable individuals.” On the other hand, this is not a case in which the City is planning to open the condemned land—at least not in its entirety— to use by the general public. Nor will the private lessees of the land in any sense be required to operate like common carriers, making their services available to all comers. But although such a projected use would be sufficient to satisfy the public use requirement, this “Court long ago rejected any literal requirement that condemned property be put into use for the general public.” Id., at 244, 104 S.Ct. 2321. Indeed, while many state courts in the mid-19th century endorsed “use by the public” as the proper definition of public use, that narrow view steadily eroded over time. Not only was the “use by the public” test difficult to administer (e.g., what proportion of the public need have access to the property? at what price?),7 but it proved to be impractical given the diverse and always evolving needs of society.8 Accordingly, when this Court began applying the Fifth Amendment to the States at the close of the 19th century, it embraced the broader and more natural interpretation of public use as “public purpose.” See, e.g., Fallbrook Irrigation Dist. v. Bradley, 164 U.S. 112, 158-164, 17 S.Ct. 56, 41 L.Ed. 369 (1896). Thus, in a case upholding a mining company’s use of
7 See, e.g., Dayton Gold & Silver Mining Co. v. Seawell, 11 Nev. 394, 410, 1876 WL 4573, *11 (1876) (“If public occupation and enjoyment of the object for which land is to be condemned furnishes the only and true test for the right of eminent domain, then the legislature would certainly have the constitutional authority to condemn the lands of any private citizen for the purpose of building hotels and theaters. Why not? A hotel is used by the public as much as a railroad. The public have the same right, upon payment of a fixed compensation, to seek rest and refreshment at a public inn as they have to travel upon a railroad”). 8 From upholding the Mill Acts (which authorized manufacturers dependent on power-producing dams to flood upstream lands in exchange for just compensation), to approving takings necessary for the economic development of the West through mining and irrigation, many state courts either circumvented the “use by the public” test when necessary or abandoned it completely. See Nichols, The Meaning of Public Use in the Law of Eminent Domain, 20 B.U.L.Rev. 615, 619-624 (1940) (tracing this development and collecting cases). For example, in rejecting the “use by the public” test as overly restrictive, the Nevada Supreme Court stressed that “[m]ining is the greatest of the industrial pursuits in this state. All other interests are subservient to it. Our mountains are almost barren of timber, and our valleys could never be made
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an aerial bucket line to transport ore over property it did not own, Justice Holmes’ opinion for the Court stressed “the inadequacy of use by the general public as a universal test.” Strickley v. Highland Boy Gold Mining Co., 200 U.S. 527, 531, 26 S.Ct. 301, 50 L.Ed. 581 (1906).9 We have repeatedly and consistently rejected that narrow test ever since.10 The disposition of this case therefore turns on the question whether the City’s development plan serves a “public purpose.” Without exception, our cases have defined that concept broadly, reflecting our longstanding policy of deference to legislative judgments in this field. In Berman v. Parker, 348 U.S. 26, 75 S.Ct. 98, 99 L.Ed. 27 (1954), this Court upheld a redevelopment plan targeting a blighted area of Washington, D. C., in which most of the housing for the area’s 5,000 inhabitants was beyond repair. Under the plan, the area would be condemned and part of it utilized for the construction of streets, schools, and other public facilities. The remainder of the land would be leased or sold to private parties for the purpose of redevelopment, including the construction of low-cost housing. The owner of a department store located in the area challenged the condemnation, pointing out that his store was not itself blighted and arguing that the creation of a “better balanced, more attractive community” was not a valid
profitable for agricultural purposes except for the fact of a home market having been created by the mining developments in different sections of the state. The mining and milling interests give employment to many men, and the benefits derived from this business are distributed as much, and sometimes more, among the laboring classes than with the owners of the mines and mills. . . . The present prosperity of the state is entirely due to the mining developments already made, and the entire people of the state are directly interested in having the future developments unobstructed by the obstinate action of any individual or individuals.” Dayton Gold & Silver Mining Co., 11 Nev., at 409-410, 1876 WL, at *11. 9 See also Clark v. Nash, 198 U.S. 361, 25 S.Ct. 676, 49 L.Ed. 1085 (1905) (upholding a statute that authorized the owner of arid land to widen a ditch on his neighbor’s property so as to permit a nearby stream to irrigate his land). 10 See, e.g., Mt. Vernon-Woodberry Cotton Duck Co. v. Alabama Interstate Power Co., 240 U.S. 30, 32, 36 S.Ct. 234, 60 L.Ed. 507 (1916) (“The inadequacy of use by the general public as a universal test is established”); Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1014-1015, 104 S.Ct. 2862, 81 L.Ed.2d 815 (1984) (“This Court, however, has rejected the notion that a use is a public use only if the property taken is put to use for the general public”).
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public use. Id., at 31, 75 S.Ct. 98. Writing for a unanimous Court, Justice Douglas refused to evaluate this claim in isolation, deferring instead to the legislative and agency judgment that the area “must be planned as a whole” for the plan to be successful. Id., at 34, 75 S.Ct. 98. The Court explained that “community redevelopment programs need not, by force of the Constitution, be on a piecemeal basis-lot by lot, building by building.” Id., at 35, 75 S.Ct. 98. The public use underlying the taking was unequivocally affirmed: We do not sit to determine whether a particular housing project is or is not desirable. The concept of the public welfare is broad and inclusive . . . . The values it represents are spiritual as well as physical, aesthetic as well as monetary. It is within the power of the legislature to determine that the community should be beautiful as well as healthy, spacious as well as clean, well-balanced as well as carefully patrolled. In the present case, the Congress and its authorized agencies have made determinations that take into account a wide variety of values. It is not for us to reappraise them. If those who govern the District of Columbia decide that the Nation’s Capital should be beautiful as well as sanitary, there is nothing in the Fifth Amendment that stands in the way.” Id., at 33, 75 S.Ct. 98.
In Hawaii Housing Authority v. Midkiff, 467 U.S. 229, 104 S.Ct. 2321, 81 L.Ed.2d 186 (1984), the Court considered a Hawaii statute whereby fee title was taken from lessors and transferred to lessees (for just compensation) in order to reduce the concentration of land ownership. We unanimously upheld the statute and rejected the Ninth Circuit’s view that it was “a naked attempt on the part of the state of Hawaii to take the property of A and transfer it to B solely for B’s private use and benefit.” Id., at 235, 104 S.Ct. 2321 (internal quotation marks omitted). Reaffirming Berman’s deferential approach to legislative judgments in this field, we concluded that the State’s purpose of eliminating the “social and economic evils of a land oligopoly” qualified as a valid public use. 467 U.S., at 241-242, 104 S.Ct. 2321. Our opinion also rejected the contention that the mere fact that the State immediately transferred the properties to private individuals upon condemnation somehow diminished the public character of the taking. “[I]t is only the taking’s purpose, and not its mechanics,” we explained, that matters in determining public use. Id., at 244, 104 S.Ct. 2321. In that same Term we decided another public use case that arose in a purely economic context. In G A L E
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Ruckelshaus v. Monsanto Co., 467 U.S. 986, 104 S. Ct. 2862, 81 L.Ed.2d 815 (1984), the Court dealt with provisions of the Federal Insecticide, Fungicide, and Rodenticide Act under which the Environmental Protection Agency could consider the data (including trade secrets) submitted by a prior pesticide applicant in evaluating a subsequent application, so long as the second applicant paid just compensation for the data. We acknowledged that the “most direct beneficiaries” of these provisions were the subsequent applicants, id., at 1014, 104 S.Ct. 2862, but we nevertheless upheld the statute under Berman and Midkiff. We found sufficient Congress’ belief that sparing applicants the cost of time-consuming research eliminated a significant barrier to entry in the pesticide market and thereby enhanced competition. 467 U.S., at 1015, 104 S.Ct. 2862. Viewed as a whole, our jurisprudence has recognized that the needs of society have varied between different parts of the Nation, just as they have evolved over time in response to changed circumstances. Our earliest cases in particular embodied a strong theme of federalism, emphasizing the “great respect” that we owe to state legislatures and state courts in discerning local public needs. See Hairston v. Danville & Western R. Co., 208 U.S. 598, 606-607, 28 S.Ct. 331, 52 L.Ed. 637 (1908) noting that these needs were likely to vary depending on a State’s “resources, the capacity of the soil, the relative importance of industries to the general public welfare, and the long-established methods and habits of the people”).11 For more than a century, our public use jurisprudence has wisely eschewed rigid formulas and intrusive
11 See also Clark, 198 U.S., at 367-368, 25 S.Ct. 676; Strickley v. Highland Boy Gold Mining Co., 200 U.S. 527, 531, 26 S. Ct. 301, 50 L.Ed. 581 (1906) (“In the opinion of the legislature and the Supreme Court of Utah the public welfare of that State demands that aerial lines between the mines upon its mountain sides and railways in the valleys below should not be made impossible by the refusal of a private owner to sell the right to cross his land. The Constitution of the United States does not require us to say that they are wrong”); O’Neill v. Leamer, 239 U.S. 244, 253, 36 S.Ct. 54, 60 L.Ed. 249 (1915) (“States may take account of their special exigencies, and when the extent of their arid or wet lands is such that a plan for irrigation or reclamation according to districts may fairly be regarded as one which promotes the public interest, there is nothing in the Federal Constitution which denies to them the right to formulate this policy or to exercise the power of eminent domain in carrying it into effect. With the local situation the state court is peculiarly familiar and its judgment is entitled to the highest respect”).
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scrutiny in favor of affording legislatures broad latitude in determining what public needs justify the use of the takings power. IV
Those who govern the City were not confronted with the need to remove blight in the Fort Trumbull area, but their determination that the area was sufficiently distressed to justify a program of economic rejuvenation is entitled to our deference. The City has carefully formulated an economic development plan that it believes will provide appreciable benefits to the community, including-but by no means limited to-new jobs and increased tax revenue. As with other exercises in urban planning and development,12 the City is endeavoring to coordinate a variety of commercial, residential, and recreational uses of land, with the hope that they will form a whole greater than the sum of its parts. To effectuate this plan, the City has invoked a state statute that specifically authorizes the use of eminent domain to promote economic development. Given the comprehensive character of the plan, the thorough deliberation that preceded its adoption, and the limited scope of our review, it is appropriate for us, as it was in Berman, to resolve the challenges of the individual owners, not on a piecemeal basis, but rather in light of the entire plan. Because that plan unquestionably serves a public purpose, the takings challenged here satisfy the public use requirement of the Fifth Amendment. To avoid this result, petitioners urge us to adopt a new bright-line rule that economic development does not qualify as a public use. Putting aside the unpersuasive suggestion that the City’s plan will provide only purely economic benefits, neither precedent nor logic supports petitioners’ proposal. Promoting economic development is a traditional and long-accepted function of government. There is, moreover, no principled way of distinguishing economic development from the other public purposes that we have recognized. In our cases upholding takings that facilitated agriculture and mining, for example, we emphasized the importance of those industries to the welfare of the States in question, see, e.g., Strickley, 200 U.S. 527, 26 S.Ct. 301; in Berman, we endorsed the purpose of transforming a blighted area into a “well-balanced” community through redevelopment, 348 U.S., at 33, 75 12
Cf. Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303 (1926).
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S.Ct. 98;13 in Midkiff, we upheld the interest in breaking up a land oligopoly that “created artificial deterrents to the normal functioning of the State’s residential land market,” 467 U.S., at 242, 104 S.Ct. 2321; and in Monsanto, we accepted Congress’ purpose of eliminating a “significant barrier to entry in the pesticide market,” 467 U.S., at 10141015, 104 S.Ct. 2862. It would be incongruous to hold that the City’s interest in the economic benefits to be derived from the development of the Fort Trumbull area has less of a public character than any of those other interests. Clearly, there is no basis for exempting economic development from our traditionally broad understanding of public purpose. Petitioners contend that using eminent domain for economic development impermissibly blurs the boundary between public and private takings. Again, our cases foreclose this objection. Quite simply, the government’s pursuit of a public purpose will often benefit individual private parties. For example, in Midkiff, the forced transfer of property conferred a direct and significant benefit on those lessees who were previously unable to purchase their homes. In Monsanto, we recognized that the “most direct beneficiaries” of the data-sharing provisions were the subsequent pesticide applicants, but benefiting them in this way was necessary to promoting competition in the pesticide market. 467 U.S., at 1014, 104 S.Ct. 2862.14 The owner of the department store in
13
It is a misreading of Berman to suggest that the only public use upheld in that case was the initial removal of blight. See Reply Brief for Petitioners 8. The public use described in Berman extended beyond that to encompass the purpose of developing that area to create conditions that would prevent a reversion to blight in the future. See 348 U.S., at 34-35, 75 S. Ct. 98 (“It was not enough, [the experts] believed, to remove existing buildings that were insanitary or unsightly. It was important to redesign the whole area so as to eliminate the conditions that cause slums . . . . The entire area needed redesigning so that a balanced, integrated plan could be developed for the region, including not only new homes, but also schools, churches, parks, streets, and shopping centers. In this way it was hoped that the cycle of decay of the area could be controlled and the birth of future slums prevented”). Had the public use in Berman been defined more narrowly, it would have been difficult to justify the taking of the plaintiff’s nonblighted department store. 14 Any number of cases illustrate that the achievement of a public good often coincides with the immediate benefiting of private parties. See, e.g., National Railroad Passenger Corporation v. Boston & Maine Corp., 503 U.S. 407, 422, 112 S.Ct. 1394, 118 L.Ed.2d 52 (1992) (public purpose of “facilitating Amtrak’s rail service” served by taking rail track from one private company and transferring it to another private
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Berman objected to “taking from one businessman for the benefit of another businessman,” 348 U.S., at 33, 75 S.Ct. 98, referring to the fact that under the redevelopment plan land would be leased or sold to private developers for redevelopment.15 Our rejection of that contention has particular relevance to the instant case: “The public end may be as well or better served through an agency of private enterprise than through a department of government-or so the Congress might conclude. We cannot say that public ownership is the sole method of promoting the public purposes of community redevelopment projects.” Id., at 3334, 75 S.Ct. 98.16 It is further argued that without a brightline rule nothing would stop a city from transferring citizen A’s property to citizen B for the sole reason that citizen B will put the property to a more productive use and thus pay more taxes. Such a one-to-one transfer of property, executed outside the confines of an integrated development plan, is not presented in this case. While such an unusual exercise of government power would certainly raise a suspicion that a private purpose was afoot,17 the hypothetical cases posited by petitioners can be confronted if and when they arise.18 They do not warrant the crafting of an artificial restriction on the concept of public use.19
company); Brown v. Legal Foundation of Wash., 538 U.S. 216, 123 S.Ct. 1406, 155 L.Ed.2d 376 (2003) (provision of legal services to the poor is a valid public purpose). It is worth noting that in Hawaii Housing Authority v. Midkiff, 467 U.S. 229, 104 S.Ct. 2321, 81 L.Ed.2d 186 (1984), Monsanto, and Boston & Maine Corp., the property in question retained the same use even after the change of ownership. 15 Notably, as in the instant case, the private developers in Berman were required by contract to use the property to carry out the redevelopment plan. See 348 U.S., at 30, 75 S.Ct. 98. 16 Nor do our cases support Justice O’CONNOR’s novel theory that the government may only take property and transfer it to private parties when the initial taking eliminates some “harmful property use.” Post, at 2675 (dissenting opinion). There was nothing “harmful” about the nonblighted department store at issue in Berman, 348 U.S. 26, 75 S.Ct. 98; see also n. 13, supra; nothing “harmful” about the lands at issue in the mining and agriculture cases, see, e.g., Strickley, 200 U.S. 527, 26 S.Ct. 301; see also nn. 9, 11, supra; and certainly nothing “harmful” about the trade secrets owned by the pesticide manufacturers in Monsanto, 467 U.S. 986, 104 S.Ct. 2862. In each case, the public purpose we upheld depended on a private party’s future use of the concededly nonharmful property that was taken. By focusing on a property’s future use, as opposed to its past use, our cases are faithful to the text of the Takings Clause. See U.S.
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Alternatively, petitioners maintain that for takings of this kind we should require a “reasonable certainty” that the expected public benefits will actually accrue. Such a rule, however, would represent an even greater departure from our precedent. “When the legislature’s purpose is legitimate and its means are not irrational, our cases make clear that empirical debates over the wisdom of takingsno less than debates over the wisdom of other kinds of socioeconomic legislation-are not to be carried out in the federal courts.” Midkiff, 467 U.S., at 242-243, 104 S.Ct. 2321.20 Indeed, earlier this Term we explained why similar practical concerns (among others) undermined the use of the “substantially advances” formula in our regulatory takings doctrine. See Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 544, 125 S.Ct. 2074, 2085, 161 L.Ed.2d 876 (2005) (noting that this formula “would empower-and might often require-courts to substitute their predictive judgments for those of elected legislatures and expert agencies”). The disadvantages of a heightened form of review are especially pronounced in this type of case. Orderly implementation of a comprehensive redevelopment plan obviously requires that the legal rights of all interested parties be established before new construction can be commenced. A constitutional rule that required postponement of the judicial approval of every condemnation
Const., Amdt. 5. (“[N]or shall private property be taken for public use, without just compensation”). Justice O’CONNOR’s intimation that a “public purpose” may not be achieved by the action of private parties, see post, at 2675, confuses the purpose of a taking with its mechanics, a mistake we warned of in Midkiff, 467 U.S., at 244, 104 S.Ct. 2321. See also Berman, 348 U.S., at 33-34, 75 S.Ct. 98 (“The public end may be as well or better served through an agency of private enterprise than through a department of government”). 17 Courts have viewed such aberrations with a skeptical eye. See, e.g., 99 Cents Only Stores v. Lancaster Redevelopment Agency, 237 F.Supp.2d 1123 (C.D.Cal.2001); cf. Cincinnati v. Vester, 281 U.S. 439, 448, 50 S.Ct. 360, 74 L.Ed. 950 (1930) (taking invalid under state eminent domain statute for lack of a reasoned explanation). These types of takings may also implicate other constitutional guarantees. See Village of Willowbrook v. Olech, 528 U.S. 562, 120 S.Ct. 1073, 145 L. Ed.2d 1060 (2000) (per curiam). 18 Cf. Panhandle Oil Co. v. Mississippi ex rel. Knox, 277 U.S. 218, 223, 48 S.Ct. 451, 72 L.Ed. 857 (1928) (Holmes, J., dissenting) (“The power to tax is not the power to destroy while this Court sits”). 19 A parade of horribles is especially unpersuasive in this context, since the Takings Clause largely “operates as a conditional limitation, permitting the government to do
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until the likelihood of success of the plan had been assured would unquestionably impose a significant impediment to the successful consummation of many such plans. Just as we decline to second-guess the City’s considered judgments about the efficacy of its development plan, we also decline to secondguess the City’s determinations as to what lands it needs to acquire in order to effectuate the project. “It is not for the courts to oversee the choice of the boundary line nor to sit in review on the size of a particular project area. Once the question of the public purpose has been decided, the amount and character of land to be taken for the project and the need for a particular tract to complete the integrated plan rests in the discretion of the legislative branch.” Berman, 348 U.S., at 35-36, 75 S.Ct. 98.
upon which takings may be exercised.23 As the submissions of the parties and their amici make clear, the necessity and wisdom of using eminent domain to promote economic development are certainly matters of legitimate public debate.24 This Court’s authority, however, extends only to determining whether the City’s proposed condemnations are for a “public use” within the meaning of the Fifth Amendment to the Federal Constitution. Because over a century of our case law interpreting that provision dictates an affirmative answer to that question, we may not grant petitioners the relief that they seek. The judgment of the Supreme Court of Connecticut is affirmed. It is so ordered. Justice KENNEDY, concurring. I join the opinion for the Court and add these further observations.
In affirming the City’s authority to take petitioners’ properties, we do not minimize the hardship that condemnations may entail, notwithstanding the payment of just compensation.21 We emphasize that nothing in our opinion precludes any State from placing further restrictions on its exercise of the takings power. Indeed, many States already impose “public use” requirements that are stricter than the federal baseline. Some of these requirements have been established as a matter of state constitutional law,22 while others are expressed in state eminent domain statutes that carefully limit the grounds
This Court has declared that a taking should be upheld as consistent with the Public Use Clause, U.S. Const., Amdt. 5, as long as it is “rationally related to a conceivable public purpose.” Hawaii Housing Authority v. Midkiff, 467 U.S. 229, 241, 104 S.Ct. 2321, 81 L.Ed.2d 186 (1984); see also Berman v. Parker, 348 U.S. 26, 75 S.Ct. 98, 99 L.Ed. 27 (1954). This deferential standard of review echoes the rational-basis test used to review economic regulation under the Due Process and Equal
what it wants so long as it pays the charge.” Eastern Enterprises v. Apfel, 524 U.S. 498, 545, 118 S.Ct. 2131, 141 L. Ed.2d 451 (1998) (KENNEDY, J., concurring in judgment and dissenting in part). Speaking of the takings power, Justice Iredell observed that “[i]t is not sufficient to urge, that the power may be abused, for, such is the nature of all power,-such is the tendency of every human institution: and, it might as fairly be said, that the power of taxation, which is only circumscribed by the discretion of the Body, in which it is vested, ought not to be granted, because the Legislature, disregarding its true objects, might, for visionary and useless projects, impose a tax to the amount of nineteen shillings in the pound. We must be content to limit power where we can, and where we cannot, consistently with its use, we must be content to repose a salutory confidence.” Calder, 3 Dall., at 400, 1 L.Ed. 648 (opinion concurring in result). 20 See also Boston & Maine Corp., 503 U.S., at 422-423, 112 S.Ct. 1394 (“[W]e need not make a specific factual determination whether the condemnation will accomplish its objectives”); Monsanto, 467 U.S., at 1015, n. 18, 104 S.Ct. 2862 (“Monsanto argues that EPA and, by implication, Congress, misapprehended the true ‘barriers to entry’ in the pesticide industry and that the challenged provisions of the law create, rather than reduce, barriers to entry . . . . Such economic arguments are
better directed to Congress. The proper inquiry before this Court is not whether the provisions in fact will accomplish their stated objectives. Our review is limited to determining that the purpose is legitimate and that Congress rationally could have believed that the provisions would promote that objective”). 21 The amici raise questions about the fairness of the measure of just compensation. See, e.g., Brief for American Planning Association et al. as Amici Curiae 26-30. While important, these questions are not before us in this litigation. 22 See, e.g., County of Wayne v. Hathcock, 471 Mich. 445, 684 N.W.2d 765 (2004). 23 Under California law, for instance, a city may only take land for economic development purposes in blighted areas. Cal. Health & Safety Code Ann. §§ 33030-33037 (West 1999). See, e.g., Redevelopment Agency of Chula Vista v. Rados Bros., 95 Cal.App.4th 309, 115 Cal.Rptr.2d 234 (2002). 24 For example, some argue that the need for eminent domain has been greatly exaggerated because private developers can use numerous techniques, including secret negotiations or precommitment strategies, to overcome holdout problems and assemble lands for genuinely profitable projects. See Brief for Jane Jacobs as Amicus Curiae 13-15; see also Brief for John Norquist as Amicus Curiae. Others argue to the contrary, urging that the need for eminent domain is especially great with regard to older,
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Protection Clauses, see, e.g., FCC v. Beach Communications, Inc., 508 U.S. 307, 313-314, 113 S.Ct. 2096, 124 L.Ed.2d 211 (1993); Williamson v. Lee Optical of Okla., Inc., 348 U. S. 483, 75 S.Ct. 461, 99 L.Ed. 563 (1955). The determination that a rational-basis standard of review is appropriate does not, however, alter the fact that transfers intended to confer benefits on particular, favored private entities, and with only incidental or pretextual public benefits, are forbidden by the Public Use Clause. A court applying rational-basis review under the Public Use Clause should strike down a taking that, by a clear showing, is intended to favor a particular private party, with only incidental or pretextual public benefits, just as a court applying rational-basis review under the Equal Protection Clause must strike down a government classification that is clearly intended to injure a particular class of private parties, with only incidental or pretextual public justifications. See Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 446-447, 450, 105 S. Ct. 3249, 87 L.Ed.2d 313 (1985); Department of Agriculture v. Moreno, 413 U.S. 528, 533-536, 93 S.Ct. 2821, 37 L.Ed.2d 782 (1973). As the trial court in this case was correct to observe: “Where the purpose [of a taking] is economic development and that development is to be carried out by private parties or private parties will be benefited, the court must decide if the stated public purpose-economic advantage to a city sorely in need of it-is only incidental to the benefits that will be confined on private parties of a development plan.” App. to Pet. for Cert. 263. See also ante, at 2661-2662. A court confronted with a plausible accusation of impermissible favoritism to private parties should treat the objection as a serious one and review the record to see if it has merit, though with the presumption that the government’s actions were reasonable and intended to serve a public purpose. Here, the trial court conducted a careful and extensive inquiry into “whether, in fact, the development plan is of primary benefit to . . . the developer [i.e., Corcoran Jennison], and private businesses small cities like New London, where centuries of development have created an extreme overdivision of land and thus a real market impediment to land assembly. See Brief for Connecticut Conference of Municipalities et al. as Amici Curiae 13, 21; see also Brief for National League of Cities et al. as Amici Curiae.
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which may eventually locate in the plan area [e.g., Pfizer], and in that regard, only of incidental benefit to the city.” App. to Pet. for Cert. 261. The trial court considered testimony from government officials and corporate officers, id., at 266-271; documentary evidence of communications between these parties, ibid.; respondents’ awareness of New London’s depressed economic condition and evidence corroborating the validity of this concern, id., at 272-273, 278279; the substantial commitment of public funds by the State to the development project before most of the private beneficiaries were known, id., at 276; evidence that respondents reviewed a variety of development plans and chose a private developer from a group of applicants rather than picking out a particular transferee beforehand, id., at 273, 278; and the fact that the other private beneficiaries of the project are still unknown because the office space proposed to be built has not yet been rented, id., at 278. The trial court concluded, based on these findings, that benefiting Pfizer was not “the primary motivation or effect of this development plan”; instead, “the primary motivation for [respondents] was to take advantage of Pfizer’s presence.” Id., at 276. Likewise, the trial court concluded that “[t]here is nothing in the record to indicate that . . . [respondents] were motivated by a desire to aid [other] particular private entities.” Id., at 278. See also ante, at 2661-2662. Even the dissenting justices on the Connecticut Supreme Court agreed that respondents’ development plan was intended to revitalize the local economy, not to serve the interests of Pfizer, Corcoran Jennison, or any other private party. 268 Conn. 1, 159, 843 A.2d 500, 595 (2004) (Zarella, J., concurring in part and dissenting in part). This case, then, survives the meaningful rational-basis review that in my view is required under the Public Use Clause. Petitioners and their amici argue that any taking justified by the promotion of economic development must be treated by the courts as per se invalid, or at least presumptively invalid. Petitioners overstate the need for such a rule, however, by making the incorrect assumption that review under Berman and Midkiff imposes no meaningful judicial limits on the government’s power to condemn any property it likes. A broad per se rule or a strong presumption of invalidity, furthermore, would prohibit a large number of government takings that have the purpose and expected effect of conferring A M E R I C A N
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substantial benefits on the public at large and so do not offend the Public Use Clause.
Over two centuries ago, just after the Bill of Rights was ratified, Justice Chase wrote:
My agreement with the Court that a presumption of invalidity is not warranted for economic development takings in general, or for the particular takings at issue in this case, does not foreclose the possibility that a more stringent standard of review than that announced in Berman and Midkiff might be appropriate for a more narrowly drawn category of takings. There may be private transfers in which the risk of undetected impermissible favoritism of private parties is so acute that a presumption (rebuttable or otherwise) of invalidity is warranted under the Public Use Clause. Cf. Eastern Enterprises v. Apfel, 524 U.S. 498, 549-550, 118 S.Ct. 2131, 141 L.Ed.2d 451 (1998) (KENNEDY, J., concurring in judgment and dissenting in part) (heightened scrutiny for retroactive legislation under the Due Process Clause). This demanding level of scrutiny, however, is not required simply because the purpose of the taking is economic development.
An ACT of the Legislature (for I cannot call it a law) contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority . . . . A few instances will suffice to explain what I mean . . . .[A] law that takes property from A. and gives it to B: It is against all reason and justice, for a people to entrust a Legislature with SUCH powers; and, therefore, it cannot be presumed that they have done it.” Calder v. Bull, 3 Dall. 386, 388, 1 L. Ed. 648 (1798) (emphasis deleted).
This is not the occasion for conjecture as to what sort of cases might justify a more demanding standard, but it is appropriate to underscore aspects of the instant case that convince me no departure from Berman and Midkiff is appropriate here. This taking occurred in the context of a comprehensive development plan meant to address a serious citywide depression, and the projected economic benefits of the project cannot be characterized as de minimis. The identities of most of the private beneficiaries were unknown at the time the city formulated its plans. The city complied with elaborate procedural requirements that facilitate review of the record and inquiry into the city’s purposes. In sum, while there may be categories of cases in which the transfers are so suspicious, or the procedures employed so prone to abuse, or the purported benefits are so trivial or implausible, that courts should presume an impermissible private purpose, no such circumstances are present in this case.
*** For the foregoing reasons, I join in the Court’s opinion. Justice O’CONNOR, with whom THE CHIEF JUSTICE, Justice SCALIA, and Justice THOMAS join, dissenting. G A L E
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Today the Court abandons this long-held, basic limitation on government power. Under the banner of economic development, all private property is now vulnerable to being taken and transferred to another private owner, so long as it might be upgraded-i.e., given to an owner who will use it in a way that the legislature deems more beneficial to the public-in the process. To reason, as the Court does, that the incidental public benefits resulting from the subsequent ordinary use of private property render economic development takings “for public use” is to wash out any distinction between private and public use of property-and thereby effectively to delete the words “for public use” from the Takings Clause of the Fifth Amendment. Accordingly I respectfully dissent. I
Petitioners are nine resident or investment owners of 15 homes in the Fort Trumbull neighborhood of New London, Connecticut. Petitioner Wilhelmina Dery, for example, lives in a house on Walbach Street that has been in her family for over 100 years. She was born in the house in 1918; her husband, petitioner Charles Dery, moved into the house when they married in 1946. Their son lives next door with his family in the house he received as a wedding gift, and joins his parents in this suit. Two petitioners keep rental properties in the neighborhood. In February 1998, Pfizer Inc., the pharmaceuticals manufacturer, announced that it would build a global research facility near the Fort Trumbull neighborhood. Two months later, New London’s city council gave initial approval for the New London Development Corporation (NLDC) to prepare the development plan at issue here. The NLDC is a private, nonprofit corporation whose mission is to assist the city council in economic development A M E R I C A N
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planning. It is not elected by popular vote, and its directors and employees are privately appointed. Consistent with its mandate, the NLDC generated an ambitious plan for redeveloping 90 acres of Fort Trumbull in order to “complement the facility that Pfizer was planning to build, create jobs, increase tax and other revenues, encourage public access to and use of the city’s waterfront, and eventually ‘build momentum’ for the revitalization of the rest of the city.” App. to Pet. for Cert. 5. Petitioners own properties in two of the plan’s seven parcels-Parcel 3 and Parcel 4A. Under the plan, Parcel 3 is slated for the construction of research and office space as a market develops for such space. It will also retain the existing Italian Dramatic Club (a private cultural organization) though the homes of three plaintiffs in that parcel are to be demolished. Parcel 4A is slated, mysteriously, for “‘park support.’” Id., at 345-346. At oral argument, counsel for respondents conceded the vagueness of this proposed use, and offered that the parcel might eventually be used for parking. Tr. of Oral Arg. 36. To save their homes, petitioners sued New London and the NLDC, to whom New London has delegated eminent domain power. Petitioners maintain that the Fifth Amendment prohibits the NLDC from condemning their properties for the sake of an economic development plan. Petitioners are not holdouts; they do not seek increased compensation, and none is opposed to new development in the area. Theirs is an objection in principle: They claim that the NLDC’s proposed use for their confiscated property is not a “public” one for purposes of the Fifth Amendment. While the government may take their homes to build a road or a railroad or to eliminate a property use that harms the public, say petitioners, it cannot take their property for the private use of other owners simply because the new owners may make more productive use of the property.
unnecessarily used, or needlessly added.” Wright v. United States, 302 U.S. 583, 588, 58 S.Ct. 395, 82 L.Ed. 439 (1938). In keeping with that presumption, we have read the Fifth Amendment’s language to impose two distinct conditions on the exercise of eminent domain: “[T]he taking must be for a ‘public use’ and ‘just compensation’ must be paid to the owner.” Brown v. Legal Foundation of Wash., 538 U.S. 216, 231-232, 123 S. Ct. 1406, 155 L.Ed.2d 376 (2003). These two limitations serve to protect “the security of Property,” which Alexander Hamilton described to the Philadelphia Convention as one of the “great obj[ects] of Gov[ernment].” 1 Records of the Federal Convention of 1787, p. 302 (M. Farrand ed.1911). Together they ensure stable property ownership by providing safeguards against excessive, unpredictable, or unfair use of the government’s eminent domain power-particularly against those owners who, for whatever reasons, may be unable to protect themselves in the political process against the majority’s will. While the Takings Clause presupposes that government can take private property without the owner’s consent, the just compensation requirement spreads the cost of condemnations and thus “prevents the public from loading upon one individual more than his just share of the burdens of government.” Monongahela Nav. Co. v. United States, 148 U.S. 312, 325, 13 S.Ct. 622, 37 L.Ed. 463 (1893); see also Armstrong v. United States, 364 U.S. 40, 49, 80 S.Ct. 1563, 4 L. Ed.2d 1554 (1960). The public use requirement, in turn, imposes a more basic limitation, circumscribing the very scope of the eminent domain power: Government may compel an individual to forfeit her property for the public’s use, but not for the benefit of another private person. This requirement promotes fairness as well as security. Cf. Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 U.S. 302, 336, 122 S.Ct. 1465, 152 L.Ed.2d 517 (2002) (“The concepts of ‘fairness and justice’ . . . underlie the Takings Clause”).
II
Where is the line between “public” and “private” property use? We give considerable deference to legislatures’ determinations about what governmental activities will advantage the public. But were the political branches the sole arbiters of the public-private distinction, the Public Use Clause would amount to little more than hortatory fluff. An external, judicial check on how the public use requirement is
The Fifth Amendment to the Constitution, made applicable to the States by the Fourteenth Amendment, provides that “private property [shall not] be taken for public use, without just compensation.” When interpreting the Constitution, we begin with the unremarkable presumption that every word in the document has independent meaning, “that no word was G A L E
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interpreted, however limited, is necessary if this constraint on government power is to retain any meaning. See Cincinnati v. Vester, 281 U.S. 439, 446, 50 S.Ct. 360, 74 L.Ed. 950 (1930) (“It is well established that . . . the question [of] what is a public use is a judicial one”). Our cases have generally identified three categories of takings that comply with the public use requirement, though it is in the nature of things that the boundaries between these categories are not always firm. Two are relatively straightforward and uncontroversial. First, the sovereign may transfer private property to public ownershipsuch as for a road, a hospital, or a military base. See, e.g., Old Dominion Land Co. v. United States, 269 U.S. 55, 46 S.Ct. 39, 70 L.Ed. 162 (1925); Rindge Co. v. County of Los Angeles, 262 U.S. 700, 43 S.Ct. 689, 67 L.Ed. 1186 (1923). Second, the sovereign may transfer private property to private parties, often common carriers, who make the property available for the public’s use-such as with a railroad, a public utility, or a stadium. See, e.g., National Railroad Passenger Corporation v. Boston & Maine Corp., 503 U.S. 407, 112 S.Ct. 1394, 118 L.Ed.2d 52 (1992); Mt. Vernon-Woodberry Cotton Duck Co. v. Alabama Interstate Power Co., 240 U.S. 30, 36 S.Ct. 234, 60 L.Ed. 507 (1916). But “public ownership” and “use-by-the-public” are sometimes too constricting and impractical ways to define the scope of the Public Use Clause. Thus we have allowed that, in certain circumstances and to meet certain exigencies, takings that serve a public purpose also satisfy the Constitution even if the property is destined for subsequent private use. See, e.g., Berman v. Parker, 348 U.S. 26, 75 S.Ct. 98, 99 L.Ed. 27 (1954); Hawaii Housing Authority v. Midkiff, 467 U.S. 229, 104 S.Ct. 2321, 81 L.Ed.2d 186 (1984). This case returns us for the first time in over 20 years to the hard question of when a purportedly “public purpose” taking meets the public use requirement. It presents an issue of first impression: Are economic development takings constitutional? I would hold that they are not. We are guided by two precedents about the taking of real property by eminent domain. In Berman, we upheld takings within a blighted neighborhood of Washington, D.C. The neighborhood had so deteriorated that, for example, 64.3% of its dwellings were beyond repair. 348 U.S., at 30, 75 S.Ct. 98. It had become burdened with “overcrowding of dwellings,” “lack of G A L E
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adequate streets and alleys,” and “lack of light and air.” Id., at 34, 75 S.Ct. 98. Congress had determined that the neighborhood had become “injurious to the public health, safety, morals, and welfare” and that it was necessary to “eliminat[e] all such injurious conditions by employing all means necessary and appropriate for the purpose,” including eminent domain. Id., at 28, 75 S.Ct. 98 (internal quotation marks omitted). Mr. Berman’s department store was not itself blighted. Having approved of Congress’ decision to eliminate the harm to the public emanating from the blighted neighborhood, however, we did not second-guess its decision to treat the neighborhood as a whole rather than lot-by-lot. Id., at 34-35, 75 S.Ct. 98; see also Midkiff, 467 U.S., at 244, 104 S.Ct. 2321 (“[I]t is only the taking’s purpose, and not its mechanics, that must pass scrutiny”). In Midkiff, we upheld a land condemnation scheme in Hawaii whereby title in real property was taken from lessors and transferred to lessees. At that time, the State and Federal Governments owned nearly 49% of the State’s land, and another 47% was in the hands of only 72 private landowners. Concentration of land ownership was so dramatic that on the State’s most urbanized island, Oahu, 22 landowners owned 72.5% of the fee simple titles. Id., at 232, 104 S.Ct. 2321. The Hawaii Legislature had concluded that the oligopoly in land ownership was “skewing the State’s residential fee simple market, inflating land prices, and injuring the public tranquility and welfare,” and therefore enacted a condemnation scheme for redistributing title. Ibid. In those decisions, we emphasized the importance of deferring to legislative judgments about public purpose. Because courts are ill equipped to evaluate the efficacy of proposed legislative initiatives, we rejected as unworkable the idea of courts’ “‘deciding on what is and is not a governmental function and . . . invalidating legislation on the basis of their view on that question at the moment of decision, a practice which has proved impracticable in other fields.’” Id., at 240-241, 104 S.Ct. 2321 (quoting United States ex rel. TVA v. Welch, 327 U.S. 546, 552, 66 S.Ct. 715, 90 L.Ed. 843 (1946)); see Berman, supra, at 32, 75 S.Ct. 98 (“[T]he legislature, not the judiciary, is the main guardian of the public needs to be served by social legislation”); see also Lingle v. Chevron U. S.A. Inc., 544 U.S. 528, 125 S.Ct. 2074, 161 L. A M E R I C A N
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Ed.2d 876 (2005). Likewise, we recognized our inability to evaluate whether, in a given case, eminent domain is a necessary means by which to pursue the legislature’s ends. Midkiff, supra, at 242, 104 S.Ct. 2321; Berman, supra, at 33, 75 S.Ct. 98. Yet for all the emphasis on deference, Berman and Midkiff hewed to a bedrock principle without which our public use jurisprudence would collapse: “A purely private taking could not withstand the scrutiny of the public use requirement; it would serve no legitimate purpose of government and would thus be void.” Midkiff, 467 U.S., at 245, 104 S. Ct. 2321; id., at 241, 104 S.Ct. 2321 (“[T]he Court’s cases have repeatedly stated that ‘one person’s property may not be taken for the benefit of another private person without a justifying public purpose, even though compensation be paid’” (quoting Thompson v. Consolidated Gas Util. Corp., 300 U.S. 55, 80, 57 S.Ct. 364, 81 L.Ed. 510 (1937))); see also Missouri Pacific R. Co. v. Nebraska, 164 U.S. 403, 417, 17 S.Ct. 130, 41 L.Ed. 489 (1896). To protect that principle, those decisions reserved “a role for courts to play in reviewing a legislature’s judgment of what constitutes a public use . . . [though] the Court in Berman made clear that it is ‘an extremely narrow’ one.” Midkiff, supra, at 240, 104 S.Ct. 2321 (quoting Berman, supra, at 32, 75 S.Ct. 98). The Court’s holdings in Berman and Midkiff were true to the principle underlying the Public Use Clause. In both those cases, the extraordinary, precondemnation use of the targeted property inflicted affirmative harm on societyin Berman through blight resulting from extreme poverty and in Midkiff through oligopoly resulting from extreme wealth. And in both cases, the relevant legislative body had found that eliminating the existing property use was necessary to remedy the harm. Berman, supra, at 28-29, 75 S.Ct. 98; Midkiff, supra, at 232, 104 S. Ct. 2321. Thus a public purpose was realized when the harmful use was eliminated. Because each taking directly achieved a public benefit, it did not matter that the property was turned over to private use. Here, in contrast, New London does not claim that Susette Kelo’s and Wilhelmina Dery’s well-maintained homes are the source of any social harm. Indeed, it could not so claim without adopting the absurd argument that any single-family home that might be razed to make way for an apartment G A L E
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building, or any church that might be replaced with a retail store, or any small business that might be more lucrative if it were instead part of a national franchise, is inherently harmful to society and thus within the government’s power to condemn. In moving away from our decisions sanctioning the condemnation of harmful property use, the Court today significantly expands the meaning of public use. It holds that the sovereign may take private property currently put to ordinary private use, and give it over for new, ordinary private use, so long as the new use is predicted to generate some secondary benefit for the public-such as increased tax revenue, more jobs, maybe even esthetic pleasure. But nearly any lawful use of real private property can be said to generate some incidental benefit to the public. Thus, if predicted (or even guaranteed) positive side effects are enough to render transfer from one private party to another constitutional, then the words “for public use” do not realistically exclude any takings, and thus do not exert any constraint on the eminent domain power. There is a sense in which this troubling result follows from errant language in Berman and Midkiff. In discussing whether takings within a blighted neighborhood were for a public use, Berman began by observing: “We deal, in other words, with what traditionally has been known as the police power.” 348 U.S., at 32, 75 S.Ct. 98. From there it declared that “[o] nce the object is within the authority of Congress, the right to realize it through the exercise of eminent domain is clear.” Id., at 33, 75 S.Ct. 98. Following up, we said in Midkiff that “[t]he ‘public use’ requirement is coterminous with the scope of a sovereign’s police powers.” 467 U.S., at 240, 104 S.Ct. 2321. This language was unnecessary to the specific holdings of those decisions. Berman and Midkiff simply did not put such language to the constitutional test, because the takings in those cases were within the police power but also for “public use” for the reasons I have described. The case before us now demonstrates why, when deciding if a taking’s purpose is constitutional, the police power and “public use” cannot always be equated. The Court protests that it does not sanction the bare transfer from A to B for B’s benefit. It suggests two limitations on what can be taken after today’s decision. First, it maintains a role A M E R I C A N
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for courts in ferreting out takings whose sole purpose is to bestow a benefit on the private transferee-without detailing how courts are to conduct that complicated inquiry. Ante, at 26612662. For his part, Justice KENNEDY suggests that courts may divine illicit purpose by a careful review of the record and the process by which a legislature arrived at the decision to takewithout specifying what courts should look for in a case with different facts, how they will know if they have found it, and what to do if they do not. Ante, at 2669-2670 (concurring opinion). Whatever the details of Justice KENNEDY’s asyet-undisclosed test, it is difficult to envision anyone but the “stupid staff[er]” failing it. See Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1025-1026, n. 12, 112 S.Ct. 2886, 120 L. Ed.2d 798 (1992). The trouble with economic development takings is that private benefit and incidental public benefit are, by definition, merged and mutually reinforcing. In this case, for example, any boon for Pfizer or the plan’s developer is difficult to disaggregate from the promised public gains in taxes and jobs. See App. to Pet. for Cert. 275-277. Even if there were a practical way to isolate the motives behind a given taking, the gesture toward a purpose test is theoretically flawed. If it is true that incidental public benefits from new private use are enough to ensure the “public purpose” in a taking, why should it matter, as far as the Fifth Amendment is concerned, what inspired the taking in the first place? How much the government does or does not desire to benefit a favored private party has no bearing on whether an economic development taking will or will not generate secondary benefit for the public. And whatever the reason for a given condemnation, the effect is the same from the constitutional perspective-private property is forcibly relinquished to new private ownership. A second proposed limitation is implicit in the Court’s opinion. The logic of today’s decision is that eminent domain may only be used to upgrade-not downgrade-property. At best this makes the Public Use Clause redundant with the Due Process Clause, which already prohibits irrational government action. See Lingle, 544 U.S. 528, 125 S.Ct. 2074. The Court rightfully admits, however, that the judiciary cannot get bogged down in predictive judgments about whether the public will actually be better off after a property transfer. G A L E
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In any event, this constraint has no realistic import. For who among us can say she already makes the most productive or attractive possible use of her property? The specter of condemnation hangs over all property. Nothing is to prevent the State from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory. Cf. Bugryn v. Bristol, 63 Conn.App. 98, 774 A.2d 1042 (2001) (taking the homes and farm of four owners in their 70’s and 80’s and giving it to an “industrial park”); 99 Cents Only Stores v. Lancaster Redevelopment Agency, 237 F.Supp.2d 1123 (C.D.Cal.2001) (attempted taking of 99 Cents store to replace with a Costco); Poletown Neighborhood Council v. Detroit, 410 Mich. 616, 304 N.W.2d 455 (1981) (taking a working-class, immigrant community in Detroit and giving it to a General Motors assembly plant), overruled by County of Wayne v. Hathcock, 471 Mich. 445, 684 N.W.2d 765 (2004); Brief for Becket Fund for Religious Liberty as Amicus Curiae 4-11 (describing takings of religious institutions’ properties); Institute for Justice, D. Berliner, Public Power, Private Gain: A FiveYear, State-by-State Report Examining the Abuse of Eminent Domain (2003) (collecting accounts of economic development takings). The Court also puts special emphasis on facts peculiar to this case: The NLDC’s plan is the product of a relatively careful deliberative process; it proposes to use eminent domain for a multipart, integrated plan rather than for isolated property transfer; it promises an array of incidental benefits (even esthetic ones), not just increased tax revenue; it comes on the heels of a legislative determination that New London is a depressed municipality. See, e.g., ante, at 2667 (“[A] one-to-one transfer of property, executed outside the confines of an integrated development plan, is not presented in this case”). Justice KENNEDY, too, takes great comfort in these facts. Ante, at 2670 (concurring opinion). But none has legal significance to blunt the force of today’s holding. If legislative prognostications about the secondary public benefits of a new use can legitimate a taking, there is nothing in the Court’s rule or in Justice KENNEDY’s gloss on that rule to prohibit property transfers generated with less care, that are less comprehensive, that happen to result from less elaborate process, whose only projected advantage is the incidence of higher taxes, or that hope to transform an A M E R I C A N
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already prosperous city into an even more prosperous one. Finally, in a coda, the Court suggests that property owners should turn to the States, who may or may not choose to impose appropriate limits on economic development takings. Ante, at 2668. This is an abdication of our responsibility. States play many important functions in our system of dual sovereignty, but compensating for our refusal to enforce properly the Federal Constitution (and a provision meant to curtail state action, no less) is not among them. *** It was possible after Berman and Midkiff to imagine unconstitutional transfers from A to B. Those decisions endorsed government intervention when private property use had veered to such an extreme that the public was suffering as a consequence. Today nearly all real property is susceptible to condemnation on the Court’s theory. In the prescient words of a dissenter from the infamous decision in Poletown, “[n]ow that we have authorized local legislative bodies to decide that a different commercial or industrial use of property will produce greater public benefits than its present use, no homeowner’s, merchant’s or manufacturer’s property, however productive or valuable to its owner, is immune from condemnation for the benefit of other private interests that will put it to a ‘higher’ use.” 410 Mich., at 644-645, 304 N.W.2d, at 464 (opinion of Fitzgerald, J.). This is why economic development takings “seriously jeopardiz[e] the security of all private property ownership.” Id., at 645, 304 N.W.2d, at 465 (Ryan, J., dissenting). Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random. The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms. As for the victims, the government now has license to transfer property from those with fewer resources to those with more. The Founders cannot have intended this perverse result. “[T]hat alone is a just government,” wrote James Madison, “which impartially secures to every man, whatever is his own.” For the National Gazette, Property (Mar. 27, 1792), reprinted in 14 Papers of James Madison 266 (R. Rutland et al. eds.1983). I would hold that the takings in both Parcel 3 and Parcel 4A are unconstitutional, reverse G A L E
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the judgment of the Supreme Court of Connecticut, and remand for further proceedings. Justice THOMAS, dissenting. Long ago, William Blackstone wrote that “the law of the land . . . postpone[s] even public necessity to the sacred and inviolable rights of private property.” 1 Commentaries on the Laws of England 134-135 (1765) (hereinafter Blackstone). The Framers embodied that principle in the Constitution, allowing the government to take property not for “public necessity,” but instead for “public use.” Amdt. 5. Defying this understanding, the Court replaces the Public Use Clause with a “ ‘[P] ublic [P]urpose’ ” Clause, ante, at 2662-2663 (or perhaps the “Diverse and Always Evolving Needs of Society” Clause, ante, at 2662 (capitalization added)), a restriction that is satisfied, the Court instructs, so long as the purpose is “legitimate” and the means “not irrational,” ante, at 2667 (internal quotation marks omitted). This deferential shift in phraseology enables the Court to hold, against all common sense, that a costly urban-renewal project whose stated purpose is a vague promise of new jobs and increased tax revenue, but which is also suspiciously agreeable to the Pfizer Corporation, is for a “public use.” I cannot agree. If such “economic development” takings are for a “public use,” any taking is, and the Court has erased the Public Use Clause from our Constitution, as Justice O’CONNOR powerfully argues in dissent. Ante, at 2671, 2675-2677. I do not believe that this Court can eliminate liberties expressly enumerated in the Constitution and therefore join her dissenting opinion. Regrettably, however, the Court’s error runs deeper than this. Today’s decision is simply the latest in a string of our cases construing the Public Use Clause to be a virtual nullity, without the slightest nod to its original meaning. In my view, the Public Use Clause, originally understood, is a meaningful limit on the government’s eminent domain power. Our cases have strayed from the Clause’s original meaning, and I would reconsider them. I
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, except in cases arising in the land or naval forces, or in the Militia, when in actual A M E R I C A N
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service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb, nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” (Emphasis added.)
It is the last of these liberties, the Takings Clause, that is at issue in this case. In my view, it is “imperative that the Court maintain absolute fidelity to” the Clause’s express limit on the power of the government over the individual, no less than with every other liberty expressly enumerated in the Fifth Amendment or the Bill of Rights more generally. Shepard v. United States, 544 U.S. 13, 28, 125 S.Ct. 1254, 1264, 161 L.Ed.2d 205 (2005) (THOMAS, J., concurring in part and concurring in judgment) (internal quotation marks omitted). Though one component of the protection provided by the Takings Clause is that the government can take private property only if it provides “just compensation” for the taking, the Takings Clause also prohibits the government from taking property except “for public use.” Were it otherwise, the Takings Clause would either be meaningless or empty. If the Public Use Clause served no function other than to state that the government may take property through its eminent domain power-for public or private uses-then it would be surplusage. See ante, at 2672 (O’CONNOR, J., dissenting); see also Marbury v. Madison, 1 Cranch 137, 174, 2 L.Ed. 60 (1803) (“It cannot be presumed that any clause in the constitution is intended to be without effect”); Myers v. United States, 272 U.S. 52, 151, 47 S.Ct. 21, 71 L.Ed. 160 (1926). Alternatively, the Clause could distinguish those takings that require compensation from those that do not. That interpretation, however, “would permit private property to be taken or appropriated for private use without any compensation whatever.” Cole v. La Grange, 113 U.S. 1, 8, 5 S.Ct. 416, 28 L.Ed. 896 (1885) (interpreting same language in the Missouri Public Use Clause). In other words, the Clause would require the government to compensate for takings done “for public use,” leaving it free to take property for purely private uses without the payment of compensation. This would contradict a bedrock principle well established by the time of the founding: that all takings required the payment of G A L E
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compensation. 1 Blackstone 135; 2 J. Kent, Commentaries on American Law 275 (1827) (hereinafter Kent); For the National Gazette, Property (Mar. 27, 1792), in 14 Papers of James Madison 266, 267 (R. Rutland et al. eds.1983) (arguing that no property “shall be taken directly even for public use without indemnification to the owner”).1 The Public Use Clause, like the Just Compensation Clause, is therefore an express limit on the government’s power of eminent domain. The most natural reading of the Clause is that it allows the government to take property only if the government owns, or the public has a legal right to use, the property, as opposed to taking it for any public purpose or necessity whatsoever. At the time of the founding, dictionaries primarily defined the noun “use” as “[t]he act of employing any thing to any purpose.” 2 S. Johnson, A Dictionary of the English Language 2194 (4th ed. 1773) (hereinafter Johnson). The term “use,” moreover, “is from the Latin utor, which means ‘to use, make use of, avail one’s self of, employ, apply, enjoy, etc.” J. Lewis, Law of Eminent Domain § 165, p. 224, n. 4 (1888) (hereinafter Lewis). When the government takes property and gives it to a private individual, and the public has no right to use the property, it strains language to say that the public is “employing” the property, regardless of the incidental benefits that might accrue to the public from the private use. The term “public use,” then, means that either the government or its citizens as a whole must actually “employ” the taken property. See id., at 223 (reviewing founding-era dictionaries). Granted, another sense of the word “use” was broader in meaning, extending to “[c] onvenience” or “help,” or “[q]ualities that make a thing proper for any purpose.” 2 Johnson 2194. Nevertheless, read in context, the term “public use” possesses the narrower meaning. Elsewhere, the Constitution twice employs the word “use,” both times in its narrower sense. Claeys, Public-Use Limitations and Natural 1
Some state constitutions at the time of the founding lacked just compensation clauses and took property even without providing compensation. See Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1056-1057, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992) (Blackmun, J., dissenting). The Framers of the Fifth Amendment apparently disagreed, for they expressly prohibited uncompensated takings, and the Fifth Amendment was not incorporated against the States until much later. See id., at 1028, n. 15, 112 S.Ct. 2886.
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Property Rights, 2004 Mich. St. L.Rev. 877, 897 (hereinafter Public Use Limitations). Article I, § 10, provides that “the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States,” meaning the Treasury itself will control the taxes, not use it to any beneficial end. And Article I, § 8, grants Congress power “[t]o raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years.” Here again, “use” means “employed to raise and support Armies,” not anything directed to achieving any military end. The same word in the Public Use Clause should be interpreted to have the same meaning. Tellingly, the phrase “public use” contrasts with the very different phrase “general Welfare” used elsewhere in the Constitution. See ibid. (“Congress shall have Power To . . . provide for the common Defence and general Welfare of the United States”); preamble (Constitution established “to promote the general Welfare”). The Framers would have used some such broader term if they had meant the Public Use Clause to have a similarly sweeping scope. Other founding-era documents made the contrast between these two usages still more explicit. See Sales, Classical Republicanism and the Fifth Amendment’s “Public Use” Requirement, 49 Duke L.J. 339, 367-368 (1999) (hereinafter Sales) (noting contrast between, on the one hand, the term “public use” used by 6 of the first 13 States and, on the other, the terms “public exigencies” employed in the Massachusetts Bill of Rights and the Northwest Ordinance, and the term “public necessity” used in the Vermont Constitution of 1786). The Constitution’s text, in short, suggests that the Takings Clause authorizes the taking of property only if the public has a right to employ it, not if the public realizes any conceivable benefit from the taking. The Constitution’s common-law background reinforces this understanding. The common law provided an express method of eliminating uses of land that adversely impacted the public welfare: nuisance law. Blackstone and Kent, for instance, both carefully distinguished the law of nuisance from the power of eminent domain. Compare 1 Blackstone 135 (noting government’s power to take private property with compensation) with 3 id., at 216 (noting action to remedy “public . . . nuisances, which G A L E
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affect the public, and are an annoyance to all the king’s subjects”); see also 2 Kent 274-276 (distinguishing the two). Blackstone rejected the idea that private property could be taken solely for purposes of any public benefit. “So great . . . is the regard of the law for private property,” he explained, “that it will not authorize the least violation of it; no, not even for the general good of the whole community.” 1 Blackstone 135. He continued: “If a new road . . . were to be made through the grounds of a private person, it might perhaps be extensively beneficial to the public; but the law permits no man, or set of men, to do this without the consent of the owner of the land.” Ibid. Only “by giving [the landowner] full indemnification” could the government take property, and even then “[t]he public [was] now considered as an individual, treating with an individual for an exchange.” Ibid. When the public took property, in other words, it took it as an individual buying property from another typically would: for one’s own use. The Public Use Clause, in short, embodied the Framers’ understanding that property is a natural, fundamental right, prohibiting the government from “tak[ing] property from A. and giv[ing] it to B.” Calder v. Bull, 3 Dall. 386, 388, 1 L.Ed. 648 (1798); see also Wilkinson v. Leland, 2 Pet. 627, 658, 7 L.Ed. 542 (1829); Vanhorne’s Lessee v. Dorrance, 2 Dall. 304, 311, 1 L.Ed. 391 (C.C. D.Pa.1795). The public purpose interpretation of the Public Use Clause also unnecessarily duplicates a similar inquiry required by the Necessary and Proper Clause. The Takings Clause is a prohibition, not a grant of power: The Constitution does not expressly grant the Federal Government the power to take property for any public purpose whatsoever. Instead, the Government may take property only when necessary and proper to the exercise of an expressly enumerated power. See Kohl v. United States, 91 U.S. 367, 371-372, 23 L.Ed. 449 (1876) (noting Federal Government’s power under the Necessary and Proper Clause to take property “needed for forts, armories, and arsenals, for navy-yards and light-houses, for customhouses, post-offices, and court-houses, and for other public uses”). For a law to be within the Necessary and Proper Clause, as I have elsewhere explained, it must bear an “obvious, simple, and direct relation” to an exercise of Congress’ enumerated powers, Sabri v. United A M E R I C A N
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States, 541 U.S. 600, 613, 124 S.Ct. 1941, 158 L. Ed.2d 891 (2004) (THOMAS, J., concurring in judgment), and it must not “subvert basic principles of” constitutional design, Gonzales v. Raich, ante, 545 U.S., at 65, 125 S.Ct. 2195, 162 L.Ed.2d 1 (2005) (THOMAS, J., dissenting). In other words, a taking is permissible under the Necessary and Proper Clause only if it serves a valid public purpose. Interpreting the Public Use Clause likewise to limit the government to take property only for sufficiently public purposes replicates this inquiry. If this is all the Clause means, it is, once again, surplusage. See supra, at 2678. The Clause is thus most naturally read to concern whether the property is used by the public or the government, not whether the purpose of the taking is legitimately public. II
Early American eminent domain practice largely bears out this understanding of the Public Use Clause. This practice concerns state limits on eminent domain power, not the Fifth Amendment, since it was not until the late 19th century that the Federal Government began to use the power of eminent domain, and since the Takings Clause did not even arguably limit state power until after the passage of the Fourteenth Amendment. See Note, The Public Use Limitation on Eminent Domain: An Advance Requiem, 58 Yale L.J. 599, 599-600, and nn. 3-4 (1949); Barron ex rel. Tiernan v. Mayor of Baltimore, 7 Pet. 243, 250251, 8 L.Ed. 672 (1833) (holding the Takings Clause inapplicable to the States of its own force). Nevertheless, several early state constitutions at the time of the founding likewise limited the power of eminent domain to “public uses.” See Sales 367-369, and n. 137 (emphasis deleted). Their practices therefore shed light on the original meaning of the same words contained in the Public Use Clause. States employed the eminent domain power to provide quintessentially public goods, such as public roads, toll roads, ferries, canals, railroads, and public parks. Lewis §§ 166, 168-171, 175, at 227-228, 234-241, 243. Though use of the eminent domain power was sparse at the time of the founding, many States did have so-called Mill Acts, which authorized the owners of grist mills operated by water power to flood upstream lands with the payment of compensation to the upstream landowner. See, e.g., id., § 178, at 245-246; Head v. Amoskeag Mfg. Co., 113 U.S. 9, G A L E
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16-19, and n. 2, 5 S.Ct. 441, 28 L.Ed. 889 (1885). Those early grist mills “were regulated by law and compelled to serve the public for a stipulated toll and in regular order,” and therefore were actually used by the public. Lewis § 178, at 246, and n. 3; see also Head, supra, at 18-19, 5 S.Ct. 441. They were common carriers-quasi-public entities. These were “public uses” in the fullest sense of the word, because the public could legally use and benefit from them equally. See Public Use Limitations 903 (common-carrier status traditionally afforded to “private beneficiaries of a state franchise or another form of state monopoly, or to companies that operated in conditions of natural monopoly”). To be sure, some early state legislatures tested the limits of their state-law eminent domain power. Some States enacted statutes allowing the taking of property for the purpose of building private roads. See Lewis § 167, at 230. These statutes were mixed; some required the private landowner to keep the road open to the public, and others did not. See id., § 167, at 230-234. Later in the 19th century, moreover, the Mill Acts were employed to grant rights to private manufacturing plants, in addition to grist mills that had common- carrier duties. See, e.g., M. Horwitz, The Transformation of American Law 17801860, pp. 51-52 (1977). These early uses of the eminent domain power are often cited as evidence for the broad “public purpose” interpretation of the Public Use Clause, see, e.g., ante, at 2662, n. 8 (majority opinion); Brief for Respondents 30; Brief for American Planning Assn. et al. as Amici Curiae 6-7, but in fact the constitutionality of these exercises of eminent domain power under state public use restrictions was a hotly contested question in state courts throughout the 19th and into the 20th century. Some courts construed those clauses to authorize takings for public purposes, but others adhered to the natural meaning of “public use.”2 As noted 2
Compare ante, at 2662, and n. 8 (majority opinion) (noting that some state courts upheld the validity of applying the Mill Acts to private purposes and arguing that the “‘use by the public’ test” “eroded over time”), with, e.g., Ryerson v. Brown, 35 Mich. 333, 338-339 (1877) (holding it “essential” to the constitutionality of a Mill Act “that the statute should require the use to be public in fact; in other words, that it should contain provisions entitling the public to accommodations”); Gaylord v. Sanitary Dist. of Chicago, 204 Ill. 576, 581-584, 68 N.E. 522, 524 (1903)
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above, the earliest Mill Acts were applied to entities with duties to remain open to the public, and their later extension is not deeply probative of whether that subsequent practice is consistent with the original meaning of the Public Use Clause. See McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 370, 115 S.Ct. 1511, 131 L.Ed.2d 426 (1995) (THOMAS, J., concurring in judgment). At the time of the founding, “[b]usiness corporations were only beginning to upset the old corporate model, in which the raison d’être of chartered associations was their service to the public,” Horwitz, supra, at 49-50, so it was natural to those who framed the first Public Use Clauses to think of mills as inherently public entities. The disagreement among state courts, and state legislatures’ attempts to circumvent public use limits on their eminent domain power, cannot obscure that the Public Use Clause is most naturally read to authorize takings for public use only if the government or the public actually uses the taken property. III
Our current Public Use Clause jurisprudence, as the Court notes, has rejected this natural reading of the Clause. Ante, at 2662-2664. The Court adopted its modern reading blindly, with little discussion of the Clause’s history and original meaning, in two distinct lines of cases: first, in cases adopting the “public purpose” interpretation of the Clause, and second, in cases deferring to legislatures’ judgments regarding what constitutes a valid public purpose. Those questionable cases converged in the boundlessly broad and deferential conception of “public use” adopted by this Court in Berman v. Parker, 348 U.S. 26, 75 S.Ct. 98, 99 L.Ed. 27 (1954), and Hawaii Housing Authority v. Midkiff, 467 U.S. (same); Tyler v. Beacher, 44 Vt. 648, 652-656 (1871) (same); Sadler v. Langham, 34 Ala. 311, 332-334 (1859) (striking down taking for purely private road and grist mill); Varner v. Martin, 21 W.Va. 534, 546-548, 556-557, 566-567 (1883) (grist mill and private road had to be open to public for them to constitute public use); Harding v. Goodlett, 11 Tenn. 41, 3 Yer. 41, 53 (1832); Jacobs v. Clearview Water Supply Co., 220 Pa. 388, 393-395, 69 A. 870, 872 (1908) (endorsing actual public use standard); Minnesota Canal & Power Co. v. Koochiching Co., 97 Minn. 429, 449-451, 107 N.W. 405, 413 (1906) (same); Chesapeake Stone Co. v. Moreland, 126 Ky. 656, 663-667, 104 S.W. 762, 765 (1907) (same); Note, Public Use in Eminent Domain, 21 N.Y.U.L. Q. Rev. 285, 286, and n. 11 (1946) (calling the actual public use standard the “majority view” and citing other cases).
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229, 104 S.Ct. 2321, 81 L.Ed.2d 186 (1984), cases that take center stage in the Court’s opinion. See ante, 2663-2664. The weakness of those two lines of cases, and consequently Berman and Midkiff, fatally undermines the doctrinal foundations of the Court’s decision. Today’s questionable application of these cases is further proof that the “public purpose” standard is not susceptible of principled application. This Court’s reliance by rote on this standard is ill advised and should be reconsidered. A
As the Court notes, the “public purpose” interpretation of the Public Use Clause stems from Fallbrook Irrigation Dist. v. Bradley, 164 U.S. 112, 161-162, 17 S.Ct. 56, 41 L.Ed. 369 (1896). Ante, at 2662-2663. The issue in Bradley was whether a condemnation for purposes of constructing an irrigation ditch was for a public use. 164 U.S., at 161, 17 S.Ct. 56. This was a public use, Justice Peckham declared for the Court, because “[t]o irrigate and thus to bring into possible cultivation these large masses of otherwise worthless lands would seem to be a public purpose and a matter of public interest, not confined to landowners, or even to any one section of the State.” Ibid. That broad statement was dictum, for the law under review also provided that “[a]ll landowners in the district have the right to a proportionate share of the water.” Id., at 162, 17 S.Ct. 56. Thus, the “public” did have the right to use the irrigation ditch because all similarly situated members of the public-those who owned lands irrigated by the ditch-had a right to use it. The Court cited no authority for its dictum, and did not discuss either the Public Use Clause’s original meaning or the numerous authorities that had adopted the “actual use” test (though it at least acknowledged the conflict of authority in state courts, see id., at 158, 17 S.Ct. 56; supra, at 2682, and n. 2). Instead, the Court reasoned that “[t]he use must be regarded as a public use, or else it would seem to follow that no general scheme of irrigation can be formed or carried into effect.” Bradley, supra, at 160-161, 17 S.Ct. 56. This is no statement of constitutional principle: Whatever the utility of irrigation districts or the merits of the Court’s view that another rule would be “impractical given the diverse and always evolving needs of society,” ante, at 2662, the Constitution does not embody those policy preferences any more A M E R I C A N
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than it “enact [s] Mr. Herbert Spencer’s Social Statics.” Lochner v. New York, 198 U.S. 45, 75, 25 S.Ct. 539, 49 L.Ed. 937 (1905) (Holmes, J., dissenting); but see id., at 58-62, 25 S.Ct. 539 (Peckham, J., for the Court). This Court’s cases followed Bradley’s test with little analysis. In Clark v. Nash, 198 U.S. 361, 25 S.Ct. 676, 49 L.Ed. 1085 (1905) (Peckham, J., for the Court), this Court relied on little more than a citation to Bradley in upholding another condemnation for the purpose of laying an irrigation ditch. 198 U.S., at 369-370, 25 S.Ct. 676. As in Bradley, use of the “public purpose” test was unnecessary to the result the Court reached. The government condemned the irrigation ditch for the purpose of ensuring access to water in which “[o]ther land owners adjoining the defendant in error . . . might share,” 198 U.S., at 370, 25 S.Ct. 676, and therefore Clark also involved a condemnation for the purpose of ensuring access to a resource to which similarly situated members of the public had a legal right of access. Likewise, in Strickley v. Highland Boy Gold Mining Co., 200 U.S. 527, 26 S.Ct. 301, 50 L.Ed. 581 (1906), the Court upheld a condemnation establishing an aerial right-ofway for a bucket line operated by a mining company, relying on little more than Clark, see Strickley, supra, at 531, 26 S.Ct. 301. This case, too, could have been disposed of on the narrower ground that “the plaintiff [was] a carrier for itself and others,” 200 U.S., at 531-532, 26 S.Ct. 301, and therefore that the bucket line was legally open to the public. Instead, the Court unnecessarily rested its decision on the “inadequacy of use by the general public as a universal test.” Id., at 531, 26 S.Ct. 301. This Court’s cases quickly incorporated the public purpose standard set forth in Clark and Strickley by barren citation. See, e.g., Rindge Co. v. County of Los Angeles, 262 U.S. 700, 707, 43 S.Ct. 689, 67 L.Ed. 1186 (1923); Block v. Hirsh, 256 U.S. 135, 155, 41 S.Ct. 458, 65 L.Ed. 865 (1921); Mt. Vernon-Woodberry Cotton Duck Co. v. Alabama Interstate Power Co., 240 U.S. 30, 32, 36 S.Ct. 234, 60 L.Ed. 507 (1916); O’Neill v. Leamer, 239 U.S. 244, 253, 36 S.Ct. 54, 60 L.Ed. 249 (1915). B
A second line of this Court’s cases also deviated from the Public Use Clause’s original meaning by allowing legislatures to define the scope of valid “public uses.” United States v. Gettysburg G A L E
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Electric R. Co., 160 U.S. 668, 16 S.Ct. 427, 40 L. Ed. 576 (1896), involved the question whether Congress’ decision to condemn certain private land for the purpose of building battlefield memorials at Gettysburg, Pennsylvania, was for a public use. Id., at 679-680, 16 S.Ct. 427. Since the Federal Government was to use the lands in question, id., at 682, 16 S.Ct. 427, there is no doubt that it was a public use under any reasonable standard. Nonetheless, the Court, speaking through Justice Peckham, declared that “when the legislature has declared the use or purpose to be a public one, its judgment will be respected by the courts, unless the use be palpably without reasonable foundation.” Id., at 680, 16 S.Ct. 427. As it had with the “public purpose” dictum in Bradley, the Court quickly incorporated this dictum into its Public Use Clause cases with little discussion. See, e.g., United States ex rel. TVA v. Welch, 327 U.S. 546, 552, 66 S.Ct. 715, 90 L.Ed. 843 (1946); Old Dominion Land Co. v. United States, 269 U.S. 55, 66, 46 S.Ct. 39, 70 L.Ed. 162 (1925). There is no justification, however, for affording almost insurmountable deference to legislative conclusions that a use serves a “public use.” To begin with, a court owes no deference to a legislature’s judgment concerning the quintessentially legal question of whether the government owns, or the public has a legal right to use, the taken property. Even under the “public purpose” interpretation, moreover, it is most implausible that the Framers intended to defer to legislatures as to what satisfies the Public Use Clause, uniquely among all the express provisions of the Bill of Rights. We would not defer to a legislature’s determination of the various circumstances that establish, for example, when a search of a home would be reasonable, see, e.g., Payton v. New York, 445 U.S. 573, 589-590, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), or when a convicted doublemurderer may be shackled during a sentencing proceeding without on-the-record findings, see Deck v. Missouri, 544 U.S. 622, 125 S.Ct. 2007, 161 L.Ed.2d 953 (2005), or when state law creates a property interest protected by the Due Process Clause, see, e.g., Castle Rock v. Gonzales, post, 545 U.S. 748, 125 S.Ct. 2796, 162 L.Ed.2d 658, 2005 WL 1499788 (2005); Board of Regents of State Colleges v. Roth, 408 U.S. 564, 576, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); Goldberg v. Kelly, 397 U.S. 254, 262-263, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970). A M E R I C A N
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Still worse, it is backwards to adopt a searching standard of constitutional review for nontraditional property interests, such as welfare benefits, see, e.g., Goldberg, supra, while deferring to the legislature’s determination as to what constitutes a public use when it exercises the power of eminent domain, and thereby invades individuals’ traditional rights in real property. The Court has elsewhere recognized “the overriding respect for the sanctity of the home that has been embedded in our traditions since the origins of the Republic,” Payton, supra, at 601, 100 S.Ct. 1371, when the issue is only whether the government may search a home. Yet today the Court tells us that we are not to “second-guess the City’s considered judgments,” ante, at 2668, when the issue is, instead, whether the government may take the infinitely more intrusive step of tearing down petitioners’ homes. Something has gone seriously awry with this Court’s interpretation of the Constitution. Though citizens are safe from the government in their homes, the homes themselves are not. Once one accepts, as the Court at least nominally does, ante, at 2661, that the Public Use Clause is a limit on the eminent domain power of the Federal Government and the States, there is no justification for the almost complete deference it grants to legislatures as to what satisfies it. C
These two misguided lines of precedent converged in Berman v. Parker, 348 U.S. 26, 75 S.Ct. 98, 99 L.Ed. 27 (1954), and Hawaii Housing Authority v. Midkiff, 467 U.S. 229, 104 S.Ct. 2321, 81 L.Ed.2d 186 (1984). Relying on those lines of cases, the Court in Berman and Midkiff upheld condemnations for the purposes of slum clearance and land redistribution, respectively. “Subject to specific constitutional limitations,” Berman proclaimed, “when the legislature has spoken, the public interest has been declared in terms wellnigh conclusive. In such cases the legislature, not the judiciary, is the main guardian of the public needs to be served by social legislation.” 348 U.S., at 32, 75 S.Ct. 98. That reasoning was question begging, since the question to be decided was whether the “specific constitutional limitation” of the Public Use Clause prevented the taking of the appellant’s (concededly “nonblighted”) department store. Id., at 31, 34, 75 S.Ct. 98. Berman also appeared to reason that any exercise by Congress of an enumerated power (in this case, its plenary G A L E
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power over the District of Columbia) was per se a “public use” under the Fifth Amendment. Id., at 33, 75 S.Ct. 98. But the very point of the Public Use Clause is to limit that power. See supra, at 2679. More fundamentally, Berman and Midkiff erred by equating the eminent domain power with the police power of States. See Midkiff, supra, at 240, 104 S.Ct. 2321 (“The ‘public use’ requirement is . . . coterminous with the scope of a sovereign’s police powers”); Berman, supra, at 32, 75 S.Ct. 98. Traditional uses of that regulatory power, such as the power to abate a nuisance, required no compensation whatsoever, see Mugler v. Kansas, 123 U.S. 623, 668669, 8 S.Ct. 273, 31 L.Ed. 205 (1887), in sharp contrast to the takings power, which has always required compensation, see supra, at 2679, and n. 1. The question whether the State can take property using the power of eminent domain is therefore distinct from the question whether it can regulate property pursuant to the police power. See, e.g., Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1014, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992); Mugler, supra, at 668669, 8 S.Ct. 273. In Berman, for example, if the slums at issue were truly “blighted,” then state nuisance law, see, e.g., supra, at 2680; Lucas, supra, at 1029, 112 S.Ct. 2886, not the power of eminent domain, would provide the appropriate remedy. To construe the Public Use Clause to overlap with the States’ police power conflates these two categories.3 The “public purpose” test applied by Berman and Midkiff also cannot be applied in principled manner. “When we depart from the natural import of the term ‘public use,’ and substitute for the simple idea of a public possession and occupation, that of public utility,
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Some States also promoted the alienability of property by abolishing the feudal “quit rent” system, i.e., long-term leases under which the proprietor reserved to himself the right to perpetual payment of rents from his tenant. See Vance, The Quest for Tenure in the United States, 33 Yale L. J. 248, 256-257, 260-263 (1923). In Hawaii Housing Authority v. Midkiff, 467 U.S. 229, 104 S.Ct. 2321, 81 L. Ed.2d 186 (1984), the Court cited those state policies favoring the alienability of land as evidence that the government’s eminent domain power was similarly expansive, see id., at 241-242, and n. 5, 104 S.Ct. 2321. But they were uses of the States’ regulatory power, not the takings power, and therefore were irrelevant to the issue in Midkiff. This mismatch underscores the error of conflating a State’s regulatory power with its taking power.
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public interest, common benefit, general advantage or convenience . . . we are afloat without any certain principle to guide us.” Bloodgood v. Mohawk & Hudson R. Co., 18 Wend. 9, 60-61 (N.Y.1837) (opinion of Tracy, Sen.). Once one permits takings for public purposes in addition to public uses, no coherent principle limits what could constitute a valid public use-at least, none beyond Justice O’CONNOR’s (entirely proper) appeal to the text of the Constitution itself. See ante, at 2671, 2675-2677 (dissenting opinion). I share the Court’s skepticism about a public use standard that requires courts to second-guess the policy wisdom of public works projects. Ante, at 2666-2668. The “public purpose” standard this Court has adopted, however, demands the use of such judgment, for the Court concedes that the Public Use Clause would forbid a purely private taking. Ante, at 2661-2662. It is difficult to imagine how a court could find that a taking was purely private except by determining that the taking did not, in fact, rationally advance the public interest. Cf. ante, at 2675-2676 (O’CONNOR, J., dissenting) (noting the complicated inquiry the Court’s test requires). The Court is therefore wrong to criticize the “actual use” test as “difficult to administer.” Ante, at 2662. It is far easier to analyze whether the government owns or the public has a legal right to use the taken property than to ask whether the taking has a “purely private purpose”—unless the Court means to eliminate public use scrutiny of takings entirely. Ante, at 2661-2662, 26672668. Obliterating a provision of the Constitution, of course, guarantees that it will not be misapplied. For all these reasons, I would revisit our Public Use Clause cases and consider returning to the original meaning of the Public Use Clause: that the government may take property only if it actually uses or gives the public a legal right to use the property. IV
The consequences of today’s decision are not difficult to predict, and promise to be harmful. So-called “urban renewal” programs provide some compensation for the properties they take, but no compensation is possible for the subjective value of these lands to the individuals displaced and the indignity inflicted by uprooting them from their homes. Allowing the government to take property solely for public purposes G A L E
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is bad enough, but extending the concept of public purpose to encompass any economically beneficial goal guarantees that these losses will fall disproportionately on poor communities. Those communities are not only systematically less likely to put their lands to the highest and best social use, but are also the least politically powerful. If ever there were justification for intrusive judicial review of constitutional provisions that protect “discrete and insular minorities,” United States v. Carolene Products Co., 304 U.S. 144, 152, n. 4, 58 S.Ct. 778, 82 L.Ed. 1234 (1938), surely that principle would apply with great force to the powerless groups and individuals the Public Use Clause protects. The deferential standard this Court has adopted for the Public Use Clause is therefore deeply perverse. It encourages “those citizens with disproportionate influence and power in the political process, including large corporations and development firms,” to victimize the weak. Ante, at 2677 (O’CONNOR, J., dissenting). Those incentives have made the legacy of this Court’s “public purpose” test an unhappy one. In the 1950’s, no doubt emboldened in part by the expansive understanding of “public use” this Court adopted in Berman, cities “rushed to draw plans” for downtown development. B. Frieden & L. Sagalyn, Downtown, Inc. How America Rebuilds Cities 17 (1989). “Of all the families displaced by urban renewal from 1949 through 1963, 63 percent of those whose race was known were nonwhite, and of these families, 56 percent of nonwhites and 38 percent of whites had incomes low enough to qualify for public housing, which, however, was seldom available to them.” Id., at 28, 75 S.Ct. 98. Public works projects in the 1950’s and 1960’s destroyed predominantly minority communities in St. Paul, Minnesota, and Baltimore, Maryland. Id., at 28-29, 75 S.Ct. 98. In 1981, urban planners in Detroit, Michigan, uprooted the largely “lower-income and elderly” Poletown neighborhood for the benefit of the General Motors Corporation. J. Wylie, Poletown: Community Betrayed 58 (1989). Urban renewal projects have long been associated with the displacement of blacks; “[i]n cities across the country, urban renewal came to be known as ‘Negro removal.’” Pritchett, The “Public Menace” of Blight: Urban Renewal and the Private Uses of Eminent Domain, 21 Yale L. & Pol'y Rev. 1, 47 (2003). Over 97 percent of the individuals forcibly removed from their homes A M E R I C A N
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by the “slum-clearance” project upheld by this Court in Berman were black. 348 U.S., at 30, 75 S.Ct. 98. Regrettably, the predictable consequence of the Court’s decision will be to exacerbate these effects. *** The Court relies almost exclusively on this Court’s prior cases to derive today’s farreaching, and dangerous, result. See ante, at 2662-2664. But the principles this Court should employ to dispose of this case are found in the Public Use Clause itself, not in Justice Peckham’s
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high opinion of reclamation laws, see supra, at 2683. When faced with a clash of constitutional principle and a line of unreasoned cases wholly divorced from the text, history, and structure of our founding document, we should not hesitate to resolve the tension in favor of the Constitution’s original meaning. For the reasons I have given, and for the reasons given in Justice O’CONNOR’s dissent, the conflict of principle raised by this boundless use of the eminent domain power should be resolved in petitioners’ favor. I would reverse the judgment of the Connecticut Supreme Court.
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